FA/453/1998 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 453 of 1998 With FIRST APPEAL No. 454 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ANITHA PK PRABHAKARAN & 2 - Appellant(s) Versus VIKRAMSINGH BALVANTSINGH SOLANKI & 2 - Defendant(s) ========================================================= Appearance : MR MTM HAKIM for Appellant(s) : 1 - 2,2.2.1 - 3. NOTICE SERVED for Defendant(s) : 1 - 2. MR SANDIP C SHAH for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 27/03/2008 FA/453/1998 2/16 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of judgment and award rendered by M.A.C.T.(Main), Vadodara in M.A.C.Petition Nos.1006 and 1007 of 190 rendered on 8.10.1997. 2. The claimant Mrs.Anitha P.K.Prabhakaran and her husband P.K.Prabhakaran were travelling with their son Pratish on Spark Moped No.GUB 2708 on the Gorva Road. The two wheeler was being driven by Prabhakaran. When they reached near Bunglow No.D-1/2 of Chanakyapuri Society, tractor no GBW 9567 came from behind and dashed with the behind portion of the Moped. The said tractor was driven by original opponent no.1. In the accident, all the three occupants of the Moped sustained injuries but unfortunately, P.K.Prabhakaran succumbed to the injuries. His heirs and legal representatives, therefore, preferred M.A.C.P.No.1007 of 1990 claiming a compensation of Rs.25 lacs. The Tribunal, however, awarded a compensation of Rs.7,52,000/- with proportionate costs and interest on that amount @ 12% p.a., considering the fact that the deceased was working as Stenographer in a private company (Ingersoll Rand (India) Limited) drawing a salary of Rs.4000/- per month. Considering the imponderables, the Tribunal held that the actual income of the deceased may be added with double the amount and then be divided by two to arrive at the prospective rise FA/453/1998 3/16 JUDGMENT in income rather than going by the figures given by the witnesses of the claimant to show the income that the deceased would have drawn had he reached the age of superannuation and had he got two promotions. 3. The Tribunal, while deciding the M.A.C.P.No.1006 of 1990 where the claim amount was Rs.2 lacs, awarded a compensation of Rs.61,000/- taking into consideration 20% permanent partial disability of the claimant by assessing her personal might at Rs.500/- per month turning down her case that she was also earning by rendering tuitions. The Tribunal adopted a multiplier of 15 and assessed the future loss of income at Rs.18,000/-. The Tribunal awarded compensation of Rs.30,000/- under the head of pain, shock and suffering and rest in the medical expenses etc. 4. In M.A.C.P.No.1008 of 1990, the claim was preferred by Pratish P.K.Prabhakaran through his guardian and mother Anitha claiming a compensation of Rs.9999/- and the Tribunal awarded a compensation of Rs.2000/-. No appeal against this judgment and award is preferred. 5. We have heard learned advocate Mr.M.T.M.Hakim for the appellants – original claimants and learned advocate Mr.Sandip C Shah for respondent no.3 – the insurer of the tractor. 6. Learned advocate Mr.M.T.M.Hakim submitted FA/453/1998 4/16 JUDGMENT that the Tribunal has committed an error in not accepting the evidence led by the claimants showing the income that the deceased would have earned had he attained the age of superannuation. Mr.Hakim submitted that the method adopted by the Tribunal has given a result which is too conservative and cannot be considered as a just compensation. According to Mr.Hakim, the deceased was aged 34 years and had yet to render a service for a period of 26 years. During this time, he certainly would have got benefit of pay revisions etc., but the Tribunal has not considered that aspect in spite of a positive evidence from the employer of the deceased on the ground that the deceased was employed in a private company and there is no assurance about the prospect of a service in private employment. According to Mr.Hakim, there is a series of judgments wherein it has been held by the Apex Court that while assessing the prospective income, the best income that the deceased could have earned, i.e., the income at the time of superannuation, should be considered. The Supreme Court has expressed such views in case where the deceased was employed in a private company and, therefore, the view taken by the Tribunal being erroneous, the evidence in respect of the income of the deceased at the time of retirement should be taken into consideration and compensation may be computed accordingly. 6.1 Mr.Hakim also submitted that the multiplier adopted by the Tribunal is also conservative. The FA/453/1998 5/16 JUDGMENT deceased was aged 34 years. He would have retired at the age of 60 and would have worked for at least 26 years and even after superannuation, he would have done some work considering the present need and trend and health level. He relied on certain judgments where the Apex Court has adopted a multiplier higher than 18 which is expressed to be the highest multiplier that can be adopted by Supreme Court itself. Mr.Hakim, therefore, submitted that if not 26, at least 18 multiplier may be adopted. 