FA/150120/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1501 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= UNITED INDIA INSURANCE CO LTD - Appellant(s) Versus KOKILABEN BHARATBHAI SONI & 4 - Defendant(s) ========================================================= Appearance : MS AMEE YAJNIK for appellant(s) : 1, MR MTM HAKIM for respondent (s) : 1 - 4. RULE SERVED for respondent (s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE MD SHAH Date : 11/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.This appeal has been filed by the appellant- FA/150120/2005 2/9 JUDGMENT Insurance Company-original opponent No.3 being aggrieved and dissatisfied with the judgment and award dated 4th November, 2004 passed by the Judge, Motor Accident Claims Tribunal (Aux.), Court No.10, Ahmedabad at Ahmedabad in Motor Accident Claims Petition No.744 of 2002. 2.On 29-7-2002, the deceased Bharatbhai Dhirajlal Soni aged 47 years was riding his scooter No.GJ-7AE-1282 from Samarkha to Anand on the left side of the road with moderate speed and at about 10.15 a.m., the original opponent No.1 came from rear side with jeep car No.GJ-9H-692 at an excessive speed and in a rash and negligent manner and dashed with the scooterist causing the deceased to fall down and sustain grievous injuries. He was immediately taken to a Government Hospital at Anand and from there he was shifted to Rajasthan Hospital. He however succumbed to his injuries while treatment at Rajasthan hospital and on 8-8- 2002, a complaint was filed at Anand Police Station which was registered as I.C.R.No.144 of 2002. As the deceased had left behind applicants Nos.1 to 4 of original MACP No.744 of 2004 i.e. the respondent Nos.1 to 4 of the present appeal as the heirs and legal representatives of the deceased, the heirs and legal representatives of the deceased FA/150120/2005 3/9 JUDGMENT therefore filed the claim petition claiming Rs.40,00,000/- as compensation for the death of the deceased. It was contended that the deceased aged 47 years at the time of incident was serving as a Junior Officer in Sardarganj Mercantile Bank earning a monthly salary of Rs.22,000/-. The Tribunal after hearing arguments delivered the judgment awarding total compensation of Rs.17,42,000/- with costs and interest @ 8% p.a. The Tribunal while awarding compensation has considered 20% negligence of the deceased. Being aggrieved therewith, the Insurance Company has preferred the present appeal. 3.We have heard learned counsel for the appellant, Ms.Amee Yajnik for the appellant and learned counsel, Mr.M.T.M. Hakim for the respondents Nos.1 to 4 at length. 4.It has been mainly argued by Ms.Amee Yajnik that looking to the age of the deceased, multiplier of 11 applied by the Tribunal is on the higher side. It has further been argued that one-third deduction towards personal expenses has not been considered by the Tribunal for calculating future economic loss. The Tribunal however has considered one-fourth which also is required to be considered by this Court. 5.Learned counsel for the claimants, on the other hand, has argued that in fact the FA/150120/2005 4/9 JUDGMENT compensation awarded by the Tribunal is on the lower side. Though the future monthly income of the deceased was assessed by the Tribunal was more than Rs.20,000/-, higher prospective income ought to have been taken into consideration. He has further argued that the deceased was aged 47 years at the time of accident. Had he been survived, he would have retired from the bank at the age of 58 years and, therefore, the multiplier of 11 is also just, legal and proper. The Tribunal has held 20% contributory negligence on the part of the deceased and said amount was deducted from the total compensation. As far as deduction of one-fourth deduction towards personal expenses is concerned, it is argued that for that, the Tribunal has placed reliance upon the judgment of a Division Bench of this High Court and, therefore, it also does not require any interference. 6.We have taken into consideration oral as well as documentary evidence and the reasoned judgment and award delivered by the Tribunal. 7.It is required to be noted that the claimants have not challenged the judgment and award delivered by the Tribunal and hence, nothing is required to be done by this Court at present as the judgment and award has become final qua the claimants. 8.Learned counsel for the appellant-original FA/150120/2005 5/9 JUDGMENT opponent No.3 has however restricted her arguments qua the aspect of quantum and, therefore, we are dealing this matter only on the point of quantum. 9.For proving the aspect of quantum, present respondents Nos.1 to 4, original claimants, have examined two witnesses namely, Smt.Kokilaben, wife of the deceased at Ex.38 and one Jitendra Parikh, the Manager of Sardarganj Mercantile Bank through whom the claimants have proved the income of the deceased. 