FA/1606/2002 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1606 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 ? ========================================= UNITED INDIA INSURANCE CO LTD. Versus PUSHPABEN, WD/O JAGDISHCHANDRAHIMAATLAL SHAH & Others. ========================================= Appearance : MR PV NANAVATI for the Appellant. MR SANDIP C SHAH for Respondents No. 1 to 5. Respondent No. 6 deleted. RULE SERVED for Respondent No. 7. ========================================= CORAM : HONOURABLE MR.JUSTICE A. L. DAVE and HONOURABLE MR.JUSTICE S. D. DAVE FA/1606/2002 2/15 JUDGMENT Date : 17/01/2008 ORAL JUDGMENT : (Per : A. L. DAVE, J.) 1. This appeal arises out of a judgment and award rendered by Motor Accident Claims Tribunal (Aux.) Court No.15, Ahmedabad, in Motor Accident Claim Petition No.1451 of 1995 on 18th February, 2002. 2. The said Claim Petition was preferred by present respondents Nos.1 to 5 for the accidental death of Jagdishchandra Himatlal Shah that occurred on 22nd October, 1995 on Sarkhej- Gandhinagar Highway, Opposite Rajpath Club, around 6.00 P.M. Respondents Nos.1 to 5 were respectively the claimants before the Tribunal and, therefore, they are referred to in this judgment as “the claimants”. The appellant was opponent No.3 before the Tribunal whereas respondents No.6 and 7 were opponents No.1 and 2 before the Tribunal and, therefore, they are referred to as “the opponents” in this judgment. 3. Claimant No.1-Pushpaben is the widow of deceased- Jagdishchandra Himatlal Shah, claimants No.2 and 3 are the sons of the deceased and claimants No.4 and 5 are the married daughters of the deceased. Both the sons are major and were major even at the time of the accident. 3.1 As per the case of the claimants, deceased FA/1606/2002 3/15 JUDGMENT Jagdishchandra was riding his scooter No.GJ-1-JJ-2710 at a moderate speed on the correct side of the road when opponent No.1 came with his car No.GJ-1-R-5068 in a rash and negligent manner and hit the scooter from behind. On account of the impact, the scooterist fell down and sustained injuries and succumbed to the same. 3.2 According to the claimants, the deceased was working with Gujarat State Co-operative Bank Limited as an officer and was drawing a salary of Rs.11,508/-. It is also the case of the claimants that the deceased was aged 49 years and had he not met with the untimely death, he had a very bright future ahead of him. Because of the untimely death of the deceased, the claimants have lost love and affection from husband and father, respectively, and, ultimately, the claimants claimed a compensation of Rs.18 lakh. 4. The opponents were summoned by the Tribunal. Opponents No.1 and 2, though duly served, chose not to contest the claim petition. Original opponent No.3, who is the appellant herein, is the insurer of the car involved in the accident. The written statement filed by the insurance company at Exhibit 23 was more or less in the form of denials of the averments made in the claim petition. 5. The Tribunal framed issues at Exhibit 32, as follows :- “(1) Whether applicants prove that deceased Jagdischandra Shah succumbed to the injuries he sustained in a FA/1606/2002 4/15 JUDGMENT vehicular accident which took place on 22.10.1995 at about 6.00 p.m. On Sarkhej Gandhinagar Highway, Opposite Rajpath Hotel, Ahmedabad? (2) Whether applicants prove that the drive of the offending vehicle – Maruti Car bearing RTO registration No. GJ-1-R-5068 was solely negligent for the occurrence of the accident? (3) Whether applicants are entitled for the compensation as prayed for? (4) What order and award?” 5.1 On appreciation of the evidence on record, the Tribunal answered the issues in the affirmative and, ultimately, passed an award fixing the compensation at Rs.12,80,000/-, payable by the opponents with costs of the litigation and interest at the rate of 9 per cent per annum. 5.2 The Tribunal took into consideration a salary certificate issued by the employer of the deceased produced on record at Exhibit 51, which indicated that the gross salary of the deceased was Rs.11,508/- per month. The Tribunal accepted the same and assessed the actual income of the deceased at Rs.1,38,600/-. The Tribunal deducted an amount of Rs.1,000/- from the salary of the deceased as expenditure on self and assessed the dependency of the FA/1606/2002 5/15 JUDGMENT claimants at Rs.10,500/- per month, i.e. Rs.1,26,000/- per annum. The Tribunal relied on a xerox copy of a school leaving certificate produced at Mark 29/15 and took the birth date of the deceased to be 16.11.1943 and, thereupon, calculating the age of the deceased to be 52 years, adopted a multiplier of 10 and awarded a total compensation of Rs.12,60,000/- under the head of loss of dependency. The Tribunal also awarded Rs.10,000/- as compensation for loss of expectation of life and Rs.10,000/- for loss of consortium, totalling to Rs.12,80,000/-. 