Jitendrasinh Parbatji Chavda ... vs Chavda Manuji Jivanji
2022 Latest Caselaw 9453 Guj

      C/FA/4964/2008                               JUDGMENT DATED: 09/11/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4964 of 2008


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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     JITENDRASINH PARBATJI CHAVDA SINCE DECD. THROUGH HEIRS
                              Versus
                 CHAVDA MANUJI JIVANJI & 1 other(s)
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Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1,1.1,1.2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                               Date : 09/11/2022

                              ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the judgment and award dated 12.1.2006 passed in MAC Petition No.741 of 2005 by the learned Presiding Officer, Fast Track Court No.4, Mehsana, the appellants - original claimants have approached

C/FA/4964/2008 JUDGMENT DATED: 09/11/2022

this Court by way of present Appeal under the provision of the Motor Vehicles Act, 1988 (for short 'the MV Act').

2. The original claim was of Rs.3,50,000/-, as against that the learned Tribunal has awarded a sum of Rs.1,33,000/- with 9% interest as under :

                  Particulars                                Amount
For Loss of Future Income
                                            Rs.108,000/-
For loss love and affection                 Rs.10,000/-
For loss of estate                          Rs.10,000/-
For Funeral expenses                        Rs.5,000/-
                                    Total Rs.1,33,000/-

3. It is the case of the claimants that on 11.9.2005, their child, namely, Jitendra, who was aged about 8 years, was playing in the society. At that time, one rickshaw bearing No.GJ-2-Y-6639 was being driven rashly and negligently by the driver and while taking the rickshaw on the reverse , hit the child of the claimants and in pursuance thereto, minor Jitendra received serious injuries and while taking him to the hospital, he succumbed to the injuries.

3.1 In view of untimely death of the child, the claimants approached the Tribunal under Section 166 of the MV Act seeking, inter-alia, compensation of Rs.3,50,000/- under various heads.

4. The Tribunal, after having considered the evidence on

C/FA/4964/2008 JUDGMENT DATED: 09/11/2022

record, came to the conclusion that the accident occurred due to the rash and negligent driving on the part of the driver of the rickshaw. Thereafter, the Tribunal further proceeded to assess the compensation by considering the notional income of the deceased at Rs.1200/-. So as to consider the prospective income, the Tribunal has doubled the notional income and thereafter, divided by two (2), which comes to Rs.1800/- [Rs.1200 + Rs.2400 (/) 2]. Thereafter, the Tribunal was pleased to deduct 2/3rd towards the personal expenditure and thereby, Rs.600/- per month came to be considered as future loss of income. Considering the age of the deceased as 8 years, the Tribunal adopted the multiplier of 15. Thus, overall compensation under the head of future loss of income assessed at Rs.1,08,000/- (Rs.600 x 12 x 15). The learned Tribunal has awarded Rs.10,000/- under the head of loss of estate, Rs.10,000/- under the head of loss of love and affection and Rs.5000/- towards the funeral expenses. Thus, in all, the learned Tribunal has awarded Rs.1,33,000/- with 9% interest to the claimant as against the total claim of Rs.3,50,000/-.

5. Being aggrieved by the aforesaid, the claimant has approached this Court by way of present Appeal.

6. I have heard Mr.A.V. Prajapati, learned counsel appearing for the appellants - original claimants and Ms.Kirti S. Pathak, learned counsel for the respondent No.2 - Insurance Co.

7. Mr.A.V. Prajapati learned counsel for the appellants - original claimants, submitted that the judgment and award

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passed by the learned Tribunal is inadequate in nature and is on lower side. Mr.Prajpati submitted that the learned Tribunal while passing the award, has not considered the evidence in its true perspective. Mr.Prajapati further submitted that the Tribunal has erred in awarding compensation by considering less notional income and that has resulted into not just compensation. According to Mr.Prajapati, considering the age of the child, the notional income is on very lower side and thereby, the same has to be at Rs.3000/- per month.