7. In First Appeal No.454 of 1998, Mr.Hakim submitted that the claimant is a house wife. Her case was that she was earning by rendering tuition. She suffered 40% permanent partial disability in respect of left lower limb and 20% in respect of body as a whole. She was pregnant at the time of the accident. She could not be given requisite treatment for her leg because of pregnancy and was treated only after she delivered the child. The injury on leg has resulted into serious deformity, disfiguration, bowing and shortening of leg by 1 1/2 inch. She had to spend sizeable amount on medical treatment as well. The Tribunal has awarded Rs.30,000/- under the head of pain, shock and suffering, but for future loss of income, the Tribunal has not accepted the case of the claimant that she was rendering tuition and has assessed her personal might at Rs.500/- per month. Mr.Hakim submitted that even if the II Schedule in the Motor Vehicles Act is considered, in absence of evidence, a notional income of Rs.15,000/- FA/453/1998 6/16 JUDGMENT p.a., has to be accepted which would be Rs.1250/- per month. But, since the claimant's case in the petition was that her income was Rs.1000/- per month, the same may be accepted and prospective rise in income may also be considered. According to Mr.Hakim, the multiplier also needs enhancement. He submitted that appeals may, therefore, be allowed accordingly. 8. Learned advocate Mr.Shah has opposed these appeals. Mr.Shah has relied on the decision in case of Oriental Insurance Company Ltd. Vs. Jashuben and others, 2008(2) Scale 474 to show that future enhancement of income cannot be considered for computing prospective income. The Tribunal, therefore, cannot be said to have committed any error in awarding compensation for death of P.K.Prabhakaran in M.A.C.P.No.1007 of 1990. 9. So far as the claim by Mrs.Anitha P.K.Prabhakaran is concerned, Mr.Shah submitted that the Tribunal has rightly turned down the case of the petitioner that she was earning by rendering tuition for the reason that in her deposition she has not even stated that she is rendering tuition and that she is earning therefrom. He has drawn our attention to para 61 of the judgment where this aspect is recorded. He submitted that the accident occurred on 17.6.1990 whereas the new Schedule came into force in the year 1994 and therefore, the same cannot be considered for assessing notional income. He FA/453/1998 7/16 JUDGMENT submitted that the Tribunal has assessed value of personal might of the claimant who is a house wife at Rs.500/- which is assessed for a period around 1990 when her working husband was earning about Rs.4000/- per month. The assessment is, therefore, just and reasonable and, therefore, the judgment and award may not be interfered with. 10. Learned advocate Mr.Hakim in rejoinder relied on the decision of this Court in the case of New India Assurance Company Limited Vs. Babubhai Dipubhai Chauhan and others, 2006 ACJ 2688 where a view is expressed that the minimum income of Rs.3000/- may be assessed for personal might that may be rendered by a house wife and submitted that the same view may be taken in the instant case. 11. We have considered rival side submissions and have perused the record and proceedings. So far as First Appeal No.453 of 1998 arising out of M.A.C.Petition No.1007 of 1990 is concerned, the question that arises for our consideration is whether the Tribunal can be said to have committed any error in not considering the income of the deceased that he would have earned had he reached the age of superannuation while computing the prospective income for calculating dependency loss and whether the Tribunal can be said to have adopted correct method of computing prospective income for calculating the dependency loss when it considered the income of the deceased at the time of his death, added to it double FA/453/1998 8/16 JUDGMENT the amount and then divided the resultant figure by two and deducted 1/3rd of the result for arriving at the dependency figure. 11.1 In this regard, learned advocate Mr.Hakim for the appellant has relied on the following judgments : 1. New India Assurance Company Limited Vs. Kala Devi and others, 1996 ACJ 16. 2. Hardeo Kaur and others V/s Rajasthan State Road Transport Corporation and another, 1992 ACJ 300. 