6. Learned Advocate, Mr. Nanavati, appearing for the appellant submitted that since the owner and the driver of the car involved in the accident insured by the appellant chose not to contest the application, the appellant had tendered an application under Section 170 of the Motor Vehicles Act before the Tribunal for taking up all available defences, which came to be granted by the Tribunal by order dated 14th December, 2001, passed below Exhibit 31. 6.1 Learned Advocate, Mr. Nanavati, submitted that the Tribunal failed to properly appreciate the evidence on negligence aspect. He submitted that the deceased himself was riding the scooter and his contribution to the cause of accident ought to have been taken into consideration by the Tribunal. That has not been done. 6.2 Mr. Nanavati also submitted that the Tribunal committed an error in deducting only Rs.1000/- as expenditure on FA/1606/2002 6/15 JUDGMENT self by the deceased. It ought to have been 1/3rd of the income. Mr. Nanavati also submitted that the Tribunal committed an error in taking into consideration the gross income of the deceased ignoring the income tax paid by the deceased from his gross income and, therefore, the Tribunal erred in computing the compensation for dependency loss. He submitted that the appeal may be allowed. 6.3 Reflecting on the cross-objections preferred by the original claimants, Mr. Nanavati submitted that there is no evidence except oral say of the widow of the deceased that the deceased may have become Manager and would have earned Rs.25,000/- per month. Mr. Nanavati submitted that there is no evidence in support of this averment. Mr. Nanavati, therefore, submitted that the cross objections may be dismissed. 7. Learned Advocate, Mr. Shah, for the original claimants, while supporting the cross objections, submitted that the Tribunal committed an error in assessing the age of the deceased to be 52 years depending on the school leaving certificate. Mr. Shah submitted that the school leaving certificate indicates that the deceased was born on 16.11.1946 and not 16.11.1943 and, therefore, the age of the deceased was 49 years and not 52 years. Mr. Shah submitted that, accordingly, the Tribunal committed an error in adopting the multiplier of 10 only. 7.1 Mr. Shah submitted that the Tribunal committed an error in assessing the dependency loss by taking into consideration only the actual income of the deceased and not taking into FA/1606/2002 7/15 JUDGMENT consideration the prospective rise in income and, thereby, erred in awarding a lesser amount of compensation. 8. We have taken into consideration rival side submissions. At the outset, we may record that, unusually, we will have to partly accept the appeal and partly accept the cross objections. 8.1 The Tribunal erred in deducting only Rs.1000/- from the income of the deceased as expenditure on self while assessing the dependency loss. The Tribunal also erred in not taking into consideration the amount of income-tax payable by the deceased while computing net income for assessing dependency loss. If these two aspects are considered, they both will have a direct impact on the total amount of compensation receivable by the claimants. 8.2 Likewise, the Tribunal committed an error in assessing the age of the deceased to be 52 years. The postmortem notes indicate the age of the deceased to be 49 years. There is a positive assertion by claimant No.1 in her cross-examination that the deceased was 49 years and the Tribunal committed an error in recording the date of birth of the deceased to be 16.11.1943 when actually it is recorded to be 16.11.1946 in the school leaving certificate which, though we may not take into consideration as it is only a xerox copy and it is not properly proved, yet there is material to show that the deceased was 49 years and not 52 years. 8.2.1 We also find that the Tribunal also did not consider prospective rise in income and, therefore, to that extent, there is FA/1606/2002 8/15 JUDGMENT substance in the cross objections. 9. We have heard learned Advocates for parties at length. We also have the record and proceedings before us, so also the paper book, which we have scanned. 10. On the aspect of negligence, it has been contended that two vehicles were involved and, therefore, negligence on part of the deceased in riding the scooter ought to have been considered by the Tribunal. However, we find that the driver and owner of the Maruti Car, insured with the appellant, chose not to contest the claim petition before the Tribunal. There are no pleadings on record on their behalf to explain as to how the accident occurred or to show to what extent the deceased himself was negligent. There is no evidence on record to that effect either. Contrary to this, the claimants examined an eye-witness named Rajeshbhai Shantilal Dani, at Exhibit 44. He said that he was proceeding on his motorcycle behind the scooter maintaining a pace of about 25 to 30 feet. According to him, he was driving his motorcycle on the left side of the road at a distance of about two feet from the left edge of the road. The scooter going ahead of him was being ridden