FA/1297/1999 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1297 of 1999 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 ? ========================================================= VIMLABEN BACHUBHAI PATEL WD/O BACHUBHAI SOMABHAI PATEL & 3 - Appellant(s) Versus VRAJLAL B KACHHADIA & 3 - Defendant(s) ========================================================= Appearance : MR PRABHAV A MEHTA for Appellant(s) : 1 - 4. NOTICE SERVED for Defendant(s) : 1, 4, MR RAJNI H MEHTA for Defendant(s) : 2, MS ROOPAL R PATEL for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 16/04/2008 FA/1297/1999 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal is preferred to challenge the judgment and award rendered by Motor Accident Claims Tribunal (Main), Kheda at Nadiad rendered in Motor Accident Claim Petition No.243 of 1988 and allied other matters on 19.12.1998 awarding a compensation of Rs.5,91,000/- to the appellants – original claimants with proportionate costs and interest @ 12% p.a., as against Rs.15 lacs claimed by them by way of compensation on account of death of Bachubhai Somabhai Patel who was Dy.Executive Engineer with GEB. The Tribunal considered that the salary of the deceased was Rs.4000/- approximately. The Tribunal, after assessing the prospective income of the deceased to be Rs.5000/-, deducted 20% therefrom and assessed the dependency loss of the claimants at Rs.4000/- per month. The Tribunal adopted a multiplier of 12 and assessed the dependency loss at Rs.5,76,000/- and added Rs.15000/- thereto for loss of consortium and awarded total amount of Rs.5,91,000/- as compensation. 2. Aggrieved by the said award, the original claimants have preferred this appeal for enhancement of the award and as such question of negligence is not required to be gone into. We may record at this stage that none of the opponents have preferred any appeal to challenge the award. FA/1297/1999 3/6 JUDGMENT 3. Learned advocate Mr.Prabhav Mehta for the appellants submitted that the Tribunal has not considered the prospective income of the deceased which he would have earned in future while assessing the dependency loss. He also submitted that the Tribunal has committed an error in not considering the agricultural income of the deceased. According to Mr.Mehta, the Tribunal ought to have considered the income of the deceased which he would have earned at the age of retirement. The possibility of his getting promotion ought to have been considered by the Tribunal. He submitted further that the Tribunal ought to have awarded some compensation for supervision rendered by the deceased on agriculture. He submitted that accordingly the award may be enhanced. 4. On the other hand, learned advocate Mr.Parikh has opposed this appeal. According to him, the Tribunal has rightly considered the fact that the deceased was serving as an Engineer which is a full time job and the fact that the land still existed which can be cultivated and, therefore, was justified in not awarding any compensation for loss of income from agriculture. Mr.Parikh further submitted that the deceased was working at Vadodara whereas the lands are situated in Kheda district and he could not have even supervised looking to the nature of his job. 4.1. Mr.Parikh submitted that the Tribunal has FA/1297/1999 4/6 JUDGMENT deducted only 20% amount of the prospective income of the deceased as expenditure on self while assessing the dependency loss and the claimants are, thus, benefited. He, therefore, states that no interference is called for. 5. We have considered rival side contentions. We have examined record and proceedings. We have also gone through the judgment of the Tribunal. 6. We find from evidence that the deceased was working as Dy.Executive Engineer with G.E.Board and was stationed at Vadodara. The land in question is located at Asodar which is in Borsad Taluka of Kheda District which would be at a distance. The land record shows that the lands were of joint ownership and not of exclusive ownership of the deceased. There is no cogent evidence whatsoever to show as to what was the income of the deceased from agriculture; except oral word of claimants, what was being cultivated, what was the expenditure for cultivation and what was the net outcome from the agriculture. All these factors have remained unanswered for want of cogent evidence. Under the circumstances, we do not find any error to have been committed by the Tribunal in not awarding any compensation for the supervision claimed to have been rendered by the deceased. It is a matter of doubt; in absence of detailed evidence on working of the deceased on job and agriculture whether the deceased could have rendered any supervision while working on a full time FA/1297/1999 5/6 JUDGMENT job of a Dy.Executive Engineer at a distant place. 7. So far as the dependency loss is concerned, it is not in dispute that the salary of the deceased was approximately Rs.4000/- per month. In light of the decision in case of Oriental Insurance Company Ltd. V/s Jashuben and others, 2008(2) Scale 474, while calculating the dependency loss or assessing the prospective income, the income that the deceased would have earned in future would not be a relevant consideration. The promotions etc., are not a certainty and imponderables cannot be ignored or neglected. Under the circumstances, the income at the time of the accident has to be taken into consideration. The accepted method is to add to the income of the deceased, double the income and then divide it by two for arriving at the prospective income. If that is done, the prospective income of the deceased would be Rs.6000/- (Rs.4000 + Rs.8000 = Rs.12000/2 = Rs.6000/-) and if 1/3rd therefrom be deducted, the dependency loss would be Rs.4000/- per month which is the loss assessed by the Tribunal, may be by adopting a different way of calculation. 8. We are, therefore, of the view that no interference is called for in this enhancement appeal although according to us, the multiplier adopted by the Tribunal is on the higher side considering the decision of the Apex Court in case of Tamil Nadu State Road Transport Corporation Ltd. V/s S.Rajapriya and others 2005 ACJ 1441. FA/1297/1999 6/6 JUDGMENT 9. In view of the foregoing discussion, in our opinion, the compensation awarded is just, legal and proper and no interference is called for. Appeal must fail. Stands dismissed with no order as to costs. ( A.L.DAVE, J ) ( SHARAD D DAVE, J ) srilatha