FA/1509/2002 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1509 of 2002 With FIRST APPEAL No. 2508 of 2001 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 ? ========================================================= SANGITABEN SANJAYKUMAR SHAH & 1 - Appellant(s) Versus CHIMANBHAI HIMATBHAI & 4 - Defendant(s) ========================================================= Appearance : MR MTM HAKIM for Appellant(s) : 1 - 2. RULE SERVED for Defendant(s) : 1 - 2. MR KK NAIR for Defendant(s) : 3, DELETED for Defendant(s) : 4, NOTICE SERVED for Defendant(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 28/01/2008 FA/1509/2002 2/8 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This set of appeals arise out of the judgment and award rendered by the Motor Accident Claims Tribunal (Main) at Vadodara in Motor Accident Claim Petition Nos.1232 of 1991 and 1233 of 1991 on 28.8.2000. 2. The said two petitions were preferred by the heirs and legal representatives of one Sanjaykumar Shah and Nimeshkumar Mehta claiming compensation for their accidental death. The accident occurred on 5.4.1991 at around 11.15 a.m., Opp.: Fertilizer Nagar, Near Village Dashrath in Vadodara District. Both the deceased were proceeding on Scooter No.GUV 3399 from Anand to Baroda for the work of their business when they were knocked down by Truck No.GQB 5844 from behind. Nimesh Mehta expired on the spot whereas Sanjay was taken to the hospital of Dr.Jwalit Sheth and succumbed to the injuries later on. 3. Motor Accident Claim Petition No.1232 of 1991 was preferred by the heirs and legal representatives of deceased Sanjaykumar and they claimed compensation of Rs.15 lacs. Motor Accident Claim Petition No.1233 of 1991 was preferred by the heirs and legal representatives of deceased Nimeshkumar Mehta claiming Rs.15 lacs as compensation. FA/1509/2002 3/8 JUDGMENT 3.1 Both the deceased were aged 29 years. Both of them left behind their respective widows, one daughter and parents. 3.2 Sanjaykumar and Nimeshkumar Mehta were partners in two firms and were engaged in manufacturing of plastic granules and other plastic articles. They had started business in the year 1986. It appears from the documents produced on the record that initially they had incurred some loss but, thereafter, they had stabilized in the business and were gradually earning more and more profit. 4. The Tribunal came to the conclusion that the driver of the truck was responsible for mishap and no negligence can be attributed to the driver of the scooter and held that the driver, owner and insurer of the truck were jointly and severally responsible to pay the compensation. 4.1 The Tribunal has also held that annual income of both the deceased from the salary as well as business was around Rs.35,000/- approximately and assessed it at Rs.3,000/- per month i.e., Rs.36,000/- per annum. Considering prospective rise in the income, the Tribunal added 50% of the income and assessed income of both the deceased at Rs.4,500/- per month and after deducting 1/3rd of the income assessed dependency of the claimants at Rs.3,000/- per month. FA/1509/2002 4/8 JUDGMENT 4.2 By the time the matter came up for evidence, a development in the form of second marriage of both the widows had taken place and the Tribunal, therefore, adopted multiplier of 10 for awarding compensation under the head of dependency loss and ultimately awarded total amount of Rs.4,11,775/- as compensation to the heirs of deceased Sanjaykumar and Rs.3,75,000/- to the heirs of deceased Nimeshkumar Mehta with interest @ 12%. 5. The original claimants are aggrieved by the calculation made by the Tribunal, particularly, dependency and multiplier adopted by the Tribunal and hence these appeals. Incidentally, we may record that the opponents have not preferred any appeal. The award was satisfied and disbursement is made as per the award of the Tribunal. 6. We have heard learned advocates Mr.Hakim as well as Mr.Nair. 7. Learned advocate Mr.Hakim has drawn our attention to the income tax returns and assessment orders. He submitted that prospective income ought to have been assessed at a higher rate considering galloping increase in the profit of the firm of the deceased. He also submitted that the deceased were aged 29 years and the children were aged around 2 years at the time of death. Their loss of dependency would not be reduced by remarriage by the widows and, therefore, the Tribunal was in error in adopting FA/1509/2002 5/8 JUDGMENT lesser multiplier. He submitted these appeals may be allowed by enhancing the amount of dependency and multiplier. 