[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2072 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE [ENTITY] 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 [ACT] or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] W/O S Appellant(s) Versus [ENTITY] & 2 Defendant(s) Appearance: MR [ENTITY], ADVOCATE for the Appellant(s) No. 1 , 1.6 MS [ENTITY], ADVOCATE for the Appellant(s) No. 1.1 - 1.5 MR [ENTITY], ADVOCATE for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1 - 2 CORAM: HONOURABLE MS.JUSTICE [ENTITY] Date : 25/04/2014 ORAL [CASE NUMBER]
[CASE NUMBER] By way of this appeal under [SECTION] of the [ACT] (hereinafter referred to as `the Act'), the appellants-original claimants have called in question the judgment and award dated 29th July 2000 passed by the Motor Accident Claims Tribunal (Aux.) at Modasa (Sabarkantha) in [CASE NUMBER], to the extent the same does not award the total compensation as claimed by the appellants.
2. The facts giving rise to the present appeal are that the appellants herein filed the above referred claim petition before the Tribunal stating that the appellant No.1 is the widow of the deceased [ENTITY], and the appellants No. 2 to 5 are the children of the deceased. It was the case of the appellants that on 7th September 1991 at about 2.15 p.m., the deceased was going on the left side of the road near the Palanpur curve (Modasa-Himmatnagar Road). When he reached the curve of Palanpur, a tractor bearing No. GAD-8235 with trolley No. GRN-8217, which was being driven with excessive speed and in a rash and negligent manner, dashed against the deceased, who was going on the correct side. On account of the accident, the deceased sustained serious injuries, and ultimately succumbed to the same. The appellants, accordingly, filed the above referred claim petition seeking compensation of Rs.1,80,000/- under various heads.
3. The Tribunal after appreciating the evidence on record assessed the notional income of the deceased at Rs.1,000/- per month, and deducted Rs.300/- towards personal expenses of the deceased, and accordingly, computed the total family dependency at Rs.700/- per month. Accordingly, the Tribunal worked out the dependency benefits per year at Rs. 8,400/-, and having regard to the age of the deceased, applied a multiplier of sixteen and computed the total dependency benefits at Rs.1,34,400/-. The Tribunal also awarded Rs.15,000/- towards loss of consortium and loss of estate, and Rs.3,000/- for bringing the dead body home as well as towards pain, shock and suffering. Accordingly, the Tribunal awarded a [CASE NUMBER] total compensation of Rs.1,52,400/- with interest at the rate of twelve per cent per annum from the date of the application till realization thereof with proportionate costs. Being aggrieved, the claimants are in appeal.
4. Ms. [ENTITY], learned advocate for the appellants submitted that the Tribunal was not justified in assessing the notional income of the deceased at Rs.1,000/- per month, as against the claim of Rs.2,000/- per month. It was further submitted that the Tribunal has also failed to consider the aspect of future prospective income. It was pointed out that though there were five dependents, the Tribunal has deducted Rs.300/- towards personal expenses, which comes to about one third of the income. It was further submitted that the Tribunal has also not awarded any amount towards funeral expenses, as well as towards loss of affection. It was, accordingly, urged that the compensation awarded by the Tribunal is required to be enhanced.
5. Opposing the appeal, Mr. [ENTITY], learned advocate appearing on behalf of respondent No. 3 - Insurance Company, supported the impugned award by submitting that the Tribunal has on a due and appropriate assessment of the income of the deceased, applied the law as prevailing at the relevant time, and hence there is no warrant for interference by this Court.
6. In the first appeal, the appellants have enhanced the claim to Rs.4,15,000/-. It also appears that the appellants were permitted to file the present appeal as indigent persons.
7. This Court has considered the submissions advanced by the learned advocates for the respective parties, and has considered the record of the case as available before the Court. Though the appeal has been admitted in the year 2000, it appears that the Registry has not called for the record and proceedings of the case, and hence, the record remained with the trial court. Subsequently, vide order dated 16th January 2014, this Court had directed the Registry to forthwith [CASE NUMBER] call for the record and proceedings, pursuant to which, the record and proceedings have been received, which comprise only of the rojnama, the claim petition, the issues, and the judgment and decree. It appears that in the light of the fact that the judgment of the Tribunal was rendered in the year 2000, and the record and proceedings were not called for till date, the original record has been destroyed. Therefore, this Court has proceeded to decide the matter on the basis of the findings as recorded by the Tribunal in the impugned award.
