FA/2104/2008 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2104 of 2008 To FIRST APPEAL No. 2105 of 2008 With CIVIL APPLICATION No. 5065 of 2008 In FIRST APPEAL No. 2104 of 2008 To CIVIL APPLICATION No. 5066 of 2008 In FIRST APPEAL No. 2105 of 2008 ========================================= For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= REGINOL DIRECTOR GUJ.STATE ROAD TRANSPORT CORPO - Appellant(s) Versus LILABEN WD/O RAMESHJI JAWAJI & 6 - Defendant(s) ========================================================= Appearance : MS SEJAL K MANDAVIA for Appellant(s) : 1, MR PARESH M DARJI for Defendant(s) : 1, 4, None for Defendant(s) : 2 - 3,5 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 09/07/2008 FA/2104/2008 2/18 JUDGMENT ORAL JUDGMENT 1. Heard learned advocate Ms. Sejal K. Mandavia appearing on behalf of appellants and learned advocate Mr. Paresh M. Darji appearing on behalf of respondents in both the appeals. 2. In these two appeals, Gujarat State Road Transport Corporation is challenging the common award passed by Motor Accident Claim Tribunal (Main), Gandhinagar in MAC Petition No.636 of 2000 and in MAC Petition No.637 of 2000 dated 2nd June 2006. In MACP No.636 of 2000, the Tribunal awarded Rs.4,19,000/- with 6% interest from the date of application and in MACP No.637 of 2000, the Tribunal awarded Rs.36,000/- with 6% interest from the date of application. 3. Learned advocate Ms. Mandavia is challenging both the awards raising contentions before this Court that looking to the age of deceased 33 years, multiplier 16 is on higher side and according to her submission, it must be a multiplier 13 which is reasonable, therefore, Tribunal has committed gross error in applying multiplier 16. She relied upon the decision of Apex Court in support of her submission in case of New India Assurance Company Limited v. Kalpana (SMT) and Others reported in (2007) 3 SCC 538. She submitted that looking to the age 33 years, the Apex Court has applied the multiplier 13. Therefore, in this case also, 13 multiplier is FA/2104/2008 3/18 JUDGMENT reasonable. She read the Head Note of aforesaid decision and conclusion given by Apex Court before this Court which relates to Para 11 and 12. 4. Learned advocate Ms. Mandavia also raised contention that deceased was also liable for contributory negligence relying upon the decision of Division of this Court in case of Neetaben Hasmukhbhai Kuberbhai Chaudhary & Ors. v. Shakrabhai Raimalbhai Rabari & Anr. reported in 2007 (2) GLR 1598. She relied upon the Head Note 'E' and submitted that deceased riding motorcycle with two pillion rider, dashed against right side back of S.T. Bus – On facts, the Court attributed 40% negligence to motorcyclist. She also read Para 10 of the aforesaid decision. 5. Learned advocate Ms. Mandavia also relied upon the decision of this Court in case of GSRTC v. Ambalal Gordhandas Thakkar reported in 2007 (0) GLHEL 219678 in First Appeal No.3155 of 1996 dated 16th October 2007. She read Para 3 of the said decision for justifying her submission about contributory negligence of deceased motorcyclist. 6. Learned advocate Mr. Darji for respondent claimants submitted that Tribunal has not considered the future prospect income of the deceased while considering the monthly income Rs.3,000/-. He submitted that deceased was working in Corporation receiving the salary Rs.2,800/- and not considered FA/2104/2008 4/18 JUDGMENT future prospect income with revised salary of the deceased in service. Therefore, ultimate whether compensation awarded by Tribunal is just or not and multiplier 16 will take care of future prospect income, therefore, Tribunal has rightly awarded 16 multiplier. 7. I have considered the submissions made by both the learned advocates. I have also perused the common award passed by Tribunal. The Tribunal has passed a common award in respect to both the MACPs. The Tribunal has considered the copy of charge-sheet, panchnama, inquest panchnama, postmortem report and birth certificate of deceased and income certificate of deceased. In case of injury, Tribunal has considered the certificate of Dehgam Civil Hospital and Ahmedabad Civil Hospital as well as disability certificate of Babuji Ramsingji Thakor. Before the Tribunal, reply was filed by appellant vide Exh.10. In that reply, the story of three persons riding on motorcycle is not mentioned. Before the Tribunal, the driver of the Corporation was not examined by the appellant, therefore, Tribunal has examined the documents which are on record and after examining the documents considering the complaint filed by Jitendrakumar and panchnama and wheel mark of ST bus were on certain portion of the woolen clothes of deceased attached to the wheel and scooter was lying at the distance of four feet ahead from the bus. The width of the road was sufficient open and it is wide. Even a heavy vehicle can pass easily. The accident FA/2104/2008 5/18 JUDGMENT occurred as ST bus was dash from back side of the scooter and immediately, on the spot, the deceased was died and pillion rider received injury. Therefore, for proving the negligence of the ST bus driver, Tribunal has rightly arrived at a conclusion on the basis of complaint, panchnama and for that, Tribunal has not committed any error in arriving at such conclusion. The deceased was died due to rash and negligent driving of ST bus driver and Babuji Thakor received said injury due to rash and negligent driving of ST bus driver. The Corporation has not examined the ST bus driver denying the aforesaid allegations made by respondent claimant. Therefore, finding in respect to ST bus driver was driving in rash and negligent manner and on that basis, the accident occurred wherein Rameshji died and Babuji Thakor had received injury based on legal evidence which is not baseless and perverse. 