FA/1132/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1132 of 2006 With FIRST APPEAL No. 1133 of 2006 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. VALSAD - Appellant(s) Versus SUBHADRABEN KALIDAS PATEL & 4 - Defendant(s) ========================================================= Appearance : MR PV NANAVATI for Appellant(s) : 1, MR VIBHUTI NANAVATI for Appellant(s) : 1, MR AMIT N PATEL for Defendant(s) : 1 - 2. UNSERVED-EXPIRED (R) for Defendant(s) : 3, DELETED for Defendant(s) : 4, RULE SERVED for Defendant(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE FA/1132/2006 2/8 JUDGMENT Date : 29/02/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) These two appeals arise out of a judgment and order rendered by M.A.C. Tribunal, Valsad in M.A.C. Petitions No.742 of 2002 (198/1995) and 766 of 2002 (290/1995) on 26th August, 2004. 2. The two claim petitions arise out of an accident that occurred on 12th January, 1995 resulting into death of Kalidas Bhagwanji Patel and Shantibhai Lallubhai Tandel. The two persons were travelling on motorcycle. They were knocked down by Luxury Bus No.GJ-3-T-9763 driven by respondent no.4 and original opponent no.1 (now deleted). Both the persons succumbed to the injuries sustained by them in the accident and, therefore, the claim petitions by their respective heirs and legal representatives. Deceased Kalidas was aged 41 years and the claim is preferred by his widow and minor child and mother (now deceased). They had claimed a compensation of Rs.15 lakhs whereas the Tribunal awarded Rs.6,05,000/- with interest at the rate of 9%. Deceased Shantilal was aged 49 years and the claim is preferred by his wife and children. The claimants have claimed Rs.12 lakhs and the Tribunal awarded Rs.9,39,111/- with interest at the rate of 9%. 3. The Tribunal held that the accident occurred because of negligence on part of the Luxury Bus FA/1132/2006 3/8 JUDGMENT Driver to the extent of 90% whereas the negligence on part of the driver of Motorcycle was to the extent of 10%. The motorcycle was driven by Shantilal. 3.1 The Tribunal, after considering dependency loss, awarded non-pecuniary damages as under, in each case:- (1)Conventional amount for Loss of Estate - 50,000.00 (2)Conventional amount for Loss of Consortium - 5,000.00 (3)Funeral expense - 3,000.00 (4)Medical Treatment - 7,000.00 3.2 Aggrieved by the said judgment and award, the insurer of the Luxury Bus has preferred these appeals on various counts. 4. We have heard learned advocate Mr.Nanavati for the appellant and learned advocate Mr. Amit N. Patel for the original claimants in First Appeal No.1132 of 2006 and Ms. Naina Gadvi in First Appeal No.1133 of 2006. 5. Learned advocate Mr. Nanavati submitted that the Tribunal has committed an error in computing dependency loss. The Tribunal has deducted Rs.1,000/- only from the prospective income in case of Kalidas for computing the dependency loss whereas if it is read in the ratio of 1/3rd – 2/3rd, it should FA/1132/2006 4/8 JUDGMENT be Rs.1,333/-. It is also contended that the Tribunal has adopted a multiplier of 15 which is also erroneous. The compensation towards loss of estate is awarded by the Tribunal at Rs.50,000/- which is on higher side. It should be at the most Rs.10,000/- and, therefore, the appeal may be allowed. The award may be suitably amended in case of Kalidas in First Appeal No.1132 of 2006. 5.1 It was contended by Mr. Nanavati in First Appeal No.1133 of 2006 that the Tribunal has not deducted any amount from the prospective income of the deceased while computing dependency loss. Here again, the Tribunal has adopted a higher multiplier and has awarded Rs.50,000/- as compensation under the Head of loss to estate which is on the higher side. He, therefore, submitted that the appeals may be allowed. 6. Learned advocate Mr. Patel appearing in First Appeal No.1132 of 2006 for the original claimants submitted that the claimants have unfortunately not preferred any appeal or cross- objections but it is a good case for enhancement. The Tribunal has committed an error in computing the compensation. According to Mr. Patel, the Tribunal has not properly considered the prospective rise in the prospective income of the deceased and has taken the income of the deceased at Rs.4,000/- only. Mr. Patel submitted that considering the age of the claimants, a higher multiplier ought to have been FA/1132/2006 5/8 JUDGMENT awarded by the Tribunal. The difference while deducting expenditure on self would be so much that the amount interferes with the award in exercise of appellate powers and the appeal may, therefore, be dismissed. 