FA/1361/2002 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1361 of 2002 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 ? ========================================================= PANKAJBHAI CHAMPAKLAL DHOLABHAI & 1 - Appellant(s) Versus BADRINARAYAN RAJGOPALAN & 2 - Defendant(s) ========================================================= Appearance : MR SATYEN B RAWAL for Appellant(s) : 1 - 2. NOTICE SERVED for Defendant(s) : 1 - 2. MS MEGHA JANI for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 05/02/2008 FA/1361/2002 2/10 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. By this appeal, appellants challenge the judgment and award passed by the Motor Accident Claims Tribunal (Main), Vadodara in Motor Accident Claim Petition No.287 of 1995 on 3.12.2001. 1.1. The claim petition was preferred by the appellants claiming compensation for accidental death of Jigish, son of the appellants who met with an accident on 13.1.1995 around 11.00 p.m., on the Race Course Road, Alkapuri area of Vadodara. The deceased was pillion rider of motor cycle No.GJ 6 M 9779 which was driven by respondent No.1. The said motor cycle was being driven in rash and negligent manner and when the cyclist abruptly came from the wrong side, respondent No.1 could not control the motor cycle, as a result of which, the deceased fell down on the road near divider and sustained grievous injuries. He was admitted to Bhailalbhai Amin hospital but succumbed to the injuries during the course of treatment on the very day. According to the claimants, the deceased was aged around 17 – 18 years, was hale and hearty, was a good student studying in 12th Standard in Science stream and was also engaged in extra curricular activities and was enthusiastic. The deceased had planned to join the Indian Administrative Services. The claimants had claimed compensation of Rs.19,55,000/- under various heads including pain, shock and suffering undergone by the claimants on account of untimely death of the FA/1361/2002 3/10 JUDGMENT deceased. 2. The claim petition was opposed to by the respondents by filing the written statement denying the averments made in the claim petition. 2.1. The Tribunal, after considering the evidence led before it by the parties, came to the conclusion that the driver of the motor cycle was negligent in driving and the accident occurred on account of his rashness and negligence. 2.2. As regards the quantum, the Tribunal found that the deceased was student and was not earning. That there is no material to assess prospective income of the deceased. That the claimants were not financially dependent on the deceased and the Tribunal, therefore, instead of computing compensation under various heads, awarded a lumpsum compensation of Rs.2 lakhs to the claimants with interest at the rate of 9% p.a. with proportionate costs. 3. The claimants have preferred this appeal to challenge the said judgment and award on the ground that the Tribunal has erred in awarding lumpsum compensation. That the Tribunal has awarded inadequate compensation. That the Tribunal has not taken into consideration the fact that the deceased had bright academic career and his development was all round. He had, beside taking education, engaged himself into extra curricular activities which had developed his personality which would have been FA/1361/2002 4/10 JUDGMENT special feature in him which could have secured good vocation to him. 4. We have heard learned advocate Mr.Satyen B.Raval for the appellants and Ms.Anushree Kapadia for respondent No.3 on behalf of learned advocate Ms.Jani. 5. Learned advocate Mr.Raval has contended that the Tribunal has erred in awarding a lumpsum compensation and has further erred in not computing the damages by adopting multiplier method which has been held to be more scientific by the Apex Court. He has relied on the following judgments. 1) Muthaiah Sekhar Vs. Nesamony TPT. Corporation Ltd. [(1998) 7 SCC 39] 2) Shantibai and others Vs. Charan Singh and others. [(1998) 5 SCC 359] 3) Lata Wadhwa and others Vs. State of Bihar and others. [(2001) 8 SCC 197] 4) General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and others. [1994 ACJ 1] He submitted that the appeal may be allowed by enhancing compensation. According to Mr.Raval, the income of the deceased may safely be assessed at Rs.7,000/- per month and for arriving at the prospective income, usual theory of doubling figure and then adding it to the actual figure of income and then dividing it by two has to be adopted. According to him, the Tribunal ought to have deducted only 1/3rd FA/1361/2002 5/10 JUDGMENT amount as the amount spent by the deceased on himself and multiplier of at least 18 ought to have been adopted. 5.1. Mr.Raval also submitted that Rs.10,000/- ought to have been awarded under the head of pain, shock and suffering and Rs.10,000/- for funeral expenses. It was also contended that Rs.1,30,000/- may be awarded as compensation for money spent by the claimants on education of the deceased. It was submitted that the appeal may be allowed by enhancing the award. 6. Learned advocate Ms.Kapadia for respondent No.3 has opposed this appeal. According to her, the Tribunal has not given the details of calculation of compensation, but global figure which is awarded as compensation to the claimants is just, legal and proper and compensation that may be computed in any manner would not exceed the amount of compensation already awarded even if it is computed by adopting any of the methods. It was, therefore, submitted that the appeal may be dismissed. 7. We have taken into consideration the contentions raised before us, so also the evidence on record. We have also taken into consideration various factors touching computation of compensation. 8. In the case of Muthaiah Sekhar Vs. Nesamony TPT. Corporation Ltd., ((1998) 7 SCC 39) we find that it was a case of injury and permanent disablement where the claimant had survived and had deposed FA/1361/2002 6/10 JUDGMENT before the Court. We have also examined Shantibai and others Vs.Charan Singh and others (1998) 5 SCC 359 and General Manager, Kerala State Road Transport Corporation V/s Susamma Thomas and others (1994 ACJ 1). 