FA/38719/1998 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 387 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= KAILASHBEN FATEHSINH PARMAR & 3 - Appellant(s) Versus SOMABHAI HARMABHAI PARMAR & 3 - Defendant(s) ========================================================= Appearance : MR JITENDRA MALKAN for Appellant(s) : 1 - 4. SERVED BY AFFIX.-(R) for respondent (s) : 1, NOTICE SERVED for respondent (s) : 2, MS MEGHA JANI for respondent (s) : 3, DELETED for respondent (s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 16/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) FA/38719/1998 2/12 JUDGMENT 1.This appeal under Sec.96 of the Code of Civil Procedure, 1908 has been filed by the appellants-original applicants being aggrieved and dissatisfied with the judgment and award dated 24th October, 1997 passed by the learned Motor Accident Claims Tribunal (Aux.), Vadodara, in Motor Accident Claims Petition No.1107 of 1991 whereby the Tribunal has awarded Rs.2,15,000/- as compensation for death of the deceased Fatehsinh Somsinh Parmar along with proportionate costs and interest @ 12% p.a. from the date of the petition till its realisation. 2.This appeal has been listed as per the present roster in our board of final hearing in the month of October, 2008. 3.It is required to be noted that initially claim petition has been filed by five persons but since mother of the deceased died during the pendency of the claim petition, her name was deleted from the petition as reflects from para 16 on page 16 of the judgment passed by the Tribunal. 4.Short facts of the case of the appellants are that the deceased Fatehsinh Somsinh Parmar, aged 38 years, residing in Village Ampad, Taluka and District Vadodara, who is the husband of appellant No.1 and father of appellant Nos.2 to 4, was doing the business FA/38719/1998 3/12 JUDGMENT of collecting the milk from his Village and selling the same in the city of Vadodara along with other work. On 15-3-1991, the deceased was going towards Vadodara City on his bicycle with a milk can. When he reached near Sevasi on Gotri Road, Vadodara, one motor truck No.GTK-2919 driven in a rash and negligent manner by its driver (opponent No.1) came from behind and the front portion of the said motor truck dashed with the back portion of the motor cycle causing serious injuries to the deceased. The deceased was taken to the hospital where he succumbed to the injuries. Hence, the claim petition has been filed by the heirs and legal representatives of the deceased. Against the claim of Rs.14,87,666/-, the Tribunal has awarded Rs.2,15,000/- as compensation. Hence, the present appeal has been filed claiming Rs.12,72,000/- being remaining part of the claim amount which has not been awarded by the Tribunal. 5.We have heard learned counsel for the appellants, Mr.Jitendra Malkan and learned counsel for the respondent No.3-Insurance Company, Ms.Anushri for Ms.Megha Jani. As far as respondent Nos.1 and 2, who are driver and owner of the vehicle involved in the accident are concerned, though they have been duly served, they have chosen not to remain FA/38719/1998 4/12 JUDGMENT present either personally or through advocate. 6.Mr.Malkan has drawn our attention towards oral as well as documentary evidences and more particularly oral evidence of witness No.1-Kailashben, who is the widow of the deceased Mansinh Fatesinh Parmar, Ex.28. She has categorically narrated in paras 2, 3 and 4 of her deposition about the work her husband was doing. She has deposed that her husband was doing the business of collecting the milk from his Village as well as milk of his 10 buffaloes and selling the same in the City of Vadodara and for that he used to maintain register which she has proved by way of register Ex.29. She has further deposed that her husband was getting profit of Re.1/- per litre and was earning about Rs.10,000/- from the sale of milk. She has further deposed that her husband was collecting vegetables and was selling the same in the City of Vadodara. In para 4, she has deposed that her husband used to sell 130 liters of milk twice a day i.e. in the evening and in the evening. She has deposed that her husband had worked as a Sanchalak of Mid-day Meal Scheme for the period from 1984 to 1990. He was also doing agricultural activities on his own land as well as on the land of others on a crop-sharing basis and for looking after FA/38719/1998 5/12 JUDGMENT the same, he had engaged a person by paying Rs.1,000/- per month. She has further deposed that now she is not getting any income which she used to get when her husband was doing agricultural activities. She has further deposed that her husband had served as a Sarpanch for the period from 1975 to 1980, Secretary of the milk dairy for the period from 1968 to 1976 and had taken training in paultry farming and was desirous of doing the paultry farming. She has further deposed that her husband used to give her Rs.10,000/- for household expenses. In para 5, she has deposed about the longivity of her husband's family by stating that father of the deceased died at the age of 77, mother at the age of 73 and grandfather at the age of 87. 