Gujarat High Court

Kukabhai Rupabhai Bariya vs Arjunbhai Nathiyabhai Rathod on 14 December, 2022

Bench: Hemant M. Prachchhak

     C/FA/5041/2018                             JUDGMENT DATED: 14/12/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 5041 of 2018


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

=======================================
1 Whether Reporters of Local Papers may be No
  allowed to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair                    No
      copy of the judgment ?

4     Whether this case involves a substantial                        No
      question of law as to the interpretation of the
      Constitution of India or any order made
      thereunder ?

=======================================
          KUKABHAI RUPABHAI BARIYA & 1 other(s)
                         Versus
        ARJUNBHAI NATHIYABHAI RATHOD & 2 other(s)
=======================================
Appearance:
for the Appellant(s) No. 2
MR DUSHYANT BHATT FOR MR PM DAVE(263) for the Appellant(s) No.1
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
=======================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK



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      C/FA/5041/2018                         JUDGMENT DATED: 14/12/2022




                       Date : 14/12/2022

                        ORAL JUDGMENT

1. This appeal is filed by the appellants - claimants seeking

enhancement of the compensation amount awarded by the

Motor Accident Claims Tribunal (Main), Dahod (hereinafter

referred to as "the Tribunal") vide impugned judgment and award

dated 20.03.2017 passed in M.A.C.P. No. 110 of 2014, whereby

the Tribunal has partly allowed the claim petition.

2. Brief facts of the present case are that on 21.03.2014,

Nareshbhai Kukabhai Bariya and Rakeshbhai Pratapbhai Bariya

were going to their field by walking and at about 21.30 hours,

when they were passing on the road near Padav Faliya of Village:

Jhari-Khareli, a tractor bearing registration No.MP-45-AA-1778

came in rash and negligent manner hit Nareshbhai, who was

walking on the side of the road, as a result of which, he

succumbed to the fatal injuries. Hence, the parents of the

deceased i.e. appellants - original claimants have filed claim

petition before the Tribunal. The Tribunal, after evaluating the

pleadings and evidence tendered by the parties, partly allowed

C/FA/5041/2018 JUDGMENT DATED: 14/12/2022

the claim petition and awarded a sum of Rs.2,04,500/- under the

different heads as against the claim of Rs.15,00,000/-.

3. It came to be held by the Tribunal that said amount was

ordered to be awarded to the deponents. Not being satisfied with

the compensation amount, this appeal has been filed.

4. Heard Mr.Bhatt, learned counsel for Mr.Dave, learned

counsel appearing for the appellants and Mr.Shah, learned

counsel appearing for the respondent - Insurance Company.

Though served, the rest of the respondents have chosen not to

appear before the court.

5. Mr.Bhatt, learned counsel appearing for the appellants has

submitted the same facts which are narrated in the memo of

appeal. He has submitted that the Tribunal has not properly

awarded just and adequate compensation as per the decisions of

the Hon'ble Supreme Court in the case of Sarla Verma and

others Vs. Delhi Transport Corporation and another,

(2009) 6 SCC 121 and National Insurance Company

C/FA/5041/2018 JUDGMENT DATED: 14/12/2022

Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680.

He has relied upon the decision of the Hon'ble Supreme Court in

the case of Meena Devi Vs. Nunu Chand Mahto @

Nemchand Mahto, reported in AIR 2022 SC 5006, He has

submitted that the Tribunal has not properly appreciated the

income of the deceased while determining the amount of

compensation. He has also submitted that though the deceased

was earning Rs.7,000/- per month by doing masonry work and

also agriculture work, the Tribunal has, while relying upon the

second schedule for non-earning person, considered the notional

income of the deceased at Rs.1,000/- and, therefore, the

impugned award is required to be modified. He has submitted

that the appeal deserves to be allowed.

6. As against that, Mr.Shah, learned counsel appearing for

respondent - Insurance Company has supported the impugned

judgment and award passed by the Tribunal. He has submitted

that though the deceased was minor, no any documentary

evidence with regard to his age was produced on record and, so

the Tribunal has rightly considered 17 years of age of the

C/FA/5041/2018 JUDGMENT DATED: 14/12/2022

deceased on the basis of the postmortem report at Exhibit 25

and considering the said facts, the deceased was being minor

and no income would be considered. He has submitted that so

far as the income of the deceased is concerned, there is no

cogent and proper proof or evidence led by the appellants about

the income of the deceased and even the multiplier applied by

the Tribunal is just and proper and, therefore, no interference is

called for.

