FA/2854/2005 1/58 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2854 of 2005 To FIRST APPEAL No. 2870 of 2005 With FIRST APPEAL No. 2206 of 2005 To FIRST APPEAL No. 2217 of 2005 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&2: YES. Para 11 may not be required to be reported. 3 to 5 : NO. ========================================================= NEW INDIA ASSURANCE CO LTD. & OTHERS - Appellant(s) Versus JOSNABEN @ JASHUBEN VALLABHBHAI & OTHERS - Respondents(s) ========================================================= Appearance : MS LILU K BHAYA, MS MEGHA JANI with MS ANUSHREE KAPADIA for Appellants MR MAULIK J SHELAT, MR SM GOHIL, MR DAKSHESH MEHTA for Respondents MS AMRITA AJMERA for Claimants ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 27/03/2008 FA/2854/2005 2/58 JUDGMENT C.A.V. JUDGMENT : 1. These groups of appeals under section 173 of the Motor Vehicles Act, 1988 ("the Act", for short) are preferred from the common judgment and award dated 16.09.2004 of Motor Accident Claims Tribunal (Aux.), Surendranagar in total 33 claim petitions. Basic facts of the cases are that, on 13.9.1996 at about 4.00 a.m., all the injured claimants and three deceased victims of the accident were returning from their pilgrimage in the luxury bus No.GJ-3T-9475 which dashed against the truck No.MIU 8331 coming from opposite direction. An ambassador car bearing No.GJM 7065 also dashed with the luxury bus from behind at that time. The insurance companies concerned were Oriental Insurance Co. Ltd., New India Assurance Co. Ltd. and National Insurance Co. Ltd. in relation to the bus, truck and car respectively. Since the insurance companies insuring the bus and the truck have filed appeals in various claim petitions and joined the original claimants and the other insurers as party-respondent, they are referred hereinafter by the name of the insurance company and the claimants are addressed as such. The Oriental Insurance Co. Ltd. has been aggrieved by apportionment of 70% of the liability for payment of compensation and the New India Assurance Co. Ltd. has preferred appeals to FA/2854/2005 3/58 JUDGMENT dispute even 30% of the liability apportioned to it as also to challenge the quantum of compensation awarded to the claimants in each of the appeals. 2. Arguing the appeals on behalf of Oriental Insurance Co. Ltd., learned counsel Ms.Megha Jani, appearing with Ms.Anushree Kapadia, submitted that the Tribunal had, in the impugned award, clearly recorded the finding that the accident was a case of composite negligence and relied upon FIR at Exh.72 and Panchnama at Exh.73 for arriving at that conclusion. However, only on the ground that the bus was stated to have been damaged approximately to the extent of Rs.1,35,000/- and the offending truck was assessed to have been damaged to the extent of Rs.55,000/-, negligence on the part of the driver of the luxury bus was assessed to be 70% and the driver of the truck was assessed to be responsible to the extent of 30%. It was submitted that the basis for fixing responsibility of the drivers of both the vehicles and consequently fixing the financial liability of paying compensation by the insurance companies also on that basis was irrational and arbitrary. Learned counsel Ms.Jani relied upon decision of Division Bench of this Court in FA/2854/2005 4/58 JUDGMENT Gujarat State Road Transport Corporation v. Gurunath Shahu [1989 ACJ 394] as quoted in Amarsi Jugabhai Driver v. Vijyaben Hemantlal Dhulia [1996 (3) GLR 8493]. It was observed in the latter judgment that it would always be better to sue all joint tort-feasors in one proceeding. It would not only enable the Tribunal to apportion negligence between the joint tort-feasors, but would also facilitate the task of claimants in recovering the amount of compensation awarded and in appropriate cases directions can always be issued by the Tribunal to joint tort-feasors to share the liability of paying compensation in proportion to negligence established on the record of the case. Recent judgment of Allahabad High Court in U.P.State Road Transport Corporation v. Rajani and Others [2007 ACJ 1771] was relied upon for the proposition that while directing payment of compensation to the victims or legal representatives of deceased of motor accident arising out of composite negligence of two motor vehicles, it was duty of the Claims Tribunal to apportion and specify the respective liability of owners or drivers or insurers of vehicles involved in the accident to the extent of damage contributed by them provided they were impleaded and heard by the Claims Tribunal. It was, however, also observed in para 32 of the judgment that there can be no scope for doubt to FA/2854/2005 5/58 JUDGMENT hold that when an accident takes place on account of composite negligence of two or more motor vehicles, the claimant was entitled to proceed against all or any of the joint tort-feasors for full compensation for the injuries suffered or death caused as the liability of joint tort- feasors was joint and several........ In a case where all the joint tort-feasors have been brought on record, it is needless to say that Tribunal is under statutory duty to specify the amount which shall be paid by driver or owner or insurer of the vehicles involved in the accident. It was also pointed out from recent judgment of the Supreme Court in Bijoy Kumar Dugar v. Bidyadhar Dutta and Others [2006 ACJ 1058] that when vehicles had a head-on collision, drivers of both the vehicles should be held responsible for having contributed equally to the accident. 