FA/3848/2007 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3848 of 2007 To FIRST APPEAL No. 3850 of 2007 With CIVIL APPLICATIONS No. 10429 to 10431 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A. L. DAVE HONOURABLE MR.JUSTICE S. 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 ? =============================================== NATIONAL INSURANCE CO. LTD. Versus SOBHANABEN WD/O. JAGDISH DAVE & Others. =============================================== Appearance : MR MEHUL SHARAD SHAH for the Appellant. MR PINAKIN M RAVAL for Respondent No.1. RULE NOT RECD BACK for Respondents No.2 to 8. =============================================== CORAM : HONOURABLE MR.JUSTICE A. L. DAVE and FA/3848/2007 2/14 JUDGMENT HONOURABLE MR.JUSTICE S. D. DAVE Date : 25/03/2008 ORAL JUDGMENT: (Per : A. L. DAVE, J.) 1. These three appeals arise out of a judgment and award rendered by Motor Accident Claims Tribunal (Aux.), at Vadodara, on 17th January, 2007, in Motor Accident Claim Petition No.890 of 1992 and other allied matters. 2. The accident occurred on 22nd June, 1991 at 3.00 A.M. on National Highway No.8 between Vadodara and Karjan involving Motor Truck No.UAC 9452 and Fiat Car No.GJ-6-T 9340. The truck was parked on the road and the Fiat car came from behind and dashed with the hind portion of the truck. The said car was being driven by one Ketanbhai Dave. He sustained severe injuries. His father, Jagdish Dave, who was travelling in the Fiat car, expired due to the injuries suffered by him and his mother, Jyotsnaben, also suffered injuries. 2.1 Motor Accident Claim Petition No.890 of 1992 was preferred by the legal heirs of deceased-Jagdishbhai, claiming Rs.20 lakh as compensation on account of his accidental death. Deceased-Jagdishbhai was aged 55 years and was working as Principal in a school. His gross income, at the time of his death, was Rs.6336/- per month. The claimants adduced evidence to show as to what would have been his salary had he reached the age of superannuation at the age of 58. Keeping all these factors in mind, the Tribunal assessed the prospective income of the deceased at Rs.11,058/- and adopted a multiplier of FA/3848/2007 3/14 JUDGMENT eleven. The Tribunal, ultimately, awarded a compensation of Rs.8,01,440/- with proportionate costs and interest at the rate of 8 per cent per annum. 2.2 Motor Accident Claim Petition No.892 of 1992 was preferred by Ketanbhai, aged 22 years. He was the driver of the car. He suffered fracture of nasal bone. He claimed Rs.1,50,000/- as compensation on the ground that he was working as a Clerk in the school and was earning Rs.1890/- per month. He suffered disability to the extent of 2 per cent, which is permanent in nature. 2.3 Motor Accident Claim Petition No.893 of 1992 was preferred by Jyotsnaben, claiming Rs.6 lakh by way of compensation. She was travelling in the car and she suffered head injuries, fracture of nasal bone and fracture of tibia and fibula. She was earning Rs.3440/- per month. The prospective income is taken at Rs.11,000/- and odd. The Tribunal, after considering her case, awarded a compensation of Rs.2,05,640/-. 3. The Tribunal considered the aspect of negligence and came to a conclusion that, though the truck was stationary, the driver of the truck also can be said to have contributed towards the cause of accident and assessed the liability of the truck driver for the accident to the extent of 80 per cent and that of the car driver to the extent of 20 per cent. The Tribunal, therefore, deducted 20 per cent of the compensation awarded to claimant, Ketanbhai, while finally awarding the compensation. 4. It may be noted that none of the claimants have preferred any appeal. The insurer of the truck has preferred these appeals challenging the findings of the Tribunal on merits, i.e. on the aspect of negligence as well as quantum. FA/3848/2007 4/14 JUDGMENT 4.1 We may also observe that the appellant had preferred an application before the Tribunal seeking permission to cross-examine the witnesses on all counts, as envisaged under Section 170 of the Motor Vehicles Act. The said application at Exhibit 43 was granted. The appeals by the insurer on all counts – merits are competent. 