3. Mrs.Manjushri Raha and others V/s B.L.Gupta and others, 1977 ACJ 134. to support his contention that for calculating the prospective income, the income of the deceased at the time of his death and the income that the deceased would have earned at the time of his superannuation may be clubbed together and divided by two. On arriving at a figure, 2/3rd or 1/3rd, as the case may be, may be deducted therefrom for arriving at the figure of dependency. We find on reading those judgments that the above method was adopted or approved by the Apex Court in those cases. However, in a recent judgment in case of Oriental Insurance Company Ltd Vs. Jashuben (supra) and after considering a large number of judgments, Their Lordships have observed thus : ”25. We, therefore, are of the opinion FA/453/1998 9/16 JUDGMENT that what would have been the income of the deceased on the date of retirement was not a relevant factor in light of peculiar facts of this case and thus approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay with effect from 1.1.1997 or what would have been the scale of pay in 2002.” That was the case where the accident occurred in the year 1994 resulting into death of Devjibhai Kushalbhai Rathod whose heirs then preferred claim petition. There, the Tribunal and the High Court took into consideration the revision in the pay scale which came to effect on 1.1.1997 so also the income that the deceased would have earned in the year 2002, the date on which the deposition was recorded. According to the Apex Court, future income cannot be considered. 11.2 In para 12 of the said judgment, Their Lordships observed that only because salary was revised at a later point of time, the same by itself could not have been a factor which could have been taken into consideration for determining the amount of compensation and by doing so, the Tribunal committed a serious illegality. 11.3 In para 13 of the said judgment, Their FA/453/1998 10/16 JUDGMENT Lordships further observed that “the amount of compensation indisputably should be determined having regard to the pecuniary loss caused to the dependents by reason of death of the victim. It was necessary to consider the earnings of the deceased at the time of the accident. Of course, further prospect is not out of bound for such consideration. But the same should be founded on some legal principle.” In light of these observations, in our view, the Tribunal cannot be said to have committed an error in not acting upon the evidence led by the claimant as to the income of the deceased that he would have earned at the time of his retirement. It would be relevant to note that as per that evidence, the deceased would have reached that pay scale if and after he got two promotions. Getting promotion is not a matter of course and one has to prove his worth and eligibility at every level of promotion. Several exigencies of life cannot be overlooked and, therefore, while considering the prospective income such imponderables have to be kept in mind. We, however, notice that the reasons given by the Tribunal for not accepting the evidences or for not acting on such evidence of the future income of the deceased are on different lines. All the same, the ultimate view taken by the Tribunal is absolutely consistent with the view taken by the Apex Court in case of Oriental Insurance Company Vs. Jashuben (supra) and, therefore, we uphold the view taken by the Tribunal. 11.4 The second ground on which the judgment of FA/453/1998 11/16 JUDGMENT the Tribunal in respect of M.A.C.P.No.1007 of 1990 is challenged is the multiplier aspect. The age of the deceased was 34 years and the Tribunal has adopted the multiplier of 15. According to learned advocate Mr.Hakim, the Tribunal ought to have adopted a much higher multiplier considering the fact that the deceased had a service of about 26 years ahead of him had he survived. Mr.Hakim submitted that, at least, the highest multiplier of 18 ought to have been adopted by the Tribunal. He has relied on the decision as reported in Champaben W/o Chandrasinh Dhulabhai Rathod and others V/s Anopsinh Somabhai Baria and others, 2007(2) GLR 1663 in support of his submission that the multiplier should be adopted keeping in mind the amount of multiplicand and the age of the deceased or the dependent. In the instant case, the deceased was aged about 34 years and, therefore, the higher multiplier ought to have been adopted. 12. We have considered the decision relied upon by learned advocate Mr.Hakim. The observations made in the said judgment after considering the various judgments are that where the multiplier method is adopted and the prospective income is not considered, the II Schedule of the M.V.Act, may be the guiding factor, whereas where the multiplicand adopted is after considering prospective rise in income, the multiplier has to be of a lesser number. There cannot be any two opinions about the view expressed in the said judgment but we would like to refer to the FA/453/1998 12/16 JUDGMENT decision of the Apex Court in case of TNSRTC V/s S.Rajapriya and others, 2005(6) SCC 236. We may refer to the following observations made by the Apex Court in the said judgment. “Para 12 – The multiplier method involves the ascertainment of loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased ( or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at the rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed – over the period for which dependency is expected to last.” When the Tribunal considered the prospective rise in income by adopting the method which is approved by the Apex Court in the case of Oriental Insurance Company Limited Vs. Jashuben (supra), in our view, the multiplier of 15 for the age of 34 cannot be considered to be on lower side and we, therefore, do not deem it proper to interfere with the decision of the Tribunal on this aspect. FA/453/1998 13/16 JUDGMENT 12.1 No other contention was raised on behalf of the appellant to challenge the decision of the Tribunal in respect of M.A.C.P. No.1007 of 1990 (First Appeal No.453 of 1998) and as such other aspects are not gone into by us. First Appeal No.453/98 thus merits dismissal. 