Gujarat High Court Case Information System Print FA/341/2010 17/ 20 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 341 of 2010 With CIVIL APPLICATION No. 1845 of 2010 [ENTITY] - Appellant(s) Versus [ENTITY] & 3 - Defendant(s) Appearance : MR [ENTITY] for Appellant(s) : 1, MR [ENTITY] for Defendant(s) : 1 - 2. None for Defendant(s) : 3 - 4. CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 18/02/2010 ORAL ORDER
Heard learned Advocate Mr. [ENTITY] for appellant [ENTITY] and learned Advocate Mr. [ENTITY] for respondents original claimants.
By filing this appeal, appellant corporation has challenged amount of Rs.2,40,000.00 awarded by Claims Tribunal, Ahmedabad (Rural) in [CASE NUMBER] Exh. 40 dated 4th October, 2008. Claims Tribunal awarded total amount of Rs.4,80,000.00 with 7.5 per cent interest in favour of respondents claimants.
Learned Advocate Mr. [ENTITY] appearing for appellant-Corporation raised number of contentions. He submitted that Claims Tribunal has failed to appreciate fact that there was no proof of income whatsoever produced by claimants and further, there was no proof that he was doing work of diamond polishing with some company. Under such circumstances, Claims Tribunal ought to have considered income of deceased being notional at Rs.15000.00 per annum as per second schedule instead of taking it at Rs.2,500.00 per month. He submitted that the age of deceased was 19 years and yet, multiplier of 15 has been applied by Claims Tribunal which is on higher side, requires to be reduced by this Court. He also submitted that evidence of driver of Corporation has not been properly appreciated and for that, no reason has been assigned by Claims Tribunal for disbelieving evidence of driver. On the contrary, complainant who was driving scooter chose not to enter into witness box and therefore, as per his submission, adverse inference ought to have been drawn by Claims Tribunal against driver of scooter. He further submitted that claims tribunal has committed an error in holding that since departmental inquiry is pending against driver of ST Bus, negligence of bus driver is automatically proved. He submitted that Claims Tribunal has committed an error in awarding an amount of Rs.4,80,000.00 though claim made by claimants was confined to Rs.4,00,000.00 only. He submitted that Claims Tribunal has erred in granting an amount of Rs.25000.00 towards loss of estate and same is required to be reduced appropriately. He further submitted that rate of interest granted by Claims Tribunal 7.5 per cent per annum is also on its higher side and same is required to be reduced to 6% in this appeal. Except these submissions, no other submission is made by learned Advocate Mr. [ENTITY] before this Court and no decision is cited by him in support of the submissions recorded by this Court herein above.
Learned Advocate Mr. [ENTITY] appearing for respondents has made his submissions while supporting impugned award made by Claims Tribunal. As per his submission, matter is rightly examined by Claims Tribunal on basis of evidence on record and deposition of claimant before Claims Tribunal that the deceased was aged 19 years, doing work of diamond polishing, receiving Rs.4000.00 per month being monthly income of deceased and, therefore, on that basis, as no cogent evidence was produced by claimant, Claims Tribunal has rightly considered income at Rs.2500.00 per month and rightly considered prospective future income and then rightly deducted 1/3rd and rightly assessed Rs.4,50,000.00 after taking multiplier of 15. He relied recent decision of apex court in case of [ENTITY], 2009 (6) Supreme Today 106. He further submitted that Claims tribunal has rightly examined question of negligence and rightly held that driver of ST Bus had driven ST Bus in rash and negligent manner and caused accident. Complaint was filed against driver of ST Bus and charge sheet was also filed against him and departmental inquiry initiated by ST Corporation is also pending against him and, therefore, learned Advocate Mr. [ENTITY] submitted that these are enough documents to hold that accident occurred solely due to rash and negligent driving of ST Bus Driver. For that, as per his submission, no error has been committed by Claims Tribunal.
I have considered submissions made by both learned Advocates. I have also perused impugned award which is under challenge.