5. Learned Advocate, Mr. Shah, appearing for the appellant submitted that, so far as Appeal No.2848 of 2007 is concerned, it is preferred by the heirs of deceased-Jagdishbhai. Deceased-Jagdishbhai was aged 55 years and was working as Principal in Lal Bahadur Shastri Vidhyalaya, Vadodara. Witness-Jitendrakumar Biharilal Adhiyaru (Exhibit 46) has deposed about his income, likely income that he would have got in future and the last salary that he would have earned as Principal of the school, which is on higher side. Mr. Shah submitted that the Tribunal also committed an error in computing the prospective income of the deceased by adding the last salary that he would have drawn to the present salary and then dividing it by two to come to the prospective income of the deceased. Mr. Shah submitted that the Tribunal committed an error in adopting a much higher multiplier when it adopted a multiplier of eleven. It could not have been more than 5 to 7 in any event. 6. Commenting on the award passed in Motor Accident Claim Petition No.892 of 1992, preferred by Ketanbhai Dave, who was driving the car, he contended that if the car dashed into a stationary truck, then the apportionment of liability of the driver of the truck for the accident could not have been on higher side, i.e. 80 per cent, and the same, therefore, calls for interference at the hands of the Appellate Court. FA/3848/2007 5/14 JUDGMENT 6.1 It was also contended that the Tribunal has granted actual loss of income for six months at the rate of Rs.5000/- per month, which is also on higher side. 7. First Appeal No.3850 of 2007 is preferred against the award passed in Motor Accident claim Petition No.893 of 1992, which was preferred by Jyotsnaben for injuries suffered by her. She claimed a compensation of Rs.6 lakh, as she sustained disability to the extent of 14 per cent. Mr. Shah submitted that the Tribunal has adopted a multiplier of fifteen and awarded a compensation of Rs.1,36,000/-, which is also on higher side. The claimant has suffered fracture of nasal bone, tibia and fibula besides other head injuries. He submitted that the multiplier is also on higher side. 8. The appeals are opposed to by learned Advocate, Mr. G. K. Mehta, for the claimants. According to him, the Tribunal has taken into consideration all relevant aspects while awarding compensation and has followed the settled norms. It was submitted that, though a larger multiplier is adopted by the Tribunal, it has come in evidence that the deceased could have rendered tuitions even after retirement and would have earned therefrom. Since just and legal compensation is awarded, the appeal may be dismissed. 8.1 Commenting on First Appeal No.3849 of 2007, learned Advocate, Mr. Mehta, submitted that it is a case of fracture of nasal bone and the disability is to the extent of 2 per cent. It was submitted that the claimant-Ketan could not attend to his work for nearly six months because of the injuries suffered by him. His claim is slashed down to 20 per cent because he was found to be negligent to that extent. It was submitted that the appeals may, therefore, be dismissed. FA/3848/2007 6/14 JUDGMENT 9. We have taken into consideration rival side contentions. 10. Firstly, we propose to deal with the aspect of negligence. Undisputedly, the truck insured by the appellant was parked on the road and was on its jack. Undisputedly, the Fiat car driven by claimant- Ketanbhai had come from behind and dashed into the rear portion of the truck. The accident occurred in the early morning hours between 2.30 and 3.00 on National Highway No.8. 10.1 It is case of the claimants that the truck was parked on the centre of the road without any cautioning signals. The truck was parked in a manner so as to obstruct the traffic and, therefore, the accident occurred, as the truck could not be seen by claimant-Ketanbhai because of glare of the headlights of oncoming vehicles. The Tribunal observed that the driver of the truck has not deposed before it on the question as to how the accident occurred The Tribunal, after narrating this, has come to a conclusion that the driver of the truck was responsible for the accident to the extent of 80 per cent and the driver of the car, i.e. claimant-Ketanbbai, was responsible to the extent of 20 per cent. 10.2 We have examined the deposition of Ketanbhai (Exhibit 16) so also the Panchnama of the place of incident (Exhibit 35) and the F.I.R. (Exhibit 34). We find from these pieces of evidence that, as per the Panchnama, the