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2018 DIGILAW 427 (GUJ)

BHARATKUMAR TRIKAMLAL PANDYA v. EKNATH MURLIDHAR KOTHULE

2018-02-06

A.G.URAIZEE, S.R.BRAHMBHATT

body2018
JUDGMENT : A.G.URAIZEE, J. 1. The present Appeal under Section 173 of the Motor Vehicle Act, 1988 ('M.V. Act' for short) is preferred for enhancement of compensation awarded by the Tribunal vide judgment and award dated 12.05.2016 in MACP No.885 of 2003, whereunder the Tribunal has awarded Rs.2,10,000/- on all counts as compensation for death of son of the claimant nos.1 and 2 who was aged 15 years at the time of accident. 2. The present appeal is taken up for final disposal with consent of the parties, as the issue involved in the present appeal moves in a very narrow compass. Hence, Admit. Learned advocate Shri Palak H.Thakkar wavies service of notice of admission on behalf of respondent no.2 – Insurance Company. Respondent no.1, who happens to be the owner of the offending vehicle, is not necessary for disposal of the present appeal. 3. The brief facts, as could be gathered from the impugned judgment and award are that the appellant no.1 is the father of the deceased, appellant no.2 is the mother of the deceased and appellant nos.3 and 4 are the brothers of deceased. On 21.07.2003 around 4.40 P.M., deceased was proceeded to Parvati Kunt Society on his bicycle in a careful and safe-full manner at reasonable speed, one Truck bearing Registration No.MH-15-G-3921 came from opposite side in full speed, rash and negligent manner and all of sudden dashed with the bicycle and deceased was died on the spot. The accident took place on account of gross negligence on the part of the Truck driver. It is also stated that the respondent no.1 was owner of the Truck and respondent no.2 had insured the vehicle No.MH-15-G-3921 involved in the accident at the time of accident. The appellants have prayed for an amount of Rs.25,00,000/- as compensation on the various heads under Section 166 of the Act. It is alleged that, the respondents being owner and insurer of the vehicle involved in the accident, are liable to pay compensation to the appellants. Since, the appellants are not happy with the quantum of compensation awarded by the Tribunal, the present appeal is preferred. 4. Mr. It is alleged that, the respondents being owner and insurer of the vehicle involved in the accident, are liable to pay compensation to the appellants. Since, the appellants are not happy with the quantum of compensation awarded by the Tribunal, the present appeal is preferred. 4. Mr. Maulik H.Vaghela, learned advocate for the appellants, relied upon unreported CAV Judgment of learned single Judge dated 22.01.2016 in First Appeal No.5279 of 2007, vehemently submitted that the Tribunal has fallen in error in considering Rs.15,000/- as notional income of the deceased and in view of the aforesaid decision the Tribunal ought to have considered Rs.36,000/- per annum as notional income. It is his further submission that since the deceased was bachelor, the Tribunal ought to have deducted 1/2 instead of 1/3rd towards personal expenses of the deceased. He also relied upon the recent decision of the Full Bench of the Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi And Ors., reported in 2017 (3) G.L.H. 536. He, therefore, urges that the impugned judgment and award of the Tribunal may be modified and the compensation awarded by the Tribunal may be enhanced accordingly. 5. Mr. Palak H.Thakkar, learned advocate for the respondent no.2 – Insurance Company has vehemently opposed the appeal. He would submit that the deceased was aged 15 years and was non earning person. According to his submission, the Tribunal by assigning cogent reason has assessed Rs.15,000/- as notional income of the deceased which does not require any interference in this appeal. It is his further submission that 1/3rd deduction towards personal expenses of the deceased is just and proper because the deceased was aged 15 years and non earning person. He therefore, urges that the appeal is dehors of merits and be dismissed. 6. Having heard learned advocates for both the sides and on having perused the impugned judgment and award and the decision of learned single Judge of this Court in First Appeal No.5279 of 2007, we are of the considered view that the submissions canvassed by Mr. Vaghela, learned advocate for the appellants, need to be accepted. 