Gujarat High Court

Lalitaben Manubhai Talpada vs Vijaybhai Umedbhai Vaghri on 2 August, 2024

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     C/FA/1286/2024                                 JUDGMENT DATED: 02/08/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1286 of 2024


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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                      LALITABEN MANUBHAI TALPADA & ANR.
                                    Versus
                       VIJAYBHAI UMEDBHAI VAGHRI & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 02/08/2024

                               ORAL JUDGMENT

1. The present First Appeal, under Section 173 of the

Motor Vehicles Act, 1988, is preferred by the appellant/s -

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original claimant/s - the father being the legal heirs of the

deceased - Sachinkumar Manubhai Talpada (Kasra) being

aggrieved and dissatisfied with the impugned judgment and

award dated 05.05.2023 passed by the Motor Accident Claims

Tribunal (Aux.), Petlad in Motor Accident Claim Petition No.3

of 2020, by which the Tribunal has awarded compensation of

Rs.2,55,000/- with 9% per annum interest to the claimant/s,

holding Opponents No.1 to 3 i.e. driver, owner and insurance

company of the Rickshaw bearing registration No.GJ-23-AU-

2368 liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 That on 12.12.2019, when deceased - Sachinkumar

Manubhai Talpada (Kasra) was standing in front of his

house, at that time, opponent No.1 came from Sojitra side by

driving Rickshaw bearing registration No. GJ-23-AU-2368 with

excessive speed in rash and negligent manner and dashed

with the deceased. Due to that, the deceased sustained

serious injuries. He was immediately shifted to the

Government Hospital at Sojitra and thenafter to Karamsad

Hospital, where he succumbed to the injuries during the

treatment. Therefore, the legal heirs of the deceased -

parents have filed claim petition seeking compensation of Rs.5

lakhs with cost and interest for unnatural and untimely

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death against the present respondents before the Tribunal.

2.2 Notices were served to the opponents. Opponents

No.1 and 2 - driver and owner have chosen not to appear

and contest the claim petition before the Tribunal. Opponent

No.3 - Insurance Company has appeared and filed its written

statement / objections and disputed all the averments made

by the claimant/s in the claim petition.

2.3 The Tribunal has framed the issues. The oral as

well as documentary evidence were led by the rival parties

before the Tribunal. After considering the documentary as

well as oral evidence and submissions made at the bar, the

Tribunal has partly allowed the claim petition by awarding

compensation as noted above.

2.4 Being aggrieved and dissatisfied with the impugned

judgment and award passed by the Tribunal, the present

appeal is preferred by the claimant/s for enhancement.

3. Learned advocate Mr.Bhalodi for the appellant/s -

claimant/s has submitted that the Tribunal has committed an

error in not properly calculating the amount of compensation.

He has submitted that amount of award is on lower side as

the Tribunal has not properly considered the various aspects;

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like prospective income of the deceased, negligence, liability

and family circumstances, etc. He has submitted that the

deceased was aged about only 3 years at the time of

accident. He has relied upon the decision of the Hon'ble Apex

Court in the case of Kishan Gopal versus Lala and others

reported in 2013 ACJ 2594 (SC) as well as in the case of

Meena Devi versus Nanu Chand Mato and others reported in

2022 ACJ 2478 (SC) and in the case of Kusmi Devi versus

Md. Kasim reported in 2023 ACJ 1658. He has submitted

that as per the said decisions, the claimants would be

entitled to get compensation of Rs.5 lakhs in all.

He has submitted that the compensation is

required to be enhanced by modifying the award impugned

accordingly and this appeal may be allowed.

4. Per contra, Ms. Kirti Pathak, learned advocate for respondent - Insurance Company has submitted that the

impugned judgment and award passed by the Tribunal is just

and proper as the age of the deceased was only 3 years. She

has submitted that the Tribunal has rightly considered the

income of the deceased, the age of the deceased, the

dependency and future aspect of income. He has submitted

that under the head of loss of estate and funeral expenses,

the Tribunal has rightly awarded compensation. He has

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submitted that the amount under the head of loss of

consortium is just and proper. He has submitted that this

appeal may be dismissed and no interference be made by

this Court.

5. It is noteworthy to mention that the provisions of

the Motor Vehicles Act, 1988 which gives paramount

importance to the concept of 'just and fair' compensation. It

is a beneficial legislation which has been framed with the

object of providing relief to the victims or their families.

Section 168 of the Motor Vehicles Act deals with the concept

of 'just compensation' which ought to be determined on the

foundation of fairness, reasonableness and equitability.

Although such determination can never be arithmetically

exact or perfect, an endeavor should be made by the Court

to award just and fair compensation irrespective of the

amount claimed by the claimants.

6.1 I have considered the submissions made by the

rival parties. I have perused the record and proceedings of

the Tribunal. I have gone through the impugned judgment

and award passed by the Tribunal. From the record, it

transpires that the deceased was aged about 3 years. The

Tribunal has considered the monthly income of the deceased

Rs.1,250/- and awarded total compensation of Rs.2,55,000/- to

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the claimant/s.

