Gujarat High Court
Nagji Bhaduji Dabhi vs Hakimbhai Rasulbhai Mansuri on 4 March, 2022
Bench: Niral R. Mehta
C/FA/2259/2006 JUDGMENT DATED: 04/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2259 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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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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NAGJI BHADUJI DABHI & 1 other(s)
Versus
HAKIMBHAI RASULBHAI MANSURI & 2 other(s)
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Appearance:
MR JV JAPEE(358) for the Appellant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 04/03/2022
ORAL JUDGMENT
1. Feeling aggrieved and dissatisfied by the judgment and
award dated 22.2.2006 passed in MAC Petition No.57 of 2002
by the learned MAC Tribunal (Aux.), Sabarkantha at
Himmatnagar, the appellants - original claimants have
approached this Court by way of present Appeal under the
C/FA/2259/2006 JUDGMENT DATED: 04/03/2022
provision of the Motor Vehicles Act, 1988 (for short 'the MV
Act').
2. The original claim was of Rs.2,25,000/-, as against that
the learned Tribunal has awarded a sum of Rs.1,31,000/- with
7.5% interest under various heads.
3. It is the case of the claimants that on 25.10.2001, while
their minor son was standing on the road side, at that time
one Tempo bearing registration No.GJ-9-T-6989 driven by the
driver in rash and negligent manner, dashed with the minor
deceased. Due to the accident, the minor deceased received
serious injuries and ultimately, succumbed to those injuries
and died on the spot. Thus, the original claimants being
parents had approached the learned Tribunal for seeking
compensation for untimely death of their son, under the
provision of Section 166 of the MV Act.
4. Upon service of notice, none appeared on behalf of
opponent Nos.1 and 2. The opponent No.3 i.e. Insurance Co.
appeared and resisted the claim petition by submitting written
statement at Exh.17, taking all available defences.
5. The learned Tribunal, after having considered the
submissions and evidence produced on record, held that the
driver of the Tempo bearing registration No.GJ-9-T-6989 was
sole negligent for the accident in question. Thereafter, the
learned Tribunal assessed the income of the deceased at
Rs.1200/- per month notionally. Considering the future
prospect, the said income was considered at Rs.1800/- per
month and then, 2/3rd amount came to be deducted for
C/FA/2259/2006 JUDGMENT DATED: 04/03/2022
personal expenses. Thus, Rs.600/- came to be assessed as
monthly dependency loss. Considering the age of the minor
deceased, the learned Tribunal adopted the multiplier of 15.
Thus, under the head of loss of dependency, a sum of
Rs.1,08,000/- (Rs.600 x 12 x 15) came to be awarded. The
learned Tribunal further awarded a sum of Rs.20,000/- under
the head of loss of estate and Rs.3000/- towards funeral
expenses and in all, Rs.1,31,000/- came to be awarded by the
learned Tribunal.
6. Being aggrieved by the aforesaid, the claimants have
approached this Court by way of present Appeal.
7. I have heard Mr.J.V.Japee, learned counsel appearing for
the appellants - original claimants and Mr.Palak Thakkar,
learned counsel for the respondent No.3 - Insurance Co. The
respondent Nos.1 and 2, though served, have chosen not to
appear and contest the Appeal.
8. Mr.J.V.Japee, learned counsel for the appellants -
original claimants, submitted that the judgment and award
passed by the learned Tribunal is inadequate in nature and is
on lower side. Mr.Japee submitted that the income assessed
by the learned Tribunal notionally is also on lower side.
Learned counsel further submitted that the accident took
place in the year 2001 and the learned Tribunal has
considered the notional income of Rs.1200/- per month.
However, relying upon the judgment of the Apex Court in the
case of Kishan Gopal & Anr. v. Lala & Anr., reported in
(2014) 1 SCC 244, learned counsel submitted that in that
case, the Apex Court was pleased to assess the income at
C/FA/2259/2006 JUDGMENT DATED: 04/03/2022
Rs.30,000/- per annum notionally keeping in mind the
accident in question of the year 1992. Thus, Mr.Japee
submitted that notional income of the minor deceased may be
considered accordingly. Learned counsel further submitted
that the claimants are the parents of the deceased minor son,
therefore, in view of the decision of the Apex Court in the case
of National Insurance Co. Ltd. v. Pranay Sethi, reported in
(2017) 16 SCC 680, additional compensation of Rs.40,000/-
under the head of loss of consortium deserves to be
considered.
8.1 Making the above submissions, Mr.Japee has urged this
Court to enhance the compensation by suitably modifying the
judgment and award passed by the learned Tribunal.
