FA/1028/1981 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1028 of 1981 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 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 ? ========================================================= DOSANBU N MAHUDAWALLA WD/O N I MAHUDAWALLA & 3 - Appellant(s) Versus GULAMSABBIR B M SHAIKH & 2 - Defendant(s) ========================================================= Appearance : MR JITENDRA M PATEL for Appellant(s) : 1 - 3, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5, 3.2.6, 3.2.7,3.2.8 - 4. NOTICE SERVED for Defendant(s) : 1, None for Defendant(s) : 2, MR SHASHIKANT S GADE for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 16/10/2008 FA/1028/1981 2/8 JUDGMENT ORAL JUDGMENT 1. Heard learned Advocate Mr. Trilok J. Patel for appellants original claimants and learned Advocate Mr. SS Gade for respondent No. 3. 2. Through this appeal, appellants original claimants have challenged judgment and award made by Claims Tribunal (Auxi.) at Baroda in MACP No. 252 of 1979 dated 10.3.1981 wherein claims tribunal has awarded compensation of Rs.1,21,670.00 in favour of claimants. In this appeal, while challenging said award, claimants are praying for enhancing it by Rs.1,00,000.00 and have paid court fees on Rs.1,00,000.00 in this appeal. 3. Learned Advocate Mr. Patel for appellants has submitted that claims tribunal has committed gross error while considering income of deceased from two sources, one from M/s. Kaduji & Co. and another from M/s. Mahudawala & Co.. He submitted that yearly income from both the partnership firm received by deceased as per assessment order of 1973 and 1974 comes to Rs.7898.00 in Mahudawala and Co. and Rs.18499.00 in M/s. Kaduji & Co., therefore, total amount comes to Rs.26,397.00 but instead of that, claims tribunal has taken datum figure of Rs.10000.00 being income per year of deceased, therefore, learned advocate Mr. Patel submitted that if datum figure is to be taken into account, then, it comes to 50% of total of both amount but that has not been done by claims tribunal and in doing so, claims tribunal has committed gross error in assessing annual income of deceased. He submitted that claims tribunal has committed an error in not awarding any amount for obsequial ceremony as against demand made by claimants as discussed in paragraph 16. As per his submission, claims tribunal has also erred in not awarding any amount for pain, shock and suffering as well as medical treatment as well as prescriptions for medicines Exh. 45 to 50. Ex,44 is the prescription of Dr. HV Raval, Assistant Professor of Psychiatric, Medical college, SSG Hospital, Baroda. Claims Tribunal has believed that it is true that applicant no.1 FA/1028/1981 3/8 JUDGMENT has incurred expenses for her treatment, there is no evidence what type of ailment has been developed. Claims tribunal has observed that it cannot be gathered from prescriptions and neither Dr. Khurana nor Dr. Raval has been examined, no medical certificate of either of doctor has been produced and, therefore, claimants are not entitled for any compensation on that count. Learned Advocate Mr. Patel submitted that claims tribunal has committed gross error in not awarding any amount of compensation in that regard and award of claims tribunal is required to be enhanced because at the time of death, deceased was aged 32 years. 4. Learned Advocate Mr. SS Gade for respondent NO.3 has seriously opposed submissions made by learned Advocate Mr. Patel for appellants and submitted that claims tribunal has rightly examined matter and datum figure has also been rightly assessed for considering annual income of deceased and claims tribunal has not committed any error in making award in question and, therefore, award in question does not require any interference of this Court. 5. I have considered submissions made by learned advocates for both sides. I have perused impugned award made by claims tribunal. I have considered para 13, 14, 16, 17 and 18 of award in particular while considering income from two sources means two companies for same period, total income of which comes to Rs.26,397.00 but instead of that, without any base or reason, claims tribunal has held that income of deceased can be fixed at Rs.10,000.00 per year as datum figure. Then, claims tribunal applied multiplier of 15 looking to age of deceased, 32 years, at the time of accident. Para 13, 14, 16, 17 and 18 of award are reproduced as under: “13. From the above evidence, it is borne out that the income of the deceased during the last years was much less and particularly when deceased was a partner in Mahudawala & Company in comparision to his income while he was a partner of Kaduji & Company in earlier years. It is borne out from the evidence of witness FA/1028/1981 4/8 JUDGMENT Ochhavalal Chhaganlal a clerk in the firm of M/s. Kaduji & Company examined at Exh.5 1 that the said firm was managed by the deceased while he was a partner of the same. It is borne out from the evidence of Mohmmedsalim Ismailbhai Partner of Mahudawala & Company examined at Exh. 81 that the deceased was the main managing partner and that gradually there was an increase in the income of the firm every year. Lastly the income of the deceased of his share from the income of the partnership firm of Mahudawala & Company was Rs.7898/- while for the assessment year 1973-74 the income of the deceased as a partner of Kaduji & Company was Rs.18499/-. Looking to the above stated circumstances the income of the deceased can be fixed at Rs.10,000.00 per year as the datum figure. 