Kamleshbhai Parsubhai Bhuriya vs Melsinh Dhirubhai Parmar
2023 Latest Caselaw 3028 Guj

     C/FA/3164/2019                               JUDGMENT DATED: 19/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3164 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      KAMLESHBHAI PARSUBHAI BHURIYA
                                  Versus
                        MELSINH DHIRUBHAI PARMAR
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Appearance:
ADVOCATE NOTICE SERVED for the Appellant(s) No. 1,2
MR AJAY R MEHTA(453) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 19/04/2023

                             ORAL JUDGMENT

1. The claimants have challenged the judgment

and award dated 25.4.2019 passed by the MACT

(Aux), Dahod in MACP (new) no.2012/17. The

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

claim petition is of the deceased child of

the claimants aged about 8 years. The claim

petition was filed by advocate Mr. C.K. Shah

for the claimants who is now no more since

deceased notice was served to the appellants

informing about the death of the advocate.

However, they have not appointed any other

advocate to represent the case. When the

appeal was filed, advocate Mr. C.K. Shah has

raised the ground of granting the

compensation amount in accordance to the

judgment of the Hon'ble Supreme Court in the

case of Kishan Gopal & Anr. v. Lala & Ors.,

reported in (2014) 1 SCC 244 and had raised

a ground that notional income ought to have

been considered as Rs.30,000/- of the minor

and applying the multiplier of 15 with the

amount under the conventional heads of loss

of love and affection of Rs.50,000/-, an

amount of Rs.5,00,000/- had been prayed for.

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

2. As per the case of the appellants, they are

labourers and were doing labour work at GEB

coal-tar plant and were staying in a tent.

On 31.8.2017, in the evening after the

dinner, it is stated that the deceased minor

was sleeping along with the family outside

the tent and at about 24:00 hrs. at night,

opponent no.1 driver of dumper no. GJ-07 VW-

3934 drove the vehicle in a rash and

negligent manner and was trying to take a

turn, but failed and the dumper roll over

the deceased minor who sustained serious

injuries and succumbed to death. The

complaint was lodged at Khabhodej Police

Station bearing CR no.I-57/17.

3. Heard Mr. Ajay Mehta, learned advocate for

the insurance Company. He submitted that no

evidence has been produced regarding any

possibility of earning by the child and

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

thus, stated that the learned Tribunal,

having considered the age of the minor and

taking the notional income of Rs.15,000/-

and applying the multiplier of 15, has

rightly granted Rs.2,25,000/- as dependency

loss and Rs.20,000/- is granted under the

head of loss to estate and Rs.10,000/- for

funeral expenses and therefore, submitted

that Rs.2,55,000/- granted by the Tribunal

is just and reasonable.

4. The principles laid down in Lata Wadhwa &

Ors. v. State of Bihar & Ors., reported in

(2001) 8 SCC 197 could be made applicable

where it was observed that the compensation

determined for the children of all age group

could be doubled of what is stated under

Second Schedule of the M.V. Act as the

determination made was grossly inadequate

and that the loss of a children is

irrecoupable and no amount of money could

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

compensate the parents. The legal principles

laid down in Lata Wadhwa (supra) was made

applicable to the facts of the case in

Kishan Gopal & Anr. v. Lala & Ors., reported

in (2014) 1 SCC 244, and thus, it was

considered as just and reasonable to take

notional income of Rs.30,000/- and applying

multiplier as laid down in Sarla Verma Vs.

Delhi Transport Corporation & Anr., reported

in (2009) 6 SCC 121, the Hon'ble Apex Court

in Kishan Gopal (supra) has observed as

under:-

"In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 =4,50,000 and 50,000/- under conventional heads towards loss of

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

love and affection, funeral expenses, last rites as held in Kerala SRTS v. Susamma Thomas, which is referred to in Lata Wadhwa's case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants."

5. In Kurvan Ansari @ Kurvan Ali & Anr. v.

Shyam Kishore Murmu & Anr., (2022) 1 SCC

317, the Hon'ble Apex Court referring to the

judgment of Puttamma v. K.L. Narayana Reddy,

(2013) 15 SCC 45, R.K. Malik, (2009) 14 SCC

1 and Kishan Gopal (supra) were of the view

that it was necessary to increase the

notional income by taking into account the

inflation, devaluation of the rupee and cost

of living.

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

6. Here in this case, the deceased minor was

aged about 8 years and accordingly, the

present case being consistent with the

observations made in Kishan Gopal (supra)

accepting the notional earning as

Rs.30,000/- and the multiplier specified in

second column of the Second Schedule of the

M.V. Act and in view of the decision of

Hon'ble Supreme Court in Sarla Verma

(supra), loss of dependency would come to

Rs.4,50,000/-.

7. Thus, the notional income in accordance to

the judgments referred hereinabove is

required to be considered as Rs.30,000/- and

multiplier of 15 becomes applicable. Hence,

the dependency loss would come to

Rs.4,50,000/- and Rs.50,000/- can be given

under conventional heads towards loss of

love and affection, funeral expenses last

rites and hence, the claimants would be

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

entitled to compensation of Rs.5,00,000/-.

8. As the Tribunal has granted compensation of

Rs.2,55,000/- with interest at the rate of

9% per annum, the appellants would be

entitled to the enhanced amount of

compensation of Rs.2,45,000/- with interest

at the rate of 7.5% per annum from the date

of filing of the claim petition till its

realization. The insurance Company is

directed to deposit the said amount within

eight weeks from the date of receipt of writ

of this Court.

9. Since the claimants could not have known

about this judgment, let the concerned

Tribunal inform the claimants about the same

and the disbursement of the money be made.

In view of the above, 50% of the amount

shall be disbursed to the claimants after

proper verification and 50% of the amount be

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

invested in a Fixed Deposit with any

nationalized Bank for a period of three

years and receipt of the same shall be kept

in the custody of the Nazir of the concerned

Tribunal. The claimants may approach the

concerned Tribunal after three years and the

Tribunal concerned shall disburse the amount

to the claimants along with accumulated

interest after proper verification.

10. This Court has noted that the Tribunal is

directed to follow the directions given in

the case of Smt. Hansaguri P. Ladhani v. The

Oriental Insurance Company Ltd., reported in

2007 (2) GLH 291. The said direction would

become onerous to the claimants as in the

case of The Oriental insurance Company Ltd.

v. Chief Commissioner of Income Tax (TDS)

rendered in Special Civil Application

no.4800/21, the Division Bench of this Court

has laid down that there could not be any

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023

deduction under the head of TDS as the

amount has been received by way of

compensation under the Motor Vehicles Act,

1988 and thus, if at all any amount has been

deposited by the insurance Company to the

income-tax department, the same be recovered

and the same be deposited in the Tribunal so

that the same can be granted to the

claimants.

11. The impugned judgment and award be modified

accordingly. The appeal is partly allowed.

Registry is directed to send the record and

proceedings back to the Tribunal, if

received.

(GITA GOPI,J) Maulik