FA/660/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 660 of 2008 With FIRST APPEAL No. 661 of 2008 To FIRST APPEAL No. 663 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 ? ===================================================== S.T. CORPORATION & 1 - Appellant(s) Versus CHETNABEN RAJESHKUMAR SHAH & 4 - Defendant(s) ===================================================== Appearance : MRS VASAVDATTA BHATT for Appellant(s) : 1 - 2. MR JAY M BARAIYA for Defendant(s) : 1 - 4. MR RUSHIKESH J VYAS for Defendant(s) : 1 - 4. None for Defendant(s) : 5, ===================================================== CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 24/09/2008 ORAL JUDGMENT FA/660/2008 2/13 JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. All these four appeals are arising from the judgment and award delivered by MAC Tribunal (Auxi.) and Presiding Officer, Fast Track Court No. 14, Vadodara, on 30.6.2006, in MAC Petitions No. 624/1997, 625/1997, 626/1997 & 627/1997. All the four MAC Petitions had arisen out of the same accident and, therefore, were consolidated and disposed of by common judgment and award. 2. As per the brief facts of the case, accident occurred on 14.3.1997. One Rajeshkumar Shah, on his TVS Suzuki was going to Padra from Baroda. When he reached near Pramukh Swami Hospital, he halted for taking tea near circle. While he was parking his motorcycle on the side of the road, one ST Bus bearing No. GJ-1-Z-2624 coming from Baroda caused accident in the manner that the driver of the ST Bus lost the control and dashed against the motorcycle and Rajendrakumar Shah, who received serious injuries. On account of these injuries, he died and, therefore, his widow Chetnaben Rajeshkumar Shah, aged 29 years, his two children, claimants no. 2 and 3 aged 5 & 2 years, at the time of the claim petition and his parents claimants no. 4 and 5 filed MAC Petition No. 624/1997 for compensation of Rs. 20,00,000/-. In the same accident, one lady, who was doing labour work also died and, therefore, her husband Ramanbhai Ambalal Padhiyar and her minor daughter Ravina aged about 3 years, preferred MAC FA/660/2008 3/13 JUDGMENT Petition No. 625/1997 for the compensation of Rs. 4,00,000/-. In the same accident, Ramanbhai Ambalal Padhiyar, who was also doing work on cabin of tea, received injury and he filed MAC Petition No. 626/1997 for compensation of injury to the tune of Rs. 2,00,000/-. While, one more labour working at the site also got injury in the said accident and the said labour Jepaji Ukaji Marwadi filed MAC Petititon No. 627/1997 for the compensation of Rs. 1,80,000/-. 3. The Tribunal, after perusing the documents like FIR, Panchnama of scene of offence and other oral evidence, came to the conclusion that original opponent no. 1 – Lalabhai Navghanbhai Desai was negligent in driving the said S.T. Bus. All the four claim petitions came to be filed against two opponents, i.e., driver Lalabhai Navghanbhai Desai and S.T. Corporation, Vadodara being owner of the said S.T. Bus. 4. While deciding the issue as aforestated, learned Tribunal also observed that original opponent no. 1 did not step into witness box and having regard to panchnama, FIR and other evidence, it was established that the accident caused on account of negligence on the part of the original opponent no. 1 – driver of S.T. Bus. 5. The learned Tribunal was pleased to award an amount of Rs. 12,77,200/- with running interest at the rate of 9% from the date of claim petition to FA/660/2008 4/13 JUDGMENT December, 2000, and thereafter, at the rate of 7.5% from January, 2001 till realisation, to the claimants of MAC Petition No. 624/1997. The leaned Tribunal also awarded Rs. 4,04,000/- with interest, as above stated in MAC Petition No. 624/1997, to the claimants of MAC Petition No. 625/1997. The learned Tribunal also awarded Rs. 79,800/- to the claimants of MAC Petition No. 626/1997 and Rs. 50,700/- in MAC Petition No. 627/1997, at the same rate of interest as in MAC Petition No. 624/1997. 6. Being aggrieved, the opponents – S.T. Corporation and driver Lalabhai Navghanbhai Desai, have preferred all these four appeals. 7. So far as the First Appeal No. 660/2008 preferred against the judgment and award delivered in MAC Petition No. 624/1997 is concerned, we have heard this appeal finally as learned advocate for the appellants Ms. Vasavdatta Bhatt and learned advocate Mr. Jay M. Baraiya for respondents no. 1 to 4 – original claimants are present and they were heard in detail. While in other three MAC Petitions against which S.T. Corporation has preferred three appeals, learned advocate Ms. Vasavdatta Bhatt was heard in detail. 