truck was parked on its correct side on the edge of the road and it was on its jack. The Fiat car had come from behind and dashed with the rear right portion of the truck. The accident occurred on National Highway and, as per the Panchnama, the width of the road was 22 feet with shouldering of 5 feet on either side. FA/3848/2007 7/14 JUDGMENT 10.2.1 The theory sought to be canvased by claimant-Ketanbhai that the truck was parked on the centre of the road so as to obstruct the other traffic does not sound to us to be truthful. The truck was parked on the edge of the road and if the width of the truck is considered as seven feet, then also it would leave at least 15 feet of road and 5 feet of Kuchchha road open for rest of the traffic to pass by and, therefore, the theory that the truck was parked on the centre of the road so as to obstruct the traffic gets falsified and ought not to have been accepted by the Tribunal. 10.2.2 Further, it is observed by the Tribunal that there were dazzling lights of oncoming vehicles which disabled the claimant-Ketan from seeing the parked truck and because of the discomfort of the dazzling lights, when he tried to take his car on left, it got hit the rear portion of the truck. May be, there is some substance in this theory, but if the headlights of the oncoming traffic dazzled claimant-Ketan, it was his duty either to stop the car and not to continue driving the car. He ought not to have proceeded with driving the car and that too at a speed that he could not stop the car despite severe application of brakes. There were brake marks on the road running for about 20 feet before the car collided with the truck, meaning thereby that the car was being driven at a relatively high speed. 10.2.3 It is further required to be noted that the truck was parked on the edge of the road and in that stationary truck, the car dashed from behind. It was, therefore, the driver of the car, claimant-Ketan, who had the last opportunity to avoid the accident and he has, in no way, tried to indicate as to what attempts were made by him to avoid the accident. Non-examination of the truck driver, according to us, is of no FA/3848/2007 8/14 JUDGMENT consequence for the reason that, undisputedly, the Fiat car dashed with the hind portion of the stationary truck and there was no question of explaining as to what attempt did the driver of the truck made to avert the accident. 10.2.4 However, it is worth a note again that there is absence of any reference in the Panchnama to show whether there were any cautioning signals to indicate that the truck was parked and, therefore, the driver of the truck can be said to have failed in his duty of displaying an indicator about the existence of the truck in night hours. But this negligence cannot be assessed as greater negligence on the part of the driver of the truck to attribute 80 per cent negligence to him. The driver of the car owed duty to the other traffic, to the passengers in the car and even to himself that if the headlights of the oncoming traffic dazzled him, he ought not to have driven the car in such traffic or he ought to have stopped the car when his eyes were dazzled or at least he could have driven the car at a slow speed, which would have enabled him to stop the car immediately on seeing some obstacle in his path. The driver of the car, claimant-Ketan, having failed to establish this and considering the fact that he had the last opportunity to avert the accident, we are of the view that, although he was in charge of a lighter vehicle, he owed greater degree of duty and his contribution to the cause of accident is greater than that of the truck driver. The ends of justice would be met, if the driver of the car his held to be responsible to the extent of 60 per cent and the driver of the truck is held responsible to the extent of 40 per cent for the occurrence of the accident. We hold accordingly. 11. Now, coming to the question of quantum, if First Appeal No.3848 of 2007 is considered, we find that deceased-Jagdish was a passenger in the car. He was aged 55 years and was working as FA/3848/2007 9/14 JUDGMENT Principal in the school. The claimants are widow, two sons and mother. The claim made is Rs.20 lakh and the Tribunal considered the fact that his income, at the time of accident, was Rs.6336/- and the fact that he would have earned a salary of Rs.15782/- per month at the time of his retirement, clubbed the figures together and divided them by two to arrive at prospective income of the deceased at Rs.11,058/-. 