10.Smt. Kokilaben, wife of deceased, original applicant No.1 has categorically deposed that her husband was serving as a Junior Officer in Mercantile Co-Operative Bank and at the time of incident, he was aged 47 years and was to retire at the age of 58 years. She has further deposed that monthly salary income of the deceased was Rs.25,000/- which includes bonus and overtime. She has further deposed that for the period from 1-4-2002 to 8-8- 2002, her husband's gross salary was Rs.1,18,266/-. 11.Shri Jitendra Parikh, Manager of the said Mercantile bank has deposed on the same line. He has deposed that deceased was drawing Rs.15,328/- as salary for the month of June, 2002. He has proved the certificates issued by the bank at Exs.50 and 51. He has also FA/150120/2005 6/9 JUDGMENT deposed that gross salary of the deceased was Rs.2,46,251/- per annum. He has further deposed that deceased had served for a period of 23 years and had be survived, he would have served till retirement and would have got a promotion before retirement and thereby would have earned much more income. However, while considering his future economic loss, the Tribunal has considered the monthly income of the deceased at Rs.20,000/- and deducting one-fourth towards personal expenses of the deceased, the Tribunal assessed the net monthly income of the deceased at Rs.15,000/- and applying thereto a multiplier of 12, the Tribunal has calculated the net income at Rs.1,80,000/- per annum for the purpose of considering future economic loss. Considering the age of the deceased as 47, the Tribunal has applied the multiplier of 11 and awarded Rs.19,80,000/- under the head of future economic loss. The Tribunal has also awarded Rs.20,000/- towards pain, shock and suffering, Rs.1,57,000/- towards medical expenses and held that the claimants are entitled to recover an amount of Rs.20,77,000/-. However, since the Tribunal has held the deceased also for contributory negligence to the extent of 20%, 20% amount i.e. Rs.4,35,400/- has been deducted towards FA/150120/2005 7/9 JUDGMENT contributory negligence and finally awarded Rs.17,42,000/- as total compensation with costs and interest @ 8% p.a. 12.It is established from the evidence on record i.e. evidence of Smt.Kokilaben Ex.38, evidence of Shri Jitendra Parikh, Manager of Sardarganj Co-Operative Bank and the certificates at Exs.50 and 51 that gross income of the deceased was Rs.2,46,251/- per annum. Keeping in mind the above, the Tribunal has assessed the monthly income of the deceased at Rs.20,000/-. Though the Tribunal has discussed in detail regarding his future, no higher income has been considered by the Tribunal while calculating prospective income. Apart from that, it is an accident between a scooter and a jeep car and, therefore, question of negligence was also required to have been considered by the Tribunal. But as the claimants have not preferred any appeal, we are not dealing with the same. 13.It is to be noted that the deceased was aged 47 years at the time of incident and his retirement age is 58 years and, therefore, he would have served with the bank with one promotion for a period of 11 years. However, no future increase has been taken into consideration. As far as deduction of one- fourth amount towards personal expenses is FA/150120/2005 8/9 JUDGMENT concerned, the Tribunal has relied upon the case reported in 1997(1) GLR page 325 and dealt with the same in detail in the impugned judgment at page 12. Considering the family members of the claimants, the Tribunal has rightly taken one-third towards the personal expenses instead of one-third. 14.As far as multiplier is concerned, the Tribunal has come to the conclusion that based on the evidence on record including the evidence of wife of the deceased and school leaving certificate Ex.32, date of birth of the deceased was 31st May, 1953 and on the date of incident, he was aged 47 years. Considering the age difference between 47 and 58 years, the Tribunal came to the conclusion that the deceased would have served for a further period of 11 years and, therefore, the Tribunal has applied the multiplier of 11 by placing reliance upon a decision of a Division Bench of this Court rendered in First Appeal No.882 of 2002 delivered on 17-9-2002. We also share the same view. At the cost of repetition, we say that the amount awarded is on the conservative side. The Tribunal has not considered future income rise of the deceased also. 15.From the aforesaid facts and circumstances, we are of the opinion that the impugned FA/150120/2005 9/9 JUDGMENT judgment and award delivered by the Motor Accident Claims Tribunal (Aux.), Court No.10, Ahmedabad at Ahmedabad in Motor Accident Claims Petition No.744 of 2002 is just, legal and proper and it does not require any interference in this appeal. This appeal therefore is required to be dismissed and is hereby dismissed. Notice is discharged. (R.P.DHOLAKIA,J) (M.D.SHAH,J.) radhan/