7.1 So as to substantiate his contentions, learned counsel heavily relied upon the decision of the Apex Court in the case of Rajendra Singh & Ors. v. National Insurance Co. Ltd. & Ors., rendered in Civil Appeal No.2624 of 2020, dated 18.6.2020. In support of his case, learned counsel also relied upon upon the judgment of the Apex Court in the case of National Insurance Co. Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680.

7.2 By making above submissions, learned counsel lastly urged this Court to allow the Appeal by enhancing the compensation and suitably modify the award passed by the Tribunal accordingly.

8. Per contra, Ms.Kirti S. Pathak, learned counsel appearing for the respondent No.2 - Insurance Co., has vehemently opposed the Appeal contending, inter-alia, that the compensation awarded by the Tribunal is just and proper and thereby, no interference is called for. Ms.Pathak further submitted that the deceased was aged about 8 years and

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thereby, the notional income assessed by the Tribunal is also just and proper. However, Ms.Pathak could not able to dispute the ratio laid down by the Apex Court in the case of Pranay Sethi (Supra) and Rajendra Singh (Supra).

8.1 By making above submissions, Ms.Pathak urged this Court to dismiss the present Appeal.

9. I have heard the learned counsel appearing for the respective parties and have gone through the R & P received from the trial court concerned. No other and further submissions have been made, except what are stated herein- above.

10. Having heard the learned counsel appearing for the respective parties, a short question that falls for consideration is whether the compensation awarded by the Tribunal can be said to be just compensation ?

11. So as to consider the aforesaid question, first of all, the income of the deceased deserves to be assessed properly, so that on that basis, just and fair compensation can be awarded. In the case on hand, the deceased was a student, aged about 8 years and, therefore, in my considered opinion, the notional income requires to be fixed appropriately. The Tribunal, however, in my view, has not assessed the notional income properly. In view of the ratio laid down by the Apex Court in the case of Rajendra Singh (Supra), the notional income of the minor deceased is held to be proper at Rs.36,000/- per annum. In that view of the matter, in my considered opinion,

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so as to award just compensation to the parents, the notional income deserves to be fixed at Rs.36,000/- including prospective income. Since the deceased was minor and bachelor, 50% amount deserves to be deducted towards the personal expenditure, which would come to Rs.18,000/- Rs.36,000/- (-) Rs.18,000/-) as annual dependency. The multiplier of 15 awarded by the Tribunal appears to be reasonable and I adopt the same and that would come to Rs.2,70,000/- (Rs.18,000/- x 15) as dependency benefit. Considering the ratio laid down by the Apex Court in the case of Pranay Sethi (Supra), the claimants are entitled to Rs.40,000/- each towards filial consortium. The compensation awarded under the heads of funeral expenditure as well as loss of estate also appears to be on lower side. Hence, I propose to award Rs.15,000/- under the head of funeral expenses and Rs.15,000/- under the head of loss of estate. Thus, in my view, the claimants are entitled to Rs.3,80,000/- which would be just compensation, as under :

               Particulars                                 Amount
Loss of dependency
                                          Rs.2,80,000/-
                                          (Rs.18,000                          (annual

                                          (multiplier)).
Filial Consortium                         Rs.80,000/- (Rs.40,000/- x 2)
For Funeral Expenses                      Rs.15,000/-
For Loss of estate                        Rs.15,000/-
                              Total Rs.3,80,000/-

As awarded by the Tribunal(-) Rs.1,33,000/-

============= Rs.2,47,000/- with 6% interest.

C/FA/4964/2008 JUDGMENT DATED: 09/11/2022

12. For the reasons stated herein-above, the First Appeal is partly allowed. The appellants - original claimants would be entitled to Rs.2,47,000/- with 6% interest from the date of application till its realization. The Insurance Co. is directed to deposit a sum of Rs.2,47,000/- as additional compensation with interest @ 6% before the learned Tribunal within a period of 8 weeks from today. The Tribunal is directed to issue account payee cheque in favour of the claimants after due verification. R & P be sent back forthwith to the concerned Tribunal. No costs.

(NIRAL R. MEHTA,J) V.J. SATWARA