11.1 In light of decision of the Apex Court in Oriental Insurance Company v. Jasuben, 2008 SCALE 474, while computing prospective income, the income at the time of retirement cannot be taken into consideration. The correct method to be adopted is to add to the income of the deceased at the time of death with double the amount and then to divide the same by one half. This would give the prospective income of the deceased and then for considering the dependency loss, 2/3rd or 1/3rd of the said amount has to be deducted depending on the nature of relationship of the claimants with the deceased. 11.2 If we compute the dependency loss keeping in light the principles laid down by the Apex Court in the abovereferred judgment, the income of the deceased at the time of his death was Rs.6336/- per month. If we add to the said amount with double the amount and then divide it by two, it would fetch the figure of Rs.9504/- as prospective income of the deceased. If, out of that, 1/3rd is deducted as expenditure of the deceased on his own self, the dependency benefit would come to Rs.6336/-. For arriving at yearly dependency loss, that amount of Rs.6336/- will have to be multiplied by 12 and the result will have to be multiplied by 9, an appropriate multiplier considering the age of the deceased in light of the decision of the Apex Court in the case of Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya & Others, (2005) 6 SCC 236. The ultimate result would be Rs.6336 x 12 x 9, FA/3848/2007 10/14 JUDGMENT which comes to Rs.6,84,288/-, which would be the compensation under the head of loss of dependency. In addition to the above amount, the claimants would be entitled to a compensation of Rs.20,000/- towards consortium, loss to estate, etc. and Rs.5000/- towards funeral expenses, as held by the Tribunal. Thus the total amount of compensation, therefore, would be as under :- Compensation under the head of loss of dependency. Rs.6,84,288.00 Compensation under the head of Consortium, loss to estate, etc. Rs. 20,000.00 Funeral Expenses. Rs. 5,000.00 ---------------------- Total ... ... Rs.7,09,288.00 ======== Thus, the claimants are entitled to a compensation of Rs.7,09,288/- with proportionate costs and interest as against Rs.8,01,440/- awarded by the Tribunal. 12. Coming to First Appeal No.3849 of 2007, arising out of Motor Accident Claim Petition No.892 of 1992, the claimant, driver of the car, suffered injury in the nature of fracture of nasal bone. He suffered disability to the extent of 2 per cent. He is a Clerk in the school. 12.1 The Tribunal has awarded a compensation of Rs.30,000/- under the head of actual loss of income for a period of six months with such an injury, which is challenged in appeal by the insurer. It is FA/3848/2007 11/14 JUDGMENT contended that there is no evidence to show that he was on leave for a period of six months. In this regard, if deposition of Jitendrakumar B. Adhiyaru (Exhibit 46) is seen, it does not indicate anything to show that the claimant was unable to attend the office and how long. However, Ketanbhai himself stated that he was hospitalised for ten days in the hospital of Dr. Lalit Sheth and a certificate to that effect is at Exhibit 36. He stated that he was getting a salary of Rs.5,000/- and he could not go for duty for six months. As compared to this, if his claim petition is seen, it is stated that he was earning Rs.1890/- per month by doing this very work. His say that he was earning Rs.5000/ per month by way of salary, therefore, is not only not supported by a pleading but also it runs contrary to a specific pleading about his income. Considering the injury and taking a liberal view of the matter, it can be accepted that he could not attend the work for six months, but then the compensation under the head would be at the rate of Rs.1890/- per month, which would be Rs.11340/- and not Rs.30,000/-, as awarded by the Tribunal. 12.2 The claimant has suffered a permanent partial disability of 2 per cent in respect of body as a whole. Considering the injury, Rs.20,000/- awarded by the Tribunal under the head of pain, shock and suffering does not call for any interference. 