FA/2564/2001 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2564 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 ? ========================================================= SAROJBEN NATVARLAL BHAVSAR & Ors.- Appellants Versus ALANA ISHABHAI KAIDA & 1 - Respondents ========================================================= Appearance : MR SANDEEP N BHATT for Appellants. RULE SERVED for Respondent : 1, MR VIBHUTI NANAVATI for Respondent : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 27/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) FA/2564/2001 2/11 JUDGMENT This First Appeal arises out of the judgment and award passed by the Motor Accident Claims Tribunal (Main) at Rajkot in Motor Accident Claims Petition No.161 of 1996, on 28th January, 2000. 2. The facts of the case are that one Natvarlal Somchand Bhavsdar died in a vehicular accident. The said accident occurred on 23rd December, 1995 at about 4.30 P.M. Near V.C.High School at Morvi. The deceased was proceeding from College to his house on his scooter and met with the accident when an oncoming Matador and his scooter collided with each other at the time and place indicated above. The number of the Matador was GRP-4982 and was driven by respondent No.1, allegedly in a rash and negligent manner. The deceased, who suffered serious injuries, was admitted to Hospital, but, ultimately, he succumbed to the injuries. The deceased was working as a Lecturer/Professor in Science College at Morvi. His date of birth was 28.3.1940, i.e. at the time of accident, he was aged 55 years and 9 months. His gross salary at the time of the accident was FA/2564/2001 3/11 JUDGMENT Rs.10,230/- in the month of December, 1995. He would have retired from service on 31st May, 2002 had he not succumbed to the injuries. The claimants, i.e. widow and sons of deceased Natvarlal Somchand Bhavsar, therefore, preferred claim-petition for compensation of Rs.16,00,000/- under various heads available to them. 3. The claim-petition was opposed to by the respondents. 4. The Tribunal came to the conclusion that the driver of the Matador as well as the deceased himself contributed to the cause of accident, in the ratio of 80:20 respectively. The Tribunal awarded total compensation of Rs.7,50,000/- to the claimants, and after deducting an amount of Rs.1,50,000/- for negligence attributed to the deceased, passed an Award against the respondents to pay compensation of Rs.6,00,000/- to the claimants, with costs and interest. FA/2564/2001 4/11 JUDGMENT 5. Being aggrieved by and dissatisfied with the said judgment and award, the original claimants have preferred this appeal for enhancement of the amount/quantuam of the Award. Though the original claim was for Rs.16 Lacs, the original claimants/appellants have restricted their claim in the appeal to a further amount of Rs. 5 Lacs only. 6. The appellants are represented by learned advocate Mr.Sandeep N.Bhatt, and respondent No.2 is represented by learned advocate Mr.Vibhuti Nanavati. 7. We have heard both the learned Counsel and have perused the record and proceedings of the case. 8. Learned advocate Mr.Bhatt submitted that the Tribunal has erred in attributing 20% negligence to the deceased. The deceased was driving a scooter. The panchnama of the place of the accident indicates that the Matador had gone on its wrong side, which had resulted in the head-on collision with the scooter of the deceased and, therefore, no negligence could have FA/2564/2001 5/11 JUDGMENT been attributed by the Tribunal to the deceased and the appeal on that count may be allowed. 8.1 Learned advocate Mr.Bhatt submitted that the learned Tribunal has committed a further error in assessing dependency loss to the claimants in spite of the evidence to the effect that the income of the deceased had increased in the very next month of the accident because of the pay revision and in spite of the fact that the deceased would have worked upto May, 2002 had he not met with the accident and would have earned a sizeable amount. Learned advocate Mr.Bhatt submitted that the learned Tribunal has overlooked these aspects and, therefore, the appeal merits acceptance on quantum aspect as well. Learned counsel Mr.Bhatt, therefore, submitted that the appeal may be allowed on both the counts of negligence and quantum. 9. On the other hand, the appeal is opposed to by contending that the income of the deceased has to be taken on the basis of the income which he earned at FA/2564/2001 6/11 JUDGMENT the time of his demise, and the prospective income can be assessed on the basis of some evidence or legally acceptable inference. The Tribunal has properly assessed the quantum. It was contended that where the accident occurred, the road was narrow and the panchnama is clear enough to show that the Matador was lying on the wrong side after the accident; whereas the place of impact was the centre of the road. Under the circumstances, the Tribunal has under-assessed the contribution of the deceased to the cause of accident (in causing the accident) and, therefore, the appeal may not be entertained on either count. 