FA/19/2006 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 19 OF 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ====================================== 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 ? ====================================== THE ORIENTAL INSURANCE CO. LTD. - Appellant(s) Versus BIMLABEN WD/O. BHUPENDRABHAI RAVJIBHAI PATEL & ORS. - Respondent(s) ====================================== Appearance : Mr. K. K. Nair for Appellant(s). Mr. H. M. Parikh for Respondent(s) : 1 - 3, 5. None for Respondent(s) : 4. Rule unserved for Respondent(s) : 6 - 7. ====================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 26/06/2008 FA/19/2006 2/11 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) The present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (“the Act” for short) challenging the judgement and award dated 3rd October, 2005 passed in M.A.C.P. No.463 of 1994 by the Motor Accident Claims Tribunal (Main), Bharuch (“the Tribunal” for short). The aforesaid claim petition was filed under Section 166 of the Act by the respondent Nos.1-5, original claimants, against the opponents as driver, owner and insurer of the offending truck bearing Registration No. GJ-1U-5981 to recover the compensation of Rs.15 Lakhs for the demise of the deceased Bhupendrabhai Ravjibhai Patel in a road accident, which took place on 14th October, 1993 on the road going from Ankleshwar to Bharuch near Village: Vagusana. 2. The Tribunal, after considering the evidence adduced and produced by the claimants and the opponents and after hearing the learned Advocates for the parties, allowed the claim petition and directed the opponents to pay jointly and severally a sum of Rs.12,70,500/- together with proportionate costs and interest at the rate of 9% per annum from the date of the petition till realisation as compensation to the claimants. 3. As it transpires from the judgement and award as well as the FA/19/2006 3/11 JUDGMENT pleadings, the deceased Bhupendrabhai R. Patel was going with his friend Jagdishbhai and Rajnikant from Village: Od to Ankleshwar in a Maruti Car bearing Registration No. GJ-6A-2368 and while they were proceedings towards Bharuch and when reached near to Village: Vagusana, District: Bharuch, opponent No.1-driver of the offending truck bearing Registration No. GJ-1-U-5981 said to have come in rash and negligent manner and dashed with the maruti car, resulting in the accident and death of all the occupants on the spot, for which the complaint, being C.R. No. I-193 of 1993, was registered against the driver of the truck. Therefore, the aforesaid claim petition was filed by the heirs and legal representatives of the deceased to claim compensation from the opponents, including the present appellant- Insurance Company as an insurer of the offending truck bearing Registration No. GJ-1-U-5981. 3.1 It was also averred that the accident was the result of rash and negligent driving on the part of the driver of the offending vehicle and therefore, original opponent Nos.1, 2 and 3 as a driver, owner and insurer of the offending truck were primarily responsible to pay the compensation. It was claimed in the petition for compensation that at the time of the accident, the deceased Bhupendrabhai Ravjibhai Patel was aged about 37 years and was carrying on the business at Umreth in the name and style of “Patel Saw Mill” and was also making the containers FA/19/2006 4/11 JUDGMENT for cutting the wood and selling them. It was also averred that the deceased was having agricultural land at Village: Od and was earning income therefrom and the monthly income of the deceased Bhupendrabhai was claimed to be Rs.10,000/-. The documentary evidence with regard to the business of the saw mill and other agricultural operations was produced with the list at Exh.33. 3.2 On the basis of the pleadings and documentary evidence adduced and produced by the parties and the submissions advanced by the learned Advocates, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving on the part of the driver of the offending truck and he was solely responsible for the accident. Therefore, opponent Nos.2 and 3 as the owner and insurer of the offending truck were held jointly and severally liable. Therefore, the present appellant has been made liable to indemnify the award as an insurer of the offending truck belonging to opponent No.2 insured by the appellant-original opponent No.3. 