7.In her cross-examination, a question was asked as to whether there was any record with the Panchayat pertaining to her buffaloes. She has replied that Panchayat had no such practice. She has also admitted that though her husband was selling milk in the City of Vadodara, she has no record for the same but if required, she will examine the traders for proving the same. The question of denial was also asked regarding her husband's working as a Sanchalak in Mid-day Meal Scheme. She has proved the revenue records and form No.8-A. She has admitted in para 13 that although her FA/38719/1998 6/12 JUDGMENT husband was earning profit of Re.1/- per litre, Rs.10,000/- per month from the sale of milk as well as income from mid-day meals scheme, her husband was not paying any income tax. She was also asked as to whether any writing was there about her doing the paultry farming business and she replied in negative. 8.It is clear from her entire evidence including cross-examination that there was no denial on the aspects of her husband's business of selling of milk as well as of agricultural activities and earning income therefrom. The only denial was regarding the quantity of milk. 9.Another witness examined by the applicants was witness No.2, Mansinh Somsinh Chavda at Ex.30, who is a villager and who is knowing the deceased since his birth. He has categorically deposed that his friend i.e. the deceased Fatesinh was a person doing multi-farious activities including social work. According to him, the deceased was also interested in doing agricultural activities, buying and selling of milk and also selling vegetables. He has further deposed that by selling milk alone, he used to earn Rs.5,000/-. He has also deposed that he was active in politics. He has also taken training in paultry farming and was doing FA/38719/1998 7/12 JUDGMENT paultry farming. In his cross-examination, he has admitted that he and the deceased are from the same community. 10.It is established from the cross-examination of the above referred witness that the deceased was doing agricultural activities of his own. As far as paultry farming is concerned, he has admitted that he had seen him preparing papers for that and was arranging loan from the bank for said purpose. 11.Similarly, one Shantilal Ramanlal Kachiya has been examined by the original applicants as witness No.3 at Ex.32 to prove the aspect of business activities of deceased. He has categorically deposed that he is selling the vegetables at Vadodara as a commission agent. He used to bring two quintals of vegetables per month and used to sell the same to him. In his cross examination, he has admitted that he is doing the work as a commission agent. He has also admitted that he is not keeping any books of account. 12.As regards taking training in paultry farming, the original applicants have examined one Muzzamithussain Sahirhussain Saiyed as witness No.4 at Ex.37. Through him, training certificate of paultry farming has been proved at Ex.38. For proving the age of the deceased, the original applicants have FA/38719/1998 8/12 JUDGMENT examined Prakashchandra Sumantlal as witness No.5 at Ex.39 and his age has been proved at Ex.40 while the School Leaving Certificate has been proved at Ex.42 through School Register. To prove that he was a member of the Co-Operative Society, the applicants have examined one Amarsinh Chavda, witness No.7, Ex.44. To prove that he was working as a Secretary of milk dairy for the period from 1968 to 1976, one Ishwarbhai Fulabhai Solanki was examined as witness No.8, Ex.47 and proved the same by way of Ex.48. It has also been proved that he was a Sarpanch of the Gram Panchayat for the period of five years. 