FA/2243/1999 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2243 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ==================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ==================================== RAMESHRE B VERMA - Appellant Versus DIRECTOR GENERAL OF POLICE & 1 - Defendants ==================================== Appearance : MR BHARAT JANI for Appellant. MRS VS PATHAK, AGP for Defendant No. 1. MS LILU K BHAYA for Defendant No. 2. ==================================== FA/2243/1999 2/15 JUDGMENT CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 02/07/2008 ORAL JUDGMENT 1. The appellant – original claimant has filed this appeal under Section 173 of the Motor Vehicles Act, 1994 challenging the judgment and award dated 03.11.1998 passed by the learned Judge, Motor Accident Claims Tribunal (Auxiliary) at Ahmedabad in MACP No. 307 of 1990 whereby the claim petition was partly allowed and the respondent – Insurance Company was directed to pay to the appellant a sum of Rs.50,500/- together with interest @ 12% p.a. from the date of the petition till the payment and proportionate cost of the petition. The appellant has claimed compensation of Rs.1,50,000/- for the injuries sustained by him in a vehicular accident which occurred on 01.09.1990. 2. It is the case of the appellant that respondent No.1, the Director General of Police is the owner of vehicle – Police Mobile van bearing registration No. GUD 4153 and the respondent No.2 is the Insurance Company with whom the said vehicle was insured. The claim FA/2243/1999 3/15 JUDGMENT petition was filed by the appellant and he has produced various documents along with the petition. The respondent No.1 has filed his written statement at Exh. 48 and contended that the driver of the vehicle was driving the said vehicle as per the instructions of the appellant in slow speed and on correct side of the road and at that time, the mob of students were throwing stones and at the place of incidence, there were ditches on the road and hence, the driver of offending vehicle had lost his control over the said vehicle and as a result, the said vehicle had fallen down in the ditch which was on the left side of the road and thus the said accident was taken place. It was, therefore, contended that the appellant was not entitled to get any amount towards compensation. It was further contended in the written statement that since the driver of the offending vehicle was driving the said vehicle as per the instructions of the appellant, the appellant himself was responsible and even on this ground also, the appellant was not entitled to any amount of compensation. The respondent No. 2 Insurance Company filed its written FA/2243/1999 4/15 JUDGMENT statement at Exh. 16 and inter alia, prayed for dismissal of claim petition. 3. The learned Judge of the Motor Accident Claims Tribunal has examined the entire evidence on record, oral as well as written and after appreciating the rival contentions of the parties as well as the relevant documents, had partly allowed the claim petition and awarded compensation of Rs.50,500/- along with interest @ 12% p.a. This award is under challenge in the present appeal. There is no dispute about the fact that the respondent – Insurance Company has not filed any appeal against the award passed by the Tribunal. 4. Mr. Bharat Jani, learned advocate appearing for the appellant has submitted that the amount of compensation of Rs.50,500/- awarded by the Tribunal is arrived at as under :- i. Future economic loss :- 2,500 / 10% disability = 250 X 12 X 8 (multiplier) :- Rs. 24,000/-. ii. Present loss of income :- Rs. 6,500/-. iii. Medical, diet, conveyance and attendance charges etc. :- Rs.10,000/- iv. Pain, shock and suffering :- Rs. 10,000/- Total Rs.50,500/- FA/2243/1999 5/15 JUDGMENT 5. Mr. Jani has challenged the impugned award on the ground that multiplier of 8 taken by the Tribunal is not just and proper. The appellant was serving as Police- Sub-Inspector in police department and on the date of accident, his age was 45 years and, therefore, the appropriate multiplier to be applied for calculation for future loss of income would be atleast 12 and not 8. For this purpose, he referred to and relied on 2nd Schedule for compensation for third party fatal accidents / injury cases claims prescribed under Section 163-A of the Act. Since the appellant was at the age of 45 years, multiplier mentioned therein is 13. He has, therefore, submitted that multiplier of 12 is just and proper as against 8 adopted by the Tribunal. He has further submitted that the Tribunal has taken the future economic loss at the rate of Rs.2,500/- on the basis of his salary on the date of accident, without considering the future prospects of earning and increase in salary and other incidental