FA/128420/2009 18/ 18 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1284 of 2009 To FIRST APPEAL No. 1285 of 2009 With CIVIL APPLICATION No. 3796 of 2009 To CIVIL APPLICATION No. 3797 of 2009 [ENTITY] - Appellant(s) Versus [ENTITY] & 5 - Defendant(s) Appearance : MR [ENTITY] for Appellant(s) : 1, MR [ENTITY] for Defendant(s) : 1 - 2, 6, None for Defendant(s) : 3 - 5. CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 29/04/2009 ORAL ORDER
Heard learned advocate Mr. [ENTITY] appearing on behalf of appellant Insurance Company.
The appellant insurance company has challenged the common award passed by MACT, Viramgam, District Ahmedabad in [CASE NUMBER] Exh.56 dated 24th October 2007. The claims tribunal has awarded Rs.8,000/- in [CASE NUMBER], Rs.4,05,000/- in [CASE NUMBER] and Rs.4,05,000/- in [CASE NUMBER] with 7.5% interest in favour of claimants.
Learned advocate Mr. [ENTITY] raised contentions before this Court that claims tribunal has committed gross error in assessing dependency benefit of Rs.2,500/- for the ladies/women those who are not working anywhere. Therefore, it amount to basic error committed by claims tribunal. Therefore, it requires interference by this Court. He also raised contentions that accident occurred because of tire has been burst and question of negligence of driver does not arise. The claims tribunal has committed an error in coming to conclusion that there was a negligence of driver of truck. He further raised contention that father of all the ladies did not have any agriculture land which has not been established before the claims tribunal. Therefore, claims tribunal has committed gross error in deciding the claim petition.
I have considered the submissions made by learned advocate Mr. [ENTITY] and I have also perused the award passed by claims tribunal in both the claim petitions.
The accident occurred on 3rd January 2006. One minor [ENTITY] received injury and one [ENTITY] and [ENTITY] both are died in the accident. On 3rd January 2006, these all three sisters were going to Viththalapur Bus Stand near road by walking on the correct side. At that occasion, opponent No.1 driving the truck bearing registration No.RJ-24-G-0976 belongs to opponent No.2 in a rash and negligent manner and dashed with these all three sisters and thereafter, truck has been turned turtle. In the said accident, [ENTITY] and [ENTITY], aged about 30 to 35 years, were crushed by the truck and died on the spot. The claim petition was filed by minor [ENTITY] claiming Rs.1,75,000/- and in respect of [ENTITY], claim petition was filed claiming Rs.5,00,000/- and in respect of [ENTITY], claim petition was filed claiming Rs.4,50,000/- under [SECTION] of the [ACT]. All the three cases have been consolidated and evidence have been recorded in [CASE NUMBER]. Opponent No.1 driver of truck vide Exh.18 on 11th September 2007 has been deleted from the claim petition. The owner of truck opponent No.2 though summons received by him, but, not appeared before claims tribunal and no reply is filed. Only insurance company Exh.17 has filed reply and denied the averments made in claim petition. Thereafter, issues have been framed in Para 3 by claims tribunal.
