KAMLESHBHAI PARSUBHAI BHURIYA vs. MELSINH DHIRUBHAI PARMAR

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 3164 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

========================================================== 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 ? ========================================================== KAMLESHBHAI PARSUBHAI BHURIYA Versus MELSINH DHIRUBHAI PARMAR ========================================================== Appearance: ADVOCATE NOTICE SERVED for the Appellant(s) No. 1,2 MR AJAY R MEHTA(453) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1,2 ========================================================== CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 19/04/2023

ORAL JUDGMENT 1. The claimants have challenged the judgment and award dated 25.4.2019 passed by the MACT (Aux), Dahod in MACP (new) no.2012/17. The Page 1 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 claim petition is of the deceased child of the claimants aged about 8 years. The claim petition was filed by advocate Mr. C.K. Shah for the claimants who is now no more since deceased notice was served to the appellants informing about the death of the advocate. However, they have not appointed any other advocate to represent the case. When the appeal was filed, advocate Mr. C.K. Shah has raised the ground of granting the compensation amount in accordance to the judgment of the Hon'ble Supreme Court in the case of Kishan Gopal & Anr. v. Lala & Ors., reported in (2014) 1 SCC 244 and had raised a ground that notional income ought to have been considered as Rs.30,000/- of the minor and applying the multiplier of 15 with the amount under the conventional heads of loss of love and affection of Rs.50,000/-, an amount of Rs.5,00,000/- had been prayed for. Page 2 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 2. As per the case of the appellants, they are labourers and were doing labour work at GEB coal-tar plant and were staying in a tent. On 31.8.2017, in the evening after the dinner, it is stated that the deceased minor was sleeping along with the family outside the tent and at about 24:00 hrs. at night, opponent no.1 driver of dumper no. GJ-07 VW- 3934 drove the vehicle in a rash and negligent manner and was trying to take a turn, but failed and the dumper roll over the deceased minor who sustained serious injuries and succumbed to death. The complaint was lodged at Khabhodej Police Station bearing CR no.I-57/17. 3. Heard Mr. Ajay Mehta, learned advocate for the insurance Company. He submitted that no evidence has been produced regarding any possibility of earning by the child and Page 3 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 thus, stated that the learned Tribunal, having considered the age of the minor and taking the notional income of Rs.15,000/- and applying the multiplier of 15, has rightly granted Rs.2,25,000/- as dependency loss and Rs.20,000/- is granted under the head of loss to estate and Rs.10,000/- for funeral expenses and therefore, submitted that Rs.2,55,000/- granted by the Tribunal is just and reasonable. 4. 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 Page 4 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 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

applied

the multiplicand. Thus, 30,000 x 15 =4,50,000 and 50,000/- under conventional heads towards loss of Page 5 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 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 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

favour

the appellants.” 5. 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. Page 6 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 6. 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/-. 7. Thus, the notional income in accordance to the judgments referred hereinabove is required to be considered as Rs.30,000/- and multiplier of 15 becomes applicable. Hence, the dependency loss would come to Rs.4,50,000/- and Rs.50,000/- can be given under conventional heads towards loss of love and affection, funeral expenses last rites and hence, the claimants would be Page 7 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 entitled to compensation of Rs.5,00,000/-. 8. As the Tribunal has granted compensation of Rs.2,55,000/- with interest at the rate of 9% per annum, the appellants would be entitled to the enhanced amount of compensation of Rs.2,45,000/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The insurance Company is directed to deposit the said amount within eight weeks from the date of receipt of writ of this Court. 9. Since the claimants could not have known about this judgment, let the concerned Tribunal inform the claimants about the same and the disbursement of the money be made. In view of the above, 50% of the amount shall be disbursed to the claimants after proper verification and 50% of the amount be Page 8 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 invested in a Fixed Deposit with any nationalized Bank for a period of three years and receipt of the same shall be kept in the custody of the Nazir of the concerned Tribunal. The claimants may approach the concerned Tribunal after three years and the Tribunal concerned shall disburse the amount to the claimants along with accumulated interest after proper verification. 10. This Court has noted that the Tribunal is directed to follow the directions given in the case of Smt. Hansaguri P. Ladhani v. The Oriental Insurance Company Ltd., reported in 2007 (2) GLH 291. The said direction would become onerous to the claimants as in the case of The Oriental insurance Company Ltd. v. Chief Commissioner of Income Tax (TDS) rendered in Special Civil Application no.4800/21, the Division Bench of this Court has laid down that there could not be any Page 9 of 10

C/FA/3164/2019 JUDGMENT DATED: 19/04/2023 deduction under the head of TDS as the amount has been received by way of compensation under the Motor Vehicles Act, 1988 and thus, if at all any amount has been deposited by the insurance Company to the income-tax department, the same be recovered and the same be deposited in the Tribunal so that the same can be granted to the claimants. 11. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received. (GITA GOPI,J) Maulik Page 10 of 10