FA/1465/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1465 OF 2008 WITH CIVIL APPLICATION No. 3683 OF 2008 IN FIRST APPEAL No. 1465 OF 2008 WITH CROSS-OBJECTION NO.42 OF 2008 IN FIRST APPEAL NO. 1465 OF 2008 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE S. 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 ? =============================================== NEW INDIA ASSURANCE CO LTD. Versus RAMILABEN FULABHAI SOLANKI & Others. =============================================== Appearance : MR HASMUKH THAKKER for the Appellant. MR MTM HAKIM for Respondents Nos.1 to 4. RULE SERVED for Respondent No. 5. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE S. D. DAVE FA/1465/2008 2/6 JUDGMENT Date : 07/05/2008 ORAL JUDGMENT : (Per : A. L. DAVE, J.) 1. The appeal challenges the judgment and award rendered by Motor Accident Claims Tribunal (Aux.) & Fast Track Court No.9, at Nadiad, on 28th June, 2007, in Motor Accident Claim Petition No.1878 of 2005. 2. The said claim petition arose out of an accident that occurred on 29th October, 2005, at about 7.00 P.M., on Nadiad – Bamoli Road, near Dabhan. One Fulabhai Chhaganbhai Solanki was proceeding on his scooter bearing registration No.GJ7-AT-9646 and, at that time, truck bearing registration No.GJ7-T-8300, which was of the ownership of respondent No.5, came from village Kamala side. The said truck was being driven by its driver at an excessive speed in a negligent manner. The said truck dashed against the scooter, resulting into fatal injuries to deceased- Fulabhai Chhaganbhai Solanki. The rear wheel of the truck ran over the deceased and the deceased died on-the-spot. The deceased was working as Talati-Cum-Mantri and was also attending to his agriculture. As per the claimants, the deceased was also engaged in animal husbandry and was earning therefrom. The claimants claimed a total compensation of Rs.15 lakh. The claimants are the widow of the deceased, his sons and daughter. 2.1 According to the claimants, the deceased was earning Rs.2500/- per month by selling milk, Rs.10,213/- per month by way of salary and Rs.5,000/- from agricultural supervision. The age of the deceased was approximately 53 years. 3. The driver of the truck was deleted and the owner of the truck chose not to contest the claim petition. The insurer was FA/1465/2008 3/6 JUDGMENT represented by an Advocate before the Tribunal. The Insurance Company-appellant herein filed written statement more or less in the form of denials. 3.1 The Tribunal, after considering the evidence led by the parties, came to a conclusion that the driver of the truck was solely responsible for the accident and that the claimants were entitled to a total compensation of Rs.9,82,340/- with proportionate costs and interest at the rate of 7.5%. Aggrieved by this, the Insurance Company has preferred this appeal and, on being served with the notice, the original claimants have preferred Cross-Objections. 4. At the time of admission of the appeal, notice for final disposal was issued considering the narrow questions involved and with the consent of both the sides, the appeal is finally heard today. 5. The appeal is preferred to challenge the assessment of compensation by adopting a higher multiplier. There is no other challenge. 5.1 The cross-objections are founded on the ground that the Tribunal committed error in assessing the income of the deceased since the Tribunal has ignored the agricultural income as well as the income out of animal husbandry. The Tribunal has not considered prospective rise in income and has awarded inadequate compensation for non-pecuniary damages. 6. We have heard learned Advocates, Mr. Thakker and Mr. Hakim. We have examined the record and proceedings. 7. So far as the appeal is concerned, in our view, it merits acceptance for the reason that the Tribunal has adopted a multiplier of eleven, which can certainly be considered as higher FA/1465/2008 4/6 JUDGMENT considering the age of the deceased. If the decision of the Apex Court in the case of Tamil Nadu State Transport Corporation Limited v. S. Rajapriya & Others, (2005) 6 SCC 236 is considered, the multiplier has to be adopted in a manner so that the principal amount of compensation is consumed by the time the dependency period is over and, therefore, the Tribunal could not have adopted a multiplier of eleven. The multiplier will depend on the multiplicand as well as the age of the deceased or the claimant, whichever is higher, which shall be discussed by us in the paragraphs to follow. 