FA/7053/1995 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 7053 of 1995 With FIRST APPEAL No. 577 of 1996 With CIVIL APPLICATION No. 14843 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 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 ? 1 to 5 NO ========================================================= NEW INDIA ASSURANCE CO.LTD. & 2 - Appellant(s) Versus MANUJLABEN RAJESHBHAI & 7 - Respondents(s) ========================================================= Appearance : MR SV RAJU for Appellant(s) : 1,MR SUNIT S SHAH for Appellant(s):1, MS VIRAJ FOZDAR with MR SHALIN N MEHTA for Appellant(s) : 1, MR HM BHAGAT for Appellant(s) : 2 - 3. None for Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 - for Respondent(s) : 2 - 8. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 28/02/2008 FA/7053/1995 2/6 JUDGMENT ORAL JUDGMENT : 1. Both the appeals are preferred from the judgment and award dated 01.07.1995 of Motor Accident Claims Tribunal (Main), Bhavnagar in Motor Accident Claim Petition No.68 of 1994 on the common issue of quantum of compensation. The appellant-insurance company has sought reduction of compensation mainly on the ground that higher multiplier of 22 was applied even as the deceased victim of the accident had died due to the accident at the age of 29 years. The appeal filed by the claimants for enhancement of compensation was argued on the basis that monthly income of the deceased was taken to be Rs. 1,500/- only without any basis against the evidence of monthly income of Rs.5,000/-. There was no dispute about the fact that the deceased, aged 29, had passed away due to the accident that happened on 26.11.1993 at about 4.30 a.m. between village Mulcharai and Patna and it was attributable to rash and negligent driving of truck insured by the aforesaid appellant. 2. Learned counsel Ms.Viraj Fozdar with learned counsel Mr.Shalin Mehta, appearing for the insurance company, relied upon recent judgment of the Supreme Court in U.P.State Road Transport Corporation v. Krishna Bala & Others FA/7053/1995 3/6 JUDGMENT [(2006) 6 SCC 249] and New India Insurance Co. Ltd. v. Smt. Kalpana & Others [2007 (2) SCALE 227] in support of the submission that, in case of death at the age of 29, the higher multiplier that could be applied was 17 and application in the impugned award of multiplier of 22 was obviously on higher side. As against that, learned counsel Mr.Arpit Patel, appearing for original claimants, submitted that, in the facts of the present case, widow of the deceased had deposed before the Tribunal clearly stating on oath that the deceased was running a public carrier owned by himself and earning Rs.5,000/- per month. It was also deposed that, after death of her husband, a driver had had to be employed at monthly salary of Rs.3,000/-. Those statements were not contradicted by anything in cross- examination or by any other evidence. It was, on that basis, submitted that the Tribunal was not justified in basing its calculations on the multiplicand of Rs.1,000/- after deducting Rs.500/- from the assumed monthly income of Rs.1,500/-. Mr.Patel also submitted that the deceased had left behind his widow and four minor children besides his parents. Therefore, deduction of one-third of the income towards deceased himself was not proper and justified. FA/7053/1995 4/6 JUDGMENT 3. It was seen from the impugned award that the Tribunal had relied upon at least three judgments of the Supreme Court in applying multiplier of 22 but given no reason for fixing the income of the deceased at Rs.1,500/- per month. 4. In the above facts, after perusal of the material evidence produced before this Court and hearing the submissions of learned counsel, it clearly appears that application of multiplier of 22 was unreasonable and on higher side. In view of the guidance provided by the Second Schedule to the Motor Vehicles Act, 1988, 17 was the proper multiplier. However, the assumption of income was obviously unreasonable and, in view of the clear uncontroverted evidence of payment of at least Rs.3,000/- to the driver of truck, monthly income of the deceased owner of the truck, who was stated to be himself driving the vehicle, could not have been assessed at less than Rs.3,000/- per month. Therefore, taking his yearly income to be Rs.36,000/- and deducting Rs.6,000/- towards expenditure on himself in view of the large number of dependents, yearly dependency benefit would come to Rs.30,000/-. Applying multiplier of 17, compensation under the head of "dependency benefit" would come to FA/7053/1995 5/6 JUDGMENT Rs.5,10,000/- and deducting therefrom Rs.2,94,000/- already awarded, the net additional amount would come to Rs.2,16,000/-. However, since the appeal is restricted to additional claim of Rs.2,06,000/-, the additional amount of compensation payable to the claimant is fixed at Rs.2,06,000/-. Although the Tribunal has awarded interest @ 12% p.a. according to the rates of interest and legal dicta prevailing at the time of making the award, it would be appropriate to award the aforesaid amount of additional compensation with interest @ 7.5% p.a. at this stage. Accordingly, First Appeal No.7053 of 1995 is dismissed with no order as to costs and First Appeal No.577 of 1996 is allowed with the direction that the original claimants shall be entitled to additional sum of Rs.2,06,000/- with interest @ 7.5% p.a. and such additional amount shall be deposited within one month with the Tribunal by the appellant in First Appeal No.7053 of 1995. The Tribunal shall thereafter make appropriate order for disbursement or investment after hearing the parties. 4. Since Civil Application No.14843 of 2007 is made before this Court for direction to release the amount deposited by the insurance company and almost all the claimants appeared to FA/7053/1995 6/6 JUDGMENT have become major by now, the Tribunal shall be at liberty to make a fresh appropriate order of investment and/or disbursement of the total amount of compensation with interest and cost for each of the claimants, keeping in view the long term interest of the widow and youngest daughter of the deceased, if she is still a minor. In view of these observations, Civil Application No.14843 of 2007 does not survive and stands disposed. Sd/- ( D.H.Waghela, J.) (KMG Thilake)