6. Having heard learned advocates for both the sides and on having perused the impugned judgment and award and the decision of learned single Judge of this Court in First Appeal No.5279 of 2007, we are of the considered view that the submissions canvassed by Mr. Vaghela, learned advocate for the appellants, need to be accepted. The relevant portion of the observations made by the learned single Judge in para 5.1 in the aforesaid decision is as under: “...From the impugned judgment and award passed by the learned Tribunal it appears that while awarding future loss of income the learned Tribunal has assessed the income of the deceased at Rs.12,000/per annum and after deducting 1/3rd towards personal expenses of the deceased and after applying the multiplier of 15 the learned Tribunal has awarded Rs.1,20,000/towards future loss of income. However, considering the decision of the Hon’ble Supreme Court in the case of Lata Wadhwa vs. State of Bihar reported in (2001)8 SCC 197 and the recent decision in the case of Kishan Gopal & Anr. vs. Lala & Ors. Reported in (2014)1 SCC 244 , the notional income of the deceased is required to be considered at Rs.36,000/per annum (Rs.3000/per month) and as the deceased was a minor / bachelor, as per the decision of the Hon’ble Supreme Court in the case of Sarla Verma (Supra), ½ is required to be deducted towards personal expenses of the deceased. The contention on behalf of the original claimants that as the deceased was a minor and therefore, nothing is to be deducted towards personal expenses of the deceased cannot be accepted in view of the law laid down by the Hon’ble Supreme Court in the case of Sarla Verma (Supra), followed by the Hon’ble Supreme Court in the case of Reshma Kumari and Ors. vs. Madan Mohan and Anr. Reported in (2013)9 SCC 65 . The submission of Shri Sheth, learned advocate appearing on behalf of the original claimants that as in the case of Sarla Verma (Supra), the Hon’ble Supreme Court has used the word “bachelor” and the dictionary meaning of the word “bachelor” would be undergraduate” and therefore, the decision of the Hon’ble Supreme Court in the case of Sarla Verma (Supra) shall not be applicable, also cannot be accepted. One of the dictionary meaning of “bachelor” would be “undergraduate”, however one another meaning would be “unmarried person”. One of the dictionary meaning of “bachelor” would be “undergraduate”, however one another meaning would be “unmarried person”. Under the circumstances, the deceased who at the time of accident was aged 14 years can also be considered to be “unmarried person” and therefore, as observed by the Hon’ble Supreme Court in the case of Sarla Verma (Supra) in case of “bachelor”, ½ is required to be deducted towards personal expenses of the deceased, while awarding / considering the future loss of income...” 7. Thus, in view of the aforesaid decision, we are of the considered view that the Tribunal ought to have considered Rs.36,000/- per annum as the notional income of the deceased. Obviously, since the deceased was aged 15 years, he was bachelor. It is trite law that in case of bachelor, 1/2 is required to be deducted towards personal expenses and accordingly the dependency of the appellants would come to Rs.18,000/- per annum. Looking to the age of the deceased, in our view, the Tribunal has rightly adopted multiplier of 18. Accordingly, the dependency of the appellants would come to Rs.18,000/- X 18 = 3,24,000/-. In our view, the conventional amount under the head of love and affection and funeral expenses does not warrant interference as it is in tune with the recent decision of Full Bench of the Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi And Ors. (supra). Accordingly, we are of the view that the Tribunal ought to have awarded Rs.3,54,000/- (3,24,000/- + 30,000/- conventional heads) as compensation and therefore, the appellants are entitled to enhancement of Rs.3,54,000 – 2,10,000/- = 1,44,000/- with 9% interest, as awarded by the Tribunal. 8. The compensation awarded by the Tribunal under conventional heads is just and reasonable and does not therefore warrant revision in this appeal. 9. For the foregoing reasons the appeal succeeds in part. The impugned judgment and award is hereby modified and the appellants are held entitled to Rs.1,44,000/- (Rupees One Lakh Forty Four Thousand) as enhanced compensation with 9% interest. The respondent no.2 – Insurance Company is directed to deposit the enhanced compensation amount within three months from the date of receipt of the order. Parties to bear their own costs.