Before claims tribunal, the claimants have been examined vide Exh.22, 39 and 44, but, considering their evidence, no one was present at the time when accident occurred. So, they do not have any personal information about the accident. Complaint was filed by [ENTITY] vide Exh.25 and FIR was lodged vide Exh.38. At the time of accident, this [ENTITY] was sitting near Viththalapur Bus Stand at the Cabin of his nephew, at that occasion, one truck loaded with Coal coming from Viththalapur side going to Becharaji in rash and negligent manner dashed with these three ladies who were going on correct side by walking and crushed two ladies i.e. [ENTITY] and [ENTITY] by the said truck. On the same day, a complaint was lodged by [ENTITY], Bachubha. So, complainant is an eye-witness who has filed complaint on the same day and considering the [ENTITY] Ehx.26, the accident is occurred on the place where a truck turned turtle and stationery at a distance of 50 feet and Coal loaded in the truck have been spread on the road. Cabin and its glass of Conductor side, glass of driver side, Air brake of one excel have been broken. One tire is also burst. In all, Rs.40,000/- damage has been caused to the truck. The inquest panchnama has been carried out in respect of both the ladies. Injured minor [ENTITY] was admitted in hospital, where, MLC certificate Exh.28 was produced from Government Hospital, Kadi. She was discharged from hospital on 4th January 2006 who has given history in Government Hospital, Kadi. The criminal complaint was lodged against the driver. The truck has a tourist permit within the jurisdiction of Gujarat State, Maharashtra State and Goa State was produced at Exh. 31 on record, which was given in the name of opponent No.2. The joint inquest [ENTITY] was produced at Exh.27 and PM reports were also produced on record at Exh.42 and 47. Therefore, considering the PM reports, death of both ladies have been occurred due to vehicular accident. The tire has been burst at the time of accident and therefore, according to panchnama, the accident is occurred. The insurance policy was produced at Exh.30 by insurance company for the period of 15th October 2005 to 14th October 2006, therefore, it seems that on the date of accident, insurance policy was in existence. The age of [ENTITY] was 30 years which has been accepted by father and she was doing a labour work and considering its income Rs.3,500/-, but, in absence of any cogent evidence, after deducting 1/3rd, Rs.2,500/- has been considered dependency and looking to age, 13 multiplier has been applied. Thereafter, Rs.10,000/- for loss of consortium and Rs.5,000/- for funeral expenses has been awarded. In all, Rs.4,05,000/- has been awarded by claims tribunal in favour of respondent claimant. Similarly, in case of [ENTITY] also, same facts were produced by father i.e. the labour work in the field, Rs.3,500/- income, not produced cogent evidence in support of that, after deducting 1/3rd, Rs.2,500/- income and 13 multiplier considering the age 35 years and Rs.10,000/- for loss of consortium and Rs.5,000/- for funeral expenses, in all, Rs.4,05,000/- has been awarded by claims tribunal in favour of respondent claimant.
The contentions raised by learned advocate Mr. [ENTITY] that in absence of evidence in respect of income, the claims tribunal has committed gross error in assessing the income Rs.3,500/-, then, Rs.1/3rd deduction which comes to Rs.2,500/-. He submitted that there was no proof, where, deceased were working. Only saying that labour work in agricultural field, but, his father is not having agriculture field. Therefore, that conclusion is without any evidence on record which requires interference by this Court.
I have considered these submissions that the ladies or the female member in the family having the age of 30-35 years died in the accident. The female has to work in the family as required to do various kind of work to maintain the family. The service rendered to the family is also one of the aspect is to be taken into account while considering the case for compensation. The labour who is working in the field may not have any cogent evidence to produced pay slip, identity card or muster roll. Such labourers are working on daily wage basis irrespective of the father's field, but, they were working in a different field of different owner. As and when the work was available, such persons are working on such filed receiving the income from such sources for maintaining the family.
This Court has an occasion to consider the same question in case of [PRECEDENT].
Relevant Para 8 is quoted as under :
8. We have perused impugned award made by Claims Tribunal. We have thoroughly gone through the contention raised by learned Advocate Mr. [ENTITY] before us. Claims Tribunal has considered factor of income and occupation of deceased in paragraph 12 and 13 of impugned award.
Claims Tribunal has relied upon the evidence of husband of deceased i.e. Petitioner no.1 in respect of income of deceased though in cross examination, petitioner no.1 has admitted that he has no documentary evidence to support his version in respect of income of the deceased. However, Tribunal considered circumstances and nature of business being run by the deceased and on that basis, tribunal has fixed income of deceased at Rs.3000.00 for the purpose of computation of compensation. Thereafter, tribunal calculated compensation by relying upon the decision of apex court in case of [PRECEDENT] (supra). Relevant discussion made by claims tribunal in para 12 and 13 of impugned award is reproduced as under:
12. So far as the factor of income and occupation is concerned, petitioner No.1 has stated in his deposition Exh.28 that eased [ENTITY] used to earn Rs.150.00 per day by running [ENTITY]. But, at the same time, in the cross examination, he admitted that he has no documents to support his version. In these circumstances and considering the nature of business being run by the deceased, I fix monthly income of deceased [ENTITY] as Rs.3000.00 for the purpose of compensation.
