Rajeshbhai Muljibhai Vasava vs Keharsing Bansi Bajaniya
2023 Latest Caselaw 759 Guj

     C/FA/5167/2019                              JUDGMENT DATED: 31/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 5167 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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                      RAJESHBHAI MULJIBHAI VASAVA
                                 Versus
                       KEHARSING BANSI BAJANIYA
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1,2
MS. NIYATI K JUTHANI(7014) for the Defendant(s) No. 3
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI
                      Date : 31/01/2023
                     ORAL JUDGMENT

1. The appellants are the original claimants

who have lost their minor son Jayesh, aged

about 8 years in a vehicler accident, which

had occurred on 27.2.2011. The Tribunal by

judgment and award dated 11.12.2018 passed

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

in MACP no.36/14 had granted Rs.4 lacs as

compensation with 9% interest.

2. Mr. Dwivedi submits that though the learned

Tribunal has referred to the judgment of

Kishan Gopal & Anr. v. Lala & Ors., (2014) 1

SCC 244, the Tribunal has not followed the

same and has granted lumpsum amount of Rs.4

lacs which is erroneous as the learned

Tribunal was required to consider the case

with notional income at Rs.30,000/- and

accordingly, was required to apply

multiplier to assess the loss of dependency.

It is stated that the claimants as parents

were entitled for consortium amount which

the Tribunal has failed to grant and thus,

Mr. Dwivedi submits that the claimants as

parents are before this Court for

enhancement of the compensation money.

3. On behalf of Oriental Insurance Company

Ltd.-respondent no.3, Ms. Juthani has

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

supported the judgment and award and has

stated that reasonable amount has been

granted which should be considered as just

and proper taking into consideration the age

of the child of 8 years since he is non-

earning member of the family and submitted

that praying for compensation under

conventional head as consortium money is not

just and proper in view of the judgment in

Meena Devi v. Nunu Chand Mahto @ Nemchand

Mahto, reported in (2023) 1 SCC 204.

4. The facts of the case suggest that on

27.2.2011, minor Jayesh was traveling along

with his parents towards Karjan by riding as

pillion rider on motorcycle no. GJ-06 DN-

1661, which was driven by the claimant no.1,

his father on the left side of the road and

when they reached near the place of

occurrence, opponent no.1 came from behind

driving tempo bearing registration no. GJ-03

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

Y-9295 in a rash and negligent manner in

very full speed and dashed the rear side of

the motorcycle. As a result of the accident,

minor Jayesh received bodily injuries and

succumbed to death on the place of accident.

5. The father was examined at Exh.16 and had

supported his case by way of FIR, Panchnama,

postmortem note, inquest Panchnama, birth

certificate of the, death certificate of the

deceased, school leaving certificate and

charge-sheet papers, photocopy of the

offending tempo captured in CCTV camera at

Toll Plaza. The insurance policy was placed

at Exh.18 and the copy of the report of

investigator of the insurance Company along

with extract of driving license of opponent

no.1 was adduced in evidence at Exh.19. The

Tribunal, thus, considered opponent no.1 as

solely liable for the accident.

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

6. The learned Tribunal has referred to various

judgments of the Courts and has also

referred to the case of Kishan Gopal (supra)

and has granted lumpsum amount of Rs.4 lacs

for the death of the son aged about 8 years.

7. The principles laid down in Lata Wadhwa &

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

(2001) 8 SCC 197 was made applicable when 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

compensate the parents. The legal principles

laid down in Lata Wadhwa (supra) was made

applicable to the facts of the case in

Kishan Gopal (supra) and thus, it was

considered as just and reasonable to take

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

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

multiplier as laid down in Sarla Verma Vs.

Delhi Transport Corporation & Anr., (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 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

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

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."

8. 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.

9. The notional income of a child aged about 10

years was considered as Rs.10,000/-. Here in

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

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/-.

10. As both the parents have lost their child,

parents would be entitled for filial

consortium.

11. In the case of Magma General Insurance

Company Limited Vs. Nanu Ram alias Chuhru

Ram & Ors., reported in (2018) 18 SCC 130,

it has been observed as under:-

"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under

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which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.

With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979)

Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

Filial consortium is the right of the parents to compensation in the

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head

C/FA/5167/2019 JUDGMENT DATED: 31/01/2023

of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."

12. The claimants, thus, would be entitled for

consortium money of Rs.40,000/- per head.

Thus, in total the claimants are entitled to

Rs.80,000/- under the head of loss of

consortium and in view of the judgment in

National Insurance Company Limited Vs.

Pranay Sethi & Ors. reported in (2017) 16

SCC 680, the claimants are entitled to

receive Rs.15,000/- under the head of loss

of estate and funeral expenses of

Rs.15,000/-. Thus, the amount to be granted

under various heads would be as under:-

Loss of dependency Rs.4,50,000/- Loss of consortium Rs.80,000/-

      Loss of estate                                            Rs.15,000/-
      Funeral expenses                                          Rs.15,000/-
      Total                                                 Rs.5,60,000/-

13. As      the       Tribunal        has      granted      Rs.4        lacs        as

     compensation             money          at     the      rate         of        9%





 C/FA/5167/2019                                    JUDGMENT DATED: 31/01/2023

interest, the appellants would be entitled

to enhanced amount of compensation of

Rs.1,60,000/- at the rate of 7.5% interest

per annum. The insurance Company is directed

to deposit Rs.1,60,000/- with interest at

the rate of 7.5% per annum within eight

weeks from the date of receipt of writ of

this Court. The 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