FA/5239/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5239 of 2007 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 ? ========================================================= LALITABEN WD/O SUBRAMANIAN @ SUBRAMANIAN VILAYUDHAN PILLAI & 4 - Appellant(s) Versus VIRSANGBHAI SAKUDABHAI VADVAI & 2 - Defendant(s) ========================================================= Appearance : MR AJAY R MEHTA for Appellant(s) : 1 - 5. NOTICE SERVED for Defendant(s) : 1 - 2. MR DAKSHESH MEHTA for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 15/05/2008 ORAL JUDGMENT FA/5239/2007 2/7 JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out of the judgment and award rendered by the Motor Accident Claim Tribunal (Aux.), Fast Track Court No.1 at Ahmedabad in Motor Accident Claim Petition No.1 of 2004 rendered on 15.12.2006. 2. The Claim Application arises out of an accidental death of one Subramanian @ Subramaniam who happened to be the husband of claimant No.1, father of claimant Nos.2 and 3 and the son of claimant Nos.4 and 5. The accident occurred on 1.10.2003 when the deceased was going towards Gandhinagar riding his scooter No.GJ-1 CB 8390 when opponent No.1 came with his tractor No.GJ-18H-553 to which tolly No.GJ-18T-8782 was attached on the wrong side and dashed with the scooter and the deceased died on the spot. The deceased was working as Junior Engineer, Grade-I with Western Railways and was aged 51 years. It is further case of the claimants that the accident occurred because of gross rashness and negligence on the part of the driver of the tractor. The deceased was the bread earner of the family. That had he not expired, he had bright prospects and considering recommendations of 6th Pay Commission, he would have earned Rs.35,000/- by way of salary per month at the time of his superannuation. 3. Opponent No.1 was driver, opponent No.2 was owner and opponent No.3 was insurer of the tractor in question before the Tribunal. Opponent Nos.1 and 2 though served with the summons, chose not to appear before the Tribunal, not to file any written statement and not to contest the claim. Opponent No.3, however, filed its written statement at Exh.35 which is more or less in the form of denial of the averments made in the claim petition. 4. The Tribunal, after considering the evidence led by the FA/5239/2007 3/7 JUDGMENT parties, came to the conclusion that the accident occurred because of sole negligence on the part of the driver of the tractor. The Tribunal also held that the claimants were entitled to compensation of Rs.7,81,000/- with proportionate cost and interest at the rate of 7.5% p.a. and passed the award. 5. The appeal is preferred by the original claimants for enhancement of the award. The appeal is opposed to by respondent No.3 - original opponent No.3 – insurer of the tractor. No appeal or cross-objections are filed by any of the respondents. 6. At the time of admission, it was indicated that the appeal is preferred only on the ground that the Tribunal has ignored the salary certificate at Exhs.49 – 50 which show that salary of the deceased was Rs.14,936/- per month and the Tribunal has assessed the income of the deceased at Rs.8500/- and on that basis, after deducting 1/3rd from the said amount, has assessed dependency loss. Since the appeal rested on this narrow question, the notice for final disposal was issued by this Court and Record and Proceedings was called for from the Tribunal. On the returnable date, upon both the sides agreeing, the matter was agreed to be heard finally and that is how, today the matter is finally heard. 7. We have heard learned advocate Mr.Ajay Mehta for the claimants and learned advocate Mr.Dakshesh Mehta for respondent No.3. Respondent Nos.1 and 2 have chosen not to contest this appeal though they are served with the notice. 8. Learned advocate Mr.Ajay Mehta has drawn our attention to Exhs.49 – 50 which clearly shows that gross income of the deceased was Rs.14,936/- and the net income was Rs.10,435/- after deduction of P.F., V.P.F., GIS, Society Contribution, FA/5239/2007 4/7 JUDGMENT Professional Tax etc. The Tribunal has taken into consideration the pay scale and then assessed the income of the deceased which, in our opinion, is an error. While considering dependency loss, gross income of the deceased at the time of death including allowances and perquisites is to be considered for calculating prospective income and when /13rd or 2/3rd deduction for expenses on self is made from prospective income, it takes care of liabilities of the deceased like income tax etc. It is also settled position of law that while considering dependency loss, income that the deceased would have earned at the time of superannuation is not relevant. Similarly, future rise in the income by way of revision of pay scale is also not relevant, but prospective rise in the income is not out of bound for consideration. 