8. As can be seen from the impugned judgment and award, before the Tribunal it was the case of the appellants that the deceased was working as a tailor, and was earning Rs.2,500/- per month. The Tribunal has believed the say of the appellants that the deceased was working as a tailor, but has not accepted the case of the appellants that he was earning Rs.2,500/- per month, and has assessed his notional income at Rs.1,000/- per month. In the opinion of the Court, as against the claim of Rs.2,500/- per month, the Tribunal was not justified in assessing the income at Rs.1,000/- per month only. Even at the lowest, the Tribunal ought to have assessed the income of the deceased at Rs.15,000/- per annum, which would come to Rs.1250/- per month.
9. Out of the amount of Rs.1,000/-, the Tribunal has deducted Rs.300/- as personal expenses of the deceased, which would come to almost one third of the monthly income. The Supreme Court in the case of [PRECEDENT], has held that in case where the number of dependent family members of the deceased is between four to six, one fourth has to be deducted towards personal expenses of the deceased.
10. The Tribunal also has not considered the aspect of future prospective income. In the light of the decision of the Supreme Court in the case of [PRECEDENT], and [PRECEDENT], wherein it has been held that in case of self- employed persons or persons with fixed wages, the actual income of the [CASE NUMBER] deceased must be enhanced for the purpose of computation of compensation by fifty per cent for a person aged below forty years, the future prospective income ought to have been taken into consideration while computing the dependency benefit. Having regard to the fact that the deceased at the relevant time was less than forty years of age, fifty per cent of the income assessed by the Tribunal was required to be added for the purpose of computation of the dependency benefit. Since this Court has assessed the notional income of the deceased at Rs.1,250/-, fifty per cent thereof is required to be added for the purpose of assessing the future prospective income. The dependency benefit is accordingly required to be computed as under:
Monthly income = Rs.1,250/-
Future prospective income = 1,250/- + 50% = Rs. 1,875/- Monthly dependency benefit = Rs.1,405/- (Rs. 1,875 - Rs. 470 (1/4th deducted towards personal expenses of the deceased) Annual dependency benefit = Rs.1,405 x 12 = Rs.16,860/- Total dependency benefit = Rs.16,860 x 16 (multiplier) = Rs.2,69,760/-
11. The Tribunal has awarded Rs.15,000/- towards loss of consortium and loss to estate. Having regard to the fact that the accident had taken place in the year 1991, the Court is of the view that the amount awarded by the Tribunal under the said head is just and proper, and there is no necessity of adding compensation under the head of loss of affection. The compensation of Rs.3,000/- towards bringing the dead body at home, and for pain, shock and suffering is also maintained. While it is true that no amount has been awarded towards funeral expenses, it is by now well settled that in case of claimants, who are the heirs of the deceased, no amount can be awarded towards pain, shock and suffering. Accordingly, Rs,3,000/- awarded by the Tribunal can be considered towards the head of transportation and funeral expenses. The total compensation would, accordingly, come to Rs.2,87,760/-. The Tribunal has awarded Rs.1,52,400/-. The appellants, therefore, will be entitled to additional [CASE NUMBER] compensation of Rs.1,35,360/-.
12. For the foregoing reasons, the appeal succeeds, and is accordingly allowed to the following extent:
The appellants shall be entitled to an additional compensation of Rs.1,35,360 with interest at the rate of seven and half per cent per annum from the date of filing of the claim petition till realization thereof. The respondent No.3 - Insurance Company shall deposit the additional amount of compensation with the Tribunal within a period of eight weeks from the date of receipt of copy of this judgment. Upon such amount being deposited, the Tribunal shall pass orders for disbursement in terms of the impugned award.
The Registry shall forthwith send back the record and proceedings of the case.
([ENTITY], J.) sndevu