Brief facts leading to filing of this appeal are to the effect that on 26.3.2005, deceased was a pillion rider on Scooter bearing No. GJ.8.3328. At that time, ST Bus bearing No. GJ.18.V.1801 driven by its driver dashed with the scooter, due to which, deceased fell down on the road and wheel of the bus ran over him. Therefore, based on said facts, claim petition was filed by claimants parents of deceased. It was their case before Claims Tribunal that deceased was doing work of polishing diamonds and thereby he was earning Rs.4000.00 per month and that he was aged about 19 years at the time of accident. Before Claims Tribunal, claimants were claiming compensation of Rs.4,00,000.00.
Before Claims Tribunal, ST Corporation Opponent NO.1, on being served, filed its written statement at Exh. 16 denying claim and contents of claim petition. It was denied that accident took place due to rash and negligent driving by driver of ST Bus. It was contended that accident took place due to negligence of the driver of scooter and further, it was contended that scooterist has contributed negligence for accident in question and, therefore, claim petition against ST Corporation is required to be dismissed with costs.
Before Claims Tribunal, written statement was also filed by opponent no.3 insurance company of scooter involved in accident at Exh. 23 denying averments made by claimants as regards occurrence of accident, age and income of deceased and prayed for dismissing claim petition filed by claimants. Thereafter, issues have been framed by Claims Tribunal at Exh. 18 and question of negligence has been examined by Claims Tribunal. So far as question of negligence is concerned, on behalf of ST Corporation, submission was made by its Advocate appearing before Claims Tribunal that there was no negligence on the part of the ST Bus Driver. It was also submitted that the driver of ST Bus had filed his affidavit at Exh. 30 and driver was cross examined by advocate for company and that the driver of scooter has not been examined on record. As per panchanama, there was no damage on front and rear portion of bus but there was damage on the left side conductor portion of the bus. It was further submitted by him that scooterist has contributed negligence to maximum extent for accident in question and ST Corporation is not liable to pay compensation to claimants. Thereafter, on behalf of opponent insurance company of scooter, submission was made by advocate before claims tribunal that FIR is most important document for the purpose of negligence for the accident in question. It was his submission before Claims Tribunal that complaint was not filed by ST Bus Driver and charge sheet was filed against ST Bus Driver. Moreover, departmental proceedings are going on against ST Bus Driver. It was also submitted that driver has deposed in his interest and so, say of driver should not be believed.
Before Claims Tribunal, affidavit of claimant [ENTITY] was filed at Exh. 26 reiterating contents of claim petition. During cross examination, it was admitted by him that he has not seen accident. Before claims tribunal, affidavit was also filed by opponent no.1 [ENTITY] (Bhavsar) at Exh. 30 denying the contents of claim petition. It was stated by him during the course of his cross examination that he had not given complaint for accident and charge sheet was filed against him. He also stated that departmental inquiry is initiated against him and it is pending.
After considering submissions made by both learned advocates as well as evidence on record both oral and documentary, Claims Tribunal examined issue of negligence in para 11 and 12 of impugned award as under:
11. The applicants have produced complaint exh.31, panchanama ex.32, inquest panchanama exh.33, PM Report exh.34, etc. in support of their claim petition. The complaint was given by the scooter driver. The complainant has stated in his complaint that he was driving the scooter and the deceased was a pillion rider at the time of the accident. The complaint clearly indicates that near Railway Crossing, the ST bus driver took a turn due to which the bus dashed with the scooter. Due to this, the deceased fell down on the road and wheel of the bus ran over stomach of the deceased, and so, the deceased died on the spot. The complaint indicates the number of the ST Bus involved in the accident. The panchanama also indicates the number of the scooter lying at the place of the accident. The panchnama also indicates that ST Bus No. GJ.18.V.1801 having route of Ahmedabad-Gariyadhar was laying at the place of accident with damage portion near door of the bus at conductor side. The applicants have proved the factum of the accident i.e. date, time and place etc. by documentary evidence. The inquest panchnama and PM Report prove that the deceased died due to the accidental injuries.
The PM Report indicates that the cause of death is haemorrhage and traumatic shock due to injury to vital organs like brain, lungs, liver Speen and left kidney.
