Gujarat High Court
Rajeshbhai Muljibhai Vasava vs Keharsing Bansi Bajaniya on 31 January, 2023
Author: Gita Gopi
Bench: Gita Gopi
C/FA/5167/2019 JUDGMENT DATED: 31/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5167 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAJESHBHAI MULJIBHAI VASAVA
Versus
KEHARSING BANSI BAJANIYA
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1,2
MS. NIYATI K JUTHANI(7014) for the Defendant(s) No. 3
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/01/2023
ORAL JUDGMENT
1. The appellants are the original claimants who have lost their minor son Jayesh, aged about 8 years in a vehicler accident, which had occurred on 27.2.2011. The Tribunal by judgment and award dated 11.12.2018 passed Page 1 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 in MACP no.36/14 had granted Rs.4 lacs as compensation with 9% interest.
2. Mr. Dwivedi submits that though the learned Tribunal has referred to the judgment of Kishan Gopal & Anr. v. Lala & Ors., (2014) 1 SCC 244, the Tribunal has not followed the same and has granted lumpsum amount of Rs.4 lacs which is erroneous as the learned Tribunal was required to consider the case with notional income at Rs.30,000/- and accordingly, was required to apply multiplier to assess the loss of dependency. It is stated that the claimants as parents were entitled for consortium amount which the Tribunal has failed to grant and thus, Mr. Dwivedi submits that the claimants as parents are before this Court for enhancement of the compensation money.
3. On behalf of Oriental Insurance Company Ltd.-respondent no.3, Ms. Juthani has Page 2 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 supported the judgment and award and has stated that reasonable amount has been granted which should be considered as just and proper taking into consideration the age of the child of 8 years since he is non- earning member of the family and submitted that praying for compensation under conventional head as consortium money is not just and proper in view of the judgment in Meena Devi v. Nunu Chand Mahto @ Nemchand Mahto, reported in (2023) 1 SCC 204.
4. The facts of the case suggest that on 27.2.2011, minor Jayesh was traveling along with his parents towards Karjan by riding as pillion rider on motorcycle no. GJ-06 DN- 1661, which was driven by the claimant no.1, his father on the left side of the road and when they reached near the place of occurrence, opponent no.1 came from behind driving tempo bearing registration no. GJ-03 Page 3 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 Y-9295 in a rash and negligent manner in very full speed and dashed the rear side of the motorcycle. As a result of the accident, minor Jayesh received bodily injuries and succumbed to death on the place of accident.
5. The father was examined at Exh.16 and had supported his case by way of FIR, Panchnama, postmortem note, inquest Panchnama, birth certificate of the, death certificate of the deceased, school leaving certificate and charge-sheet papers, photocopy of the offending tempo captured in CCTV camera at Toll Plaza. The insurance policy was placed at Exh.18 and the copy of the report of investigator of the insurance Company along with extract of driving license of opponent no.1 was adduced in evidence at Exh.19. The Tribunal, thus, considered opponent no.1 as solely liable for the accident. Page 4 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023
6. The learned Tribunal has referred to various judgments of the Courts and has also referred to the case of Kishan Gopal (supra) and has granted lumpsum amount of Rs.4 lacs for the death of the son aged about 8 years.
7. The principles laid down in Lata Wadhwa & Ors. v. State of Bihar & Ors., reported in (2001) 8 SCC 197 was made applicable when it was observed that the compensation determined for the children of all age group could be doubled of what is stated under Second Schedule of the M.V. Act as the determination made was grossly inadequate and that the loss of a children is irrecoupable and no amount of money could compensate the parents. The legal principles laid down in Lata Wadhwa (supra) was made applicable to the facts of the case in Kishan Gopal (supra) and thus, it was considered as just and reasonable to take Page 5 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 notional income of Rs.30,000/- and applying multiplier as laid down in Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, the Hon'ble Apex Court in Kishan Gopal (supra) has observed as under:-
"In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 =4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTS v. Susamma Thomas, which is referred to in Lata Wadhwa's case and the said amount under the conventional heads is Page 6 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants."
8. In Kurvan Ansari @ Kurvan Ali & Anr. v.
Shyam Kishore Murmu & Anr., (2022) 1 SCC 317, the Hon'ble Apex Court referring to the judgment of Puttamma v. K.L. Narayana Reddy, (2013) 15 SCC 45, R.K. Malik, (2009) 14 SCC 1 and Kishan Gopal (supra) were of the view that it was necessary to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living.
9. The notional income of a child aged about 10 years was considered as Rs.10,000/-. Here in Page 7 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 this case, the deceased minor was aged about 8 years and accordingly, the present case being consistent with the observations made in Kishan Gopal (supra) accepting the notional earning as Rs.30,000/- and the multiplier specified in second column of the Second Schedule of the M.V. Act and in view of the decision of Hon'ble Supreme Court in Sarla Verma (supra), loss of dependency would come to Rs.4,50,000/-.
10. As both the parents have lost their child, parents would be entitled for filial consortium.
11. In the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, it has been observed as under:-
"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under Page 8 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.
With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979) Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the Page 9 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head Page 10 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023 C/FA/5167/2019 JUDGMENT DATED: 31/01/2023 of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."
12. The claimants, thus, would be entitled for consortium money of Rs.40,000/- per head. Thus, in total the claimants are entitled to Rs.80,000/- under the head of loss of consortium and in view of the judgment in National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the claimants are entitled to receive Rs.15,000/- under the head of loss of estate and funeral expenses of Rs.15,000/-. Thus, the amount to be granted under various heads would be as under:-
Loss of dependency Rs.4,50,000/- Loss of consortium Rs.80,000/-
Loss of estate Rs.15,000/-
Funeral expenses Rs.15,000/-
Total Rs.5,60,000/-
13. As the Tribunal has granted Rs.4 lacs as
compensation money at the rate of 9%
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C/FA/5167/2019 JUDGMENT DATED: 31/01/2023
interest, the appellants would be entitled to enhanced amount of compensation of Rs.1,60,000/- at the rate of 7.5% interest per annum. The insurance Company is directed to deposit Rs.1,60,000/- with interest at the rate of 7.5% per annum within eight weeks from the date of receipt of writ of this Court. The award be modified accordingly. The appeal is partly allowed.
Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 12 of 12 Downloaded on : Thu Feb 02 20:46:23 IST 2023