FA/473/2001 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 473 of 2001 With FIRST APPEAL No. 474 of 2001 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 ? ========================================================= ORIENTAL INSURANCE CO. LTD. - Appellant(s) Versus DEVJIBHAI ARJANBHAI & 4 - Defendant(s) ========================================================= Appearance : MR SHALIN N MEHTA for Appellant(s) : 1, None for Defendant(s) : 1, NOTICE SERVED BY DS for Defendant(s) : 1.2.1, 1.2.2, 4, MR BM MANGUKIYA for Defendant(s) : 1.2.1,1.2.2 DELETED for Defendant(s) : 2, RULE SERVED for Defendant(s) : 3, MR MITUL K SHELAT for Defendant(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE FA/473/2001 2/14 JUDGMENT Date : 27/02/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) These two appeals arise out of a common judgment rendered by M.A.C. Tribunal (Main) at Bhavnagar on 19th September, 2000 in M.A.C. Petitions No.832 of 1997 and 833 of 1997. The said two petitions arose out of an accident that occurred on 17th August, 1991 at about 10.45 p.m. on Bhavnagar-Rajkot Highway between village Uchvad and Charkha. One Atulbhai and Ramjibhai were travelling by S.T. Bus No.GJ-1 Z 47 allegedly after appearing at the interview at Jamnagar for a job. They were both qualified Mechanical Engineers and were working as Trainees with Narmada Cement Company Limited at Jafarabad and were drawing a stipend of Rs.2,200/- per month. Both the deceased were unmarried and had good academic career. Deceased Atulbhai was also a partner in a business as per the say of the claimants and was earning approximately Rs.5000/- per month from the said business. 1.1 When the bus reached near the place of incident at about 10.45 p.m., truck bearing No.GTO 1730 approached from opposite direction. It was loaded with a bulldozer which was projecting from the body of the truck on either side. There were no marks to indicate that the truck was loaded with such a huge projecting article. The driver FA/473/2001 3/14 JUDGMENT of the bus could not see the projected portion of the bulldozer and ultimately, the bus collided with the projected part of the bulldozer loaded on the truck which resulted into death of both Atulbhai as well as Ramjibhai. The parents of both the youth preferred the claim petitions. Both of them claimed a compensation of Rs.12 lakhs each for the untimely death of their sons claiming that the deceased were their only sons and source of their livelihood. By virtue of their death, the claimants are rendered supportless. Sister of Ramjibhai is also a petitioner. 2. The Tribunal found that both the drivers were negligent and assessed the contribution of the truck driver at 75% and that of bus driver at 25%. 2.1 The Tribunal, after considering the evidence led before it, ultimately came to a conclusion that the claimants in both the matters were entitled to a compensation of Rs.7,88,000/- with interest at the rate of 12% per annum with costs. 3. Aggrieved by the said judgment and awards, the insurer of the truck has preferred these appeals. Learned advocate Mr. Shalin Mehta appearing for the appellant submitted that it is a case of collision between a truck and a bus. The road was wide enough to FA/473/2001 4/14 JUDGMENT provide sufficient passage to both the vehicles and, therefore, the Tribunal erred in assessing the contribution of the truck driver at 75%. It should have been less than 75%. 3.1 Mr. Mehta also submitted that both the deceased were passengers in the bus. They were both Engineers and unmarried. They were working as Trainee Engineers and were drawing a stipend of Rs.2,200/- per month and would have, in due course, got employment in the same company for some more salary. Mr. Mehta submitted that the Tribunal has committed an error in assessing the prospective income of the deceased at Rs.12,000/-. He also submitted that if the evidence led before the Tribunal is considered, it is only in the case of deceased Atul that there is evidence to show that he was engaged in business and was earning Rs.50,000/- per annum whereas in case of Ramjibhai, it is neither the case of the claimants nor is there any evidence to show that he was having any income other than stipend. Mr. Mehta, therefore, submitted that the Tribunal could not have awarded identical amount in both the cases. 3.2 Mr. Mehta submitted that so far as claim by parents of Atul (M.A.C.P. No.832/97) (First Appeal No.473 of 2001) is concerned, there is evidence to show that he was earning about Rs.50,000/- out of business and FA/473/2001 5/14 JUDGMENT Rs.2,200/- as stipend. Though it is claimed by the claimants that he had 40 bighas of land, there is nothing to show that he was actively engaged in cultivating the land. The evidence about the salary that the deceased would have earned on completion of his training would work out to about Rs.4,400/- and almost similar amount the deceased was earning from business per month. The Tribunal has, instead, assessed the income at Rs.12,000, while computing dependency loss. Mr. Mehta, therefore, submitted that appellate jurisdiction may be exercised to rectify this error. 