8. In respect to quantum, the Tribunal has considered the salary certificate of deceased, where, Rs.2,800/- was a salary of the deceased and round figure comes to Rs.3,000/-, 1/3 thereof was deducted which comes to Rs.2,000/-, but, Tribunal has not considered the future income of the deceased and considering the age of 33 years of the deceased, 16 multiplier had applied, which total comes to Rs.3,84,000/-. The Tribunal has awarded Rs.35,000/- for loss of consortium to the claimant widow and loss of expectation of life and loss of love and affection to rest of claimants. Total comes to Rs.4,19,000/-. FA/2104/2008 6/18 JUDGMENT The decision which has been relied upon by learned advocate Ms. Mandavia of the Apex Court is not applicable, because, facts are little bit different on the ground that here, in the present case, Tribunal has not considered and calculated a future prospective income of the deceased and therefore, considering the multiplier 16, ultimately, it comes to just figure of compensation which has been rightly granted by Tribunal which can consider to be a multiplier as on higher side. If future prospect of income is to be considered, then, income comes to Rs.3,000/- after deduction 1/3 applying Gujarat Formula. Then, annually income comes to Rs.36,000/- multiplier by 13, then, it comes to Rs.4,68,000/- and thereafter, by adding Rs.35,000/-, the total comes to Rs.5,03,000/-. Therefore, Tribunal has rightly applied 16 multiplier. Similarly, the case of Division Bench of this Court relied upon by learned advocate Ms. Mandavia is not applicable to the facts of this case, because, in the persent case, the ST bus was dashed behind the scooter means from back side, but, the facts in reported case are that the motorcyclist was driving the motorcycle with two pillion riders and the motorcycle dashed against the right side of driver back wing of the ST bus, therefore, these facts are not here in the present case because, the ST bus was dashed with the back side of the scooter and immediately at four feet distance, the scooter was lying. According to panchnama, immediately, the deceased was died. Therefore, looking to the facts which altogether FA/2104/2008 7/18 JUDGMENT different, the decision of Division Bench is not applicable and decision of learned Single Judge in case of First Appeal No.3155 of 1996 is also not applicable to the facts of this case. 9. Learned advocate Ms. Mandavia raise contention about the contributory negligence. But, the question of contributory negligence does not arise, because, scooter was ahead when the accident was occurred and ST bus was coming from back side and dashed directly with the scooter without taking care of a small vehicle which was going on ahead of the ST bus as ST bus driver was driving the bus in rash and negligent manner. Therefore, the question of contributory negligence does not arise, therefore, the contention raised by learned advocate Ms. Mandavia about the contributory negligence is rejected. 10. In case of Babuji Thakor in MACP No.637 of 2000, looking to the income of Babuji Thakor, the Tribunal has awarded Rs.15,000/- for pain and suffering, Rs.5,000/- for expenses of medicines, Rs.2,000/- for actual loss, Rs.2,000/- for transport expences and lump-sum Rs.10,000/- has been granted for future loss, therefore, total Rs.36,000/- has been awarded in favour of Babuji Thakor by Tribunal. According to my opinion, this being a reasonable and just compensation awarded to Babuji Ramsangji Thakor looking to injury and disability certificate. 11. The Tribunal has examined the matter in FA/2104/2008 8/18 JUDGMENT detail and after considering the undisputed fact which are on record, fix the reasonable amount of compensation in favour of respondent – claimant. The Tribunal under Section 168 of the Motor Vehicle Act has to fix a 'just' compensation, but, it would depend upon the particular facts and circumstances of each case. The 'just' compensation denotes equitability, fairness and reasonableness. Such aspect has been examined by Full Bench of Madras High Court in case of Cholan Roadways Corporation Ltd. rep. by its Managing Director, Kumbakonam v. Ahmed Thambi and 6 Others reported in (2006) 4 MLJ 362. The relevant Para 5 and 6 are quoted as under : “5. Under Section 168 of the Motor Vehicles Act, the tribunal is required to fix such compensation which appears to it to be just. The