3.3 As regards the quantum of compensation, the Tribunal has considered the evidence produced on record and accepted the monthly income of the deceased Bhupendrabhai Ravjibhai Patel at Rs.6,500/- at the time of the accident and thereafter, doubled the same and then divided it by one half to find out the average prospective income and FA/19/2006 5/11 JUDGMENT accordingly, the Tribunal has assessed the average prospective income at Rs.9,750/- per month (Rs.6500/- at the time of the accident + Rs.13,000/- at the fag end of his life = Rs.19,500/- divided by one half = Rs.9,750/-). Thereafter, the Tribunal has also deducted one third from Rs.9,750/- for the personal upkeeps of the deceased and accordingly, found out the monthly dependency benefit available to the claimants at the rate of Rs.6,500/-. The Tribunal, thereafter, has applied the multiplier of 16 considering the age of the deceased and accordingly, the dependency benefit was worked out at Rs.12,48,000/- and also added Rs.20,000/- towards loss of estate and loss of consortium and Rs.2,500/- towards the funeral expenses. The Tribunal, in all, awarded total compensation in the following break up: Rs.12,48,000/- Towards the future dependency. Rs. 20,000/- Towards loss of estate and loss of consortium Rs. 2,500/- Towards funeral expenses. Rs.12,70,500/- Total It is this award which is challenged in the present appeal by the appellant-Insurance Company as an insurer of the offending truck. 4. Mr. K. K. Nair, learned Advocate for the appellant, in support of the appeal, has submitted that the award is much on higher side. He contended that the Tribunal has erred in appreciating the FA/19/2006 6/11 JUDGMENT documents relating to the saw mill business and has not appreciated the sales bills while arriving at the income of the deceased. He also contended that the books of account of the partnership business of the saw mill were not produced before the Tribunal and therefore, the amount awarded is on higher side. He also contended that the multiplier of 16 adopted by the Tribunal is also on higher side. He strenuously submitted that the award may be suitably modified by allowing the appeal. 5. Per contra Mr. H. M. Parikh, learned Advocate for the respondent Nos.1 to 3 and 5-original claimants, has submitted that the impugned award is just and proper and does not call for any interference of this Court. It was submitted that the Tribunal has arrived at the datum figure for the purpose of dependency benefit by taking the income of the deceased at Rs.6,500/- considering the income of the deceased from the business of saw mill as well as agricultural. Mr. Parikh further submitted that the Tribunal has adopted the guidelines considering the present income and has arrived at the datum figure for the purpose of dependency benefit to the tune of Rs.6,500/-. He also submitted that as the deceased was aged only 37 years at the time of the accident, the multiplier of 16 is just and proper and therefore, the Court may not interfere with the award. He also submitted that as the dependency benefit awarded to the claimant is just and proper, it cannot be said to FA/19/2006 7/11 JUDGMENT be on higher side. 6. We have considered the submissions advanced by Mr. K. K. Nair, learned Advocate for the appellant-Insurance Company, and Mr. H. M. Parikh, learned Advocate for the respondent Nos.1 to 3 and 5-original claimants. We have also perused the impugned judgement and award as well as oral and documentary evidence produced on record. 7. As the present appeal is confined to the aspect of quantum only inasmuch as Mr. K. K. Nair, learned Advocate for the appellant, has not challenged the finding recorded by the Tribunal on the aspect of negligence of the driver of the offending truck, we do not deem it expedient to examine and deliberate on the said issue. 8. The only aspect, which is required to be considered, is as to whether the impugned award, datum figure for the purpose of dependency benefit arrived at and multiplier of 16 can be said to be on higher side. It transpires from the judgement and award, and material and evidence on record that the Tribunal has taken the income of the deceased, who was doing the business in the name and style of “Patel Saw Mill” and was also having the income from agricultural operations, of Rs.6,500/- per month. For the purpose of assessing the prospective income, the guidelines laid down by a Division Bench of this Court in a FA/19/2006 8/11 JUDGMENT judgement reported in Smt. Rafia Sultan vs. O.N.G.C. reported in 1985(2) GLR 1315 and other decisions are required to be considered and on that basis, the datum figure has to be arrived at. However, as it has been specifically emphasised referring to the contentions in the appeal that the Tribunal has not considered the aspect about documentary evidence produced like sales tax and also the fact that no tax was paid and documents produced do not