8. On going through the record, which is available with this Court as produced by the learned advocates for the parties, it appears that the decision of the learned Tribunal in respect of Issue No. 1, in all FA/660/2008 5/13 JUDGMENT the four petitions, requires no interference that the accident caused on account of rashless and negligence of original opponent no. 1 – appellant no. 2 herein as the issue is fairly discussed and after taking into consideration all the documents produced on record and considering the arguments of the opponents, learned Tribunal came to the conclusion that original opponent no. 1 was negligent in causing the accident. Though, in respect of this issue, neither of the learned advocates of the parties urged and hence, it appears that so far as the negligence of the driver of ST Bus is concerned, the same is not much disputed and, therefore, we do not interfere with this finding of the learned Tribunal. So far as the quantum of compensation is concerned, in First Appeal No. 660/2008, which pertains to MAC Petition No. 624/1997, after perusing the evidence, the learned Tribunal came to the conclusion that deceased Rajeshkumar Shah was running the business in the manner of partnership firm and in the name and style of Shah Trading Co. The Tax Returns of the said firm were produced on record. There were three partners and no specific evidence as to the percentage of profit and loss of the deceased was produced, but the learned Tribunal considered that, at least, deceased must be having 40% interest in the said firm and, therefore, from the evidence of tax returns and from the evidence of licence produced on record of Agricultural Produce Market Committee, yearly income was assessed by the learned Tribunal at Rs. 72,600/- and that was considered to be dependency FA/660/2008 6/13 JUDGMENT loss of the claimants. The said amount was multiplied by 17 multipliers by the learned Tribunal, as the age of the deceased was 33 years at the time of the accident. On that count, the learned Tribunal awarded, in all, Rs. 12,34,200/-, plus Rs. 43,000/- towards damage to motorcycle, funeral charges, mental shock etc., totalling to Rs. 12,77,200/-. This assessment in the MAC Petition No. 624/1997 is vehemently contested by the learned advocate for the appellants on the ground that, firstly, there were no cogent evidence of income of the deceased and learned Tribunal erred in assessing the percentage to the extent of 40% of the deceased in the firm for profit and loss and, therefore, learned Tribunal erred in assessing the dependency benefits which is highly on higher side. It is also vehemently disputed that 17 multipliers allowed by the learned Tribunal is also on higher side, as deceased was aged 33 years and having regard to the age of parents of 58 and 55, the reasonable multiplier should be 10 only. To that extent, accordingly to the learned advocate for the appellants, the amount of compensation awarded to the claimants of MAC Petition No. 624/1997, is required to be reduced. 9. As against this, Mr. Baraiya learned advocate appearing for the respondents herein – ori. claimants, submitted that there were three partners in Rajesh Trding Co. and almost correct rateable assessment of the percentage of profit and loss has been made by the Tribunal. It is submitted that there FA/660/2008 7/13 JUDGMENT cannot be any other evidence better than income tax return which were produced before the learned Tribunal and from that dependency benefits have been arrived at by the learned Tribunal. Learned advocate Mr. Baraiya also disputed that multipliers should not be reduced to 10 and he relied upon the 2nd Schedule of Motor Vehicles Act, wherein, for the age of 33, 17 multiplier is held to be reasonable multipliers. 