13. In view of the observation made by His Lordship in a reported case, Smt. [PRECEDENT], so far as the adoption of the proper multiplier is concerned, it was observed that future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand.
While the chance of the multiplier is determined by two factors namely the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. Applying these principles to the facts of the case before this Court in the aforesaid case, it was observed that the deceased in that case was of 39 years of age. His income was Rs.1032.00 p.m. He was more or less on a stable job and considering the prospects of advancement in future career, proper higher estimate of monthly income of Rs.2000.00 as gross income to be taken as average gross future income of the deceased and deducting at least 1/3rd therefrom by way of personal living expenses, had he survived the loss of dependency, could be capitalized by adopting the multiplicand of Rs.1400.00 per month or Rs.17000.00 per year and that figure could be capitalized by adopting multiplier . Considering the above ratio, in the present case, monthly income of deceased [ENTITY] is Rs.3000.00 had she survived in life and had successfully completed her future career till the time of her life, the average gross future monthly income could be arrived at by adding the actual gross income at the time of death, namely Rs.3000.00 per month to the maximum which she would have otherwise got had she not died a premature death i.e. Rs.3000.00 per month x 3 = Rs.9000.00 divided that figure by two, thus, the average gross monthly income spread over her entire future career had it been available to work out to Rs.4500.00 per month would have been the gross monthly average income available to the family of the deceased had she survived as a bread winner. From the gross monthly income, at least 1/3 will have to be deducted by way of her personal expenses and other liabilities that would roughly work out to Rs.3000.00 per month and deducting the same by way of average personal expenses of the deceased from the average gross earning of Rs.4500.00 per month, balance of Rs.3000.00 would have been average amount available to the family of the deceased i.e. Her dependents. As the age of deceased [ENTITY] was 40 years at the time of her death, the proper multiplier would be
15.Rs.36,000=00 multiplied by 15 will work out to Rs.5,40,000.00. To this figure will have to be added the conventional figure of Rs.15000.00 by way of loss of e state and consortium.
Deceased [ENTITY] was working, having business of [ENTITY]. Deceased was earning member in the family. That fact was proved by her husband before the Claims Tribunal. According to his evidence, deceased was earning Rs.150.00 per day from [ENTITY]. On that basis, Tribunal calculated and fixed amount of Rs.3000.00 being income of deceased. Apex Court in [PRECEDENT], decided question of fixing or assessing income of housewife in absence of data in para 10 of said decision. Para 10 of said decision is reproduced as under:
10. So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation on the basis of services rendered by them to the house. On the basis of the age group of the housewives, approximate multiplier has been applied but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs.12,000.00 per annum in cases of some and Rs.10,000.00 for others, appears to us to be grossly low. It is true that the claimants who ought to have given datas for determination of compensation, did not assist any manner by providing the datas for estimating the value of services rendered by such housewives. But even in absence of such datas and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs.3000.00 per month and Rs.36000.00 per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore, should be re-calculated. Taking the value of services rendered per annum to be Rs.36,000.00 and thereafter applying the multiplier, as has been applied already and so far as the conventional amount is concerned, the same should be Rs.50000.00 instead of Rs.25000.00 given under the report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs.10,000.00 per annum and multiplier applied is eight. Though the multiplier applied is correct, but the value of services rendered at Rs.10000.00 per annum, cannot be held to be just and, we, therefore, enhance the same to Rs.20,000/- per annum. In their case, therefore, the total amount of compensation should be re-determined, taking the value of services rendered at Rs.20,000 per annum and then after applying the multiplier, as already applied and thereafter adding Rs.50,000.00 towards the conventional figure.