14. From the above datum figure one unit comes to Rs.1111/-. The proper multiple to be applied in the present case would be 15 since the age of the deceased was 32 years at the time of accident. In the case of Union Cooperative Insurance Company Limited Vs. Bharatiben reported in 19 GLR at page 620[820] the deceased was aged 32 years and multiple of 15 was adopted. According to this calculation, deduction two units of the deceased each of the major applicants Nos. 1,3 and 4 would be each entitled to Rs.33334.00 and the minor applicant no.2 would be entitled to Rs.16667.00. To this compensation of Rs.5000.00 towards loss of expectation of life has to be added as approved in case of Kjodhabhai Hirji [Khodabhai Bhagwanbhai & Ors. v. Hirji Tapu & Anr. ] reported in 21 GLR at page 187. Therefore, each of the major applicants no.1,3 and 4 are entitled to Rs.1428.60, Rs.714.30 paise on this head. 16.The claimants have claimed FA/1028/1981 5/8 JUDGMENT compensation on the head of obsequiel ceremonies. During the course o argument, Rs.2000/- are claimed on this head. If anything certain in this life is the death. Deceased was to die one day or the other. In that case also, expenses would have been incurred for obsequiel ceremonies. The applicants are therefore not entitled to any compensation on this head. 17. The claimants have claimed compensation on the head of pain, shock and sufferings on account of the death of the deceased and in particular by applicant NO.1, the widow. She has deposed that she is unable to bear the loss of her husband. On account of the death of her husband, she has suffered a shock and she is not keeping well. She was admitted as indoor patient in the SSG Hospital, Baroda for 15 days. She was taking the treatment of Dr. Khurana and still the treatment is continued. She has deposed that her mind has become weak and some times, she becomes unconscious. On this point, Shri Gandhi LA for the applicant relied upon aforesaid Bharatiben's case (19 GLR at page 820). In this case, it has been held that; ”Damages for nervous shock caused by the sight of an accident to a close relative can be awarded. However, such damages cannot be a warded for grief or sorrow caused by the death of a close relative because in any event such death would have caused much sorrow and mourning. In other words, to claim damages on account of the mental shock and sufferings there must be positive evidence showing that there is something more than mere sorrow or grief or mourning and that additional or extra element has aken the form of any FA/1028/1981 6/8 JUDGMENT recognizable paychiatric illness which is attributable and really wholly attributable to the misfortune of having actually witnessed accident.It is imporotant to note that damages on this head even if admissible, they can be given only when the close relative of the dec eased has actually witnessed accident. In other words, the accident has taken place within his her sight. ” Now turning to the facts of this case it is very clear that neither applicant no.1 nor rrest of the applicants have witnessed the actual accident. Therefore, neither applicant No.1 nor rest of the applicants are entitled to any compensation on this head. 18. No doubt, from the evidence on record, it is borne out that applicant has taken the treatment of Dr.Khurana Professor of Psychiatric,Medical College, SSG Hospital, Baroda vide prescriptions of the medicine at Exh. 45 to 50. Ex.44 is the prescription of Dr. HV Raval, Asstt. Professor of Psychiatric Medical College, SSG Hospital Baroda.It is true, the applicant no.1 has incurred expenses for her treatment. There is no evidence what type of ailment has developed. It cannot be gathered from the prescription Neither Dr. Khurana nor Dr. Raval has been examined. NO medical certificate of either of the doctor has been produced. The result is that the applicants Nos.1 to 4 are entitled to compensation as aforesaid only. They are entitled to get the same from all the opponents who are jointly and severally liable to pay the same. Point NO.2 is answered accordingly.” 6. According to my opinion, claims tribunal has committed gross error in not considering future prospects of a young man of 32 years while FA/1028/1981 7/8 JUDGMENT assessing income from two sources as aforesaid. Claims tribunal has also committed an error in not considering future prospects of deceased and straightway considering Rs.10,000.00 as annual income being datum figure and multiplier of 15 and therefore, according to my opinion, considering impugned award as a whole, claims tribunal has committed gross error in not properly calculating amount of compensation and also committed an error in not awarding any amount for shock, pains and suffering and obsequial ceremony and expenses for treatment and medicines. Claims tribunal has also committed an error in not considering future prospects. These are the heads on which claims tribunal has not applied mind properly. Therefore, total compensation of Rs.1,21,670.00 awarded by claims tribunal is very much on its lower side and therefore, it is according to my opinion compensation awarded by claims tribunal is unjust and unreasonable as it is on lower side, therefore, compensation awarded by claims tribunal is required to be enhanced by this court as basically claims tribunal has committed gross error in calculating and assessing compensation on different heads and, therefore, amount awarded by claims tribunal on different heads cannot be considered to be just, reasonable and proper. Therefore, considering datum figure of annual income of Rs.10,000.00 fixed by claims tribunal as against total income received by deceased from two partnership firms as per assessment order for the year 1973 and 1974 and applying multiplier of 15 considering age of deceased and also considering future prospects of deceased aged about 32 years and also considering fact that claims tribunal has awarded no compensation for pains,shock and suffering, obsequial ceremony, treatment and expenses for medicines etc. as discussed above, according to my opinion, it would be just and proper if award of compensation made by claims tribunal is enhanced by Rs.1,00,000.00, then,total compensation would come to Rs.2,21,670 [Rs.1,21,670 awarded by claims tribunal+ Rs.1,00,000 enhanced in this appeal], FA/1028/1981 8/8 JUDGMENT that would met ends of justice considering award as a whole and same would be, according to my opinion, a just, reasonable and proper compensation. Therefore, this appeal is required to be allowed as prayed for. 7. Accordingly, this appeal is allowed as prayed for. Award made by Claims Tribunal (Auxi.) at Baroda in MACP No. 252 of 1979 dated 10.3.1981 is further enhanced by Rs.1,00,000.00 (Rupees one lac only) and respondents are jointly and severally directed to pay said enhanced amount of compensation to appellants with interest thereon at 6 per cent per annum from date of application till date of realization. Respondents are directed to pay said enhanced amount of compensation to appellants original claimants with interest thereon at 6 per cent per annum from date of application till date of realization within three months from date of receipt of copy of this order. There is no order as to costs. (H.K. Rathod,J.) Vyas