FA/826/1997 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 826 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA 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 ? ========================================= = INDUBEN DAMJIBHAI KAPURIA Versus HARESHKUMAR LAXSHMANBHAI NAKUM & OTHERS ========================================= = Appearance : MR SURESH M SHAH for Appellant NOTICE SERVED for Respondent Nos. 1, 4 SERVED BY AFFIX.-(R) for Respondent No.2 MR VIBHUTI NANAVATI for Respondent No.3 ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA FA/826/1997 2/14 JUDGMENT and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 17/11/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) [1] Instant appeal has preferred under Section 173 of Motor Vehicles Act, by one of the claimant for enhancement of the amount of compensation to the extent of Rs.3,77,000/- against the judgment and award dated 30th November, 1996 delivered by the Motor Accident Claims Tribunal (Main) Rajkot, District : Rajkot, in Motor Accident Claims Case No.700/1991. [2] The present appellant as well as the present respondent No.4 both being claimants filed Motor Accident Claims Case No.700/1991 for compensation of Rs.15,00,000/- for the death caused of Sureshbhai Odhavjibhai Ajudia in a vehicular accident on 8th October, 1991 in the city of Rajkot. The present Appellant Induben Damjibhai Kapuria happened to be widow of the deceased and second claimant, respondent No.4 herein happened to be mother of the deceased. As per brief facts, on 8th October, 1991 deceased Sureshbhai Odhavjibhai Ajudia was driving a scooter of Vespa make bearing No.GJ-3-C-4195 on Gondal Road at Rajkot and at that time, Jeep Car No.GJ-3-9159 came from the opposite direction and head on collision occurred between two vehicles. It is the case of the FA/826/1997 3/14 JUDGMENT claimants that the Jeep was driven by opponent No.1 – Hareshkumar Laxmanbhai Nakum, respondent No.1 herein rashly and negligently and with a very high speed and on account of the said rash and negligent driving of original opponent No.1, the said Jeep Car dashed with the scooter driven by the deceased Sureshbhai Odhavjibhai Ajudia. Original opponent No.2 – National Mineral & Chemical Company Limited were the owner of the Jeep. Original opponent No.3 – New India Insurance Company Limited, Rajkot was the Insurance Company of the Jeep. While the same Insurance Company, opponent No.4 was the Insurance company of the scooter. It is further the case of the claimants that on account of the said collision, the deceased was knocked down on the road and suffered grievous injuries and ultimately the deceased succumbed to the injuries sustained by him in the said accident. It is the case of the claimants that deceased died on account of rash and negligent driving of the original opponent No.1 and, therefore, all the opponents were liable to pay compensation to the claimants vicariously. It was further the case of the claimants that deceased Sureshkumar was aged about 24 years at the time of accident and his date of birth was 2nd May, 1967. He was holding valid driving licence and was qualified as M.B.B.S and was practicing Doctor. The deceased was appointed as a Doctor in Public Health Centre in District Panchayat, Jamnagar in the pay-scale of Rs.2,200/- to Rs.4,000/- and 60% D.A. and House Rent of Rs.600/- per month plus nonpracticing allowance and, therefore, the monthly salary of the FA/826/1997 4/14 JUDGMENT deceased was about Rs.4,800/-. The deceased was admitted in post graduation course of M.D. In Irwin Hospital at Jamnagar. That the deceased was married with the appellant and she was staying at USA with her parents. The deceased was, auspicious to proceed to USA and, therefore, he had not accepted the order of appointment in Jamnagar District Panchayat nor he was interested in studying in M.D. Course. At the time of the accident, the deceased was serving as Medical Officer In Hiralal Jechand Doshi Sarvajanik Medical Research Centre at Rajkot and was getting monthly salary of Rs.3,500/- and was earning Rs.1,500/- by attending private medical practice. That the deceased had also undertaken research work to identify the causes of pyorrhea disease in Saurashtra Region. Had the deceased proceeded to USA after taking decree of M.D. then he would have been in a position to get Rs.10,000/- per month easily and even in private practice as well, he would have earned more than Rs.10,000/- in India. Therefore, on account of dependency loss in all Rs.32,00,000/- were claimed. But claim was restricted to Rs.15,00,000/-. The opponents were served, but the matter was contested by the Insurance Company only wherein the aspect of rash and negligent driving on the part of the opponent No.1 as well as the quantum of compensation claimed by the claimants were contended. From