8.1. Under the circumstances, for calculating dependency loss, two folds the income of the deceased at the time of death has to be added to the income of the deceased and then divided by two which would give the amount of prospective income of the deceased. From that prospective income, 1/3rd is to be deducted by Rule of Thumb as expenses on self in facts of the case on hand and the result would give dependency benefit of the claimants. If this principle is applied to the facts of the present case, income of the deceased was Rs.14,936/-. If two folds are added to it, it would fetch an amount of Rs.44,808/- and if it is divided by two, it would fetch an amount of Rs.22,404/- which would be prospective income of the deceased. Out of that, 1/3rd will have to be deducted as expenses on self which would be Rs.7468/- and the remainder would be Rs.14936/- which would be dependency loss of the claimants per month. For arriving at the annual dependency loss, that amount will have to be multiplied by 12 which would fetch an amount of Rs.1,79,232/-. 9. Learned advocate Mr.Dakshesh Mehta has relied on the FA/5239/2007 5/7 JUDGMENT decision of this Court in the case of National Insurance Co.Ltd. V/s Ramilaben Chinubhai Parmar and others, (2007 ACJ 1565) and suggested that multiplier of less than 8 may be adopted because in that case, in the case of the deceased aged 46 years, multiplier of 8 was adopted. On the other hand, learned advocate Mr.Ajay Mehta has relied on the decision of the Supreme Court in the case of New India Assurance Co.Ltd. V/s Shanti Pathak and others (2007 ACJ 2188), where in the case of the deceased aged 52 years, the Apex Court adopted multiplier of eight. 10. We have considered both the judgments. The judgment relied upon by learned advocate Mr.Dakshesh Mehta does not lay down any absolute proposition of law on the question as to what multiplier should be adopted for what age. We have also considered the decision in the case of Tamil Nadu State Transport Corporation Ltd. V/s S.Rajapriya, [2005 ACJ 1441 (SC)] where the principle is enunciated as to how to adopt multiplier and it is laid down that multiplier should be adopted considering multiplicand and the age of the deceased or the dependent, whichever is higher. The compensation should be just and compensation for dependency loss should be so calculated that at the end of dependency period, corpus also gets consumed. In that judgment, it is also observed that highest multiplier of 18 can be adopted in any age group of 21- 25 years and average life span of 68-70 should be considered. It is true that the age of the deceased in the instant case was 51 years and the age of superannuation is 58. But, it has to be accepted that people do work even after superannuation and considering improvement in the health standards these days, average life span of 70 years is accepted. A man retiring at the age of 58 years would ordinarily and can be reasonably be expected to work for another five to seven years. Keeping these aspects in mind, in our view, in the present case, if multiplier of 9 is adopted, the ends of justice would be met. If multiplier of 9 is adopted and annual dependency FA/5239/2007 6/7 JUDGMENT loss is multiplied with that figure, total dependency loss would be Rs.16,13,088/-. 10.1. Coming to the non-pecuniary damages, the Tribunal has awarded compensation of Rs.30,000/- as conventional loss and Rs.3,000/- for funeral expenses. Keeping in light the decision in case of Neetaben Hasmukhbhai Kuberbhai Chaudhary and others V/s Shakrabhai Raimalbhai Rabari and others (2007 (2) G.L.R.1598), the amount of Rs.25,000/- has to be awarded as loss to estate. Rs.15,000/- has to be awarded for loss of consortium and Rs.5,000/- for funeral expenses, total Rs.45,000/-. The claimants, thus, would be entitled to total compensation of Rs.16,58,088/- as against compensation of Rs.7,81,000/- awarded by the Tribunal. The compensation awarded is calculated thus : Rs.16,13,088/- Dependency loss Rs.25,000/- Loss to estate Rs.15,000/- Loss to consortium Rs.5,000/- Funeral expenses Rs.16,58,088/- Total 11. The claimants would be entitled to proportionate costs and interest at the rate of 7.5% from the date of application till realization as awarded by the Tribunal. 12. Claimant-appellant no.1 is the widow of the deceased. Claimants – appellants no.2 and 3 are the son and the daughter of the deceased and claimants no.4 and 5 are respectively mother and father of the deceased. We direct that the amount of compensation with proportionate costs and interest when deposited by the respondent shall be disbursed to the claimants in the following ratio : FA/5239/2007 7/7 JUDGMENT 50% : 15% : 15% : 10% : 10% to claimants no.1 to 5 respectively. 13. Out of the amount going to the respective shares of the claimants, 80% will be placed in fixed term deposit with any nationalized bank of the choice of the claimants for a period of five years with condition that there shall be no loan floated against the fixed term deposit and no encumbrances of any kind will be created on the same. The claimants, however, would be entitled to draw periodical interest on this fixed term deposits. Remaining 20% amount of the amount going to the share of each claimant will be paid to the claimants by crossed Account Payee cheque after deducting Court Fees, if any, proportionately, from each of them in the ratio of their entitlement of compensation. 14. The appeal is thus partly allowed. Award accordingly. ( A.L.DAVE, J ) ( SHARAD D DAVE, J ) pathan