Gujarat High Court

Dhanjibhai Bhagwanbhai Tadvi ... vs Kanubhai Ramanbhai Patel on 14 December, 2022

Bench: Aniruddha P. Mayee

     C/FA/1903/2018                               JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1903 of 2018


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                              Sd/-
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1    Whether Reporters of Local Papers may be allowed                    No
     to see the judgment ?

2    To be referred to the Reporter or not ?                             No

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

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

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DHANJIBHAI BHAGWANBHAI TADVI (LEGAL HEIRS OF AKSHAYKUMAR
                DHANJIBHAI TADVI) & 1 other(s)
                          Versus
            KANUBHAI RAMANBHAI PATEL & 2 other(s)
================================================================
Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
                      Date : 14/12/2022
                     ORAL JUDGMENT

The present First Appeal is filed against the impugned

judgment and award dated 19.12.2017 passed by the

M.A.C.Tribunal (Main), Narmada at Rajpipla, in M.A.C.Petition

No.249 of 2015.

       C/FA/1903/2018                          JUDGMENT DATED: 14/12/2022




2.      The brief facts of the case are as under:


2.1     That on 31.7.2015, the deceased and the complainant were

riding a motorcycle and going towards Vadodara when Hyundai

Assent car being driven rashly and negligently rammed into the

motorcycle of the complainant. In the said accident, deceased

Akshaykumar Dhanjibhai Tadvi succumbed to the injuries while

undergoing treatment. The age of the deceased as per the Birth

Certificate produced on record was 17 years. Accordingly, claim

petition came to be filed in the M.A.C.Tribunal (Main), Narmada

at Rajpipla claiming an amount of Rs.20,00,000/- towards

compensation.

2.2 Both the parties led evidence in support of their case. By

reasoned judgment and award dated 19.12.2017, the learned

Tribunal awarded a lump sum compensation of Rs.1,89,000/-

along with 9% interest per annum from the date of the claim

petition till realization.

2.3 Aggrieved, the heirs of the deceased have preferred the

present First Appeal.

3. Mr. Essa Hakim, learned advocate for the appellants

C/FA/1903/2018 JUDGMENT DATED: 14/12/2022

submitted that the deceased was a young boy of 17 years and

was a promising young boy. Therefore, the income of the

deceased ought to have been assessed properly. He submits that

by the impugned judgment and award, the compensation so

granted is grossly inadequate and not just and proper in the

facts and circumstances of the present case.

4. Per contra, Ms. Kirti Pathak, learned advocate for the

respondent No.3 - insurance company submitted that the

learned Tribunal has properly appreciated the evidence on

record and thereafter assessed the compensation. She submits

that the annual income assessed at Rs.15,000/- is just and

proper and based on that, the learned Tribunal has

appropriately awarded Rs.1,89,000/- towards compensation.

She submits that the impugned judgment and award is in

accordance with law and need not be interfered with.

5. Head learned advocates for the parties and perused the

evidence on record.

6. The deceased was aged 17 years. The Hon'ble Supreme

Court in S.L.P.(Civil) No.5345 of 2019 - Meena Devi v. Nunu

C/FA/1903/2018 JUDGMENT DATED: 14/12/2022

Chand Mahto @ Nemchand Mahto & Ors. has observed as

follows:-

"9. In the judgment of R.K. Malik (supra), 29 children going in a school bus died by drowning in Yamuna River while the offending vehicle fell down, breaking the railings of the bridge in a road accident, took place in November, 1997. In the said case this Court held that the principle for determination of the compensation may be observed applying the IInd Schedule of M.V. Act and the appropriate multiplier considering the age of parents. It has also been said that the claim with regard to the future prospects should have been addressed by the Courts based on the performance and the reputation of the school. In the said case, the principles laid down by this Court in the case of Lata Wadhwa and others vs. State of Bihar and others (2001)8 SCC 197 and M.S. Grewal & another vs. Deep Chand Sood & others (2001)8 SCC 151 have been followed and enhancement was made. In the case of Lata Wadhwa (supra), it was clarified that the compensation may be awarded dividing the children in the age groups of 5 to 10 and 10 to 15 years. It is held that such grant of compensation will not necessarily bar the parents to claim prospective loss and it will be valid. This Court also relied upon the principles as laid down by the House of Lords in the famous case of Taff Vale Rly. Vs. Jankins 1913 AC 1, wherein Lord Atkinson observed as thus:

"...all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them."

10. Thus relying upon the observation, it is said that in place of issuing any guidelines for determination of compensation in case of death of a child, it may be left open to be decided in the facts and circumstances of each case. In the case of M.S. Grewal (supra), 14 school students died due to drowning in a river. This Court noticing that the students were belonging to upper middle class background, however awarded the compensation to the tune of Rs. 5,00,000/-. Thereafter in the case of Kishan Gopal (supra), a child aged about 10 years died in a road accident took place on 19.7.1992, this Court made departure from the IInd Schedule of M.V. Act and accepted the notional income of Rs. 30,000/- in place of Rs. 15,000/- applying the analogy that the value of rupee has come down drastically since 1994 when the notional income of Rs. 15000/- was fixed in IInd Schedule of the MV Act. However accepting the notional income as Rs. 30,000/- and as per the age of the parents i.e. 36 years, the loss of dependency was calculated applying the multiplier of 15 at Rs. 4,50,000/-

C/FA/1903/2018 JUDGMENT DATED: 14/12/2022

and a sum of Rs. 50,000/- was awarded under conventional heads awarding a total sum of compensation of Rs. 5,00,000/-.

11. Recently in the case of Kurvan Ansari @ Kurvan Ali & another vs. Shyam Kishore Murmu and another (2022) 1 SCC 317, wherein a child aged about 7 years died in a road accident took place on 6.9.2004, this Court taking notional income as Rs. 25,000/-, applying the multiplier of 15, calculated the loss of dependency as Rs. 3,75,000/- and adding Rs. 55,000/- in conventional heads, awarded Rs. 4,70,000/-.

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 years respectively."

6.1 In view of the aforesaid judgment of the Hon'ble Supreme

Court, in the facts and circumstances of the present case, the

notional income of the deceased can be safely assessed at

Rs.25,000/- including future prospect. Applying a multiplier of

18, in view of the decision of Hon'ble Supreme Court in case of

Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr.

[(2009) 6 SCC 121], the loss of dependency would come to

Rs.4,50,000/-. If Rs.80,000/- is added towards conventional

amount towards loss of consortium and Rs.15,000/- each is

awarded towards loss of estate and funeral expenses, the total

compensation would come to Rs.5,60,000/-. In the present case,

the learned Tribunal has held that there was a contributory