9. The second judgment which is relied upon by learned advocate Mr.Raval is Shantibai and others Vs.Charan Singh and others (1998)5 SCC 359 which relates to the death of a young boy where there was material on record to assess income of the deceased and even thereafter, quantum of compensation was awarded at Rs.1,50,000/- by the Apex Court. Therefore, this judgment may not be of help to the claimants. In General Manager, Kerala State Road Transport Corporation V/s Susamma Thomas and others 1994 ACJ 1 it has been recognized that multiplier method is more scientific. There cannot be any two opinions about this aspect, but for adopting multiplier method, there has to be evidence on record regarding relevant components i.e., age of the claimants, income of the deceased, whereas in the instant case on our hand, we find that there is no evidence regarding income of the deceased as he had none and there is no evidence regarding future income of the deceased either. There is no evidence to throw light on the prospective income of the deceased. The judgment, therefore, cannot be applied to the facts of the present case. In Lata Wadhwa and others Vs. State of Bihar and others (2001) 8 SCC 197, the said principle came to be reiterated by the Apex Court holding that the question, whether there existed reasonable expectation of pecuniary advantage FA/1361/2002 7/10 JUDGMENT is a mixed question of fact and law and there has to be some material on record in this regard and mere speculative possibility of benefit is not sufficient. This principle goes contrary to the submission made by learned advocate for the appellants regarding prospective income of the deceased as there is no evidence whatsoever worth a name in that regard. 10. We have perused the record and proceedings and we find that the age of the deceased was 17 years at the time of accident. He had passed SSC examination with 65% marks and was pursuing further study. We also find that the deceased had particularly engaged himself in extra curricular activities and there are numerous certificates and photographs in support of the say of the claimants. 10.1. We also find from the evidence led before the Tribunal that claimant No.1 Pankajbhai Dholabhai was working as Branch Manager with Dena Bank, Ajwa Road Branch and was drawing the salary of Rs.17,403=31 (Exh.48). The above piece of evidence would show that the deceased had reasonable good academic career decorated with extra curricular activities, but he had no income. It is the case of the claimants that the deceased wanted to and the claimants also wanted him to join Indian Administrative Service, but there is no material to show reasonable possibility thereof particularly considering academic career of the deceased. There is no iota of evidence and there cannot be any so far as prospects of income of the deceased were concerned. The Court, therefore, will have to fall FA/1361/2002 8/10 JUDGMENT back either on some guess work or on Schedule-II of the Motor Vehicles Act for assessing notional income of the deceased. Even for guess work, there has to be some material to throw light on and put emphasis on certain relevant aspects, but there is no such evidence. If the Court has to adopt multiplier method for assessing damages under the head of dependency loss, the Court has to have some material to show actual and prospective income of the deceased which is totally absent here. Therefore, the Court will have only one option, that would be, to fall back on Schedule-II of the Motor Vehicles Act which says that in absence of any proof of income, notional income of Rs.15,000/- per annum has to be taken as basis. If that is adopted and if usual formula of assessing dependency by deducting 1/3rd or 2/3rd of the income as expenditure incurred by the deceased on self and then applying multiplier considering the age of the claimants or the deceased whichever is more, then the figure of compensation that one would get would be lesser than what is awarded by the Tribunal even if compensation awarded by the Tribunal under the head of non-pecuniary damages is added thereto. 10.2. Learned advocate Mr.Raval prays for award of compensation for non-pecuniary damages as under. Rs.5,000/- towards transport expenses. Rs.10,000/- towards pain, shock and suffering. Rs.10,000/- towards funeral expenses. Rs.10,000/- towards medical expenses. Rs.1,30,000/- towards educational expenses of the deceased. FA/1361/2002 9/10 JUDGMENT Rs.20,000/- towards loss of expectation of life. _____________ Rs.1,85,000/- Total. In our view, the claimants cannot claim and would not be entitled to compensation for money spent on education of the deceased. The claim for compensation under the head of pain, shock and suffering is also not supported by any evidence as to exactly when did the deceased died. In fact, the compensation is claimed for shock suffered by the claimants on account of untimely death of the deceased! 11. Taking the case of the claimants at the best, if the income of the deceased is notionally assessed at Rs.15,000/- per annum as per Schedule-II of the Motor Vehicles Act and deviating from the principle of dependency, dependency of parents of unmarried son is assessed at 2/3rd. Then also, annual dependency would be Rs.10,000/- and considering the age of the claimants being 45 years, multiplier of 11, if adopted, it would fetch total amount of Rs.1,10,000/- as dependency loss to the claimants and if the compensation for funeral expenses at Rs.3,000/-, medical expenses at Rs.2,000/- and loss of expectation of life at Rs.20,000/- is assessed, then also the claimants would be entitled to the total compensation of Rs.1,35,000/- which is much lesser than what is awarded by the Tribunal by way of lumpsum and if we adopt the settled principle of dependency by assessing dependency at 1/3rd in respect of the parents of unmarried son, the amount of FA/1361/2002 10/10 JUDGMENT compensation would be much lesser. In this set of circumstances, we are of the view that there are no merits in the appeal. The appeal must fail and stands dismissed. No order on costs. (A.L.Dave,J) (Sharad D.Dave,J) pathan