10. We have taken into consideration the rival side submissions. On the count of negligence, it may be noted that no eye witness is examined. The Court, therefore, would have required to fall back on the panchnama drawn by the police after the accident. The said panchnama is produced at Exh.21. If that panchnama is examined, it is clear that the width of the road was 15 ft with skirting/shouldering/kachcha road on either side. The panchnama makes it clear that the point of impact might have been the centre FA/2564/2001 7/11 JUDGMENT of the road, but, the scooter was found lying in the centre of the road. Of course, the Matador was found to have travelled further on its wrong side after the accident. This would reflect two aspects; (i) that the accident occurred in the centre of the road, and (ii) that the road was wide enough to permit passage of both the vehicles and despite that, the accident had occurred. Therefore, both the drivers were negligent in driving their vehicles. This would also indicate that the Matador was being driven at a high speed and, therefore, could not be stopped even after the impact. It is true that the driver of the Matador was in charge of a larger vehicle, but, the duty of the driver of the scooter (i.e. deceased) was also to drive his scooter on correct side so as to permit passage of other vehicles, which the deceased had failed to perform because his scooter was found to be lying on the middle of the road, where the accident occurred. Under the circumstances, the Tribunal was justified in assessing the contribution of the driver of the Matador and the deceased in causing the accident in the ratio of 80:20, respectively. No interference is, therefore, called FA/2564/2001 8/11 JUDGMENT for with the judgment of the Tribunal on this Court. 11. Now, coming to the quantum aspect, it may be noted that the income of the deceased at the time of the accident is proved to be Rs. 10,230/- per month through oral evidence of claimant No.1 as well as the documentary evidence in the form of salary-slip for the last month and the statement for future income. It has come in the evidence that from 1.1.1996, pay revision was effected and there was a rise in the monthly income of the deceased. With new pay-scale becoming effective, the gross salary of the deceased at the time of his superannuation would have been Rs.25,937/-, as can be seen from the certificate and the statement got produced before the Tribunal from the department. 12. For arriving at the prospective income, for assessing dependency loss, two incomes i.e. (i) income at the time of the death, and (ii) income that the deceased would have earned at the time of his superannuation, will have to be added and divided by FA/2564/2001 9/11 JUDGMENT two. If that is done, the prospective income of the deceased would be Rs.18,083.50 ps. per month. 13.1 If the said income is multiplied by twelve, it would fetch the income of Rs. 2,17,002/- per annum. This would be the gross income of the deceased, on which he would pay income-tax. No details of income-tax are available on the record. Under the circumstances, if deduction at the rate of 15% is made towards payment of income-tax by the deceased, the ends of justice would be met. 15% of the said amount comes to Rs.32,550/-, and if that amount is deducted from the gross yearly income of the deceased, it would fetch an amount of Rs.1,84,452/- per annum. This would be the net income of the deceased. From that net income, the deceased must be spending money on himself that can be assessed at 1/3 of the said income, which would be Rs. 61,484/-, which would leave behind an amount of Rs.1,22,968/- as the amount of dependency loss. 14 Now, come to the question of adopting a FA/2564/2001 10/11 JUDGMENT multiplier. The Tribunal has adopted multiplier of 8, which, in our considered view, is just and reasonable in light of the decision in case of T.N.State Transport Corpn. Ltd. v. S.Rajapriya & Ors., (2005)6 SCC 236. This would fetch an amount of Rs.9,83,744/- as an amount of compensation under the head of dependency loss. Addition to this, would be Rs.20,000/- and Rs.26,000/- awarded by the Tribunal under the head of conventional compensation and medical expenses-transportation etc. respectively, which would fetch a total amount of compensation of Rs.10,29,744/- receivable by the claimants as compensation. Out of the said amount, 20% will have to be deducted on account of negligence attributed to the deceased himself, that amount would be Rs.2,05,948/-. The net amount of compensation that the claimants would be entitled to get, would be Rs.8,23,795/-, which can be rounded off Rs.8,23,800/-. The Tribunal has awarded compensation of Rs.6 Lacs. The appellants, therefore, would be entitled to an additional amount of Rs.2,23,800/- as compensation. The appellants would also be entitled to interest on the enhanced amount. Considering the FA/2564/2001 11/11 JUDGMENT prevalent rate of interest as given by the banks, the claimants would be entitled to interest at the rate of 9% per annum on the enhanced amount from the date of the application till satisfaction of the award. The appeal is, therefore, partly allowed. Award accordingly. No costs. [A.L.DAVE,J.] [SHARAD D.DAVE,J.] (patel)