Nareshbhai @ Narsibhai @Narsinhbhai ... vs Balubhai Shantabhai Gamit
2024 Latest Caselaw 102 Guj

Gujarat High Court

Nareshbhai @ Narsibhai @Narsinhbhai ... vs Balubhai Shantabhai Gamit on 4 January, 2024

Author: Gita Gopi

Bench: Gita Gopi

                                                                                         NEUTRAL CITATION




     C/FA/5081/2022                                    JUDGMENT DATED: 04/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 5081 of 2022


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI                           Sd/-

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1    Whether Reporters of Local Papers may be allowed to see No
     the judgment ?

2    To be referred to the Reporter or not ?                                        No

3    Whether their Lordships wish to see the fair copy of the No
     judgment ?

4    Whether this case involves a substantial question of law as No
     to the interpretation of the Constitution of India or any
     order made thereunder ?

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           NARESHBHAI @ NARSIBHAI @NARSINHBHAI KATHUD
                             Versus
                   BALUBHAI SHANTABHAI GAMIT
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 04/01/2024

                                 ORAL JUDGMENT

1. By way of this Appeal, the Appellants-claimants have challenged the judgment and award dated 03.03.2021 passed by the learned Motor Accident Claims

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Tribunal, Tapi at Vyara in M.A.C.P. No.21 of 2018 on the ground that the compensation is not appropriately granted by the learned Tribunal. The appellants were the claimants before the learned Tribunal as parents of the deceased daughter, aged 17 years at the time of the accident which had occurred on 13.08.2017.

2. The facts giving rise to the present Appeal can be put succinctly as under :-

On 13.08.2017, at about 9.00 am, the deceased was travelling as pillion rider on the motor cycle bearing Registration No.GJ-26-P-1700, of the ownership of the respondent No.1. It has been alleged that the respondent No.1 was driving the motor cycle in full speed and in a rash and negligent manner and in breach of traffic rules and dashed with an unknown Truck, and as a result, the daughter of the claimants was thrown on the ground, she suffered injuries on the head and other parts of the body and died at the place of accident.

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3. Learned Advocate for the appellants - claimants Mr. Hiren Modi submitted that the Hon'ble Apex Court has laid down the proposition of law in the cases of Lata Wadhwa and Others v. State of Bihar and Others reported in 2001 8 SCC 197 and Kishan Gopal v. Lala and Others reported in 2013 (4) T.A.C. Page 5, wherein certain observations have been made for the compensation to be granted to the minors incase of a fatal accident which has now almost become a law and the learned Tribunal is required to follow the same so that the parents of the minors are suitably compensated for the loss of their children in a vehicular accident. It is further submitted that the minor was travelling as pillion rider and so from a point of view of claimants, it would be a case of composite negligence. The learned Tribunal has appropriated the award by considering 40% of the motor cyclist and 60% of the unknown truck driver.

4. Learned Advocate Mr. Hiren M. Modi has relied on the decision of the Hon'ble Apex Court in case of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113 and submitted that the claimants would be entitled to recover the amount from any of the tort

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feasors.

5. On the other hand, learned Advocate for the respondent - Insurance Company Ms. Kirti S. Pathak referring to the facts of the case and the observations made by the learned Tribunal submitted that the compensation granted is in accordance to various decisions of the Hon'ble Apex Court. Learned Advocate Ms. Kirti S. Pathak submitted that the assessment is in accordance to the standard which is applicable to minors and thus, stated that the compensation granted is just and reasonable.

6. Having heard learned Advocates for the respective parties, perused the records of the case. The deceased was travelling as a pillion rider. The owner of the motor cycle and the Insurance Company has been joined as a party respondent. The compensation amount is ordered to be recovered jointly and severally. The deceased daughter was aged 17 years at the time of accident. Following the decisions in the cases of Lata Wadhwa (supra) and Kishan Gopal (supra), compensation is required to be granted accordingly.

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7. In Kishan Gopal (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, Kerala State Road Transport Corporation Vs. Susamma Thomas, reported in 1994 ACJ 1 (SC), which is referred to in the case of Lata Wadhwa (supra).

8. In Meena Devi Vs. Nunu Chand Mahto @ Nemchand Mahto reported in 2022 ACJ 2478, 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 (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 (supra), the loss of

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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.

9. This Court considers that the present matter in which the age of deceased minor was 17 years at the time of accident, should be placed at the same pedestal, as has been observed in case of Kishan Gopal (supra) and Meena Devi (supra). The notional earning of the the daughter including the future prospect is required to be considered as Rs.30,000/- and by applying multiplier of 15 as laid down in Sarla Verma (supra), the loss of dependency is required to be assessed as Rs.4,50,000/-, and Rs.50,000/- is required to be granted under conventional head and, thus this Court considers that in total compensation of Rs.5,00,000/- would be an equitable, just and reasonable compensation for the claimants - parents.

10. The learned Tribunal has awarded an amount of Rs.1,92,000/- with rate of interest @ 7% per annum, which the respondent/s are liable to deposit, with the enhanced amount as Rs.3,08,000/- (Rs.5,00,000/-

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minus Rs.1,92,000/-). In the result, the present respondent/s are directed to deposit the above/enhanced amount within a period of EIGHT (8) WEEKS from the date of receipt of writ of the order of this Court. It is further directed that the claimants would be entitled to receive the enhanced compensation @ 7.5% per annum from the date of the application.

11. After deposit of the above/enhanced amount, it is directed that the appellant-claimants be paid 60% of the said amount, in equal proportion, after carrying the necessary procedures for verification of their identities. The remaining 40% be kept in a Fixed Deposit Receipt (FDR) for a period of two years and on expiry of the period of two years, the said amount with the interest earned thereon be handed over to the claimant/s, after following the necessary procedures, without any further reference to the Court.

12. In view of the above, the Appeal is allowed and the judgment and award dated 03.03.2021 passed by the learned Motor Accident Claims Tribunal, Tapi at

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Vyara in M.A.C.P. No.21 of 2018 stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.

Sd/-

(GITA GOPI, J) CAROLINE