7. The controversy involved in the present appeal is to the

effect that whether the Tribunal has committed an error while

determining the income of the deceased and whether the

impugned judgment and award passed by the Tribunal is in

consonance with the settled principles of law or not.

8. Having considered the averments made in the appeal,

submissions made by the learned counsel appearing for both the

sides and considered the facts of the case and perused the

record and proceedings, the appellants are the parents of the

deceased Nireshbhai, who was aged about 17 years at the time

C/FA/5041/2018 JUDGMENT DATED: 14/12/2022

of accident. Considering the notional income as per the the

decision of the Hon'ble Apex Court in the case of Meena Devi

(supra), this Court is of the considered opinion that accepting the

notional earning Rs.30,000/- including future prospect and

applying the multiplier of 18 in view of the decision of the

Hon'ble Supreme Court in the case of Sarla Verma (supra), the

loss of dependency comes to Rs.5,40,000/-. Therefore, the

impugned judgment and award deserves to be modified to the

extent.

9. In the case of Meena Devi (supra), the Hon'ble Supreme

Court has held and observed in paragraph no.12 as under:-

"12. In view of the foregoing decisions, it is apparent that in the cases of child death, the notional income of Rs.15,000/- as specified in the IInd Schedule of M.V. Act has been enhanced on account of devaluation of money and value of rupee coming down from the date on which the IInd Schedule of M.V. Act was introduced and the said notional income was treated as Rs.30,000/- in the case of Kishan Gopal (supra) and Rs.25,000/- in Kurvan Ansari (supra) in age group of 10 and 7

C/FA/5041/2018 JUDGMENT DATED: 14/12/2022

years respectively."

10. Considering the decisions of the Hon'ble Supreme Court in

the case of Magma General Insurance Company Limited Vs.

Nanu Ram alias Chuhru Ram and others reported in (2018)

18 SCC 130, United India Insurance Company Limited Vs.

Satinder Kaur alias Satwinder Kaur and others reported in

AIR 2020 SC 3076 and New India Assurance Co. Ltd. Vs.

Smt. Somwati and others, reported in (2020) 9 SCC 644, the

appellants entitled to get loss of consortium.

11. Considering the ratio laid down by the Hon'ble Supreme

Court in the case of Sarla Verma (supra) and Pranay Sethi

(supra), I am of the considered opinion that the appellants are

entitled to get additional amount of compensation considering

the notional income of the deceased and appeal requires to be

allowed and the impugned judgment and award requires to be

substituted by enhancing the amount of compensation and,

therefore, the compensation is enhanced under the following

heads:-

C/FA/5041/2018 JUDGMENT DATED: 14/12/2022

Rs.30,000 x 18 multiplier = Rs.5,40,000 + Rs.7,56,000.00 Rs.2,16,000 (40% rise) Parental consortium appellant no.1 Rs.40,000.00 Parental consortium appellant no.2 Rs.40,000.00 Loss of Estate Rs.15,000.00 Funeral expenses Rs.15,000.00 Total compensation Rs.8,66,000.00 Less: Compensation awarded by the Tribunal Rs.2,04,500.00 Additional compensation Rs.6,61,500.00

Accordingly a sum of Rs.6,61,500/- as additional

compensation requires to be awarded towards future loss of

income, which is just and reasonable compensation and the

same is awarded in addition to Rs.2,04,500/- awarded by the

Tribunal. However, the appellants are entitled to the enhanced

amount of compensation of Rs.6,61,500/- along with interest at

the rate of 6% from the date of application till its realization.

12. For the foregoing reasons, the appeal is allowed in part.

The judgment and award dated 20.03.2017 passed by the Motor

Accident Claims Tribunal is hereby modified and in addition to

what has been awarded by the Tribunal, a sum of Rs.6,61,500/-

as additional amount with interest at the rate of 6% per annum is