13.Insurance Company has examined one witness, Dilipsinh Jaysinh Jadeja as witness No.1 at Ex.55. It is required to be noted that evidence of said witness has not been believed by the Tribunal and the Insurance Company has not challenged the same and, therefore, we are not dealing with the same. 14.It is required to be noted that as per the evidence on record, deceased was aged about 40 years and it has been proved by the applicants by way of documentary evidence Ex.40 to 42. They have also proved that the deceased was doing multifarious activities. He was Sarpanch for a period of five years of the same Village, member of the Co-Operative Society, Secretary of Milk Dairy and also FA/38719/1998 9/12 JUDGMENT obtained training in paultry farming and was interested in doing the paultry farming in future and for that, he also prepared the some papers. 15.In short, at the time of incident, deceased was aged about 40 and same has been accepted by the Tribunal and it has not been challenged. Keeping in mind the said age of the applicant, we proceed further. 16.As far as future economic loss is concerned, it is required to be noted that the Tribunal has believed that he used to sell 50 liters of milk per day. The Tribunal has held that as per panchnama of scene of offence, deceased was having burnt can of milk, one another 24 liters of milk. The Tribunal has not believed other cogent evidence on record wherein the witness has categorically deposed that her husband used to sell 130 liters of milk twice a day. That fact is also denied by the otherside. He used to get profit of Re.1/- per liter of milk. The Tribunal has believed the same but the only thing to be taken into consideration is that on the date of incident, he was having 24 liters of milk with him and only on that ground, it can be presumed that he used to bring 24 liters of milk every day. 17.To prove the case of the original applicants further, though they have examined various FA/38719/1998 10/12 JUDGMENT witnesses, the Tribunal has not believed the same. However, it is required to be noted that the deceased was doing the business of trading of milk. We are not in a position to accept the say of the Tribunal that he used to sell only 50 liters of milk per day. However, facts remain that the deceased was doing multifarious activities of collecting and selling the milk. He was also selling vegetables in the City of Vadodara. He was also doing agricultural activities but the Tribunal has ignored the income which he was deriving by doing agricultural activities on his own land and has not awarded any single rupee towards the same. The Tribunal has also ignored the business of selling vegetables and only believed that he used to earn Rs.100/- per month from the sale of vegetables. 18.It is to be noted that the deceased was maintaining his family consisting of six persons. He was also an active political worker and was rendering his service as a Sarpanch of the Village, Secretary of the Mid-day Meal Scheme and member of a Co- Operative Society. He also obtained training in paultry farming and was interested in doing paultry farming but before starting the same, he met with an accident and succumbed to the injuries. His income cannot be FA/38719/1998 11/12 JUDGMENT assessed on the basis of income of able bodied persons. However, his income can be considered something more than the able bodied person but something lesser than the skilled workers. In short, the Tribunal has calculated Rs.1600/- as his monthly income on the basis that he used to earn Rs.50/- by sale of milk and Rs.100/- per month from the sale of vegetables. We believe that he was earning about Rs.3,000/- per month and which will meet the ends of justice. 19.On going through the entire evidence on record, we are not convinced with the reasons assigned and the conclusions arrived at by the Tribunal qua quantim. Looking to the evidence on record and also the facts and circumstances of the case, we consider the monthly income of the deceased at Rs.3,000/- i.e. Rs.36,000/- per annum and deducting one- third towards his personal expenses, Rs.24,000/- are awarded towards future economic loss of the deceased. We do not disturb the multiplier of 15 as it has not been challenged and hence applying the same multiplier, the original applicants would be entitled to receive Rs.3,60,000/- and deducting therefrom the amount of Rs.1,92,000/- as has already been awarded by the court below under this head, the original applicants are entitled to receive additional FA/38719/1998 12/12 JUDGMENT amount of Rs.2,68,000/- towards future economic loss plus. We also hold that the original applicants are entitled to receive interest @ 7.5% p.a. on the additional amount from the date of claim petition till realisation. The order for disbursement will be made after the awarded amount is deposited in the Tribunal. This First Appeal stands disposed of accordingly. (R.P.DHOLAKIA,J) (Z.K.SAIYED,J.) radhan/