Ramilaben Arvindbhai Parmar vs Monu Niyaz Mohammad(Deleted As ...
2023 Latest Caselaw 557 Guj

    C/FA/3633/2019                                  JUDGMENT DATED: 18/01/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO.         3633 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
=====================================================

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 ?

=====================================================
             RAMILABEN ARVINDBHAI PARMAR
                        Versus
  MONU NIYAZ MOHAMMAD(DELETED AS PER ORDER BELOW EXH
                          24)
=====================================================
Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No.
1
for the Defendant(s) No. 1,5
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 4,6
RULE SERVED for the Defendant(s) No. 2
=====================================================
  CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                            Date : 18/01/2023

                     ORAL JUDGMENT

1. The present First Appeal impugns the judgment

C/FA/3633/2019 JUDGMENT DATED: 18/01/2023

and award dated 13.7.2018 passed in M.A.C.P. No.888 of 2015 by the Motor Accident Claim Tribunal (Aux.) at Vadodara.

2. The brief facts giving rise to the present first appeal are as follows :-

2.1 That on 7.9.2015 at about 5.30 a.m. in the morning, the deceased Alpesh was traveling as pillion rider from Desar to Mujpur on the Motorcycle No.GJ-06-HR-5222 which was being driven by his father. It is further alleged that Truck No.GJ-01-TT-6626 which was being driven in rash and negligent manner and at a very high speed came on the wrong side from opposite direction and dashed against the motorcycle, due to which the accident took place. The deceased sustained grievous bodily injuries and succumbed on the spot of incident.

2.2. It is the case of the appellant that the accident had occurred because of sole negligence on part of the respondent No.1 driver and owner of the truck.

3. Aggrieved the appellant herein preferred M.A.C.P. No.888 of 2015 under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.10,00,000/- for the death of minor son deceased Alpesh, who was aged about 11 years at the time of accident. Upon notice issued by the

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tribunal, the opponents appeared and the parties led oral as well as documentary evidence in support of their case. By the impugned judgment and award dated 13.7.2018, the learned Tribunal was pleased to partly allow the claim petition of the appellant herein and awarded a compensation of Rs.4,08,000/- along with interest at the rate of 9% per annum from the date of petition till its realization alongwith proportionate cost.

4. In the present case Mr. R.G. Dwivedi, learned counsel appearing for the appellant has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Kishan Gopal and Others Versus Lala and Others reported in (2014) 1 SCC

244. He submits that in view thereof the learned Tribunal erred in calculating just and proper compensation in the present case. He submits that in the present case it can be safely assumed that the annual income of the deceased could be taken as Rs.30,000/- per annuam i.e. Rs.2500/- per month. In view thereof he submits that applying multiplier of 15 as per the Sarla Varma Case the amount of compensation would be Rs.4,50,000/-. He therefore submits that the appellant is entitled for enhanced compensation in the present case.

5. Per Contra, Ms. Kirti Pathak, learned counsel

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appearing for the respondent No.3 and Mr. Tanmay Karia, learned counsel appearing for the respondent No.6 submits that the amount of compensation as assessed by the learned Tribunal was just and proper in the present case and therefore, no interference is called for and the present First Appeal be dismissed.

6. Heard the learned counsels appearing for the respective parties and perused the documents on record.

7. The Hon'ble Supreme Court in the case of Meena Devi Versus Nunu Chand Mahto @ Nemchand Mahto and others reported in S.L.P. (Civil) No.5345 of 2019 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

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(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.

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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/- 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

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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."

8. In view of the observations made in the aforesaid judgment and applying the same to the facts of the present case, in the present case the deceased is a young boy of 11 years, the observations in the aforesaid judgment are amply applicable to the facts of the present case. Therefore, accepting the notional earning of Rs.30,000/- including future prospects and applying the multiplier of 15 in view of decision of the Hon'ble Supreme Court in Sarla Varma case, the loss of dependency would come to Rs.4,50,000/-. If Rs.50,000/- is added under the conventional heads then the total compensation would come to Rs.5,00,000/-.

9. This Court is of the opinion that in the present case the just and proper compensation would be Rs.5,00,000/-. The appellant is entitled to a compensation of Rs.5,00,000/- accordingly. In view of the aforesaid observations, the appellant is entitled to an additional compensation of Rs.92,000/- along with interest at the rate of 6% per annum on the additional amount of compensation. The amount of compensation along with interest as awarded by

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the learned Tribunal is confirmed to the said extent. The respondent Nos.3 and 6 are directed to deposit the additional amount of compensation along with interest within a period of Four weeks from the date of receipt of this order. Upon depositing of the additional amount of compensation with interest, the learned Tribunal is directed to release the entire amount of compensation within a period of three weeks thereafter by RTGS / Account Payee Cheque to the appellant after due verification following due procedure.

10. Accordingly, the First Appeal is partly allowed and the judgment and award dated 13.7.2018 passed in M.A.C.P. No.888 of 2015 by the Motor Accident Claim Tribunal (Aux.) at Vadodara is modified accordingly.

11. Record and Proceedings of the case be remitted back to the learned Tribunal forthwith.

First appeal is disposed of.

(ANIRUDDHA P. MAYEE, J.)

Pallavi