at a distance of about 3 to 4 feet from the edge of the road. The Maruti Car was being driven by the driver at a high speed. The car driver overtook the witness and then hit the scooter of the deceased from behind and, as a result, the scooterist had fallen down and started bleeding from his nose and mouth. The driver of the Maruti Car stopped the vehicle there and some people also gathered Ultimately, the injured was taken to V. S. Hospital in the Maruti FA/1606/2002 9/15 JUDGMENT Car. He said that he had also gone to V. S. Hospital, where he was interrogated by the police and Inquest Panchnama was also got signed from him. He said that he did not remember number of the vehicle and that the traffic was moderate. The witness was cross- examined, but nothing emerged to shake the evidence of this witness given in examination-in-chief to the effect that the scooterist was hit by the Maruti Car from behind although the traffic was moderate. It has also come in evidence that the Maruti Car was being driven at a high speed. In this set of circumstances, we are of the view that the Tribunal was justified in holding that the driver of the Maruti Car was solely responsible for the accident and no liability can be fastened on the deceased by attributing any negligence to him. 11. Now, coming to the question of quantum of compensation, we notice that the Tribunal has relied on salary certificate produced on record at Exhibit 51, wherein the gross salary of the deceased was indicated to be Rs.11,508/-, which has been taken as the foundation for computing dependency loss. The Tribunal has not taken into consideration deductions like income- tax, etc. We also notice that the Tribunal has deducted an amount of Rs.1,000/- as expenditure on self by the deceased, out of the income of Rs.11,508/-, which would be roughly 9.5 per cent of the gross income. Both, considering gross salary and deducting only Rs.1000/- from such salary for the purpose of computing the dependency loss, are not as per settled principles of assessing the dependency. FA/1606/2002 10/15 JUDGMENT 11.1 The Tribunal has ignored evidence in the form of Form No.16 issued by the Employer of the deceased for three years, which show the gross income of the deceased and the amount deducted by way of income-tax, which would then, ultimately, show the net income of the deceased. The Tribunal has, thus, committed an error in blindly relying on the certificate of income of the deceased and ignoring contemporaneous material. We find that Form No.16 issued by the Gujarat State Co-operative Bank for the assessment years 1993-94, 1994-95 and 1995-96 have been produced at Exhibits 45, 46 and 47, respectively. These forms show that for these three years, the gross income of the deceased was Rs.1,28,897/-, Rs.1,76,812 and Rs.1,70,484/-, respectively. They also show that income-tax for an amount of Rs.25,146/, Rs.44,278/- and Rs.33,013/, respectively, was deducted for these three years. Against this, we find that the certificate of income takes us nowhere. It only indicates what was the gross salary of the deceased. 11.2 It is, thus, clear that the judgment is delivered by the Tribunal ignoring Exhibits 45, 46 and 47, which ought to have been taken into consideration. They indicate not only the gross income of the deceased but also the amount of income-tax paid by him and a consistent trend of increase in income of the deceased, which may be of help to the Court in assessing whether the deceased had prospects of increased income. In our opinion, therefore, the appellant is right when it says that the Tribunal ought not to have taken into consideration the gross income for computing dependency loss, but ought to have taken into consideration the FA/1606/2002 11/15 JUDGMENT deductions under the head of income-tax. 11.3 Similarly, we find that the Tribunal has deducted Rs.1000/- from the gross monthly income of the deceased on account of an expenditure on self of the deceased. No specific reason or supporting principle is indicated by the Tribunal. The settled proposition of law is that as a rule of thumb in such a case 1/3rd of the net income is to be deducted from the net income of the deceased for computing the dependency loss whereas, in the case on our hand, the amount deducted is far less than 1/3rd of the income of the deceased, as assessed by the Tribunal and on this count also, the judgment of the Tribunal needs to be interfered with. The appeal, therefore, merits acceptance to that extent. 12. We find from the judgment of the Tribunal that the Tribunal has assessed the age of the assessed to be 52 years while relying on an unproved and unexhibited document in the form of a xerox copy of a school leaving certificate. The Tribunal has erred even in writing the date of birth of the deceased as 16.11.1943, whereas, in fact, the said document reveals that the date of birth of the deceased is 16.11.1946. 