10. Considering the record and contentions raised and scanning the evidence, it appears that there is some substance in the contentions raised on behalf of the appellants. It is established that deceased was a partner in Rajesh Trading Co. and for that, income tax returns are also produced on record. It is also established that the deceased was aged 33 years at the time of accident. Now, though no cogent evidence is produced about the share of the deceased in the partnership firm, but in absence of any evidence, it would be reasonable to infer that all the three partners had equal share in the said Rajesh Trading Co. and, accordingly, in that case, each partner would get 33% share. The learned Tribunal has taken a share of the deceased at 40% and, in our humble view, this is not the conclusion which should be interfered with. The income of the deceased is assessed by the learned Tribunal from income tax returns and after deducting 1/3 dependency benefits, has been assessed at Rs. 72,600/-. We do not find any error on the part of the learned Tribunal as the dependency benefits assessed by the learned Tribunal FA/660/2008 8/13 JUDGMENT is based on cogent evidence. At the same time, we are of the opinion that the learned Tribunal erred in applying higher multiplier of 17 in the facts and circumstances of the case. It is submitted that multipliers are in accordance with the 2nd Schedule, but 2nd Schedule is a guideline to be followed and not the mandate. The evidence which is produced on record clearly suggests that deceased was aged 33 years, at the same time, claimant no. 1 widow of deceased was aged 29 years, while two children, that is, claimants no. 2 & 3 aged about 5 & 2 years at the time of the accident, while both the parents were aged 58 and 55 years, respectively. It appears that original claimant no. 5 died during the proceedings of MAC No. 624/1997 and she was deleted as party. So, at present, out of parents, only father is a claimant. While taking into consideration the overall facts, we find that, in the facts and circumstances of the case, the Tribunal ought to have awarded 15 multipliers instead of 17 multipliers. We interfere in the finding of the learned Tribunal in this respect and reduce and modify the award accordingly. Thus, the claimants of MAC Petition No. 624/1997 would be entitled to Rs. 72,600/- x 15 = Rs. 10,89,000/- towards the dependency benefits instead of Rs. 12,34,200/- as awarded by the Tribunal, adding Rs. 43,000/- as awarded by the Tribunal in the amount of Rs. 10,89,000/-, total amount comes to Rs. 11,32,000/- and this is the total amount, for which, the claimants are entitled with running interest as awarded by the learned Tribunal. Thus, we reduce and FA/660/2008 9/13 JUDGMENT modify the award in MAC Petition No. 624/1997 by Rs. 1,45,200/-, and therefore, the First Appeal No. 660/2008 is partly allowed. 11. So far as the First Appeal No. 661/2008 is concerned, it pertains to MAC Petition No. 625/1997. This petition is filed for the death of Vimlaben, wife of claimant no. 1 – Ramanbhai Ambalal Padhiyar and mother of claimant no. 2 minor Ravina daughter of the deceased. As per the Post Mortem report, age of the deceased was established at 35 years. Though in the evidence, the age stated to be 38 years of the deceased. In fact, there was no evidence at all for the income of deceased Vimlaben produced by the claimants of this petition. However, it was stated that deceased was doing labour work, therefore, learned Tribunal considered notional income of the deceased at Rs. 2000/- per month and prospective income at Rs. 3000/- per month. The learned Tribunal, thereafter, deducted 1/3 for the pocket expenses of the deceased and assessed the dependency benefits of the claimants at Rs. 2000/- per month. After applying 16 multipliers, the learned Tribunal awarded Rs. 3,84,000/- to the claimants on account of dependency benefits to the claimants for the death of Vimlaben in the said accident. In addition to this, the learned Tribunal has also awarded Rs. 20,000/- towards loss of expectancy of life of the claimants, totalling to Rs. 4,04,000/-. 12. Though this appeal was heard at admission stage FA/660/2008 10/13 JUDGMENT and on account of quantum, learned advocate Ms. Vasavdatta Bhatt was heard in detail, but we find that the learned Tribunal has awarded reasonable compensation for the death of Vimlaben to the tune of Rs. 4,04,000/-. We are not inclined to interfere in this conclusion, therefore, the First Appeal No. 661/2008 stands dismissed. 