Gujarat High Court
Mukundbhai Parshottambhai Chauhan vs Mangilal Vanzara on 4 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3005 of 2024
With
R/FIRST APPEAL NO. 3006 of 2024
With
R/FIRST APPEAL NO. 3007 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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MUKUNDBHAI PARSHOTTAMBHAI CHAUHAN & ORS.
Versus
MANGILAL VANZARA & ANR.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/09/2024
COMMON ORAL JUDGMENT
1. These First Appeals, under Section 173 of the
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Motor Vehicles Act, 1988, are preferred by the appellant/s -
original claimant/s, being aggrieved and dissatisfied with the
impugned judgments and awards 11.08.2023 passed by the
Motor Accident Claims Tribunal (Main), Mahisagar at
Lunawada in Motor Accident Claim Petitions No.3, 4 and 2
of 2020, by which the Tribunal has awarded compensation of
Rs.3,45,000/- with 8% per annum interest to the claimant/s,
in all the claim petitions, holding Opponents No.1 and 2 i.e.
driver-cum-owner and insurance company of the Eon Car
bearing registration No.GJ-35-B-5381 liable, jointly and
severally.
2. Brief facts of the case are as under:
2.1 That on 28.11.2019, the deceased persons were
travelling in Eon Car bearing registration No.GJ-35-B-5381
and were going for Darshan of Aapeshwar Temple. Opponent
No.1 - driver-cum-owner was driving the said car in rash
and negligent manner and with excessive speed. When they
reached the outskirts of village Karanpur, opponent No.1 lost
control over the steering due to excessive speed and the car
had left the road and dashed with the culvert and fallen into
a ditch. As a result, all the deceased persons sustained
serious injuries. Ultimately, they succumbed to the injuries.
Therefore, the legal heirs of the deceased persons have filed
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claim petition seeking compensation with cost and interest for
unnatural and untimely death against the present
respondents before the Tribunal.
2.2 Notices were served to the opponents. Opponents
No.1 - driver-cum-owner has chosen not to appear and
contest the claim petition before the Tribunal. Opponent No.2
- Insurance Company has appeared and has filed its written
statement / objections, by disputing all the averments made
by the claimant in the claim petition in their written
statements.
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.
2.5 Since the accident in question, parties and
submission as well as documentary evidence are common in
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all the three appeals, with consent of the learned advocates,
all the appeals are heard and decided together today.
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;
like prospective income of the deceased, negligence, liability
and family circumstances, etc. He has submitted that the
deceased persons were aged about only 16, 14 and 15, years
respectively, 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). 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 awards impugned
accordingly and these appeals may be allowed.
4. Per contra, Mr. Rathin Raval, learned advocate for
respondent - Insurance Company has submitted that the
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impugned judgments and awards passed by the Tribunal are
just and proper. The Tribunal has rightly considered the
income of the deceased persons, the age of the deceased
persons, 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 submitted that the amount under the head of loss of
consortium is just and proper. He has submitted that these
appeals 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
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rival parties. I have perused the record and proceedings of
the Tribunal. I have gone through the impugned judgments
and awards passed by the Tribunal. From the record, it
transpires that the deceased persons were aged about 16, 14
and 15 years, respectively. The Tribunal has considered the
annual income of the deceased persons Rs.25,000/- in all the
claim petitions and awarded total compensation of
Rs.3,45,000/- to the claimant/s in all the claim petitions.
6.2 At this stage, it would be fruitful to refer to 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
the accident did not take place on account of
the rash and negligent driving of the
offending vehicle by the first respondent and
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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
compensation to those who had
no income prior to accident:...........
a) Non-earning persons - Rs.
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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
observation was further made that loss of
children is irrecoupable and no amount of
money could compensate the parents. Having
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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
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
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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
v. Susamma Thomas 4, which is referred to
in Lata Wadhwa's case and the said amount
under the conventional heads is awarded
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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."
6.3 In view of the above ratio laid down by the
Hon'ble Apex Court, the income of the deceased persons
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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.
6.4 In view of above, considering the facts and
circumstances as well as ratio laid down by the Hon'ble Apex
Court, the claimants of all the three appeals 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 3,45,000/-
Additional amount which is awarded 1,55,000/-
7. Therefore, I hold that the claimants of all the
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three appeals are entitled to get the total amount of
compensation as mentioned hereinabove, which would meet
the ends of justice.
8. For the reasons recorded above, the following order
is passed.
8.1 These appeals are partly allowed.
8.2 The Insurance Company is directed to deposit the
entire awarded amount, if yet not deposited, including the
enhanced amount, as noted above, with interest and cost as
decided by the Tribunal, from the date of claim petition till
its realisation, qua all these three appeals, before the
concerned Tribunal, within a period of six weeks from the
date of receipt of this order. Rest of the direction(s) of the
Tribunal remain same.
8.3 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal (including
enhanced amount), with accrued interest thereon, if any, to
the respective claimants of all the three First Appeals /
MACPs, by account payee cheque / NEFT / RTGS, after
proper verification and after following due procedure.
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8.4 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
8.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J)
M.H. DAVE
