FA/4764/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4764 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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? ========================================================= PATEL MINAXIBEN WD/O. PATEL RAMESHBHAI HARJIVANDAS & 3 - Appellant(s) Versus KHUMANSINH BHIMBHAI CHAUHAN & 3 - Defendant(s) ========================================================= Appearance : MR PARESH M DARJI for Appellant(s) : 1 - 4. None for Defendant(s) : 1, 3, MRS VASAVDATTA BHATT for Defendant(s) : 2, MR MAULIK J SHELAT for Defendant(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 17/03/2008 FA/4764/2007 2/12 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Appeal admitted. Mrs.Vasvadatta Bhatt, learned Advocate waives service of notice of admission on behalf of respondent No.2 – G.S.R.T.Corporation and Mr.Maulik Shelat, learned Advocate waives service of notice of admission on behalf of respondent No.4 – Oriental Insurance Corporation Ltd. - Insurer of Matador in question. 2. Learned Advocates appearing on behalf of the respective parties have produced on record relevant documentary evidence which are relevant for the purpose of determination of present appeal and with the consent of the learned Advocates appearing on behalf of the respective parties, the appeal is taken up for final hearing today. 3. Present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') is filed by the appellants- original claimants challenging the judgment and award dated 15.12.2006 passed by the learned Motor Accident Claims Tribunal FA/4764/2007 3/12 JUDGMENT (Main), Mehsana in M.A.C.P No.807 of 1993 in so far as not awarding full claim as prayed for. 4. The appellants – original claimants filed M.A.C.P. No.807 of 1993 before the learned M.A.C.Tribunal (Main) Mehsana under Section 166 of the Act claiming Rs.15,00,000/- (Rupees Fifteen lacs) by way of compensation for the death of Patel Rameshbhai Harjivandas - husband of the appellant no.1 and father of appellant Nos.2 and 3 who died in a vehicular accident which took place on 08.04.1993 at about 4.45 p.m. on Kalol – Mehsana Highway. Deceased was travelling in the Matador bearing No.GJ- 7-U-03 as passenger and when Matador reached at the spot of the accident, S.T.Bus bearing No.GJ-1-Z-735 came from opposite direction and dashed with Matador, as a result of which deceased Patel Rameshbhai Harjivandas and one another Dayabhai Shivlalbhai Patel sustained fatal injuries and deceased Rameshbhai died during the treatment at Civil Hospital, Ahmedabad. 5. The appellants – original claimants filed M.A.C.P. No.807 of 1993 for claiming aforesaid FA/4764/2007 4/12 JUDGMENT compensation on various heads. It was submitted that in the accident in question deceased sustained grievous injuries on various parts of his body and as a result of which he was immediately shifted to Civil Hospital, Ahmedabad where he died during treatment. It was submitted that at the time of accident deceased was 34 years old and was serving in Torrent Pharmaceuticals as Technical Assistant (QC) and was earing Rs.3900/- per month including all allowances. It was the case on behalf of the applicants that if deceased would not have died in the said accident he might have served for further period of 30 years and at that time on retirement his salary would have been Rs.15,000/- per month. Aforesaid amount of compensation was claimed on various heads i.e. future economic loss, pain shock and sufferings and funeral expenses etc. 6. The application was opposed by Insurance Company of Matador as well as S.T.Corporation. Opponent No.2 – S.T.Corporation filed reply to the claim petition at Exh.44, raising question with regard to contributory negligence. It was the case on FA/4764/2007 5/12 JUDGMENT behalf of the S.T.Corporation that driver of the Matador was more rash and negligent. Opponent No.4- Oriental Insurance Company insurer of Matador filed its reply and they have also raised question of contributory negligence. The learned Tribunal framed the issues. On behalf of the claimants – appellant no.1 was examined to prove salary and future salary, on behalf of the claimants one – Nareshbhai Kevalram Dharvani from Torrent Pharmaceuticals came to be examined at Exh.34. Salary certificate was also produced at Exh.22. After considering evidence on record documentary as well as oral and after considering submissions made on behalf of the respective parties and on appreciation of evidence, learned Tribunal held driver of Matador negligent to the extent of 40% and held driver of the S.T.Bus negligent to the extent of 60% and thereby partly allowed the claim petition by awarding compensation of Rs.4,91,000/- (Rupees Four Lacs and Ninety One Thousand only) to the claimants on the death of deceased Patel Rameshbhai Harjivanbhai considering Rs.2600/- as dependency benefit per month and applying multiplier of 15 years. Being aggrieved and FA/4764/2007 6/12 JUDGMENT dissatisfied with the judgment and award passed by the learned Tribunal in not awarding full claim as prayed for and awarding future economic loss considering dependency of Rs.2600/- per month only, the appellants – original claimants have preferred present appeal. 7. Mr.Darji, learned Advocate appearing on behalf of the appellants has vehemently submitted that while awarding compensation under the head of future economic loss, the learned Tribunal has committed an error in considering income of the deceased at Rs.3900/- per month only and thereby taking dependency at Rs.2600/- per month deducting 1/3rd from the income of the deceased. It is submitted that while considering future economic loss and dependency the learned Tribunal has not considered future rise in income though evidence at Exh.34 was available. Mr.Darji, learned Advocate appearing on behalf of the appellants while relying upon the decision of the Division Bench of this Court in the case of United India Insurance Co.Ltd. V/s. Dhanlaxmiben Satishbhai Bhagat (Patel) & Ors. FA/4764/2007 7/12 JUDGMENT reported in 2007 (2) GLR 1573 and in the case of Kasumben Vipinchandra Shah & Ors. v/s. Arvindbhai Narmadashankar Raval & Ors. reported