benefits. The oral evidence of the appellant at Exh. 42 where the appellant had deposed that on the date of evidence, his FA/2243/1999 6/15 JUDGMENT salary was Rs.7,000/- per month was not taken into consideration by the Tribunal. The Tribunal should have taken Rs.6,000/- for calculating future loss of income and ought to have applied multiplier of 12 looking to the age of the appellant i.e. 45 years on the date of the accident. He has further submitted that the Tribunal should have also considered in their proper perspectives the injury certificate, the disability certificate and evidence of Dr. S.G. Patel to come to the correct conclusion in respect of permanent partial functional disability. The disability certificate at Exh.45 issued by Dr. S. G. Patel clearly shows that partial permanent functional disability is 21%. The Tribunal has grossly erred in taking only 10% disability as a whole to arrive at future economic loss. At least, as per the evidence of Dr. S. G. Patel at Exh.44, along with disability certificate at Exh. 45, the Tribunal should have taken disability at 15%. He has further submitted that the Tribunal has also awarded only Rs.6,500/- under the head of present loss of income which is contrary to the evidence on record. The appellant had taken 5 months treatment after the date FA/2243/1999 7/15 JUDGMENT of accident and, therefore, the present loss of income should have been taken at least of Rs.12,500/- under this head. The amount of Rs.10,000/- awarded under the head medical expenses, diet, attendant charges and conveyance charges is also inadequate. It should have been increased at least to Rs.15,000/-. He has lastly submitted that the amount of Rs.10,000/- awarded by the Tribunal under the head pain, shock and suffering should have also been increased to Rs.15,000/- looking to the injury of upper and left tibia - intra articular with head injury, 15 days hospitalization and prolonged treatment thereafter for about five months. Considering all these aspects, Mr. Jani has submitted that the appellant is entitled to the compensation of Rs.1 Lac and hence, enhancement to the extent of about Rs.49,500/- is required to be made. 6. In support of his submissions, Mr. Jani relied on the decision of the Hon'ble Supreme Court in the case of Kaushnuma Begum and others V/s. New India Assurance Company Limited and others, 42 (1) GLR 593 and the decision of this Court in the case of FA/2243/1999 8/15 JUDGMENT National Insurance Company Limited V/s. Mangiben Bhikhabhai Vasava and others, 47 (4) GLR 2804. 7. Ms. Lilu K. Bhaya, learned advocate appearing for the Insurance Company, on the other hand, has strongly objected to any sort of enhancement and submitted that appeal deserves to be dismissed with cost. She has submitted that the claim made by the appellant is highly exaggerated and since the respondent – Insurance Company has not filed any appeal, she restrains herself from submitting that claim is bogus one and the appellant himself is responsible for occurrence of the accident. She has further submitted that there is no evidence with regard to the age of the appellant. In absence of any evidence with regard to the age, the multiplier adopted by the Tribunal is just and proper. There is no evidence with regard to the income of the appellant at the time of recording of his evidence. The Tribunal is, therefore, justified in adopting the figure on the basis of the pay slip produced by the appellant on the date of accident. So FA/2243/1999 9/15 JUDGMENT far as the amount awarded by the Tribunal for future loss of income, medical diet, conveyance charges as well as pain,shock and suffering is concerned, no interference is called for by this Court as the Tribunal has considered all the aspects of the matter and arrived at the just and proper conclusion. 8. With regard to the multiplier, she relied on the decision of the Hon'ble Supreme Court in the case of The Managing Director, TNSTC V/s. Sripriya and others, 2007 (4) Scale 222 wherein the Hon'ble Supreme Court has held that the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that FA/2243/1999 10/15 JUDGMENT ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last. The Court further held that the highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian Citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age. Considering the age of the deceased in the case before the Hon'ble Supreme Court, the Court held that appropriate multiplier would be 12. In that case, the deceased age was 37 years. The Court took the view that the appropriate multiplier would be 12. In the present case, the appellant's age is 45 years and hence, multiplier of 8 taken by the Tribunal is just and proper. 