3. Learned counsel Ms.Bhaya, appearing for New India Assurance Co. Ltd., insurer of the truck, submitted that, in the facts of the present case, driver of the bus was entirely responsible for the accident insofar as greater damage was suffered by the bus and no brake-marks were seen at the time of making of the panchnama. Learned counsel relied upon the panchnama at Exh.73 to submit that, immediately after FA/2854/2005 6/58 JUDGMENT registration of offence, the bus was found to have been extensively damaged on its right- hand- side and the truck was lying on its side on the left-hand-side of the road after such impact that its front wheels and axle were detached from the body. 4. It could be seen from plain reading of language of section 168 of the Act that the Claims Tribunal was required to hold an inquiry into the claims and make an award determining the amount of compensation which appears to it to be just and also specify the person or persons to whom compensation shall be paid and, in making the award, it has to specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Thus, where more than one party is held responsible for paying compensation, it is necessary that the Tribunal specifies the amount required to be paid by each party. However, it is also well-settled that, in case of composite negligence, the liability is normally not apportioned as both the wrong doers are held jointly and severally liable for the loss. It is recently held by Division Bench of this Court in Kusumben Vipinchandra Shah v. Arvindbhai Narmadashankar Raval [AIR 2007 Gujarat 121] that, as held in Gujarat State Road FA/2854/2005 7/58 JUDGMENT Transport Corporation v. Gurunath Shahu (supra), the finding given by the Tribunal in such a case regarding apportionment of liability would be tentative for the purpose of subsequent proceeding which might be filed by the defendant tort-feasor against the other joint tort-feasor who was not a party to the first proceeding. But such tentativeness for the purpose of contribution between two joint tort-feasors did not at all affect the right of the plaintiff- claimant to recover full damages from the defendant tort-feasor against whom the first proceeding was filed. 5. Unfortunately, in the facts of the present case, no evidence whatsoever is led on behalf of the defendants before the Tribunal, none of the drivers of any of the vehicles involved in the accident entered the box and the Tribunal was left with no alternative but to rely only upon the complaint Exh.72 lodged by one of the passengers of the bus and the panchnama Exh.73 which hardly threw any light even on the distance at which both the vehicles were found from their respective correct side of the road. In such circumstances, there is no escape from the conclusion that the accident was attributable to the drivers of both vehicles and it was a case FA/2854/2005 8/58 JUDGMENT of composite negligence. It could also not be gainsaid that assessing the proportion of negligence on the part of driver of either of the vehicles on the basis of the extent of damage suffered by the vehicle was obviously illogical. Under such circumstances, the Tribunal ought to have held the drivers and consequently the insurance companies of both the vehicles to be jointly and severally liable for payment of compensation. As for apportionment of liability inter se between two insurance companies, in absence of any clear evidence or indication of liability of one driver being greater than the other, both the insurance companies were required to contribute equally the amounts of compensation due to the claimants, even as the claimants would have liberty to recover the full amount of compensation from either of the insurance companies. The submission that driver of the car which dashed with the bus from behind could also be held partly responsible for damage and the compensation was wholly devoid of any basis or substance. Therefore, the appeals preferred by the Oriental Insurance Company are required to be partly allowed. 6. Even as the Oriental Insurance Co. Ltd. is, by the impugned award, held to be liable for FA/2854/2005 9/58 JUDGMENT paying 70% of the amounts of compensation, it has not challenged the quantum of compensation in any of its appeals. But quantum of compensation has been the bone of contention between New India Assurance Co. Ltd. and the claimants. Learned counsel Ms.Bhaya, appearing for the insurer of the truck, vehemently argued that, in each of the claim petitions from which the appeals were preferred, the amount of compensation was on the higher side and required to be substantially reduced in the interest of justice. The quantum of compensation was defended by learned counsel Ms.Amrita Ajmera, appearing for the claimants in each appeal. The rival contentions in each claim petition are discussed hereunder with reference to the number of each appeal. 7. However, it was generally submitted on behalf of the appellant-insurance company that in all the claim petitions made under the provisions of section 166 of the Act, multiplier higher than the ones prescribed under section 163-A and the Second Schedule of the Act could not have been applied; and, in absence of cogent and proper evidence of income of the deceased or injured victims of the accident, the Tribunal ought not to have assessed monthly income at higher rates. It was also submitted that assessment of higher FA/2854/2005 10/58 JUDGMENT income and higher prospective income without any evidence in that regard multiplied by higher multiplier had resulted in each case into award of unreasonable amounts of compensation which were required to be reduced. It was conceded that each appeal was restricted to challenging only a part of the award. 