Gujarat High Court
Chandubhai Kishanbhai Salat vs Khusalbhai M Rathva on 31 March, 2023
Bench: Gita Gopi
C/FA/1675/2020 JUDGMENT DATED: 31/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1675 of 2020
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MS. JUSTICE GITA GOPI
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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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CHANDUBHAI KISHANBHAI SALAT
Versus
KHUSALBHAI M RATHVA
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1,2
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No. 1,2
MANDEEP SINGH SALUJA(8791) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/03/2023
ORAL JUDGMENT
1. Learned advocate Ms. Pooja H. Hotchandani submitted
that the appellants are the original claimants, who were before
the Motor Accident Claims Tribunal (Aux.) at Chhota Udepur
C/FA/1675/2020 JUDGMENT DATED: 31/03/2023
claiming for compensation in Motor Accident Claim Petition
No.1719 of 2017 (New) with the Old MACP No.504 of 2016 on
the death of their minor daughter, aged about 7 years, who
met with an accident on 20.05.2016 at about 07:00 p.m., who
had gone out to purchase snacks and while returning back to
the hut, she was ran-over by a truck No.GJ-12-U-6957 driven
by opponent No.1.
2. Learned advocate Ms. Pooja H. Hotchandani submitted
that the evidence was produced on record and the negligence
of the driver of truck No.GJ-12-U-6957 was proved. Learned
Tribunal answered the issue Nos.1 and 2 by considering that
the death was because of the injuries sustained by the minor
in a vehicular accident due to the rash and negligent driving of
the driver of the vehicle and parents were made entitled to
claim the compensation.
3. Learned advocate Ms. Pooja H. Hotchandani submitted
that the learned Tribunal failed to consider the judgments of
the Hon'ble Apex Court for granting compensation to the
minors. It is submitted by learned advocate Ms. Pooja H.
Hotchandani that the deceased aged 7 years at the time of
accident, was studying in Standard-2, thus, states that learned
Tribunal should have considered the fact that there would not
be any case of any deduction towards personal expenses.
4. Learned advocate Mr. Mandeep Singh Saluja, appearing
for the Insurance Company, submitted that learned Tribunal
has considered the notional income and accordingly the
personal expenses have been deducted, adopted the multiplier
C/FA/1675/2020 JUDGMENT DATED: 31/03/2023
and has granted just and fair compensation and thus award
does not warrant any interference of this Court.
5. 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 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 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
C/FA/1675/2020 JUDGMENT DATED: 31/03/2023
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."
6. 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. The notional income of a child aged about 10 years was
considered as Rs.10,000/-.
7. 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/-.
8. As both the parents have lost their child, parents would
be entitled for filial consortium.
9. In the case of Magma General Insurance Company
Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported
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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 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 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.
C/FA/1675/2020 JUDGMENT DATED: 31/03/2023
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 of Filial
Consortium. Parental Consortium is awarded to children who
lose their parents in motor vehicle accidents under the Act."
10. 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:-
Particulars Amount (in Rs.)
Loss of dependency 4,50,000/-
Loss of consortium 80,000/-
Loss of estate 15,000/-
Funeral expenses 15,000/-
Total 5,60,000/-
11. The Tribunal has granted Rs.1,80,000/- as compensation
money at the rate of 9% interest, the appellants would be
entitled to enhanced amount of compensation of Rs.3,80,000/-
at the rate of 7.5% interest per annum. The insurance
Company is directed to deposit Rs.3,80,000/- 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
C/FA/1675/2020 JUDGMENT DATED: 31/03/2023
accordingly. The appeal is partly allowed. Registry is directed
to send the record and proceedings back to the Tribunal, if
received. The deficit court fee stamp be paid in accordance to
the Rules.
Sd/-
(GITA GOPI,J)
T. J. Bharwad