13. First Appeal No. 662/2008 also pertains to the injury caused to claimant Ramanbhai Ambalal Padhiyar of MAC Petition No. 626/1997. According to the case of the claimant, in this case, he was entitled to the compensation of Rs. 2,00,000/-. According to the claimant, he was doing business of tea vending on lorry at the place of incident. It was found by the learned Tribunal that no evidence of income was produced by the claimant and, therefore, from the evidence of claimant and from other circumstances, the Tribunal considered monthly income of the claimant at Rs. 1200/- per month. Therefore, after applying 16 multipliers and after considering the permanent partial disablement of whole body to the extent of 25% from the certificate produced at Exh. 49, the learned Tribunal awarded Rs. 57,600/- to the claimant towards the future economic loss. The learned Tribunal also awarded Rs. 7200/- towards the actual loss of income because the claimant was not in a position to work for six months on account of injury received on right hand. The learned Tribunal has also awarded Rs. 10,000/- for pain, shock and suffering and Rs. 5000/- towards the transport FA/660/2008 11/13 JUDGMENT charges and diet, totalling to Rs. 79,800/-. Though this conclusion and award is disputed by learned advocate for the appellant Ms. Vasavdatta Bhatt, but on going through the record, even at this juncture, we find that the compensation awarded by the learned Tribunal to the claimant of this MAC Petition No. 626/1997, is quite reasonable and requires no interference even at this stage. The learned Tribunal considered the monthly income of the claimant – injured at Rs. 1200/- and from medical evidence considered permanent partial disablement to the extent of 25% for whole body and also awarded additional conventional amount, therefore, no interference is required in this First Appeal No. 662/2008 and the same stands dismissed summarily. 14. So far as First Appeal No. 663/2008 is concerned, that pertains to MAC Petition No. 627/1997 for the injuries caused to Jepaji Ukaji Marwadi, who was doing labour work with Rajesh Trading Co. belongs to deceased in MAC Petition No. 624/1997. This claimant is also an eye witness of the accident and hence injury caused to this claimant cannot be disputed. He received injury on his right leg and left side rib. The Doctor assessed permanent partial disablement of this claimant at 40% and since there was no evidence of income, the learned Tribunal took Rs. 1500/- per month to be the income of this claimant. The claimant also produced on record bills for the amount which he spent towards medical treatment. Considering the income of the injured at FA/660/2008 12/13 JUDGMENT Rs. 1500/- per month and considering the permanent partial disablement to the extent of 7.5% body as a whole and after applying 15 multipliers, the learned Tribunal awarded Rs.20,700/- to this claimant towards the future economic loss. The learned Tribunal also awarded Rs. 8000/- to the claimant for transport charges, special diet and medical expenses. The learned Tribunal also awarded to this claimant Rs. 12,000/- towards the actual loss of income and Rs. 10,000/- towards the pain, shock and suffering, totalling to Rs. 50,700/-. Though the assessment of compensation is disputed in this appeal on the ground that no income evidence has been produced and therefore, the amount awarded by the learned Tribunal is on higher side. But, on going through the record and the papers available with us, we find that there is no substance in the contention of the learned advocate for the appellant because the learned Tribunal has considered the income of the injured only at Rs. 15,00/-per month. Having regard to the age of this claimant to be 35 years, at the time of accident, the learned Tribunal applied 13 multipliers and from medical certificate, assessed permanent partial disablement of the body as a whole at 7.5%. The other amount which the learned Tribunal awarded is conventional amount and, therefore, the amount of Rs. 50,700/- awarded by the learned Tribunal to this claimant, requires no interference, at all. The First Appeal No. 663/2008, therefore, stands dismissed summarily. FA/660/2008 13/13 JUDGMENT 15. In the result, First Appeal No. 660/2008 is heard finally and is partly allowed and the amount of compensation awarded by the learned Tribunal is reduced and modified as discussed above. While, First Appeals No. 661/2008, 662/2008 and 663/2008 are dismissed summarily. No interference is called for in the rate of interest awarded by the learned Tribunal. 16. The present appellant – S.T. Corporation in all the four appeals, are directed to deposit the amount of compensation in each of four MAC Petition within 8 weeks from today and amount being so deposited, the learned Tribunal shall disburse the said amount amongst the claimants as per the award impugned. 17. In view of the final disposal of First Appeals no. 660/2008 to 663/2008, Civil Applications No. 1853/2008 to 1856/2008 for stay do not survive and stand dismissed. (J. R. VORA, J.) (Z.K. SAIYED, J.) mandora/