8. Learned counsel Ms.Bhaya relied upon recent Division Bench decision dated 30.11.2006 of this Court in First Appeal No.1069 of 2006 wherein it is held that compensation under the head of conventional amount for loss of expectation of life falling under the broader head of loss to the estate should be Rs.25,000/- and the compensation to the surviving spouse under the head of conventional amount for loss of consortium should be Rs.15,000/-. 8.1 Decision of the Supreme Court in T.N.State Transport Corporation Ltd. v. S.Rajapriya and Others [(2005) 6 SCC 236] was relied upon to show that in case of the victim aged 38 years and receiving salary of Rs.56,208/- per annum, multiplier was reduced from 16 to 12 by the Supreme Court. Division Bench judgment of this Court in United India Insurance Co. Ltd. v. Virambhai Ranchhodbhai Patel & Others [AIR 2007 FA/2854/2005 11/58 JUDGMENT Gujarat 119] was relied upon to submit that value of the services rendered by the deceased wife to the family was put by the Tribunal at Rs.2,250/- and it was upheld by this Court. A recent decision of the Supreme Court in United India Insurance Co. Ltd. v. Jashuben decided on 14.02.2008 was relied upon for the propositions as under : "16....In Black's Law Dictionary, "compensation" is shown as equivalent in money for a loss sustained; or giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; or recompense in value for some loss, injury or service especially when it is given by statute. It means when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value..... "25. We, therefore, are of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and, thus, the approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002." (emphasis added) It may be noted here that, in the aforesaid case, Division Bench of this Court had FA/2854/2005 12/58 JUDGMENT taken into consideration revision of pay effective from 1.1.1997 while the accident had taken place on 23.6.1994. 8.2 Learned counsel thus sought reduction of the amount of compensation awarded in each case mainly on the grounds of it being excessive, unsupported by positive evidence of income or prospective income; higher multiplier having been applied and less than one-third of income of the deceased having been deducted towards his own expenditure. 9. As against that, learned counsel Ms.Amrita Ajmera, appearing for the claimants, generally submitted that, in each of the claim cases, the Tribunal had relied upon deposition of the claimants who were subjected to cross- examination by the appellant and, in absence of documentary evidence of income, the amounts of income were suitably reduced. It was submitted that in case of labourers and artisans, housewives or agriculturists, the survivors may not always be in a position to produce documentary evidence of income of the deceased, but the undisputed fact of the deceased being a bread-winner maintaining a large family should be FA/2854/2005 13/58 JUDGMENT the basis of presuming income at the minimum rates prevailing in the market for such unskilled or semi-skilled laborers. She also submitted that in case of people belonging to lower strata of society with low level of literacy and income, it would be wholly unrealistic to presume in every case that one-third income of the deceased would have been spent by the deceased on himself while the other members of a large family might be suffering deprivation of even basic amenities of life. 9.1 Learned counsel relied upon judgment of the Supreme Court in Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218], as quoted in Division Bench judgment of this Court in New India Assurance Co. Ltd. v. Babubhai Dipubhai Chauhan [2006 (2) GLR 1514], wherein it is also observed: "Apart from earning by the deceased, role of the housewife in running a house is not that of rendering services as a slave. Her contribution to keep family together, providing household services besides matrimonial duties cannot be treated lightly. It has got nothing to do with the earning capacity of the husband which is an addition to what is taken care of by the housewife. No matter what the status of the family may be, contribution of the housewife towards household may be treated to be at minimum Rs.3,000/- p.m." 9.2 Judgment of the Apex Court in Supe Dei FA/2854/2005 14/58 JUDGMENT v. National Insurance Co. Ltd. [1 (2005) ACC 63 (SC)] was relied upon for the following observations: "8. While considering the question of just compensation payable in a case all relevant factors including the appropriate multiplier are to be kept in mind. The position is well settled that the Second Schedule under Section 163-A to the Act which gives the amount of compensation to be determined for the purpose of claim under the section can be taken as a guideline while determining the compensation under Section 166 of the Act...." The following observations were pointed out from recent judgment of the Supreme Court in A.P.S.R.T.C. v. M. Pentaiah Chary [AIR 2007 SC 3141] : "14. We do not, however, intend to lay down a general law. We wish to point out that minimum compensation payable in a case of this nature should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier specified in the Second Schedule cannot and should not be