FA/3139/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3139 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================= ================ 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 ? ========================================= GEETABEN RAJESHBHAI CHAUHAN Versus RUPESHBHAI ARVINDBHAI PATEL & ANR ========================================= Appearance : MR BHARAT B SHAH for Appellants RULE SERVED BY DS for Respondent No.1 MR KK NAIR for Respondent No. 2 ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 17/09/2008 FA/3139/2008 2/6 JUDGMENT ORAL JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. This Appeal is preferred by the claimants for enhancement of compensation against the judgment and award delivered by the Motor Accident Claims Tribunal (Auxillary), Fast Track Court No.5, Ahmedabad, on 9th of January, 2008 in Motor Accident Claim Petition No. 348 of 2005. 2. Learned Advocate Mr. Bharat B Shah for the appellants and learned Advocate Mr. K.K. Nair for respondent No.2 were heard in detail in respect of this Appeal while respondent No.1 is duly served. 3. Accident occurred on 13th of October, 2004 and deceased Rajeshbhai, who was driving scooter bearing No. GJ-3A- 9805, dashed with an Indica Car, bearing No. GJ-1-HA-2882, causing serious injuries to the deceased and ultimately deceased was admitted to Karnavati Hospital and thereafter shifted to LG Hospital and succumbed to injuries on 26th of October, 2004. 4. Respondent No.1 is the owner of the said India Car while respondent No.2 is the Insurance Company. 5. So far as the issue of negligence is concerned, there is no dispute amongst the parties and that the Tribunal held that the FA/3139/2008 3/6 JUDGMENT driver of Indica car was negligent and, therefore, respondent No.2 Insurance Company i.e. The Oriental Insurance Co. Limited was liable to pay compensation to the original claimants i.e. appellants i.e. widow of the deceased and two children of the deceased. 6. Mainly, it appears that, the dispute is in respect of the fact that the Tribunal did not take into consideration the prospective income of the deceased and secondly the Tribunal did not award the amount of Bill of Rs. 11,000/- Exhibit-40, which is a receipt and, therefore, it has been vehemently urged by learned Advocate for the appellants, relying upon a decision of the Division Bench of this Hon'ble Court, in the matter of UNITED INDIA INSURANCE CO LTD vs. DHANLAXMIBEN SATISHBHAI BHAGAT (PATEL), as reported in 2008 ACJ 966, that by settled method, prospective income ought to have been considered by the Tribunal and thereafter the Tribunal ought to have assessed the compensation. Though there is no dispute as to the assessment of income by the Tribunal, which is assessed at Rs. 6,300/- p.m. by the Tribunal and after deducting 1/3 of the amount for pocket expenses from that income, the dependency benefits was considered at Rs. 50,400/- per year. After applying 12 multipliers, claimants were awarded an amount of Rs. 6,04,800/- towards dependency benefits; Rs. 10,000/- for loss of expectancy of life; Rs. 10,000/- for loss of consortium and Rs. 3,000/- for funeral charges, FA/3139/2008 4/6 JUDGMENT totalling to Rs. 6,27,800/-. Since the deceased was alive for some days, the Tribunal awarded Rs. 15,000/- towards pain, shock and suffering and Rs. 1,23,400/- as medical expenses. Further, Rs. 15,000/- were awarded towards transportation charges and, thus, in all, the award of Rs. 7,81,200/- was awarded in favour of the claimants along with the interest at the rate of 9% per annum from the date of petition till realization. 7. We are unable to accept the contention of the learned Advocate for the appellants that the Tribunal ought to have considered the prospective income of the deceased. The present one is not the comparable instance of the decision of this Court in the matter of United India Insurance Co. Ltd vs. Dhanlaxmiben (supra) wherein the prospective income of the deceased was proved. In the present case, deceased was doing videography and photography and nothing was brought on record, except bare say of the witness, that the deceased would have earned prospective income of Rs. 10,000/- p.m. We may fortify our conclusion by a decision of the Apex Court in the matter of BIJOY KUMAR DUGAR vs BIDYA DHAR DUTTA, as reported in (2006) 3 SCC 242, wherein the Supreme Court observed that the mere assertion of claimants that the deceased would have earned more than Rs. 8,000/- to Rs. 10,000/- p.m. in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the Tribunal. Thus, it FA/3139/2008 5/6 JUDGMENT is not the law that in each case the Tribunal is bound to take into consideration the prospective income. In the case at hand, we do not find any such evidence and the contention has to be negatived. 8. So far as the second contention about the receipt of the amount of Rs. 11,000/- is concerned, though it is vehemently submitted that, that is a receipt and that amount was required to be awarded by the Tribunal to the claimants as the same was paid by the claimants. We do not find any substance in the argument because the Tribunal was correct in coming to the conclusion that the Exhibit-40 was merely on the plain paper, even it was not on the letter head of the Doctor, who received the said payment, nor it bears any revenue stamp and this contention as well is required to be negatived. 9 If we still examine the case from the angle whether just and reasonable compensation is awarded, it is clear that, beyond doubt it is proved that, the deceased was aged 49 years at the time of the incident. The Tribunal allowed 12 multipliers. We find that the multipliers are on higher side. We may quote the decision of the Supreme Court in this respect in the matter of ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION vs. M. RAMADEVI, as reported at 2008 ACJ 930. There is no Appeal from the Insurance Company and the question would not arise for this Court to interfere in this arena but when the overall scenario is FA/3139/2008 6/6 JUDGMENT assessed, it is found that, in one way or the other, just and reasonable compensation is awarded by the Tribunal. In the case of Andhra Pradesh State Road Transport Corporation vs. M. Ramadevi (supra), deceased was aged 40 years and the multipliers of 10 were adopted by the Supreme Court. While in the present case, though the prospective income has not been taken into consideration, the Tribunal has awarded higher multipliers and, in any case, overall, this is a just and reasonable award of compensation. 10 In view of above, we do not find any reason to interfere in the impugned judgment and award and, therefore, appeal stands dismissed. (J. R. VORA, J.) (Z.K.SAIYED, J.) pnnair