9. Taking over all view of the matter, she has strongly urged that no case is made out by the appellant for enhancement of the amount of compensation and hence, the appeal deserves to be dismissed. 10.Mrs. V. S. Pathak, learned Assistant Government FA/2243/1999 11/15 JUDGMENT Pleader appearing for the respondent No.1 supported the case of the appellant and submitted that the claim of enhancement made by the appellant is just and proper and the same should have been accepted by the Court. 11.Having heard learned advocates appearing for the respective parties and having considered the documents produced before the Tribunal as well as before this Court, the Court is of the view that the Tribunal has not adequately compensated the appellant and committed an error while adopting the multiplier at 8 and also considering the future economic loss only to the extent of Rs.2,500/-. It is true that no direct evidence with regard to the age of the appellant is produced. However, from the circumstantial evidence, it becomes clear that the appellant was aged 45 years old at the time of accident. When his evidence was taken in 1997, he has stated his age as 52 years. He retired in 2003 and the age of retirement is 58 years. In 1990, he was 45 years and if 13 years are added, then the retirement FA/2243/1999 12/15 JUDGMENT age of 58 years would come in 2003. Even in the disability certificate, his age is mentioned which is also tallied with the age stated by him. Thus, the appellant's claim cannot be rejected only on the ground that birth certificate was not produced. Once it is accepted that he is of 45 years of age at the time of accident and his retirement age is 58 years, in that case, based on 2nd Schedule, the multiplier should have been taken at 12. 12.The order of the Tribunal deserves an interference by this Court even on the ground of amount of compensation determined by the Tribunal on the basis of future economic loss. Considering the appellant's salary on the date of accident and without considering the future prospects of earning and increase in salary and other incidental benefits, the claim of the appellant was rejected by the Tribunal on the ground that no evidence is produced by the appellant at the time of recording of his evidence. It is, however, submitted by Mr. Jani that the Tribunal has taken into consideration the pay slip produced by the appellant FA/2243/1999 13/15 JUDGMENT on the date of accident which is of Rs.2451/-. In 1997, when the appellant's evidence was recorded, he has stated that his income was of Rs.7,000/- per month. The oral evidence produced by the appellant assumes significance and it cannot be discarded. In the case of National Insurance Company Limited V/s. Mangiben Bhikhabhai Vasava and others, 47 (4) GLR 2804 (supra), this Court has taken the view that although, there is no documentary proof of the income as well as the age of the deceased, in the post-mortem note, his age has been shown as 40 years and, therefore, the Tribunal has taken his age to be in between 40 to 45 years. Therefore, the multiplier of 14 cannot be said to be excessive. Thus the due weightage was given to the oral evidence and on that basis, the multiplier as well as the income was considered by this Court. Considering the oral evidence of the appellant and applying the multiplier of 12 years, the Court estimates the amount of Rs.53,500/- under the head of future economic loss. 13.In absence of any appeal by the Insurance Company, FA/2243/1999 14/15 JUDGMENT the Court is not accepting the arguments canvassed by Ms. Lilu K. Bhaya that the claim is bogus or exaggerated. The decision relied on by Ms. Bhaya for the purpose of multiplier would not help the case of the Insurance Company. Even in the case of Kaushnuma Begum and others V/s. New India Assurance Company Limited and others (Supra), the Hon'ble Supreme Court has held that in calculating the amount of compensation, the structured formula provided in the 2nd Schedule of the Motor Vehicles Act may be adopted. Though, it was formulated for the purpose of Section 163-A of the Act, it is the safer guidance for arriving at the amount of compensation then any other method. Based on this formula, the multiplier is required to be adopted at 12. 14.With regard to the other points canvassed by Mr. Jani, the Court is not convinced and no enhancement is required on those grounds. 15.Considering the entire facts and circumstances of the case, the compensation awarded by the Tribunal is FA/2243/1999 15/15 JUDGMENT enhanced from Rs.50,500/- to Rs.80,000/- and this enhancement is made considering the submissions made in respect of increase in multiplier as well as future economic loss. Thus, the appellant is entitled to the compensation of Rs.80,000/- as against Rs.50,500/- awarded by the Tribunal. 16.The appeal is, therefore, partly allowed to the aforesaid extent. Sd/- [K. A. PUJ, J.] Savariya