3.3 Mr. Mehta submitted that in addition to the above aspects, in case of claim by parents of Ramjibhai, the Tribunal has committed an error in awarding the same amount as in case of Atul although it is nobody's case that deceased Ramji had any other income other than stipend or any other income that he would have earned as salary on completion of his training and, therefore, identical amount could not have been awarded by the Tribunal to the claimants in M.A.C.P. No.833 of 1997 (First Appeal No.474 of 2001). 3.4 Mr. Mehta also submitted that the Tribunal has adopted a multiplier of 16 which is on higher side. Relying on the decision in case of T.N. State Transport Corpn. Ltd. vs. S. Rajapriya [(2005) 6 SCC 236], Mr. FA/473/2001 6/14 JUDGMENT Mehta submitted that the multiplier should have been much lesser. Mr. Mehta, therefore, submitted that both the appeals may be allowed. 4. Learned advocate Mr. Mangukiya appearing for the original claimants in both the appeals has opposed these appeals. According to him, though the claimants have not preferred any appeal against the judgment and award of the Tribunal in both the cases, the compensation awarded is much less. According to Mr. Mangukiya, assessing the income of the deceased at Rs.12,000/- is disproportionately low. Both were qualified Mechanical Engineers and had a bright academic career and a bright future, could reasonably be anticipated and assessed whereas the Tribunal has assessed the income of both the deceased at Rs.12,000/- and after deducting 2/3rd thereof, has awarded compensation taking dependency loss at Rs.4,000/- per month. Mr. Mangukiya submitted that, in fact, there are judgments where the courts have awarded still higher multiplier and, therefore, the appeals may not be entertained. Mr. Mangukiya has relied on the following judgments: (1)STATE OF HARYANA AND ANOTHER vs. JASBIR KAUR AND OTHERS [(2003) 7 SCC 484] (2)HARDEO KAUR & OTHERS vs. RAJASTHAN STATE TRANSPORT CORPN. AND ANOTHER [(1992) 2 SCC 567] FA/473/2001 7/14 JUDGMENT (3)SMT. SARLA DIXIT AND ANOTHER vs. Balwant Yadav AND OTHERS [AIR 1996 SC 1274] (4)U.P. STATE ROAD TRANSPORT CORPORATION AND ORS. vs. TRILOK CHANDRA AND ORS. [1996 (4) Supreme Today 479] 4.1 Lastly, Mr. Mangukiya submitted that the nature of legislation is benevolent and the court should adopt a liberal approach to ensure that a just compensation is awarded to the victims. He further submitted that strict rules of evidence & C.P.C. are not required to be followed and the appeals may, therefore, be dismissed. 5. We have taken into consideration rival side contentions. 6. While examining the evidence, we find that the incident occurred at about 10.45 p.m. on the Bhavnagar- Rajkot Highway. Undisputedly, the truck was carrying a bulldozer, the shovel of which was protruding on its right side. There were no marks to indicate that the blade is projecting outside the width of the truck. The panchnama indicates that the collision was between the bus and the blade of the bulldozer and not the body of the truck. When a truck is travelling with its headlights on, the driver of the oncoming vehicle would not be able to see behind the headlights of the truck. FA/473/2001 8/14 JUDGMENT Unless caution lights are fixed on the projection part, the bus driver could not have noticed the projecting part of the truck and, therefore, the incident occurred. It is true that both the vehicles are large vehicles and there was sufficient space for both the vehicles to pass by but in light of the above factor that the collision is between the bus and the projecting part of the bulldozer on the truck and absence of any marks of collision between the truck and the bus, it can be inferred that the driver of the bus had kept sufficient distance between the bus and the truck. But for the projecting part of the Bulldozer loaded in the truck the accident would not have occurred. The only negligence on the part of driver of the bus is that he ought to have driven the bus in a manner which could have made it possible for him to meet with such an unexpected emergency. The Tribunal was, therefore, justified in attributing greater negligence to the driver of the truck who had loaded the bulldozer but had not taken care to put any signal to caution the traffic of the projecting part of the bulldozer loaded in the truck. In our opinion, therefore, no interference is called for in the judgment of the Tribunal so far as negligence is concerned and the same merits to be confirmed. 7. Now, the question of quantum:- FA/473/2001 9/14 JUDGMENT 7.1 First Appeal No.473 of 2001 It is not in dispute that the deceased was a qualified Mechanical Engineer possessing a Bachelor's Degree in Mechanical Engineering, aged about 23 years. It is also established on record that the deceased was working with Narmada Cement Factory at Jafarabad as a Trainee Engineer and was getting a stipend of Rs.2,200/- per month (Exh.64). It is also proved through a communication dated 5th January, 1991 from Narmada Cement Company Limited. It has also been brought on record vide Exh.93 that the pay scale of Assistant Engineer was Rs.1800-90-2250-100-2750-EB-105-3275. It has come in evidence that there were scopes of promotion. 7.2 In addition to the stipend, the deceased was earning Rs.50,000/- by way of profit in a business firm of which the deceased was one of the partners. To support this, income-tax returns are produced at Exhs.68,69, 70 and 71. Exh.68 indicates a profit of Rs.42,156/- to the share of deceased Atul from the firm for the year 1989-90. 