Gujarat High Court
Mahebub Shikandar Giteli vs Ramubhai Lalubhai Charal on 14 February, 2022
Bench: Sandeep N. Bhatt
C/FA/723/2012 ORDER DATED: 14/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 723 of 2012
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MAHEBUB SHIKANDAR GITELI & 1 other(s)
Versus
RAMUBHAI LALUBHAI CHARAL & 2 other(s)
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Appearance:
MR MA KHARADI(1032) for the Appellant(s) No. 1,2
MR R G DWIVEDI(6601) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 14/02/2022
ORAL ORDER
1. The present First Appeal 723 of 2012 is preferred by
the present appellants/claimants under Section 173 of
Motor Vehicles Act, 1988, being aggrieved and dissatisfied
with the judgment and order dated 02.06.2011 passed in
Motor Accident Claim Petition No. 334 of 2010 by the
Motor Accident Claims Tribunal, Panchmahal at Godhra,
by which, the Tribunal has awarded Rs.90,000/- for the
death of 5 years old boy caused in the vehicular accident.
2. The brief facts of the case are as under.
2.1 The Truck bearing No. GJ-20-T-4155 was driven in
rash and negligent manner by respondent No. 1 on 11 th
March, 2010 and gave fatal dash to the minor son of the
claimants viz., Faizan aged about 5 years standing on the
side of the road along with his mother (present appellant
No. 2). Therefore the claim petition has been filed for
C/FA/723/2012 ORDER DATED: 14/02/2022
compensation of Rs.4,00,000/- before the Motor Accident
Claims Tribunal, Panchmahal at Godhra by filing MACP
No. 334 of 2010. Thereafter, summons were served to the
respondents and respondent No. 3 - Insurance Company
has filed its written statement at Ex. 7, by which, the
Insurance Company has denied each and every allegations
made in the claim petition and prayed to dismiss the claim
petition.
2.2 The Tribunal has framed the issues at Ex. 33.
Thereafter, evidence of claimant No. 1 - Mahebub
Shikandar Giteli is taken on record at Ex. 20. Though
served, the opponents No.1 & 2 have not appeared before
the Tribunal. No oral evidence is led by the opponent No.
3 - Insurance Company. The Tribunal, after considering
the oral as well as documentary evidence and pleadings of
the parties, has considered that the truck bearing
registration No. GJ-20-T-4155 was driven in rash and
negligent manner and therefore respondents No. 1, 2 & 3
are liable to pay the compensation, jointly and severally.
3. I have heard learned advocates for the respective
parties. I have perused the record and proceedings of the
Trial Court. Learned advocate Mr. MA Kharadi for the
appellants has submitted that the deceased - Faizan was
about 5 years of age at the time of accident and Tribunal
has wrongly considered the compensation to the tune of
Rs. 90,000/- only against the claim of Rs.4,00,000/-. The
Tribunal has wrongly considered Rs.75,000/- towards loss
of dependency, benefit, which is on lower side. He has
also submitted that Rs. 5000/- towards funeral expenses
and Rs. 10,000/- towards loss of estate is also on lower
C/FA/723/2012 ORDER DATED: 14/02/2022
side. He has also submitted that the main issue involved
in the present appeal is as to whether claimants can get
more compensation in the case of minor. Therefore, he has
relied on the judgment of the Hon'ble Apex Court in the
case of Kisan Gopal vs. Lala and others reported in 2014
(1) SCC 244, wherein, the Hon'ble Apex Court had
awarded Rs. 5 lacs to the claimants on the death of 10
years old child. It is the submission of learned advocate
Mr. Kharadi that the accident has taken place in the year
1992, therefore, though he has confined appeal to the tune
of Rs.1,00000/- in the appeal memo. He has submitted
that the Court can grant more amount than claimed if it
thinks just and proper while awarding compensation under
the Motor Vehicles Act, 1988. Therefore, he has submitted
that in the judgment of First Appeal No. 1416 of 2008
dated 24.09.2015, the Hon'ble High Court of Gujarat has
considered the case of the minor daughter by awarding Rs.
2,50,000/- towards compensation claimed by the claimants
in the claim petition. He has also relied on the judgment
of Hon'ble Apex Court in the case of Nagappa vs.
Gurdayal singh reported in AIR 2003 SCC 674, by which
the additional amount of compensation more than the
claim in the claim petition can be awarded and therefore
he prays to award total compensation of Rs.2,50,000/- by
enhancing Rs.1,60,000/-.
4. Per contra, learned advocate Mr. RG Dwivedi for the
Insurance Company has submitted that the judgment and
award of the Insurance Company is just and proper as the
Tribunal has considered the age of deceased, which is
merely 5 years and as he was non earning person,
therefore, notional income of Rs.50,000 p.a is rightly
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considered and after deducting 2/3 amount from
Rs.50,000/-, the annual dependency benefit would work
out to Rs.5,000/- and multiplier of 15 years was rightly
adopted by the Tribunal and therefore, total comes to
Rs.90,000/- by adding an amount of Rs. 10,000/- towards
loss of estate and 5000/- towards funeral expenses are
rightly awarded to the claimant. However, he is not in a
position to dispute the legal position in view of the
judgments of Hon'ble Gujarat High Court in First Appeal
No. 1416/2008 as well as in the case of Kisan Gopal
(supra). Therefore, he rests his argument accordingly.
5. I have heard learned advocates for the respective
parties. I have perused the record and proceedings of the
Tribunal. I have also perused the judgment and award
passed by the Tribunal. I found that the Tribunal has
committed error in ignoring the settled position of law by
not awarding the amount of Rs.2,50,000/- to the claimants
as the parents, who have lost their child aged 5 years and
in view of the judgment of Hon'ble Gujarat High Court in
First Appeal No.1416/2008, the ends of justice will meet if
amount of Rs.1,60,000/- can be awarded in addition to the
amount of Rs.90,000/- which is already awarded by the
Tribunal and therefore, accordingly, I found that appeal
deserves consideration and accordingly, appeal is allowed
by holding liable all the opponents, jointly and severally.
6. The appeal succeeds with no order as to costs. The
opponents are hereby directed to deposit enhanced amount
of Rs.1,60,000/- with 9% interest from the date of
application within 6 weeks from the receipt of the certified
copy of the order passed in this appeal and on deposition
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of such amount, the Tribunal shall pay the said amount to
the claimants after following due procedure by account
payee cheque.
7. Record and proceedings be sent back to the
concerned Tribunal forthwith.
(SANDEEP N. BHATT,J)
MANISH MISHRA