the pleadings, the Tribunal framed the issues that whether the deceased sustained injuries and died on account of rash and negligent driving of the Jeep Car by the opponent No.1 and that what amount of compensation, claimants were entitled to by way of FA/826/1997 5/14 JUDGMENT compensation and from which of the opponents. [3] Learned Tribunal came to the conclusion that in causing accident, opponent No.1 i.e. Jeep driver was negligent to the extent of 65%, while deceased was negligent to the extent of 35%. In all Tribunal awarded the compensation of Rs.4,80,000 with interest at the rate of 12% and proportionate costs from all the opponents jointly and severally. [4] Learned Tribunal while deciding the issue of negligence referred to the evidence of Vanrajsinh Satubha Jadeja at Ex.37, who was eye witness and stated that the Jeep was proceeding in excessive speed and scooterist was proceeding in low speed at a distance of about 10 to 12 feet ahead of him. The said Jeep dashed with the scooterist and the scooterist fell down. The witness was cross-examined by the otherside. Learned Tribunal took into consideration the FIR at Ex.24 filed by one Karshanbhai Odhavjibhai on 9th October, 1991 against the opponent No.1. The informant was the elder brother of the deceased Sureshkumar. Leaned Tribunal also considered the panchnama produced on record at Ex.25. From the panchnama at Ex.25, it became clear to the Tribunal that accident occurred on the middle of the road, the road was North- South direction, the scooter was proceeding from North to South. The Jeep was proceeding from South to North. The Jeep was found between East and North portion of the road. The Tribunal came to FA/826/1997 6/14 JUDGMENT the conclusion that from the position narrated in the panchnama, whatever stated by the witness Vanrajsinh Satubha Jadeja was not wholly true. It was categorically mentioned in the panchnama that the scooter was found in the middle of the road and not on the side of the road. The pool of blood was also noticed according to the panchnama in the middle of the road. The Tribunal, therefore, came to the conclusion that the accident occurred in the middle of the road, which ultimately would lead to the conclusion that the deceased himself was negligent to some extent. The panchnama was drawn soon after the occurrence. Therefore, considering the size of two vehicles, the learned Tribunal apportioned the contributing negligence in ratio of 65% and 35% i.e opponent No.1 driver of the Jeep was responsible to the extent of 65%, while deceased himself was responsible to the extent of 35%. [5] So far as the quantum of compensation is concerned, the learned Tribunal after referring to the arguments of learned advocates, came to the conclusion that the deceased was serving in private hospital in pay-scale of Rs.3,500/- to Rs.6,250/- and had capacity to earn not less than Rs.4,000/- per month and was qualified at least to run a general practice or to serve to any hospital. Considering the income of the deceased at the time of accident to be Rs.3,500/- per month and considering the prospectus of having settled at USA and considering the potentiality of earning capacity, the learned Tribunal assessed the average income of FA/826/1997 7/14 JUDGMENT Rs.6,000/-, after deducting one-third portion of income, dependency was assessed at Rs.4,000/- per month and Rs.48,000/- per year. After referring to the decision of the Apex Court in the matter of U.P. State Road Transport Corporation Vs. Trilokchandra, reported in 1996 (2) GLH 112, the leaned Tribunal awarded 15 multipliers and ultimately total loss of dependency was calculated at Rs.7,20,000/- and in addition to this, conventional compensation of Rs.10,000/- also came to be awarded and Rs.10,000/- were awarded for the present appellant as to and fro fare expenses of USA, on account of this accident, totaling Rs.7,40,000/-. After deducting 35% of contributory negligent of the deceased of Rs.7,40,000/- as a sum of Rs.4,80,000/- with interest at the rate of 12% came to be awarded by the Tribunal through the award impugned in this appeal. [6] Learned advocate Mr.Mehul S. Shah for the appellant vehemently urged that the Tribunal erred in coming to the conclusion that the deceased was negligent to the extent of 35%. Our attention was drawn to the panchnama of the place of accident wherein it has been mentioned that the left side wheel mud-guard of the Jeep was damaged denoting that Jeep was on the wrong side of the road. Learned advocate Mr.Shah stated that the driver and owner did not raise dispute as to contributory negligence. It is submitted that witness Vanrajsinh Satubha Jadeja at Ex.37 was the eye witness of the incident and he categorically stated that the Jeep was on the wrong side of the road, and that was being driven by the FA/826/1997 