Thus, in [ENTITY] and others (supra), apex court fixed income of housewives between the age group of 34 to 59 at Rs.3000.00 who were active in life. In this case, age of deceased was fixed at 40 years, covered by said decision of apex court. Apart from the earning by the deceased, roll of the housewife in running a house is not that of rendering services as a slave. Her contribution to keep family together, providing household services besides matrimonial duties cannot be treated lightly. It has got nothing to do with the earning capacity of the husband which is an addition to what is taken care by the housewife. No matter what the status of the family may be, contribution of the housewife towards household may be treated to be at minimum Rs.3000.00 p.m. In the facts of this case, deceased was not merely a housewife but she was earning member of family. These two factors were taken into account by the claims tribunal while fixing Rs.3000.00 as income of the deceased which, according to our opinion, cannot be considered as excessive or exorbitant and evidence of husband in absence of documentary evidence must have to be believed by the claims tribunal. In private [ENTITY] carried out by the deceased, husband may not be having any documentary proof to prove income of the deceased. So, merely because there is no documentary evidence to prove income of deceased, it cannot be considered to be a ground for disbelieving or discarding oral evidence of husband petitioner no.1, therefore, according to our opinion, claims tribunal was right in assessing the income of deceased and was also right in calculating amount of compensation based upon such assessment and in doing so, according to our opinion, tribunal has not committed any error while awarding compensation in favour of claimants. [See : The [PRECEDENT]; judgment of the High Court of Jammu and Kashmir in [PRECEDENT]; [PRECEDENT]. Dated 5th July, 2004 of Delhi High Court in [CASE NUMBER]; [PRECEDENT].
Therefore, in view of the above discussion, contention raised by Mr. [ENTITY] cannot be accepted. Same is, therefore, rejected. Except that contention, no other contention was raised by Mr.[ENTITY] before us. Therefore, compensation awarded by Claims Tribunal cannot be considered to be excessive or exorbitant. Findings given by the claims tribunal are legal and valid based on cogent evidence. There is no perversity in the finding given by the tribunal. There is no contradictory finding given by the claims tribunal.
Consequently, this appeal is dismissed. [CASE NUMBER] for Stay is also dismissed. Registry is directed to transmit the amount of Rs.25,000.00 (Rupees twenty five thousand only) deposited by the appellant insurance company as required under [SECTION] of the [ACT] to the claims tribunal for payment to claimants.
In aforesaid reported decision, the roll of house wife in running a house is not that of rendering services as a slave. Her contribution to keep family together, providing household services besides matrimonial duties cannot be treated lightly. It has got nothing to do with the earning capacity of the husband which is an addition to what is taken care of by the housewife. No matter what the status of the family may be, contribution of the housewife towards household may be treated to be minimum Rs.3000-00 per month. After relying upon the Apex Court decision, this Court has observed as above.
In view of observations made by Division Bench of this Court as referred above and considering the evidence of [ENTITY], the negligence of driver has been proved because two ladies i.e. [ENTITY] and [ENTITY] both were crushed by truck after dashing the truck to both ladies, truck was turned turtle, which suggests a rashness of negligence driving of driver at the time of accident. The claims tribunal has also considered [ENTITY] where truck has been turned turtle at the distance of 50 feet from the place of occurrence, which also suggests the careless driving of opponent No.1 driver. Therefore, contentions which have been raised by learned advocate Mr. [ENTITY] cannot be accepted. Otherwise also, all the three ladies are considered to be a third party for the purpose of insurance company whose liability has been accepted being a statutory liability under [SECTION] of the [ACT].
Therefore, according to my opinion, claims tribunal has not committed any error which requires interference by this Court. The claims tribunal has rightly examined the matter on the basis of evidence. The finding given by claims tribunal cannot consider to be baseless or perverse. On the contrary, finding is based on legal evidence. The claims tribunal has not committed any error which requires interference by this Court. Therefore, contentions raised by learned advocate Mr. [ENTITY] cannot be accepted, hence, the same are rejected.
Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed.
When the appeal is dismissed by this Court today, no order is required to be passed in civil application. Hence, civil application is also dismissed.
[H.K. RATHOD, J.] #[ENTITY]