7. Learned advocate Ms. Gadvi for the claimants in First Appeal No.1133 of 2006 has virtually adopted the arguments made by Mr. Patel and submitted that the appeal may be dismissed. 8. We have taken into consideration rival side contentions. In the first instance, we notice that in case of deceased Kalidas, the prospective income of the deceased was considered at Rs.4,000/- as against actual income of Rs.3190/- per month and an amount of Rs.1,000/- is deducted as expenditure on self. We notice that the Tribunal has erred firstly while computing the prospective income. There is no basis of arriving at a figure of Rs.4,000/- as prospective income. The principles governing the prospective income have not been applied to by the Tribunal while assessing the prospective income. If that was done, the prospective income would have been much higher than what is computed by the Tribunal. 8.1 The Tribunal has also committed an error while deducting Rs.1,000/- per month from the income of the deceased as expenditure on self by the deceased. Ordinarily, in such cases where deceased was a bachelor and claimants are parents, it should FA/1132/2006 6/8 JUDGMENT have been 1/3rd of the prospective income. 8.2 We find that the Tribunal has adopted a multiplier of 15 considering the age of the widow to be 36 years and the deceased to be 41 years which can be considered to be slightly on a higher side. In our view, the Tribunal has committed an error both the ways. The prospective income, if correct principles were adopted, would have been higher. Likewise, the deduction under the Head of Expenditure on self would have been more and the multiplier would have been less, considering recent judgments of the Apex Court. In this set of circumstances, we do not propose to use our appellate jurisdiction in favour of the appellants particularly if we find that the Tribunal has committed an error against the interest of not only the appellants but also the claimants who have not preferred any appeal nor have they come out with any cross-objections. This does not seem to be a good case where the appellate court may exercise its appellate jurisdiction in respect of the compensation under above heads. 9. We also find that the Tribunal has erred in awarding compensation of Rs.50,000/- under the Head of Loss to estate. Considering various judgments of Apex Court and this court, this compensation awarded could have been Rs.10,000/-. The rest of the compensation awarded under non-pecuniary damages is not required to be interfered with as it is just, FA/1132/2006 7/8 JUDGMENT legal and reasonable. 10. In case of deceased Shantilal, the Tribunal has considered income on the date of accident at Rs.3,512/- and prospective income at Rs.6,774/- per month. While calculating dependency benefit, no amount is deducted from the income and a multiplier of 12 is adopted. Compensation awarded under various Heads of damages are as under:- (A) Loss of dependency benefit - 9,75,456 (B) Conventional amount for loss to estate - 50,000 (C ) Conventional amount for loss of consortium - 5,000 (D) Funeral expense - 3,000 (E) Any other head - 7,000 11. Here again, we find that the Tribunal has not deducted any amount as expenditure on self. The wife of the deceased was a claimant and was aged 45 years. The multiplier that could have been awarded would be 10 and not 12 as held by the Tribunal. However, the Tribunal has not deducted any amount from the prospective income. Therefore, ignoring of the prospective income is balanced by ignoring the deduction to be made under the Head of Expenditure on self. Again, there is no appeal for enhancement or cross-objection filed by the claimants. 12. Considering the above aspects, this court is FA/1132/2006 8/8 JUDGMENT of the view that appellate jurisdiction is to be exercised in favour of the appellants considering that it is a piece of benevolent legislation and no strict principles of evidence are required to be applied. In our view, there is not going to be much difference in the compensation awarded and no interference is called for by exercising appellate jurisdiction. However, the Tribunal has awarded conventional amount of Rs.50,000/- for loss to estate which, in our opinion, is on higher side and has to be reduced to Rs.10,000/-. No other contention is raised nor is required to be determined by this court in these appeals. 13. In light of the foregoing discussion, both the appeals would stand partly allowed. The amount of compensation awarded under the Head of Loss to estate is reduced to Rs.10,000/- only with proportionate costs and interest. Rest part of the appeals would stand dismissed with no order as to costs. ( A.L. Dave, J. ) ( Sharad D. Dave, J. ) hki