altered but therefor there must exist strong circumstances. In the year 1995, the rate of interest was lower than the rate of interest taken into consideration in Susamma Thomas (supra). Application of multiplicative factor should also be considered from that angle. Susamma Thomas (supra) or the other decisions relied upon by the learned counsel do not lay down any law in absolute terms." FA/2854/2005 15/58 JUDGMENT 9.3 Division Bench of this Court in Ritaben alias Vanitaben v. Ahmedabad Municipal Transport Service [1998 (2) GLH 670] was relied upon for the following propositions laid down therein: "9. It is a settled proposition of law that with a view to award a just and reasonable amount of compensation in a case of fatal injury, it is incumbent upon the Tribunal to consider as to what was the income at the relevant time of the accident and what would have been or probable prospective earnings in the later years of the life. The amount of income prevalent at the relevant time, in absence of any other evidence, is required to be doubled and then divided by half so as to reflect the prospective average income for the purpose of determining the datum figure...." 9.4 It was pointed out from the decision in Rakhiya v. Rajendra Singh [1999 ACJ 364] that, in case of an illiterate rural rustic lady, who was confused during cross-examination, the Madhya Pradesh High Court had observed that, even if the evidence about earning of the deceased was not satisfactory, the Tribunal out to have directed the owner to produce wage record of the deceased. The Court had also taken into account the minimum wages of an unskilled labourer for determining the multiplicand in that case. Recently, in a Division Bench decision dated 31.1.2007 of this Court in First Appeal No.1254 of 2006 etc., it was observed as under:- FA/2854/2005 16/58 JUDGMENT "19. Coming to the question of awarding compensation, we find that the Tribunal erred in accepting the income of the claimant at Rs.1200/- per month. There is no dispute that the claimant was working as a Cleaner in the Mini truck on the date of accident. His assertion therefore, that he was being paid a monthly salary of Rs. 1500/- was imminently believable. The Tribunal therefore, ought to have worked out compensation on basis of such income of the claimant. With passage of time and with falling purchasing power of money and general increase in salaries, it would not be unreasonable to accept the average income of the claimant at one and half times that much or Rs. 2150/- per month for the rest of his working span." 9.5 In Gujarat State Road Transport Corporation v. Heirs of deceased Mer Ranmal Bhima [1996 (2) GLH 938], Division Bench of this Court had observed that, when one member of the family departs from this world, the other members in a middle class family would have to spend almost the same amount on overheads like rent and taxes for the house or taxes and other expenses on the house when owned by the family. Looking to the amount which is ordinarily required to be spent on education and upbringing of minor children these days, it cannot now be said that only one unit should be taken for a minor child. 9.6 The following paragraphs from Division Bench judgment of this Court [Coram: P.D.Desai, FA/2854/2005 17/58 JUDGMENT J. (as His Lordship then was) and M.K.Shah, J.) in Babu Mansa v. Ahmedabad Municipal Corporation [1978 ACJ 485] were referred in support of the award: "28. It is well settled that a person injured by another's wrong is entitled to general damages for non-pecuniary loss such as his pain and suffering, past and future, and his loss of amenity and enjoyment of life. Damages are also recoverable for loss of expectation of life. Damages awarded for pain and suffering and loss of amenities constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the court in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject of large variations in individual cases (see Halsbury's Laws of England; Volume 12, Paragraphs 1146 and 1147 at pages 446 and 447). In the foot-note, the learned authors have pointed out that the age of the injured person may make a considerable difference because, for example, an old lady with a broken and deformed leg will have fewer years to suffer than a young woman with a similar injury. As regards continuing reassessment of awards for non- FA/2854/2005 18/58 JUDGMENT pecuniary loss, the learned authors have given in the foot-note a comparative assessment of various awards made by the Courts in England for the loss of sight in one eye as an illustration. The pattern, according to the learned authors, has been as follows: Pound 1500 - 1960 " 2000 - 1961 Between " 2000 & 3000 - 1965 " 3500 - 1971 " 4000 to 4500 - 1974 This analysis shows that the Courts in England have raised the awards in such cases under the head of non-pecuniary loss almost three times within a period of 14 years. This consideration has to be borne in mind even by the Courts in our country while assessing damages, for, as observed by Lawton L.J. in Cunningham v. Harrison [1974 ACJ 218), "conventions, however, change and if judges do not adjust their awards to changing conditions and rising standards of living their assessments of damages will have even less contact with reality than they have had in the recent past or at the present time." 29. ... ... ... 30. We cannot conclude the discussion on this subject without referring to the data relating to the fall in the value of money in our country so that the need of periodical