in 2007(1) GLH 601 has submitted that while calculating dependency loss, the actual income of the deceased is required to be added with the double of the actual income and thereafter, same is required to be divided by two and thereafter, 1/3rd is required to be deducted for personal expenses. It is submitted that the learned Tribunal has committed grave error in calculating loss of dependency. It is submitted that the learned Tribunal has straightway deducted 1/3rd amount from the actual amount of the deceased without following the formula explained in aforesaid two decisions. It is submitted that if formula explained by the Division Bench in the aforesaid two decisions is followed, in that case, dependency loss will come to Rs.3900/- per month, multiplying the same by 12 and further multiplying the same by 15, it would come to Rs.702000/- (Rupees Seven lac and Two Thousand only) i.e. (Rs.3900 x 12 x 15). By making above submissions, Mr.Darji, learned Advocate appearing on behalf of the appellants has requested to allow the FA/4764/2007 8/12 JUDGMENT present appeal to the aforesaid extent and modify the judgment and award passed by the learned Tribunal to the aforesaid extent. No other submissions have been made. 8. Mr.Maulik Shelat, learned Advocate has appeared on behalf of respondent No.4 – Insurer of Matador and Ms.Vasavadatta Bhatt, learned Advocate has appeared on behalf of respondent No.2- S.T.Corporation. The learned Advocates appearing on behalf of the respective respondents are not in a position to dispute proposition of law and formula explained by the Division Bench of this Court in the aforesaid two decisions. They are also not in a position to dispute that following formula explained by the Division Bench in the aforesaid two decisions, resultant dependency would come to Rs.702000/- (Rupees Seven lac and Two Thousand only). However, they have submitted that in the facts and circumstances of the case, the learned Tribunal has materially erred in adopting multiplier of 15 years while awarding compensation under head of future economic loss. FA/4764/2007 9/12 JUDGMENT 9. Heard the learned Advocates appearing on behalf of the respective parties. 10. The only dispute which is required to be considered in the present appeal is with respect to the amount of dependency. It is not in dispute that at the relevant time income of the deceased was Rs.3900/- per month. The learned Tribunal has straightway deducted 1/3rd amount from the same towards his personal expenses and has held that claimants are entitled to Rs.2600/- per month as dependency and thereby multiplying the same with 15, the learned Tribunal has awarded Rs.4,68,000/- by way of dependency loss. Deduction of 1/3rd amount toward personal expenses cannot be faulted. However, the learned Tribunal has not considered future rise in income and has committed an error in straightway deducting 1/3rd amount from the salary / income deceased was getting at the time of accident. 11. As held by the Division Bench of his Court in the case of Dhanlaxmiben Satishbhai Bhagat(Patel) and Ors.(supra), where age, occupation and future FA/4764/2007 10/12 JUDGMENT career prospects of deceased is justified taking higher income, to arrive at prospective income all that the Tribunal required to do is, take actual monthly / annual income of deceased on the date of accident, double it up and add it to actual income and divide total by two; easiest method is to take actual income and add there to 50% of actual income and deducting therefrom 1/3rd amount towards personal expenses of deceased. Similar method is adopted / applied by the Division Bench of this Court in another decision in the case of Champaben w/o. Chandrasinh Dhulabhai Rathod & Ors. V/s. Anopsinh Somabhai Baria & Ors. reported in 2007(2) GLR 1663. 12. In the present case, income of the deceased at the time of accident was Rs.3900/- per month. It has come on evidence that the deceased would have got Rs.14000/- per month on the date of deposition i.e. On 26.09.2006 if he would have survived. Following decisions of the Division Bench of this Court in the aforesaid decisions and following said method i.e. to first take actual income and add 50% of the actual income (Rs.3900/- + 50% of Rs.3900/-) it would come FA/4764/2007 11/12 JUDGMENT to Rs.5850/- and deducting therefrom 1/3rd toward personal expenses of the deceased, dependency benefit would come to Rs.3900/-. As stated above, the learned Tribunal has committed an error in considering dependency benefit at Rs.2600/- per month only. Taking dependency benefit at Rs.3900/- per month x 12 x 15 the dependency loss would come to Rs.7,02,000/-. So far as applying of multiplier of 15 years is concerned, in the facts and circumstances of the case more particularly neither Insurer of Matador nor S.T.Corporation has challenged the same by way of Appeal or Cross Objection, same is not required to be interfered with. Under the circumstances, judgment and award passed by the learned Tribunal is required to be modified to the aforesaid extent by modifying the award so far as dependency loss is concerned and instead of Rs.4,68,000/- by way of dependency loss, the claimants are entitled to Rs.7,02,000/-. Rest of the judgment and award is not required to be interfered with. 13. For the reasons stated above the appeal succeeds in part. The judgment and award dated FA/4764/2007 12/12 JUDGMENT 15.12.2006 passed by the learned M.A.C.Tribunal (Main), Mehsana in M.A.C.P. No.807/1993 is allowed to the extent that instead of Rs.4,91,000/- the claimants are entitled to Rs.7,25,000/- (Rupees Seven Lacs and Twenty Five Thousand only) by way of total amount of compensation. Rest of the judgment and award is confirmed. In the net result, it is held that the appellants are entitled to Rs.7,25,000/- by way of total amount of compensation with interest at the rate of 7.5% from the date of application till its realisation from the respondents. Directions issued by the learned Tribunal with respect to disbursement / investment to follow. The appeal is allowed to the aforesaid extent. However, there shall be no order as to costs. [J.R.Vora,J.] [M.R.Shah,J.] satish