12. Considering the evidence as a whole and the arguments of both the sides, it clearly appears that the accident was within the sole control of the bus driver. The driver of the ST bus had driven the bus in rash and negligent manner and caused the accident. It clearly appears from the record that the complaint was filed against the bus driver and charge sheet was also filed against him. Moreover, Departmental Inquiry is pending against him for the accident in question. Considering the facts and circumstances, it clearly establishes that the ST bus driver is liable for the accident, and the question of sole and/or contributory negligence on the part of the scooter driver, does not arise. Hence, issue No.1 is decided accordingly.
In view of the above discussion made by Claims Tribunal after considering entire documentary and oral evidence on record, that the ST Bus Driver is solely negligent in driving bus in rash and negligent manner and bus dashed to rear portion of scooter and accordingly, complaint was filed against bus driver and charge sheet was also filed against him and departmental inquiry is also pending against him which is initiated by ST Corporation. According to my opinion, Claims Tribunal has properly appreciated these circumstances and Claims Tribunal has not committed any error in deciding question of negligence and, therefore, contentions raised by learned Advocate Mr. [ENTITY] in that regard cannot be accepted and same are therefore, rejected.
From Para 13 onwards, Claims Tribunal examined question of quantum of compensation. Submission made on behalf of claimants was that the deceased was doing work of diamond polishing and earning Rs.4000.00 per month and even unskilled labourer can earn Rs.3000.00 per month by placing reliance on decision in case of [PRECEDENT]; [PRECEDENT] reported in [PRECEDENT]. As against that, as per para 14 of award, it was submission of advocate for opponent no.1 i.e. present appellant before claims tribunal that applicants have not produced documentary evidence to prove income and so, it would be just and proper to assess notional income of Rs.2000.00 per month and to adopt multiplier of 16 for deciding claim petition. Advocate for insurance company also made submission before Claims Tribunal to assess notional income of deceased for deciding petition. Claims Tribunal also considered deposition of applicant NO.1 [ENTITY] at Exh. 26 that his son was aged about 20 years and he was doing work of diamond polishing and earning Rs.4000.00 p.m. However, in his cross examination, it was stated by him that there is no documentary evidence to show that his son was earning Rs.4000.00 per month. Claims Tribunal also considered RC Book at Exh. 35, insurance policy at Exh. 36, School Leaving Certificate at Exh. 37 and caste certificate at Exh. 38 and thereafter, in para 18 and 19 of impugned award, Claims Tribunal observed as under for deciding quantum:
In the present case, the deceased was aged about 20 years. It is stated by the applicants that the deceased was doing the work of polishing the diamonds and earning Rs.4000.00 p.m. Looking to the tender age of the boy, it should be inferred that his monthly income should be Rs.2500/- p.m. as the income of the deceased, and I take the prospective income of Rs.5000.00 (Rs.2500x2) per month and average of prospective income at Rs.3750/- (Rs.2500+5000=7500/2) for deciding the petition. It has come on record that the deceased was the only bread winner and the applicants were the dependents of the deceased. The applicants are the parents of the deceased and so I deduct 1/3rd i.e. Rs. 1250 (Rs.3750x1/3rd) p.m. For the personal expenses of the deceased and rest 2/3rd i.e. Rs.2500/- (Rs.3750x2/rd) p.m. Or Rs.30000/- (Rs.2500x12) per year would go to the family. Looking to the age of the deceased and that of the applicants, I am inclined to apply a multiplier of 15 in this case. Thus, the amount would come to Rs.4,50,000/- and it is awarded to the applicants under the head of dependency benefit. The applicants are also awarded Rs.25000/- for loss to estate. The applicants have not produced proof for the expenses incurred after the death of the deceased. However, the fact remains that the deceased died due to the accident and applicants must have spent amounts for the same. Thus, I award Rs.5000/- for the expenses incurred for after death ceremony of the deceased.
Thus, the total of compensation would come to Rs.4,80,000.00 is awarded to the applicants. Thus, the issues No.2 and 3 are decided accordingly.