8/14 JUDGMENT opponent No.1 in excessive speed. This is not challenged in the deposition of Vanrajsinh Satubha Jadeja. Looking to the nature of damage on Jeep, 35% of contributory negligence of the deceased ought not to have concluded by the Tribunal. About quantum, it was stated that the Tribunal erred in assessing the average income of the deceased at Rs.6,000/- only that was the income of the deceased. The deceased in fact was actually earning more than Rs.6,000/- per month including his private practice and that after considering prospective income, the average income would be of Rs.10,000/- per month. There is oral evidence of the claimants in this respect and there is an evidence on record that deceased was likely to go to USA and was likely to earn handsome salary in future. At least prospective income should have been considered by the Tribunal at Rs.7,500/-. Learned advocate for the appellant further submitted that at the time of the death, it is an admitted fact that the deceased was aged about 28 years, though multiplier could not be more than 18 years and Tribunal ought to have awarded multipliers of 18 instead of 15 with regard to very young age of the deceased. Learned advocate for the appellant sought to place reliance upon second schedule in this respect. It is submitted that at the time of the accident, wife of the deceased, present appellant was at USA and could not have come to India at meager expenses of Rs.10,000/- which is awarded by the Tribunal. The amount is required to be enhanced in this respect also. Learned advocate Mr.Shah also submitted that conventional amount of Rs.10,000/- for FA/826/1997 9/14 JUDGMENT exception of life of young deceased of 24 years, is also on lower side i.e. Rs.10,000/- awarded. It should be at least Rs.15,000/- for each of the claimants. It is, therefore, submitted that in all a claim is required to be enhanced by amount of Rs.3,77,000/-. [7] Learned advocate Mr.P.V.Nanavati for the opponent No.2 was also heard. While others are served. [8] Learned advocate Mr.P.V.Nanavati for the opponent No.2 submitted that only widow of the deceased was joined in the appeal and the mother is joined as respondent No.4. It is submitted that the conclusion of the Tribunal in respect of negligence as well as quantum of compensation are sound and well reasoned and requires no interference at all. It was head on collision in the middle of the road and in fact, the scooterist could have been responsible to the extent of 50%, but the Tribunal has taken conservative view. About the multipliers, learned advocate Mr.Nanavati submitted that the multipliers of 15 is correctly applied and the second schedule, would not be applicable in the present case for which he relied upon the decision of the Apex Court, in the matter of Maitri Koley and another Vs. New India Assurance Company Limited and others, as reported in 2004 ACJ 46 wherein the Apex Court held that structured formula of second schedule would be applicable after coming into force of Motor Vehicles Act, 1988 and not arising out of accident which FA/826/1997 10/14 JUDGMENT occurred before that date. It is submitted that therefore, this accident occurred before coming into force of new Motor Vehicles Act, second schedule would not be applied. It is, therefore, submitted that no enhancement is necessary on the grounds which the appeal has been preferred. [9] We have heard the learned advocates for the parties and we have gone through the record and proceedings. So far as conclusion of the Tribunal in respect of negligence is concerned, from panchnama produced on record of the place of accident, it becomes clear that accident has occurred in the middle of the road. From panchnama at Ex.22, head on collision between two vehicles is apparent and this panchnama of place of accident is drawn immediately after the accident. A pool of blood is also found on the middle of the road along with two vehicles. The damage caused to the vehicles, would not be material as at the time of the accident, the directions of the vehicle could be unassumed, but fact remains that both the vehicles were found in the middle of the road and pool of blood was also found in the middle of the road. Only conclusion which could be drawn from these facts would be that it was head on collision in which the deceased was also contributory negligent. The conclusion of the Tribunal of the size of the vehicles at the ratio of 65% and 35%, therefore, appears to be just and reasonable and no interference in this appeal is called for in the said conclusion. The FA/826/1997 11/14 JUDGMENT Tribunal is also correct in coming to the conclusion that so-called eye witness is examined by the claimants, but he appeared not to speak the whole truth. Even we take that Jeep was in speed, then also, ratio of 65% and 35% of the negligence