12.3 The doctor assessed his permanent partial disability at 8 per cent. However, by virtue of Purshis (Exhibit 55), disability is accepted at 2 per cent in respect of body as a whole. The claimant's witness at Exhibit 43 stated that the salary of the claimant was increased and was then Rs.7500/- per month. Although the claimant stated that due to the injury, he was not doing any work and that his capacity to work has diminished, yet in absence of any medical proof, the same could not have been accepted by the Tribunal, as has been done. The income of the FA/3848/2007 12/14 JUDGMENT claimant was, as per the petition, Rs.1890/- and, as per his deposition, Rs.5000/-, which was subsequently enhanced to Rs.7500/-. As such, there is no loss of income and no compensation can be awarded under this head. 12.4 The compensation awarded by the Tribunal under the head of medicines, treatment, attendant, etc. does not call for any interference. 12.5 The claimant, therefore, would be entitled to a compensation, under the heads as discussed hereinabove, as follows:- Actual loss of income. Rs. 11,340.00 Pain, shock and suffering. Rs. 20,000.00 Medicines, treatment, attendant, etc. Rs. 15,000.00 ------------------- Total. Rs. 46,340.00 ======== 12.6 The claimant is, therefore, entitled to a compensation of Rs.46,340/-. But, as discussed above, the claimant-Ketankumar has contributed 60 per cent towards the cause of the accident and, therefore, the amount of compensation will have to be slashed down by 60 per cent for his contributory negligence. The claimant, therefore, would be entitled to a compensation of Rs.18,563/- with proportionate costs and interest, as awarded by the Tribunal. 13. So far as First Appeal No.3850 of 2007 is concerned, it is against the award in favour of Jyotsnaben. She had claimed Rs.6 lakh and against that, an award of Rs.2,05,640/-was passed by the Tribunal. FA/3848/2007 13/14 JUDGMENT She suffered head injury besides fracture of nasal bone, fracture of tibia and fibula and her disability is assessed at 16 per cent in respect of face and 14 per cent in respect of lower limb. However, by virtue of Purshis (Exhibit 56), the claimant accepted disability in respect of body as a whole as 8 per cent. The claimant was working as Senior Clerk with Sharad Kanya Vidhyalay and was earning Rs.3440/- per month. As per certificate issued by the Principal of the said school at Exhibit 53, her income was Rs.3440/- per month as a Senior Clerk, which is not much in dispute. Exhibit 54 also shows that the applicant remained on leave from 20th June, 1991 to 1st September, 1991, i.e. for a period of two and a half months. The compensation under the head of of actual loss of income, therefore, would be Rs.8600/-. 13.1 It has come in evidence that the salary of the claimant has increased and, presently, she is drawing about Rs.20,000/- per month. As such, there is no loss of income on account of injuries suffered by her. As such, there is no loss suffered by her under this head. 13.2 However, considering the injuries suffered by her, the Tribunal has awarded Rs.20,000/- as compensation under the head of pain, shock and suffering, which does not call for any interference in absence of any appeal by her. 13.3 Likewise, considering the nature of injuries suffered by the claimant, Rs.10,000/- awarded by the Tribunal as compensation under the head of medical treatment also does not call for any interference. 13.4 The claimant, therefore, would be entitled to a compensation as follows :- FA/3848/2007 14/14 JUDGMENT Compensation under the head of actual loss of income. Rs. 8,600.00 Compensation under the head of pain, shock and suffering. Rs. 20,000.00 Compensation under the head of medical treatment. Rs. 10,000.00 ------------------- Total ... ... Rs. 38,600/- ======== Thus, the claimant would be entitled to a compensation of Rs.38,600/- with proportionate costs and interest as against Rs.2,05,640/- awarded by the Tribunal. 14. The appeals would stand partly allowed. Award accordingly. The amounts deposited by the appellant in excess of the awards passed herein shall be refunded to the appellant. 16. In view of the disposal of the appeals, the Civil Applications would not survive. They shall stand disposed of accordingly. Notice in each Civil Application is discharged with no order as to costs. [ A. L. DAVE, J. ] [ S. D. DAVE, J. ] gt