13. So far as First Appeal No.454 of 1998 is concerned, the claimant is a house wife aged about 28 years at the time of accident. According to her, she was also rendering tuitions besides attending household chores and the compensation is claimed taking Rs.1000/- per month as income base. However, during the course of her evidence, she has not stated anything about herself being engaged in rendering tuitions and earning therefrom. The Tribunal, therefore, assessed the income at Rs.500/- per month. She has suffered permanent partial disability of 20% in respect of body as a whole and the Tribunal has, therefore, awarded a compensation of Rs.18000/- towards future loss of income. The Tribunal has awarded Rs.3000/- under the head of pain, shock and suffering and Rs.3000/- under the head of actual loss of income. 13.1 Learned advocate Mr.Hakim has relied on the decision of this Court in case of Babubhai Dipubhai Chauhan (supra) where a view is expressed by the Division Bench of this Court that the personal services rendered by a house wife has to be assessed FA/453/1998 14/16 JUDGMENT at a rate of Rs.3000/- per month at the minimum. 13.2 We, however, notice that in the claim petition itself, the claimant has averred that her income was Rs.1000/- per month. If that is so, there is no question of assessing her income at a rate higher than Rs.1000/- per month. Further, it has to be borne in mind that the claimant had claimed in the petition that she was rendering tuitions and earning therefrom. No evidence in this regard is led nor has she in her deposition even asserted this aspect. In case of Babubhai Dipubhai Chauhan (Supra) relying on the decision in the case of Lata Wadhwa and others V/s State of Bihar and others, 2001 ACJ 1735 (SC), this Court observed that no matter what the status of the family may be, the contribution of the house wife for household may be treated to be at a minimum of Rs.3000/- per month. Keeping all these aspects in mind, when the claimant has claimed her income to be Rs.1000/-, we are inclined to accept the same as it is without any cut as against the Tribunal assessing income at Rs.500/- per month. 13.3 The claimant has suffered permanent partial disability to the extent of 20% in respect of body as a whole. It has also come in evidence that she could not work for nearly six months which claim seems to be justified considering the nature of injuries suffered by her as described in the medical evidence (shortening of left leg by 1 ½ inch, deformity of the size of 14 inch x 6 inch, bowing of leg and fracture FA/453/1998 15/16 JUDGMENT of femur). The Tribunal has also accepted this aspect. Under the circumstances, the claimant would be entitled to a compensation of Rs.6000/- under head of actual loss of income as against Rs.3000/- awarded by the Tribunal (additional compensation of Rs.3000/- under this head). 14. So far as future loss of income is concerned, the claimant would be entitled to a compensation of Rs.200/- per month and an annual compensation of Rs.2400/-, considering the fact that she has suffered permanent partial disability of 20%. Considering the age of the claimant at 28 years, the multiplier of 17 could be adopted which would entitle her to compensation of Rs.2400 x 17 = Rs.40800/- as against Rs.18000/- awarded by the Tribunal (an additional amount of Rs.22800/-) under the head of future loss of income. The claimant was awarded Rs.30000/- as compensation under the head of pain, shock and suffering which does not require any interference. There is no grievance ventilated by the claimant so far as compensation under the head of medical expenses is concerned. 14.1 The upshot of above discussion is that the claimant – appellant Anitha P.K.Prabhakaran would be entitled to an additional compensation of Rs.3000/- under the head of actual loss of income and Rs.22800/- under the head of future loss of income, totalling to Rs.25800/-. The claimants would also be entitled to proportionate costs and interest @ 9% FA/453/1998 16/16 JUDGMENT p.a., on the said enhanced amount of compensation from the date of claim till realization. 15. First Appeal No.454 of 1998 would, thus, stand partly allowed to the above extent. Award accordingly. 16. First Appeal No.453 of 1998 stands dismissed. (A.L.Dave,J) (Sharad D.Dave,J) srilatha