arrived at by the Tribunal is correct. [10] So far as the compensation is concerned, we find that the assessment of average income, by the Tribunal in the peculiar facts and circumstances of the case, is conservative. Learned Tribunal took into consideration the then employment of the deceased and earning capacity of the deceased was assessed in his pay-scale of Rs.3,500/- to Rs.6,250/- and, therefore, the average income was taken at Rs.4,000/- by the Tribunal and prospective income at Rs.6,000/- per month. In this respect, what is required to be seen in the evidence of witness No.1 of the claimant i.e. Ratanben Oghadbhai, who stated that the deceased was in the job in the above pay-scale, but he was also doing his private practice to the extent of Rs.1,500/- to Rs.2,000/- per month. He was appointed as Doctor in the Public Health Centre, District Panchayat Jamnagar in the pay scale of Rs.2,200/- to Rs.4,000/- plus 60% D.A and House Rent of Rs.600/- which was not accepted by the deceased because he was likely to go USA and to study there. It is not in disputed fact that the widow of the deceased was staying at USA with her parents and there were all chances for the deceased to go to USA to study FA/826/1997 12/14 JUDGMENT there and to settle and earn. He had obtained an admission in M.D. Course but deceased was likely to go USA, he did not opt for that also. If we take into consideration as the peculiar facts of the case and even if we take into consideration earning capacity of Doctor in 1991 we would safely be said taking all other relevant factors into consideration, that the prospective income of the deceased should have been fixed at Rs.7,500/- per month instead of Rs.6,000/- per month as has been fixed by the Tribunal. Learned Tribunal, therefore, clearly erred in taking, all relevant consideration, into consideration and fixed the prospective average income of the deceased at lower side. The deceased was auspicious Doctor of 28 years of age and the whole carrier was opened for him. The prospective income could not be fixed at Rs.10,000/- as demanded by the claimants, because we also take into consideration imponderable of life. Therefore, in view of this discussion, we enhance the average prospective income of Rs.7,500/- per month instead of Rs.6,000/- per month as has been assessed by the Tribunal. [11] Thus, we enhance an amount of Rs.1,500/- per month as a prospective average income of the deceased to assess the dependency loss to the claimants, Rs.1,500/- per month comes to Rs.18,000/- per year. If we apply 15 multipliers to this amount of Rs.18,000/- than it comes to Rs.2,70,000/-. We would deduct 35% ratio of negligence on the part of the deceased out of the amount of FA/826/1997 13/14 JUDGMENT Rs.2,70,000/- and than the amount comes to Rs.94,500/-. Deducting the amount of Rs.94,500/- from the amount of Rs.2,70,000/-, the amount which comes to Rs.1,75,500/-. One third amount of pocket expenses will have to be further deducted out of Rs.1,75,500/- and thus, the net amount comes to Rs.1,17,000/- which is an enhanced amount for which the claimants are entitled. [12] Though it has been urged about enhancing of multipliers but learned Tribunal took into consideration the age of the deceased, the age of the widow and the age of the mother of the deceased and after placing reliance upon a decision of Apex Court in the matter of U.P. State Road Transport Corporation Vs. Trilokchandra (Supra), the learned Tribunal rightly applied multiplier of 15. [13] We do agree that the Tribunal awarded less amount towards expectancy of life and loss of enjoyment i.e Rs.10,000/-. We feel that when claimants are mother and widow, this amount is to be enhanced to some extent. Therefore, as a round figure, we add Rs.9,000/- on this head and the enhanced amount of Rs.9,000/- for which the claimants are entitled towards the loss of expectancy of life. [14] Therefore, after very careful consideration, we come to the conclusion that the amount of compensation as awarded by the FA/826/1997 14/14 JUDGMENT Tribunal is required to be enhanced to the extent of Rs.1,26,000/- in all i.e. Rs.1,17,000/- towards dependency benefit plus enhance amount of Rs.9,000/- towards expectancy of life. [15] In view of the above, this appeal is partly allowed and the amount of compensation awarded by the Tribunal to the extent of Rs.4,80,000/- is enhanced by Rs.1,26,000/- and now the appellant i.e original claimants are entitled to recover total amount of Rs.6,06,000/- instead of Rs.4,80,000/- as awarded by the Tribunal with interest at the rate of 12% p.a from the date of the petition till realization from opponent Nos.1, 2 and 3 jointly and severally. Rest of the award, except enhancement made as above, is not interfered with. Award be drawn accordingly. [ J. R. VORA,J. ] [ Z. K. SAIYED,J. ] vijay