FA/4496/1999 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4496 of 1999 with CIVIL APPLICATION NO. 6787 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 ? ========================================================= SAVITABEN JAMNADAS PATEL & Ors. - Appellants Versus RAMLAL RANARAM BISNOI & 5 - Respondents ========================================================= Appearance : MR VIREN G DAVE for MS YAMINI J DESAI for Appellants. None for Respondents : 1 - 2. MS LILU K BHAYA for Respondent : 3, RULE SERVED for Respondents : 4 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 04/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) FA/4496/1999 2/13 JUDGMENT The appellants, who were claimants before the Motor Accident Claims Tribunal (Auxi.V), Ahmedabad Rural, had preferred Motor Accident Claims Petition No. 1250/1996, claiming compensation of Rs. 30 Lacs from the respondents for the accidental death of Mr.Bharatbhai J.Patel, who happened to be the son of appellant No.1, husband of appellant No.2 and father of appellant No.3. 2. The case of the claimants-appellants was that deceased Bharatbhai, who was a qualified Civil Engineer and was the Managing Director of Navkar Builders Ltd., was drawing salary of Rs.18,000/- per month. He also had income of Rs.3000/- per month from agricultural source. According to the claimants, the deceased was aged 37 years at the time of the accident. 2.1 As per the claimants, the deceased was travelling in Maruti-Car No. GJ-11-T-2238 at about 11.30 A.M. on 14th July, 1996 on Sarkhej-Gandhinagar Higway. The said vehicle was being driven by Umarbhai Habibibhai Parmar. The said vehicle met with the FA/4496/1999 3/13 JUDGMENT accident when it collided with Truck No.RJ-22-G-448. The deceased sustained severe injuries and ultimately succumbed to the same. 2.2 On the claimants preferring the said claim- petition, the respondents were summoned and respondent No.3 filed a written-statement at Exh.25 denying the averments made in the claim-petition. It was also contended in the written-statement that the driver of the Maruti-Car was also negligent in driving the vehicle, which had contributed to the cause of accident. The Tribunal also, considering the evidence led before it, came to the conclusion that so far as the claim was concerned, it was the case of composite negligence of both the drivers of the Maruti-Car and the Truck, and also decided that the claimants were entitled to total compensation of Rs.14,65,000/- with 12% interest and proportionate costs. The Tribunal held that all the respondents were liable to pay the compensation. 3. The claimants were not satisfied with the amount assessed by the Tribunal as the amount of FA/4496/1999 4/13 JUDGMENT compensation and, therefore, they have preferred this appeal. 4. Though notices have been served on the respondents, respondents No.1 & 2 as well as respondents No.4,5 & 6 have chosen not to contest this appeal. Respondent No.3 is represented by learned advocate Ms Lilu K.Bhaya. 5. Learned Advocate Ms.Bhaya submitted that the Tribunal has taken into consideration the relevant aspects of the case and has justly and legally come to the conclusion that the drivers of both the vehicles were equally responsible for the mishap. She also submitted that considering the nature of evidence adduced before the Tribunal, the Tribunal was of the view that the respondents were liable to pay the compensation, as both the drivers have equally contributed to the accident. Ms.Bhaya further submitted that respondent No.3 has deposited 50% of the awarded amount with the Tribunal. 5.1 Ms.Bhaya submitted that the evidence led by FA/4496/1999 5/13 JUDGMENT the claimants before the Tribunal was not sufficient to arrive at a specific figure of damages. The Tribunal has, therefore, adopted the formula and has come to the conclusion that the claimants are entitled to the amount of compensation stated in the award. She, therefore, submitted that the appeal may be dismissed. 6. At the outset, we may state that the award is challenged by the original claimants and none of the original respondents has chosen to prefer any appeal. In fact, the driver, owner and insurer of the Maruti- Car viz. Respondents No.4,5 & 6 have chosen not to contest this appeal at all before this Court. 7. Learned advocate Mr.Viren G. Dave, appearing for the appellants under the authority from Ms.Yamini J.Desai, learned advocate for the appellants, submitted that in spite of the fact that contemporaneous record in the form of income-tax returns, Form No.16 etc. were produced before the Tribunal, the Tribunal has refused to accept the income of the deceased to be Rs.15,000/- per month FA/4496/1999 6/13 JUDGMENT and has under-assessed the income of the deceased and thereby has awarded lesser compensation. He has drawn our attention to the depositions of the claimants, Managing Director of the Company, where the deceased was employed, and the Chartered Accountant working for the employer of the deceased, and submitted that if these pieces of evidence are read together, they would show that the income of the deceased was Rs.15,000/- per month. He was aged 37 years at the time of the accident and had bright prospects. He submitted that the income of the deceased had increased from Rs.7,500/- per month to Rs.15,000/- per month a few months prior to the accident. He, therefore, submitted that the income of the deceased ought to have been accepted as Rs.15,000/- per month and the dependency loss ought to have been assessed accordingly. He submitted that as the Tribunal has awarded inadequate compensation, the appeal may be allowed. 