Gujarat High Court
Suhana Asharf Khalpa vs Dharasing Arjunlal Gurjar on 4 October, 2021
Bench: A.G.Uraizee
C/FA/2788/2021 ORDER DATED: 04/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2788 of 2021
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SUHANA ASHARF KHALPA
Versus
DHARASING ARJUNLAL GURJAR
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 04/10/2021
ORAL ORDER
1. Heard Mr.Hiren Modi, learned advocate for the
appellant claimant and Mr.Rathin Raval, learned advocate
for respondent No.3 - insurance company.
2. The present appeal under section 173 of the
Motor Vehicles Act is preferred for enhancement of the
compensation awarded to the appellant claimant by the
Tribunal vide judgment and award dated 5.11.2019
rendered in Motor Accident Claims Petition No.655 of
2016.
3. Considering the issue which moves in narrow
compass, with the consent of learned advocates for the
parties, the appeal is taken up for final disposal at the
admission stage.
C/FA/2788/2021 ORDER DATED: 04/10/2021
4. Since the issue of enhancement of quantum of
compensation is involved in the present appeal, presence
of the driver and owner of offending vehicles is not
necessary.
5. Mr.Modi, learned advocate for the appellant
submits that income of the minor deceased is considered
at very lower side by the Tribunal in the facts and
circumstances of the case. According to his submission,
the Tribunal ought to have considered Rs.3400/- as
monthly income of the deceased. It is his further
submission that after deducting 50% towards personal
expenses of the deceased, datum figure of Rs.1600/-
ought to have been considered by the Tribunal. He further
submits that the Tribunal has not awarded any
compensation under the conventional heads of loss of
consortium and love and affection. He, therefore, urges
that the Tribunal ought to have awarded at least
Rs.40,000/- including Rs.15,000/- towards funeral
expenses under the conventional head. He, therefore,
submits that award of the Tribunal may be modified
accordingly by enhancing compensation awarded to the
claimants.
6. Mr.Rathin Raval, learned advocate for the
insurance company has supported the impugned
C/FA/2788/2021 ORDER DATED: 04/10/2021
judgment and award. He stoutly submitted that the
Tribunal has not committed any error in assessing monthly
income of the deceased who was minor at the time of
accident. According to his submission, the Tribunal has
also not committed any error in adopting multiplier, as
also considering the age of the deceased, the Tribunal has
not committed any error in not awarding compensation
under the head of conventional compensation. He,
therefore, submits that the appeal may be dismissed.
7. I have considered rival submissions and have
also perused the impugned judgment and award.
8. It is undisputed fact which emerges from the
impugned judgment that the deceased was aged three
years at the time of accident and therefore, non-earning
person. It is always difficult to assess income of non-
earning person, that too of a minor victim. Under such
circumstances, task of the Tribunal becomes very honours
in assessing monthly income of the deceased minor
victim. The Tribunal has therefore to do some guess work
to determine reasonable notional income of the minor
victim of the motor vehicular accident. As per the settled
proposition of law that for assessing the notional income
of the minor victim, the Tribunal has to take into
inconsideration the attendant facts such as family
background of the minor victim. Considering overall facts,
C/FA/2788/2021 ORDER DATED: 04/10/2021
more particularly, year of the accident i.e. 2016, I am of
the considered view that the Tribunal ought to have
assessed Rs.3200/- as notional income of the deceased
instead of Rs.1250/- per month. This datum figure needs
to be reduced by 50% to determine dependency benefits
of the appellant.
9. The Tribunal has adopted multiplier of 15.
However, considering the age of the deceased, proper
multiplier, in my view, would be 18. Moreover, it is rightly
submitted by Mr.Modi that the Tribunal has not awarded
any compensation under the conventional head.
Therefore, considering the facts of the case, ends of
justice would meet if Rs.40,000/- is awarded towards
conventional amount including Rs.15,000/- for last rites.
10. In view of the foregoing discussion,
compensation awarded by the Tribunal is required to be
revised as under.
Awarded by learned Tribunal Revised calculation
Monthly income Rs.1250/- Rs.3200/-
Personal expenses deduction - Nil Rs.3200 - 1600 = Rs.1600/-
Loss of dependency - Rs.1250 x 15 x Rs.1600 x 12 x 18 = Rs.3,45,600/-
12 = Rs.2,25,000/-
Conventional amount - Rs.15000/- Rs.40,000/- including Rs.15000/- for
for last rites last rites.
Total : Rs.2,40,000/- Rs.3,85,600/-
11. The appellant is therefore entitled to
C/FA/2788/2021 ORDER DATED: 04/10/2021
Rs.1,45,600/- (Rs.3,85,600 - Rs.2,40,000) as additional
compensation. Considering overall facts of the case, ends
of justice would be met if 6% interest is awarded at the
enhanced amount of compensation.
12. In view of the above, the appeal is allowed. The
judgment and award dated 5.11.2019 passed by the Motor
Accident Claims Tribunal (Auxi.), Panchmahal at Godhra in
Motor Accident Claim Petition No.655 of 2016 is hereby
modified and the appellant - claimant is entitled to
Rs.3,85,600/- as compensation in place of Rs.2,40,000/- as
awarded by the Tribunal. Accordingly, the claimant is
entitled to Rs.1,45,600/- as additional compensation with
6% interest with proportionate costs.
13. The insurance company is directed to deposit
the amount of enhanced compensation in the Tribunal
within six weeks from the date of receipt of a copy of this
order.
14. Parties are left to bear their own costs.
(A.G.URAIZEE, J)
H.M. PATHAN