12.1 We also notice that the Tribunal has not taken into consideration prospects of rise in income of the deceased while computing the dependency loss. There again, the Tribunal has erred. As a result, the cross objections by the original claimants will have to be accepted to that extent. FA/1606/2002 12/15 JUDGMENT 13. We find from Exhibits 45, 46 and 47 (Form No.16) that the income for the previous years prior to the death of the deceased was Rs.1,70,484/ and the tax paid was Rs.33,013/- and, if that amount is deducted, the net income of the deceased would be 1,37,471/-. 14. Though the widow of the deceased, claimant No.1, has deposed that her husband would have become Manager, as he had a very bright career and that he would have earned Rs.25,000/- per month, there is no basis or foundation for this version. We also find that there is no other evidence led by the claimants to show that the deceased has prospects of increased income except Form N.16 at Exhibits 45, 46 and 47. All these three documents go to show that there was an increase in the income of the deceased. He had a blotless career and it is body's case that his career would have abruptly ended and that he could not have made any progress. These aspects have not been considered by the Tribunal and we are of the view that they ought to have been considered while computing the compensation under the head of loss of dependency. 15. In our view, in absence of any positive evidence to show the exact prospects of rise in income, we may adopt a rise of 25 per cent on the basis of the said documents. That 25 per cent would be Rs.34,668/-, which would total upto Rs.1,71,838/, which would be the amount helpful in computing economic loss of the deceased per annum. 15.1 If we total up the net annual income of the deceased at FA/1606/2002 13/15 JUDGMENT Rs.1,37,471/- and add 25 per cent of that amount as prospective rise in income, the amount comes to Rs.1,71,828/-, which can be rounded off to Rs.1,71,850/-. 15.2 It was vehemently argued by Mr. Shah that the Tribunal erred in adopting the multiplier of 10. In our view, even if we take into consideration the age of the deceased to be 49 years, the multiplier that can safely be adopted would be 10, which would bring to an amount of 17,18,500/- as gross income of the deceased while considering prospective rise in income. Out of the said amount, an amount under the head of expenditure on self will have to be deducted and applying the rule of thumb, if 1/3rd of the income is deducted, the dependency loss would be Rs.11,45,666/-. Added to this would be compensation for loss of expectation of life and loss of consortium, which would be Rs.10,000/- under each head, as is awarded by the Tribunal. 16. We find that the Tribunal has not awarded any amount for the funeral expenditure. In our view, that amount ought to have been allowed to compensate the loss. An amount of Rs.5,000/- can reasonably be assessed as expenditure on funeral and obsequial ceremony. The claimants, therefore, in our view, would be entitled to a compensation of Rs.11,70,666/ computed as under :- (1) Compensation for loss of dependency. Rs.11,45,666/- (2) Compensation for loss of expectation of life. Rs. 10,000/- FA/1606/2002 14/15 JUDGMENT (3) Compensation for loss of consortium. Rs. 10,000/- (4) Funeral expenses. Rs. 5,000/- --------------------- Total Rs. 11,70,666/- ======== 17. We do not deem it necessary to interfere with the award of rate of interest. Resultantly, the appeal stands partly allowed. The Tribunal's acceptance of gross income and then deduction of Rs.1000/- therefrom as an expenditure on self by the deceased and non-deduction of amount of income-tax from the income of the deceased while computing dependency loss are hereby set aside. 18. The cross-objections are also partly allowed. The acceptance of income of the deceased at Rs.11,508/- per month, as per Exhibit 51 and, thereupon calculation of the annual income at Rs.1,38,600/- is hereby set aside. The gross annual income is assessed at Rs.1,71,850/- and deducting 1/3rd therefrom, the net dependency benefit is assessed at Rs.1,14,566/- per annum and, then, adopting a multiplier of 10, the dependency loss is assessed at Rs.11,45,666/-. Adding to it Rs.10,000/- as compensation for loss of expectation of life, Rs.10,000/- as compensation for loss of consortium and Rs.5000/- towards funeral expenses, the total amount of compensation is calculated at Rs.11,70,000/- with costs and interest as awarded by the Tribunal. The award of the Tribunal is modified accordingly. FA/1606/2002 15/15 JUDGMENT 19. We understand that the appellant has deposited the entire awarded amount with proportionate costs and interest with the Tribunal. The appellant would be entitled to withdraw an amount of Rs.1,09,334/- out of the compensation amount with proportionate costs and interest. Rest of the amount shall be receivable by the claimants and the same be disbursed to them. The amount will be disbursed in the manner so as to constitute the implementation of the above award after deducting the amount, if any, disbursed prior to this order. [ A. L. DAVE, J. ] [ S. D. DAVE, J. ] gt