indicate the actual payment of tax for a particular period. Moreover, the sales bills were produced for a limited period from 22nd October, 1991 to 22nd March, 1993 and no other bills showing the consistent income from the business were produced, nor the books of account were produced. Therefore, considering these submissions, we are of the opinion that the income of the deceased could be taken at Rs.6,000/- per month for the purpose of dependency benefit. As regards the multiplier of 16 applied by the Tribunal, considering the age of the deceased of 37 years at the time of the accident and the fact that longivity in recent times have increased and in light of the recent pronouncement of the Apex Court, we are of the opinion that the multiplier of 16 is also on higher side. Therefore, it would be proper if the multiplier of 15 is adopted and applying the guidelines as stated above, the income of Rs.6,000/- per month has to be doubled and taking the average thereof would be the datum figure, i.e. FA/19/2006 9/11 JUDGMENT 6000+12000=18000 divided by two = Rs.9,000/- would be the average prospective datum figure for the purpose of dependency benefits. However, 1/3rd would be required to be deducted for personal expenses like food, clothing, etc. and therefore, the net dependency benefit for the claimant would come to Rs.6,000/- per month. 9. Therefore, considering the age of the deceased and also in light of the recent judgement of the Apex Court, the net dependency would come to Rs.10,80,000/-. Further, the Tribunal has awarded Rs.20,000/- towards the loss of estate and loss of consortium which is also just and proper and we do not propose to disturb the same. Similarly, the Tribunal has awarded Rs.2,500/- towards funeral expenses, which we do not propose to award. Therefore, in all the claimants would be entitled to the compensation of Rs.11 Lakhs, the break-up of which is as under, together with the proportionate costs and interest at the rate of 9% per annum from the date of the petition till the date of realisation together with the proportionate costs of the petition. Rs.10,80,000/- towards dependency benefit (Rs.6,000x12 x 15) Rs. 20,000/- towards loss to estate and loss of consortium. --------------------- Rs.11,00,000/- Total ======== 10. For the foregoing reasons, the present appeal deserves to be partly allowed and accordingly, it is partly allowed with no order as to costs. The judgement and award dated 3rd October, 2005 passed by the FA/19/2006 10/11 JUDGMENT Motor Accident Claims Tribunal (Main), Bharuch in M.A.C.P. No.463 of 1994, awarding compensation of Rs.12,70,500/- is hereby modified and by awarding total compensation of Rs.11 Lakhs together with interest at the rate of 9% per annum from the date of the petition till the date of realisation with proportionate costs and interest. The Tribunal is directed to apportion the compensation awarded to the claimants as under: (i) Claimant No.1 - widow shall be entitled to 50% of the total amount of compensation. (ii) Claimant Nos.2 and 3, who are children of the deceased, would be entitled to 15% each of the amount of compensation. (iii) Claimant No.5 - mother would be entitled to the balance amount of 20% of the compensation. Claimant No.4 has expired and therefore, he has been deleted during the pendency of the petition before the Tribunal. 11. It is stated by Mr. K.K. Nair, learned Advocate for the appellant, that in compliance of the impugned award, the appellant has deposited Rs.24,75,360/- after deducting the initial deposit at the rate of 10.20% income tax on interest amount and this Court has modified the award by awarding the total compensation of Rs.11 Lakhs together with FA/19/2006 11/11 JUDGMENT interest and costs thereon. He, therefore, requested that the excess amount, if any, may be refunded to the appellant-Insurance Company after considering the disbursement made vide order dated 1st May, 2006 rendered Civil Application No.5188 of 2006. 12. Mr. H. M. Parikh, learned Advocate for the respondents- original claimants, submitted that necessary direction may be issued to the Tribunal for paying back the excess amount to the appellant- Insurance Company. 13. In view of the above, the Motor Accident Claims Tribunal (Main), Bharuch, is directed to disburse the amount amongst the claimants as stated in the final order of this judgement by paying them account payee cheque upon due verification after encashing the deposits, which was made pursuant to the direction of this Court earlier, and thereafter, pay back whatever balance amount to the appellant-Insurance Company. Award be drawn accordingly. [A. M. Kapadia, J.] [R. H. Shukla, J.] kamlesh*