6.2 AT this stage, it would be fruitful to refer to the

decision of the Hon'ble Apex Court in the case of Kusmi

Devi (supra) where the age of the deceased was 3 years and the Hon'ble Apex Court has awarded total Rs.6 lakhs and

enhanced the compensation as global compensation. The

Hon'ble Apex Court has observed that in the matter of the

present nature where the regular parameters of determining

the compensation cannot be considered due to the

uncertainties in life of a child.

6.3 It would also be fruitful to refer to at this stage

the decision of the Hon'ble Apex Court in the case of Kishan

Gopal (supra), more particularly Para : 18 thereof, which

reads as under :

" 18. Point Nos.2 and 3 are answered together in favour of the appellants for the following reasons:-

The Tribunal having answered the contentious issue No.1, against the appellants in its judgment the same is concurred with by the High Court by assigning erroneous reasons and it has affirmed dismissal of the claim petition of the appellants holding that

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the accident did not take place on account of the rash and negligent driving of the offending vehicle by the first respondent and

are answered in the negative against the appellants and it has not awarded compensation in favour of the appellants.

Since we have set aside the findings and reasons recorded by both the Tribunal and the High Court on the contentious issue Nos.1 and 2 by recording our reasons in the preceding paragraphs of this judgment and we have answered the point in favour of the appellants and also examined the claim of the appellants to award just and reasonable compensation in favour of the appellants as they have lost their affectionate 10 years old son. For this purpose, it would be necessary for us to refer to Second Schedule under Section 163-A of the M.V. Act, at clause No.6 which refers to notional income for compensation to those persons who had no income prior to accident. The relevant portion of clause No.6 states as under:

"6. Notional income for

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compensation to those who had no income prior to accident:...........

                          a)     Non-earning                 persons      -     Rs.
                          15,000/- p.a".

The aforesaid clause of the Second Schedule to Section 163-A of the M.V. Act, is considered by this Court in the case of Lata Wadhwa and Ors. v. State of Bihar and Ors., while examining the tortuous liability of the tort-feasor has examined the criteria for awarding compensation for death of children in accident between age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs.12,000/- p.a. and multiplier 11 has been applied taking the age of the father and then under the conventional heads the compensation of Rs.25,000/- was awarded. Thus, a total sum of Rs.1,57,000/- was awarded in that case. After noting the submission made on behalf of TISCO in the said case that the compensation determined for the children of all age groups could be double as in its view the determination made was grossly inadequate and the

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observation was further made that loss of children is irrecoupable and no amount of money could compensate the parents. Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs to which under the conventional heads a sum of Rs. 50,000/- should be added and thus total amount in each case would be Rs. 2 lakhs. Further, in the case referred to supra it has observed that in so far as the children of age group between 10 to 15 years are concerned, they are all students of Class VI to Class X and are children of employees of TISCO and one of the children was employed in the Company in the said case having regard to the fact the contribution of the deceased child was taken Rs.12,000/- p.a. appears to be on the lower side and held that the contribution of such children should be Rs. 24,000/- p.a. In our considered view, the aforesaid legal principle laid down in Lata

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Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard. 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 SRTC

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v. Susamma Thomas 4, 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. The said amount will carry interest at the rate of 9% p.a. by applying the law laid down in the case of Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy 5, for the reason that the Insurance Company has been contesting the claim of the appellants from 1992-2013 without settling their legitimate claim for nearly about 21 years, if the Insurance Company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9% interest on the compensation awarded in favour of the appellants is legally justified."

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6.4 In view of the above ratio laid down by the

Hon'ble Apex Court, the income of the deceased would be

considered as Rs.30,000/- per annum as notional and adopting

15 multiplier, the total loss of dependency would come to

Rs.4,50,000/- (Rs.30,000/- income per annum x 15 multiplier).

Further, under conventional heads towards loss of estate,

funeral expenses and loss of consortium, it should be awarded

Rs.50,000/- in all and therefore, total amount of compensation

would come to Rs.5 lakhs, which is required to be awarded

to the claimants as compensation.

6.5 In view of above, considering the facts and

circumstances as well as ratio laid down by the Hon'ble Apex

Court, the claimants are entitled to get more compensation

as noted above. Hence, total compensation would be as under,

which the claimant/s is/are entitled to get.

                          Particulars                           Amount (Rs.)

  Loss of Dependency                                                    4,50,000/-

  Loss of Estate, Funeral Expenses & Loss                                  50,000/-

  of Consortium

                                                    Total...              5,00,000/-

  Less : Amount which is already awarded                                2,55,000/-

               Additional amount which is awarded                       2,45,000/-






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      C/FA/1286/2024                              JUDGMENT DATED: 02/08/2024

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7. Therefore, I hold that the claimant/s are entitled

to get the total amount of compensation of Rs.5 lakhs with

9% p.a. interest from the date of filing the claim petition till

its realisation, which would meet the ends of justice. Rest of

the direction(s) of the Tribunal remain same. The Tribunal

has already awarded Rs.2,55,000/-, therefore, remaining

amount of Rs.2,45,000/- would be the enhanced amount of

compensation payable to the claimant/s.

8. For the reasons recorded above, the following order

is passed.

8.1 The appeal is partly allowed.

8.2 The Insurance Company is directed to deposit the