19. It is settled principle of law that the applicants are entitled to a just compensation and Tribunal can award more compensation than the applicants have claimed in petition. At this stage, it would be just and proper to state that though the applicants have claimed the compensation of Rs.4,00,000/- in this petition, they are entitled to get just compensation i.e. Rs.4,80,000/- from the opponents.
I have considered observations and discussion made by claims tribunal in para 18 and 19 as referred to above. Deceased was aged 20 years doing work of polishing diamond and accident occurred on 26th March, 2005 when deceased was going on scooter as pillion rider. Recently in case of [ENTITY], 2009 (6) Supreme Today 106, apex court has considered case of carpenter where accident occurred in 1997 and income of Rs.100.00 per day has been considered in respect of carpenter aged about 40 years, in absence of any cogent evidence and multiplier of 17 was applied considering 40 years age of deceased carpenter. According to my opinion, considering year of accident in this case, 2005, income of Rs.2500.00 decided by claims tribunal is just and reasonable considering year of accident in case of [ENTITY] wherein year of accident was 1997 wherein apex court considered daily income of carpenter at Rs.100/- who was aged 40 years, assessment of income done by Claims Tribunal is just, reasonable and proper. In this case, as against claim of claimants that deceased aged 20 years was earning Rs.4000.00, as there was no cogent evidence to show that he was so earning, claims tribunal has rightly considered his monthly earning of Rs.2500.00 considering the work of diamond polishing done by deceased as stated by claimants and claims tribunal has also rightly considered future prospective income of deceased looking to age of deceased.
Considering reasoning given by Claims Tribunal for deciding quantum on the basis of evidence on record, according to my opinion, Claims Tribunal has rightly decided quantum in this petition and same is in consonance with decisions in case of [PRECEDENT]; [PRECEDENT] and [PRECEDENT]. I have considered decisions. Decision of the Hon'ble apex court in [PRECEDENT] has been considered by division Bench of this Court in case of [PRECEDENT]. Principle has been decided by Hon'ble apex court as per aforesaid decisions that while considering amount of compensation, future prospective income must have to be taken into account on the basis of age and income of deceased. Therefore, claims tribunal has rightly held that looking to age of deceased, his income has to be inferred at Rs.2500/- p.m. and has rightly taken prospective income of Rs.5000.00 (Rs.2500x2) per month and average of prospective income at Rs.3750/- (Rs.2500+5000=7500/2) and has rightly deducted 1/3rd therefrom towards personal expenses of the deceased. Claims Tribunal has also rightly considered age of deceased as well as age of claimants and rightly applied multiplier of 15 and worked out loss of dependency at Rs.4,50,000.00 and has rightly awarded Rs.25000.00 for loss of estate and then awarding total amount of compensation of Rs.4,80,000.00 while adding Rs.5000.00 towards funeral expenses to claimants because of accidental death of deceased. Therefore, according to my opinion, such amount of compensation awarded by claims tribunal is quite just, reasonable and proper and it cannot be said to be on higher side in any manner Therefore, contentions raised by learned Advocate Mr. [ENTITY] in that regard cannot be accepted and same are, therefore, rejected.
Learned Advocate Mr. [ENTITY] submits that claims tribunal has awarded more amount than what has been claimed by claimants. He submitted that the claim of claimants before claims tribunal was only for Rs.4,00,000.00 but claims tribunal has awarded Rs.4,80,000.00 in favour of claimants. This question has been examined by apex court recently in case of Oriental Insurance Company Ltd. Versus [ENTITY],reported in 2009 AIR SCW page 3717. Relevant discussion made by apex court in para 27 of said decision is reproduced as under:
The function of Commissioner is to determine the amount of compensation as laid down under the Act. Even if no amount is claimed, the Commissioner must determine the amount which is found payable to the workman. Even in the cases arising out of the 1988 Act, it is the duty of the Tribunal to arrive at a just compensation having regard to the provisions contained in [SECTION] thereof.
In [PRECEDENT], it is held:
Similarly, the High Court of Punjab and Haryana in [PRECEDENT] that the grant of just and fair compensation is statutory responsibility of the Court and if, on the facts, the Court finds that the claimant is entitled to higher compensation, the Court should allow the claimant to amend his prayer and allow proper compensation.