9. Per contra, Mr.Palak Thakkar, learned counsel
appearing for the respondent No.3 - Insurance Co., has
vehemently opposed the Appeal, contending that the
judgment and award passed by the learned Tribunal is
perfectly justified, considering the facts and circumstances
prevailing then. Mr.Thakkar submitted that the learned
Tribunal has committed no error in assessing the income of
the minor deceased notionally at Rs.1200/- per month.
However, Mr.Thakkar could not dispute the ratio laid down by
the Apex Court in the case of Pranay Sethi (Supra) as well as
the Apex Court in the case of Serla Verma v. Delhi
Transport Corporation, reported in 2009 ACJ 1298.
Making above submissions, Mr.Thakkar urged this Court to
dismiss the present Appeal.
10. I have heard the learned counsels appearing for the
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respective parties and have gone through the Records and
Proceedings received from the learned Tribunal concerned.
No other and further submissions have been made, except
what are stated herein-above.
11. Having heard the learned counsel appearing for the
respective parties, short question that falls for consideration
is whether the compensation awarded by the learned Tribunal
in case of death of a minor is adequate ?
12. So as to consider the above question, it would be just
and proper to keep in mind the ratio laid down by the Apex
Court in the case of Kishan Gopal, Pranay Sethi and Serla
Verma (Supra). While keeping the ratio laid down by the Apex
Court, one thing which requires to be kept in mind that the
claimants are the parents of the minor deceased. The parents
have lost their child in a vehicular accident at no fault either
of them or of a minor deceased. The minor deceased was aged
about 14 years at the time of accident. Therefore, while
considering the compensation, this Court feels that the
condition of bereaved parents has to be kept in mind, the
compensation can in no manner said to be any alternative.
However, the compensation has to be adequate in nature.
13. Keeping in mind the aforesaid aspect, I am of the
considered opinion that the learned Tribunal has erred in
assessing the notional income of the minor deceased. The
notional income at Rs.1200/- per month for the year 2001, in
my view, considering the ratio laid down by the Apex Court, is
on a lower side. Therefore, so as to award just and fair
compensation, the assessment of income is the first base and
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thereby, it has to be determined very carefully. The
authorities relied upon by the learned counsel for the
appellants go to suggest that the Apex Court has, in the case
of Kishan Gopal (supra), determined notional income of the
minor deceased ranging from Rs.30,000/- to Rs.36,000/- for
the accident occurred in a different years.
14. In view of the aforesaid, I deem it appropriate to hold
the notional income of minor deceased at Rs.36,000/- per
annum. Considering the ratio laid down by the Apex Court in
the case of Pranay Sethi (Supra), the minor being a bachelor,
half amount deserves to be deducted towards the personal
expenditure. Thus, Rs.18,000/- would be the yearly
dependency loss. Now, considering the age of the minor
deceased, multiplier adopted by the learned Tribunal is 15
which appears to be reasonable and thereby, it requires to be
kept intact. Thus, the compensation under the head of loss of
dependency would be Rs.2,70,000/-. Now, considering the
ratio laid down by the Apex Court in the case of Pranay Sethi
(Supra), the claimants being the parents are also entitled to
Rs.40,000/- each under the head of loss of consortium. Thus, I
propose to award Rs.80,000/- (Rs.40,000/- x 2) under the head
of loss of consortium, and Rs.15,000/- under the head of loss
of estate and Rs.15,000/- under the head of funeral expenses
and transportation. Therefore, the claimants would be entitled
to additional amount of Rs.2,49,000/- @ 7.5% interest.
Particulars Amount
Loss of Dependency
Rs.2,70,000/-
(Rs.18,000/- x 15 (multiplier)).
C/FA/2259/2006 JUDGMENT DATED: 04/03/2022
For Loss of Consortium Rs.80,000/- (Rs.40,000/- x 2)
For Loss of Estate Rs.15,000/-
For Funeral Expenses Rs.15,000/-
Total Rs.3,80,000/-
As awarded by the Tribunal(-) Rs.1,31,000/-
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Rs.2,49,000/-
15. For the reasons stated herein-above, the First Appeal is
partly allowed. The appellants - original claimants would be
entitled to Rs.2,49,000/- with 7.5% interest from the date of
application till its realization. The Insurance Co. is directed to
deposit a sum of Rs.2,49,000/- as additional compensation
with interest @ 7.5% before the learned Tribunal within a
period 8 weeks from the date of receipt of the order. The
Tribunal is directed to issue account payee cheque in favour
of the claimant after due verification. The claimants shall have
to pay the additional court fees on the enhanced amount of
compensation, if at all it is necessary and required. R & P is
ordered to be sent back forthwith to the concerned Tribunal.
No costs.
(NIRAL R. MEHTA,J)
V.J. SATWARA
