Sudeeprav Sukhdevrav Bagul vs Bhagwanji Uttamsing
2024 Latest Caselaw 1254 Guj

Gujarat High Court

Sudeeprav Sukhdevrav Bagul vs Bhagwanji Uttamsing on 13 February, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/4287/2022                                   ORDER DATED: 13/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4287 of 2022

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SUDEEPRAV SUKHDEVRAV BAGUL & ORS.SUDEEPRAV SUKHDEVRAV
                       BAGUL
                        Versus
    BHAGWANJI UTTAMSINGBHAGWANJI UTTAMSING & ORS.
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3
MRS KRISHNA G RAWAL(1315) for the Defendant(s) No. 2
NOTICE NOT RECD BACK for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 13/02/2024

                                ORAL ORDER

1. Present appeal challenges the judgment passed by the Motor Accident Claims Tribunal (Auxiliary), Vadodara in MACP No.758 of 2016 which was filed along with MACP No.757 of 2016. Common judgment was given in both the MACPs.

2. Mr. Mohsin M. Hakim, learned advocate for the appellants stated that MACP No.758 of 2016 was filed by the parents on the death of their minor son Jal who was aged about seven years at the time of accident. Mr. Hakim, learned advocate submitted that the child survived for a day and then succumbed to the injuries. Referring to the judgment of the learned Tribunal, Mr. Mohsin M. Hakim, learned advocate

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further submitted that the learned Tribunal has placed reliance upon the decision of Lata Wadhwa and Other vs. State of Bihar and others reported in (2001) 1 SCC 197. However, the judgment was not followed in right spirit since relying on the judgment of Lata Wadhva (supra), the Apex Court in case of Kishan Gopal and another vs. Lala and others reported in (2014) 1 SCC 244 has laid down the ratio to consider for the assessment of the compensation to be granted in the case of death of minor. Mr. Hakim, learned advocate further submitted that the amount under the head of pain, shock and suffering was also required to be granted for a minor who suffered for a day and for that reliance has been placed on the decision in case of Royal Sundaram Alliance Insurance Co. Limited vs. Jayantilal Hemchandbhai Panchal reported in 2016 JX (Guj) 1551.

3. Countering the arguments made by learned advocate for the appellant, Mrs. Krishna G. Rawal, learned advocate for respondent no.2 submitted that the learned Tribunal has considered the dependency loss and also granted the amount under the heads of loss of estate, funeral expenses, love and affection and even special amount has been granted for transportation since the accident had taken place at Himachal Pradesh and the body of the deceased Jal was brought from Amritsar to Ahmedabad and thereafter was taken in Ambulance at the house.

4. The facts could be noted from the judgment that the

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deceased minor along with his parents had gone to Delhi, Shimla, Manali and Dharmshala during December, 2015 since the parents had received LTC permission as per the Government Notification as both are serving in Anand Agriculture Vishvavidhylaya. On 24/12/2015 at around 3:00 p.m. in Dharmshala near Kotvali Bazir after lunch when they were going towards Cant Road, Kalimata Temple on foot, at that time from the Maklodganj one military bus bearing registration no.JK-02-H-7925 came in rash and negligent manner and on the wrong side and dashed the claimant Khyatiben and her minor son Jal, as a result of the same, both of them fell down on the road and sustained serious injuries and thereafter minor Jal succumbed to death during the treatment due to the serious injuries. An FIR being I-CR No.246 of 2015 was registered before the Dharmshalal Police Station. The facts of the case also suggests that after the accident, minor Jal was admitted in the hospital and died on 25/12/2015 and thus, he survived only for a day.

5. The main ground inter alia raised in this appeal is that the learned Tribunal has committed error in not following the ratio laid down in the case of Kishan Gopal And Another Vs. Lala And Others, reported in 2013 ACJ 2594 to grant the compensation by considering the ratio of assessing the notional income of the deceased as Rs.30,000/-, and ought to have granted Rs.5,00,000/- as compensation.

6. In Kishan Gopal an Another Vs. Lala And Others

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(supra), the Hon'ble Supreme Court by referring the facts of the case of minor aged about 10 years, had considered the notional income as Rs.30,000/- by applying multiplier of 15, considered Rs.4,50,000/- as dependency loss and Rs.50,000/- has been considered under the conventional heads for loss of love and affection, funeral expense and last rites, as was held in General Manager, Kerela State Road Transport Corporation Vs. Susamma Thomas, reported in 1994 ACJ 1 (SC), which is referred to in Lata Wadhwa and Ors. Vs. State of Bihar and Ors., reported in (2001) 1 Supreme Court Cases 197.

7. In Meena Devi Vs. Nunu Chand Mahto @ Nemchand Mahto (supra), the child died in a road accident was aged about 12 years. The Hon'ble Apex Court after applying the ratio laid down in case of Kurvan Ansari @ Kurvan Ali & Another Vs. Shyam Kishore Murmu And Another, reported in (2022) 1 SCC 317, and the principle laid down in Kishan Gopal And Another Vs. Lala And Others (supra), accepting the notional earning of Rs.30,000/- including the future prospect and by applying the multiplier 15, in view of the decision in Sarla Verma and Others vs. Delhi Transport Corporation and Another, reported in AIR 2009 SC 3104, the loss of dependency was assessed as Rs.4,50,000/-, and further Rs.50,000/- was added in conventional head, and, thus total compensation of Rs.5,00,000/- was granted.

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8. Here in the present case, minor child survived for a day. Hence, following the judgment in the case of Royal Sundaram Alliance Insurance Co. Ltd. vs. Jayantibhai Hemchandbhai Panchal reported in 2016 JX (Guj) 1551, Rs.15,000/- is considered as a reasonable amount by this Court to be granted under the head of pain, shock and suffering.

9. The Tribunal has granted an amount of Rs.3,10,432/- which includes transportation amount of Rs.30,432/- as per the evidence so spent for bringing the dead body of the child from Amritsar and thereafter taking the body to Vadodara.

10. Hence, total entitlement of the claimant would be as under:

10.1. Under the head of dependency loss adding with the conventional heads Rs.5,00,000/- and an amount of Rs.15,000/- under the head of pain, shock and suffering and further the transportation amount of Rs.30,432/- which has been proved. Thus, the union is required to deposit total amount of Rs.5,45,432/-.

11. As the amount of Rs.3,10,432/- is already deposited, the difference amount of compensation being Rs.2,35,000/- to be deposited at the rate of 7.5% from the date of this order within a period of eight weeks. The award of the learned

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tribunal is modified to the aforesaid extent.

12. On deposit of amount of compensation as aforesaid, total amount of compensation be paid to both the parents in equal proportion after due verification by an account payee cheque or NEFT.

(GITA GOPI,J)

ILA