8. On the other hand, learned advocate Mr.Nair has opposed these appeals. According to him, the Tribunal has taken into consideration relevant aspects and has assessed the income appropriately. He submitted that mortality rate in the children is more and, therefore, while adopting multiplier, the Court must be mindful of imponderables. Considering that aspect, the Tribunal has adopted multiplier of 10 which is just, legal and proper and does not call for any interference. He submitted that the appeals may be dismissed. 9. The only question that arises for our consideration, according to us, is multiplier because so far as negligence is concerned, the entire negligence is attributed to the driver of the truck and driver, owner or insurer have not preferred any appeal. That the finding of the Tribunal has, therefore, attained finality. 10. So far as the aspect of income of the deceased persons and the amount of dependency are concerned, we notice that the Tribunal has taken into consideration the income tax assessment orders, returns and acknowledgment which reflect the income of the deceased. They all related to deceased Sanjaykumar. There is no evidence relating to FA/1509/2002 6/8 JUDGMENT deceased Nimeshkumar Mehta but it appears that both of them were partners in two firms and both of them were drawing equal salary. Necessarily, therefore, inference can be drawn that the income of both the deceased was same. Having considered the reasoning adopted by the Tribunal and in light of the evidence on record, we are of the view that the Tribunal was justified in assessing the income of both the deceased persons at Rs.3,000/-. The Tribunal has also considered prospective rise in the income by adding 50% of the income making the figure of income to Rs.4,500/- per month. The Tribunal has deducted 1/3rd of the income as expenditure by the deceased on himself and has assessed dependency at Rs.3,000/- per month. In our view, the Tribunal has considered relevant aspects and the amount does not call for any upward revision. There is no question of downward revision for the reason that no appeal is preferred by the other side. 11. Now, considering the main question of multiplier, relevant aspects are that the deceased were aged 29 years at the time of accident. That their respective children were also aged about two years at the time of accident. That parents are aged and that their widows have remarried. The multiplier cannot be adopted considering the age of the parents because the children are still there and the stage though we hope may not come where the children may lose the shelter of grandparents even at the younger age or till the date they stand on their own feet. FA/1509/2002 7/8 JUDGMENT Likewise, the multiplier cannot be adopted considering the age of the widows as they have already remarried. The relevant factors would be the age of the deceased and the age of the children. Then in substance, in fact what Mr.Nair has submitted that mortality rate amongst the children in India is high. That apart, there are more imponderables in life which have to be taken into consideration. It would, therefore, be not possible to consider the age of maturity of children but their actual age at the time of accident for arriving at multiplier. In light of the principle enunciated by the Apex Court in various cases (T.N.State Transport Corporation Ltd. V/s S.Rajapriya and others, (2005)6 SCC 236), we are of the view that multiplier of 13, if adopted, would meet the ends of justice. The quantum of compensation that the claimants would receive would be such that corpus would wear out gradually by the time the minor claimants attain the majority. The claimants in both the cases, therefore, would be entitled to the compensation of Rs.4,68,000/- under the head of loss of dependency as against Rs.3,60,000/- in each case as awarded by the Tribunal. There shall be no change in the compensation under the other heads as awarded by the Tribunal. The claimants would be entitled to the interest on the aforesaid additional amount of compensation @ 9% per annum from the date of application till satisfaction of award, considering existing rate of interest on bank deposit. The appeals, thus, stand partly allowed. Award accordingly. No order as to cost. FA/1509/2002 8/8 JUDGMENT ( A.L.DAVE, J ) ( SHARAD D DAVE, J ) pathan