power given to the tribunal in the matter of fixing compensation is wide. The Supreme Court and this Court repeatedly held and reiterated that the compensation to be awarded by the tribunals under any head should not be a token compensation, but it should be adequate and reasonable to achieve the statutory goal. The tribunals are well advised to take into account the facts and circumstances of the individual case, the age of the injured or the deceased on the date of the accident, social and economic status of the deceased or injured, the prospects of the deceased/injured earning more income if the accident had not taken place. The courts and tribunals, in bodily injury cases while FA/2104/2008 9/18 JUDGMENT assessing compensation should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. However, they have to approach the issue of awarding compensation on the larger perspective of justice, equity and good conscience and eschew technicalities in the decision making. It is now well settled that a victim of accident for personal injury is entitled for full compensation. The injured person must be compensated in damages for the loss he suffers on account of the injury. Lord Blackburn stated this in 1880 in Livingstone v. Rawyards Coal Co., (1880)5 AC 25 (HL) that "you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation or reparation". This theory of full compensation by the House of Lords ran a little inconsistent with the theory of 'fair' or moderate compensation laid down earlier in 1873 by Brett, LJ. in Rowley v. London & N.W.Rly. Co., (1873) LR 8 Ex 221. However, in the subsequent judgments in Lim Poh Choo v. Camden and Islington Area Health Authority, 1980 ACJ 486 (HL, England) the theory of payment of full and fair compensation has been upheld. In Divisional Controller, KSRTC v. Mahadeva Shetty & another, 2004(1) TN MAC (SC) 534 Arijit Pasayat, J. speaking for the Bench endorses FA/2104/2008 10/18 JUDGMENT the theory of full and fair compensation as follows: "13. The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically non-existent. In Parry v. Cleaver, 1969(1) AH. E.R. 555, Lord Morris stated as follows: "To compensate in money for pain and for physical consequences is invariably difficult but ... no other process can be devised than that of making a monetary assessment." 14. The main principles of law on compensation for injuries were worked out in the 19th century, where railway accidents were becoming common and all actions were tried by the jury. Though the cases have an antiquated air it is still useful to refer to them. The necessity that damages should be "full" and FA/2104/2008 11/18 JUDGMENT "adequate" was stressed by the Court by the Queen's Bench in Fair v. London and North-Western Rly. Co., 1869(21) LT 326. The word 'compensation' is derived from the Latin word 'com-pensare' meaning 'weigh together' or 'balance'. In Rushton v. National Coal Board, 1953(1) All.E.R.314, it was observed: "Every member of this Court is anxious to do all he can to ensure that the damages are adequate for the injury suffered, so far as there can be compensated for an injury, and to help the parties and others to arrive at a fair and just figure...." 6. In Helen C. Rebello v. Maharashtra State Road Transport Corporation, AIR 1998 SC 3191, the Supreme Court observed that the tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be 'just'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person FA/2104/2008 12/18 JUDGMENT becomes entitled to damages for mental and physical impairment, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just' compensation which is the pivotal consideration. Though by the use of the expression "which appears to it to be just", a wide discretion is vested on the tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and FA/2104/2008 13/18 JUDGMENT reasonableness, and non-arbitrariness.“ 12. In view of aforesaid observations made by this Court above as discussed, the evidence on record before the Tribunal and also considering the contentions raised by learned advocate Ms. Mandavia, the decisions of Apex Court and Gujarat High Court are not applicable to the present facts of this case. It is a clear case of rash and negligent driving of the ST bus driver and while considering the future prospective income of the deceased, the multiplier 16 is reasonable and just, therefore, total amount of compensation cannot consider to be on higher side, unreasonable and therefore, contention raised by learned advocate Ms. Mandavia is rejected. The Tribunal has already examined the issue on the basis of the record as ST bus driver was not examined by Corporation. 