8. On the other hand, the appeal is opposed to by learned advocate Ms.Bhaya appearing for respondent No.3. She has drawn our attention to the salary- FA/4496/1999 7/13 JUDGMENT certificate issued by the employer of the deceased, school leaving certificate to show the age of the deceased and other documentary evidence in the form of income-tax returns, T.D.S.Forms etc. to show that the income of the deceased was properly assessed by the Tribunal. She further submitted that since respondent No.3 has deposited 50% of the awarded amount, no further liability may be fastened on respondent No.3. She, therefore, submitted that the Tribunal's award may be upheld and the appeal may be dismissed. 9. At the outset, we may record that since the appeal is challenging only the quantum aspect of the judgment and since there is no other appeal reported to have been filed and pending before us preferred by any of the respondents on the ground of negligence, the finding of the Tribunal on negligence where it is held that the drivers of both the vehicles were equally responsible for the accident has attained finality. 10. Now, coming to the quantum aspect, we may record FA/4496/1999 8/13 JUDGMENT that Exhs.64 & 65 are the certificates issued by the employer of the deceased, which show that the deceased was initially drawing salary of Rs.7500/- per month, but, from June, 1995 onwards he had started to draw the salary of Rs.15000/- per month. Exh.48 is Form No.16, which shows that income-tax was deducted at source from the salary of the deceased and was credited to public-exchequer. 11. The evidence of Jasmin Bhanukumar Shah (Exh.52) also indicates that the income of the deceased was Rs.15,000/- per month. Similarly, the evidence of Mr.Sanjaykumar Bharatbhai Kothari also indicates the same thing viz. that the deceased was drawing a salary of Rs.17,000/- per month, in addition to deduction of Rs.2000/- towards income-tax. Exh.53 is the acknowledgement of Income-tax-Return for A.Y.1995-96, and Exh.58 is Bank's statement indicating the account of the employer of the deceased where salary paid to the deceased had been debited. Exh.59 is the prospectus of the Company to show that the deceased was working as the Managing Director. FA/4496/1999 9/13 JUDGMENT 11.1 If all these factors are taken into consideration collectively, they would go to show that the deceased was drawing the salary of Rs.15,000/- per month as the Managing Director of the Company, and that an amount of Rs.2000/- was being deducted there-from by way of income-tax, which was being transmitted to Government Corpus as per the rules and law. The Tribunal, therefore, can be said to have committed an error when it assessed the income of the deceased at Rs. 11,000/- per month in absence of any material in support. There is absolutely no evidence for assessing the income of the deceased at Rs.11,000/- per month. 11.2 For computing the dependency loss to the claimants, income with prospective rise in income of the deceased will have to be taken into consideration. If we examine the record and proceedings of the case from that angle, we may observe that the claimants have not led any evidence to show what were the prospects of the deceased so far as rise in income is concerned. But, at the same FA/4496/1999 10/13 JUDGMENT time, it was rightly argued by learned advocate Mr.Dave for the appellants that there is material to show that the income of the deceased had increased from Rs.7500/- per month to Rs.15,000/- per month a few months prior to the accident. This would show that the deceased had good potential of bright prospects and, therefore, usual formula will have to be adopted. 12. The salary of the deceased was Rs.15,000/- per month, but, an amount of Rs.2000/- was being deducted therefrom by way of T.D.S. and was made over to the Government. The income of the deceased, therefore, was Rs.13,000/- per month. If we adopt the formula, we have to add to the net income two folds of the net income and then to divide the same by two, which would be computed as under: Rs.15,000/- Actual monthly income Less: Rs. 2,000/- by way of income-tax -------------- Rs.13,000/- Net Income Plus: Rs.26,000/- two folds of the said income -------------- Rs.39,000/-, which will have to be divided by FA/4496/1999 11/13 JUDGMENT two and multiplied by 12 to arrive at the prospective annual income of the deceased, which would be Rs.2,34,000/-. The deceased must have been spending for his own-self and, therefore, 1/3rd amount would have to be deducted from this amount, which would come to Rs.78,000/-, which would leave behind an amount of Rs.1,56,000/- as the amount of annual dependency loss suffered by the claimants. Considering the age of the deceased, a multiplier of 14 will have to be adopted, which would fetch a compensation of Rs.21,84,000/- to the claimants under the head of dependency loss. The claimants would also be entitled to an amount of Rs.15,000/- as compensation for loss of consortium and Rs.10,000/- as compensation under the head of loss of expectation of life as awarded by the Tribunal. That would fetch an amount of Rs.22,09,000/- as compensation. 14.1 It has been vehemently argued that the Tribunal has not awarded any amount towards expenditure of funeral and obsequies ceremony. In our view, if an amount of Rs.3000/- is awarded under that head, the ends of justice would be met. This would FA/4496/1999 12/13 JUDGMENT fetch a total compensation of Rs. 22,12,000/- to the claimants under all heads available to the claimants. 13. The appeal, thus, stands partly allowed. The claimants are held entitled to the total compensation of Rs.22,12,000/- from the respondents. There shall be no change so far as the finding on negligence and liability is concerned. The claimants-appellants would be entitled to interest at the rate of 9% per annum on the additional amount of compensation from the date of the claim-petition till the date on which the award is satisfied with costs. Award accordingly. No costs. Civil Application No. 6787/1999 Since the main appeal has been finally disposed of, this civil application for stay does not survive and, therefore, stands disposed of accordingly. [A.L.DAVE,J.] [SHARAD D.DAVE,J.] FA/4496/1999 13/13 JUDGMENT (patel)