[CASE NUMBER] 1/6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1096 of 2006 [ENTITY] - Appellant(s) Versus S R BAVALIA & 4 - Defendant(s) Appearance : MR [ENTITY] for Appellant(s) : 1, 1.2.1, 1.2.2,1.2.3 None for Defendant(s) : 1 - 5. CORAM : HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 20/07/2006 ORAL ORDER
(Per : HONOURABLE MR.JUSTICE [ENTITY]) The legal heirs and dependents of deceased Smt [ENTITY], original claimants have filed this appeal under [SECTION] of the [ACT] against the judgment and award dated 25.11.2005 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in [CASE NUMBER]. In the claim petition, the claimants claimed Rs.7 lakhs on account of the death of deceased Smt. [ENTITY] which occurred due to vehicular accident on 29.10.1997.
2. This matter is for admission. However, in view of certain observations made by the learned Judge, we are inclined to pass a short but speaking order for admission of the matter.
[CASE NUMBER] 2/6 ORDER 3. In this case, as far as negligence is concerned, the learned Judge has come to the conclusion that the applicants proved that the
accident occurred due to rash and negligent driving of the offending vehicle and the deceased died due to rash and negligent act on the part of the driver of the offending vehicle.
4. As regards compensation, in the reasoning part on page 6 of the judgment, the learned Judge has noted that service book of the deceased Exh.61, Permanent service order Exh. 62, Pay fixation papers Exh.63, Difference of pay Exh.64, pay fixation Exh.65, papers regarding pension benefits Exh.66, pay slip of the deceased Exh.67 were produced. It was the case of the applicants that the deceased was earning Rs.2797/- per month at the time of death and on the basis of such voluminous evidence on record, future income should be considered in view of several decisions.
However, the learned Judge on page 8 of the judgment observed that "the applicant has not produced documentary evidence to show that deceased was earning Rs.2797/- per month at the time of accident".
5. Secondly, as regards future income, the learned Judge on page 9 of the judgment observed that "the applicant has argued out that prospective income of deceased should be considered and he has produced citation in this regard. But looking to the said [CASE NUMBER] 3/6 ORDER citation, it is pertaining to injury and not for fatal case, so this citation is not applicable". Therefore, the learned Judge has not considered the same.
As regards quantum of compensation, the learned Judge has made observation that looking to the said citation (regarding future income), it is pertaining to injury and not for fatal case and, therefore, this citation is not applicable to the present facts and circumstances. However, the learned Judge has not cited or even referred to any judgments on prospective income.
6. As regards prospective income, there are following judgments of the Hon'ble Supreme Court :-
(1) [PRECEDENT] (particularly para 19);
(2) [PRECEDENT] (para No.6);
(3) [PRECEDENT] (para 8, page 208);
(4) [PRECEDENT].
and also of this Court :-
(1) the judgment of the Division Bench in the [CASE NUMBER] 4/6 ORDER case of [PRECEDENT];
(2) Smt. [ENTITY] wd/o. Mirza Sultan Ali Baig and others vs. ONGC, 1985(2) GLR 1315;
(3) [PRECEDENT];
(4) [PRECEDENT] (Decd.) through [PRECEDENT] (particularly para 9);
(5) Maniben S. Pandya vs. Shashikant P. Shrigalor, 2004(3 GLR 1878; and (6) [PRECEDENT] (para 12 on page 2383).
7. On perusal of the judgments regarding future income, the learned advocate argued that prospective income of the deceased should be considered and in support of the same he had cited certain decisions in this regard. However, the learned Judge has neither cited nor even referred to those judgments.
However, as regards future income, the learned Judge has observed that, "it is pertaining to injury and not fatal case. So this citation is not applicable to the present facts and circumstances of [CASE NUMBER] 5/6 ORDER the case and thereafter the learned Judge passed an award of compensation without considering the future income."
8. In our view, while making such observation, the learned Judge has prima facie committed grave error in passing the award for following reasons :-
(1) The learned Judge did not consider the four binding decisions of the Hon'ble Supreme Court as well as six decisions of this Court on this aspect.
(2) When the learned Judge has discarded the said principle on the ground the said decisions pertains to injury and not fatal case, this observation is also unwarranted and unjustified because for arriving at future income the learned Judge ought to consider what is the age of the deceased, what are his educational qualifications, what are his future prospects in the job, these are relevant consideration for arriving at prospective income.
The learned Judge has ignored the binding decisions of the Apex Court and the High Court and has taken into consideration irrelevant material and ignored the relevant consideration and decide the same. Therefore we are constrained to pass a short but speaking order in this behalf.
9. Hence, we are admitting this appeal.
The appeal shall be notified for early final hearing in the last week of September, 2006.
[CASE NUMBER] 6/6 ORDER The Registry is directed to send copy of this order to the learned Judge for his record & perusal.
[[ENTITY], J.] [[ENTITY], J.] sundar/-