8. Now, coming to the cross-objections, we find that the Tribunal has taken the income of the deceased at Rs.11,053/-. We also find that the income of the deceased by way of salary as Talati- cum-Mantri was Rs.10,213/- less deductions for Insurance, Provident Fund, Professional Tax, etc. The Tribunal has considered the income of the deceased by way of salary at Rs.9653/- by taking into consideration the basic pay and the dearness allowance. The other allowances are ignored by the Tribunal which, in our opinion, is an error. The Tribunal has then considered Rs.1400/- per month as income from other sources, namely, agricultural supervision. The Tribunal has not accepted the claimants claim about income of the deceased from animal husbandry. The Tribunal has, thus, assessed the income at Rs.11,053/- per month. Differently put, the Tribunal has not considered prospective rise in income and that is where the Tribunal has committed an error. 9. We find that the Tribunal has assessed a monthly income of Rs.1400/- as value of agricultural supervision, where also the Tribunal seems to have gone wrong for the reason that the agricultural lands are very vast and are of joint ownership. There are two other joint owners of the property. The agricultural land and the share of the deceased are still available to the claimants. FA/1465/2008 5/6 JUDGMENT The deceased was working as Talati-cum-Mantri and he would be posted at various places and it would not have been possible for him to supervise the agriculture for all times to come. Under the circumstances, the income of the deceased could have been assessed only at Rs.10,213/-. 9.1 The deceased was a regularly appointed Talati-cum- Mantri and must have been drawing a regular pay scale. It, therefore, can be inferred that he had prospects of rise in income. What his income could have been at the time of retirement cannot be considered, but the theory of adding two folds the income of the deceased at the time of his death to his income at the time of his death and dividing it by two would fetch us the prospective income of the deceased, which would be Rs.15,319.50 (Rs.10,213/- + Rs.20,426/- = Rs.30,639/- divided by 2 = Rs.15,319.50). Out of this, one third will have to be deducted as expenditure on self by the deceased, which would also take care of the taxes that he may be required to pay, which would be Rs.5106.50 ps. That would leave behind an amount of Rs.10213/- as the dependency amount per month available to the claimants. The annual dependency would Rs.1,22,556/-. 9.2 Considering the age of the deceased to be 53-54 years and the age of claimant No.1 to be 42 and considering the principles as enunciated by the Apex Court in the case of Tamil Nadu State Transport Corporation Limited v. S. Rajapriya (supra), a multiplier of eight can reasonably be adopted. This would fetch an amount of Rs.9,80,448/- as compensation under the head of dependency loss. 10. So far as non-pecuniary damages are concerned, the Tribunal has awarded Rs.2500/- for funeral expenses, Rs.5000/- for loss of love and affection and Rs.2000/- for transport charges. In FA/1465/2008 6/6 JUDGMENT our view, the Tribunal has adopted a very conservative approach and, in light of decision in the case of Champaben, W/o. Chandrasinh Dhulabhai Rathod & Ors. v. Anopsinh Somabhai Baria & Ors., 2007(2) GLR 1663, an amount of Rs.25,000/- has to be awarded towards loss of estate, Rs.15,000/- for loss of consortium and Rs.5000/ for obsequial ceremony. The claimants, therefore, would be entitled to Rs.45,000/- for non-pecuniary damages, which will have to be added to the compensation for loss of dependency, which would fetch a total compensation of Rs.10,25,448/- as against Rs.9,82,340/- awarded by the Tribunal. 11. The sum total of the above discussion is that the appeal is allowed by reducing the multiplier from eleven to eight and the cross-objections are partly allowed by enhancing the compensation as computed in the foregoing paragraphs. 12. The Tribunal's award is, thus, set aside and the claimants are held entitled to a total compensation of Rs.10,25,448/- with proportionate costs and interest at the rate of 7.5 per cent as awarded by the Tribunal. The disbursement shall be made by the Tribunal in terms of the directions by the Tribunal in the award. Rs.25,000/- deposited with the Registry shall be transmitted to the Tribunal forthwith. 13. In view of the fact that the appeal is allowed, Civil Application No.3683 of 2008 would not survive. It shall stand disposed of accordingly. Rule is discharged with no order as to costs. Ad-interim stay is vacated. [ A. L. DAVE, J. ] [ S. D. DAVE, J. ] gt