13. Considering the future prospect income of the deceased, looking to the round figure salary Rs.3,000/-, if, Gujarat High Court theory would consider, then, it comes to Rs.4,500/- per month. Out of that, 1/3 has to be deducted, then, it comes to Rs.3,000/- and if, 13 multiplier apply, then, it comes to Rs.4,68,000/-. Therefore, looking to the present calculation made by the Tribunal after applying 16 multiplier without considering and calculating the future prospective income comes to Rs.3,84,000/-. So, accordingly, applying multiplier 16 in absence of future prospective income, cannot FA/2104/2008 14/18 JUDGMENT consider to be on higher side, but, it is 'just' reasonable and rational figure arrived at by Tribunal. If, it considers that ultimately, how much interest earn by claimants from compensation then from total compensation Rs.4,19,000/- investing in Bank in rate of interest 7.5%, then, interest will be received by claimant round about Rs.2500 to Rs.3000 per month. Even considering that angle also, amount of compensation awarded by Tribunal is just and reasonable. Recently, the view has been taken by Apex Court in case of Oriental Insurance Company Ltd. v. Jashuben & Ors. reported in 2008 (2) Scale 474. The relevant Para 13 and 15 are quoted as under : “13. The amount of compensation indisputably should be determined having regard to the pecuniary loss caused to the dependents by reason of the death of the victim. It was necessary to consider the earnings of the deceased at the time of the accident. Of course, further prospect is not out of bound for such consideration. But the same should be founded on some legal principle. 15. The legal principle in this behalf has been laid down in the following terms : “19. In the present case the deceased was 39 years of age. His income was Rs. 1032/- per month. Of course, the future prospects of advancement in life and career should also be sounded in terms of FA/2104/2008 15/18 JUDGMENT money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1032/- per month. We think, having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be in error in making a higher estimate of monthly income at Rs. 2000/- as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was spartan or bohemian. In FA/2104/2008 16/18 JUDGMENT the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependents. This loss of dependency should capitalise with the appropriate multiplier. In the present case we can take about Rs. 1,400/- per month or Rs. 17,000/- per year as the loss of dependency and if capitalized on a multiplier of 12 which is appropriate to the age of the deceased, the compensation would work out to (Rs. 17,000/- x 12= 2,04,000/- rupees) to which is added the usual award for loss of consortium and loss of the estate each in the conventional sum of Rs. 15,000/. This Court in Sarla Dixit & Anr. v. Balwant Yadav & Ors. [(1996) 3 SCC 179] opined : “The average gross future monthly income could be arrived at by adding the actual gross income at the time of death, namely, Rs.1,500/- per month to the maximum which he would have otherwise got had he not died a premature death, i.e., Rs.3,000/- per month and dividing that figure by two. Thus, the average gross monthly FA/2104/2008 17/18 JUDGMENT income spread over his entire future career, had it been available, would work out to Rs.4,500/- divided by 2, i.e., Rs.2,200/-. Rs.2,200/- per month would have been the gross monthly average income available to the family of the deceased had he survived as a bread winner.“ 14. It is also necessary to consider that whether amount of compensation awarded is just or not, then, 6% interest from the date of application i.e. from 2000 upon Rs.4,19,000/- comes to round about Rs.6 lakhs and if, this amount is deposited in any Nationalised Bank in FDR, then, claimant, at least, can get Rs.4,500-5,000 monthly interest from that FDR which may be the salary receiving by deceased, because, he was working with corporate body and if, he was not died in the accident, then, he must get this much salary by way of revised salary or promotion in higher post. That being also a method to consider that whether the amount of compensation is just or not. So, on all the methods, this Court has examined the issue and found that the amount of compensation awarded by Tribunal is really a just, proper and reasonable which is not based on whims and arbitrary. 15. Therefore, according to my opinion, Tribunal has rightly arrived at a reasonable and just conclusion awarding compensation with 6% interest on the date of application, for that, Tribunal has not FA/2104/2008 18/18 JUDGMENT committed any error which requires interference by this Court. The reasoning given by Tribunal is based on legal evidence. The Tribunal has discussed the evidence on record and rightly applied the multiplier in light of not considering and calculating the future prospective income of the deceased, therefore, this being a reasonable and just award passed by Tribunal which does not require any interference by this Court. 16. Therefore, there is no substance in the present appeals. Therefore, both the appeals are dismissed accordingly. The amount, if any, deposited by Corporation in the registry of this Court in both the appeals be transmitted to the Tribunal concerned immediately. 17. In view of above order passed in both the First Appeals, the Civil Application No.5065 of 2008 and Civil Application No.5066 of 2008 does not survive. Therefore, both the Civil Applications are disposed of accordingly. Sd/- [H.K. RATHOD, J.] #Dave