21. For the reasons discussed above, in our view, under the [ACT], there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under Sub-section (4) to Section 166, even report submitted to the Claims Tribunal under [SECTION] can be treated as an application for compensation under the [ACT]. If required, in appropriate cases, Court may permit amendment to the Claim Petition."
In [PRECEDENT], this Court held :
[SECTION] of the Act enjoins the Tribunal to make an award determining "the amount of compensation which appears to be just." However, the objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression" which appears to the just"
vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily,or to ignore settled principles relating to determination of compensation."
In [PRECEDENT], this Court held :
In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake licence has to be considered differently in respect of the third party and in respect of own damage claims."
In [PRECEDENT], this Court held:
The administrative circulars as thence existed as also the regulations indisputably require supply of electrical energy to the agriculturists within a period of two months from the date of receipt of the amount asked for in terms of the demand notice. It may be true that the note appended thereto provides that the period specified therein shall be subject to availability of requisite material but the same does not absolve the appellant from performing its statutory duties.
23. In [PRECEDENT] a Full Bench of the Andhra Pradesh High Court has noticed thus: (An LT p.544, para 31) "31[24].
The meaning of `note' as per [ENTITY]'s Law Lexicon, 1997 Edn. is `a brief statement of particulars of some fact', a passage or explanation."
24. The note, therefore, was merely explanatory in nature and thereby the rigour of the main provision was not diluted."
{[See also [PRECEDENT]}.
In view of above discussion made by apex court, it is the duty of claims tribunal to consider object of [SECTION] of [ACT] and to award just, reasonable and proper compensation in favour of claimants irrespective of the claim made by claimants. This Court has to consider whether the amount of compensation awarded in favour of claimants irrespective of the claim made by claimants. This Court has to consider whether the amount of compensation awarded by claims tribunal can be considered to be reasonable, just and proper or not. Looking to objects of [SECTION] of [ACT] and decision of apex court as aforesaid and facts as referred to above, according to my opinion, Claims Tribunal has jurisdiction to award more amount of compensation than claim made by claimants and amount which has been awarded by claims tribunal in light of facts and circumstances of case and evidence on record is justifying Rs.4,80,000.00 which cannot be considered to be on higher side. On the contrary, such amount awarded by claims tribunal is found to be just, proper and reasonable and, therefore, contention raised by learned Advocate Mr.[ENTITY] in that regard cannot be accepted and same is therefore, rejected.
Apart from that,if submissions made by advocate for opponent No.1 ST Corporation before claims tribunal are considered as appreciated by claims tribunal in para 16 of award, then, it appears that advocate for present appellant before claims tribunal submitted that instead of Rs.4000.00, an amount of Rs.2000.00 has to be considered as monthly income and he has also submitted that multiplier of 16 is proper, to be applied. If calculation of loss of dependency is considered as per such submission made by advocate for ST Corporation before claims tribunal, then, total amount available to claimants on head of loss of dependency would come to Rs.3,84,000.00 and then, if amount towards loss of estate as well as amount for funeral expenses is added, then, it would come to about Rs.4,00,000.00 or so. Therefore, submission made by learned Advocate Mr. [ENTITY] that the income of deceased ought to have been considered by taking notional figure of Rs.15000.00 cannot be accepted as same is contrary to the stand taken by ST Corporation before claims tribunal. Similarly, contention that the multiplier of 15 applied by claims tribunal is on higher side also cannot be accepted since the same is contrary to submission made by advocate for appellant corporation before claims tribunal. If the submissions made advocate for appellant before claims tribunal, as recorded in para 16 of award are considered as a whole, then, it would amount to acceptance of claim of claimants almost in toto by appellant corporation and, therefore, on that ground also, present appeal filed by appellant challenging amount of Rs.2,40,000.00 cannot be entertained and therefore also, this appeal is required to be dismissed. In view of above discussion, there is no substance in this appeal and same is therefore dismissed.
Today, this court has dismissed first appeal. Therefore, no order is required to be passed in civil application for stay. Therefore, civil application for stay stands disposed of accordingly.
(H.K. Rathod,J.) [ENTITY]