7.3 We also find that the Tribunal has awarded the compensation after taking into consideration income of Rs.50,000/- of deceased Atul. The Tribunal has assessed prospective income of the deceased at Rs.12,000/- and has deducted 2/3rd amount for personal expense and assessed FA/473/2001 10/14 JUDGMENT dependency benefit to the claimants at Rs.4,000/- per month. The Tribunal has then adopted a multiplier of 16 for arriving at the datum figure of compensation under the Head of Dependency Loss. 8. In our view, the Tribunal is justified in accepting the income of the deceased at Rs.2,200/- by way of stipend. The Tribunal is also justified in accepting income of the deceased at Rs.50,000/-. There is no material on record to show as to what happened to the business of the firm upon demise of deceased Atul. In absence of evidence that the business was continued or that the firm was reconstituted, it has to be inferred that the firm got dissolved on death of partner Atul. 8.1 It has come in evidence that the deceased would have been absorbed in service on completion of training when his salary would have been about Rs.4,500/-. Therefore, for assessing income of the deceased, the income from business and salary will have to be clubbed together which would be Rs.4,500/- from salary plus Rs.4,500/- from business, totalling to Rs.9,000/-. The evidence on the prospective rise in income either from business or from service is not clear but is vague and hazy. Under the circumstances, for assessing the prospective income, the amount of income of the deceased at the time of his death can be doubled after adding the FA/473/2001 11/14 JUDGMENT present income and then reduced to half. That would be Rs.18,000/- + Rs.9,000 = Rs.27,000 divided by 2 = Rs.13,500/- which would be the prospective income of the deceased. The dependency will have to be calculated by deducting 2/3rd of the income which would be Rs.4,500/-. If this is the monthly dependency, the annual dependency would be Rs.54,000/- as against dependency of Rs.48,000/- assessed by the Tribunal. Therefore, so far as dependency part is concerned, it does not call for any interference in exercise of appellate powers in an appeal by the insurer for reduction of award. 8.2 The Tribunal has then adopted a multiplier of 16 considering the age of the deceased. This is where the Tribunal seems to have committed an error. In adopting multiplier, the age of the deceased or the age of the dependents, whichever is higher, is to be taken into consideration. Here the claimants are the parents where the father was aged 52 years, as can be seen from cause title of the petition and, therefore, a multiplier of 9 can be adopted considering the principle laid down in T.N. State Transport Corpn. Ltd. vs. S. Rajapriya [(2005) 6 SCC 236] which would bring the compensation amount to Rs.4,32,000/-. Added to this would be the amounts awarded by the Tribunal under other heads namely Rs.15,000/- for loss of estate and Rs.5,000/- for love and affection totalling to Rs.4,52,000/- as against an FA/473/2001 12/14 JUDGMENT award of Rs.7,88,000/- made by the Tribunal. First Appeal No.473 of 2001, therefore, will have to be partly allowed., 9. Now coming to First Appeal No.474 of 2001, it is to be recorded at the outset that deceased Ramji was equally qualified as deceased Atul and was employed alongwith deceased Atul. Resultantly, the income from salary of deceased Ramji can be assessed as under: Rs.4,500/- + Rs.9,000/- totalling to Rs.13,500/- divided by 2 = Rs.6,750/- as the prospective income of the deceased. The dependency of the parents would be 1/3rd of the said amount i.e. Rs.2,250/- per month and Rs.27,000/- per annum. 9.1 Unlike the case of deceased Atul, in this case, the deceased did not have any other source of income like business income. 10. Considering the dependency of the claimants (parents) at Rs.27,000/- per annum and considering the age of the claimants, which would be 44 years at the time of the accident, a multiplier of 11 has to be adopted which would bring the amount of dependency to Rs.2,97,000/- as compensation under the head of loss of dependency. Added to the said amount would be Rs.15,000/- towards compensation for loss of estate and FA/473/2001 13/14 JUDGMENT Rs.5000/- towards love and affection totalling to Rs.3,17,000/- as against an award of Rs.7,88,000/-. First Appeal No.474 of 2001 will have to be partly allowed to the above extent. 11. First Appeal No.473 of 2001 is partly allowed. The award of compensation by the Tribunal to the original claimants is reduced to Rs.4,52,000/- with proportionate costs and interest. While making disbursement, the amounts disbursed as per order of this court dated 19th July, 2001 will be taken into consideration by the Tribunal. 12. First Appeal No.474 of 2001 is partly allowed. The award of compensation by the Tribunal to the original claimants is reduced to Rs.3,17,000/- with proprotionate costs and interest. While making disbursement, the amounts disbursed as per order of this court dated 19th July, 2001 will be taken into consideration by the Tribunal. 13. The remaining amount after disbursement will be refundable to the appellant after following requisite procedure. ( A.L. Dave, J. ) FA/473/2001 14/14 JUDGMENT ( Sharad D. Dave, J. ) hki