FA/4952/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4952 of 2007 With CIVIL APPLICATION No. 13134 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= ORIENTAL INSURANCE CO LTD - Appellant(s) Versus BALUBEN CHATURBHAI HIMMATBHAI GOHIL & 4 - Defendant(s) ========================================================= Appearance : MR KK NAIR for Appellant(s) : 1, MR SP MAJMUDAR for Defendant(s) : 1 - 3. RULE SERVED for Defendant(s) : 4 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 30/01/2008 FA/4952/2007 2/9 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The present appeal challenges the judgment and award rendered by the Motor Accident Claims Tribunal (Aux.) Vadodara in Motor Accident Claim Petition No.583 of 1996 on 29.6.2007. The appeal is preferred by the Insurance Company challenging the award only on quantum part. 2. An accident occurred on 27.1.1996, near Rupapura Bus Stand, near Nandesari Railway Track. One Chaturbhai Himatbhai Gohil was passing by the road when he was hit by Motor Cycle No.GJ 6 K 7020 which was driven in rash and negligent manner at excessive speed. Chaturbhai sustained severe injuries and was admitted to Bhailal Amin General Hospital at Vadodara where he succumbed to the injuries on 6.2.1996. 2.1. The claim was preferred by the widow of the deceased Chaturbhai and two sons of the deceased. The claimants claimed that the deceased was working as Traffic Controller with the Gujarat State Road Transport Corporation at Vadodara and was earning Rs.7418/- per month. He was aged 52 at the time of accident and had he not met with accidental death, he would have continued in service and would have earned higher salary etc. Untimely death has caused mental agony, shock and suffering. The dependency is also lost and, therefore, the claimants claimed FA/4952/2007 3/9 JUDGMENT compensation of Rs.15 lakhs from the respondents i.e. driver, owner and insurer of the motor cycle. 3. The Tribunal, after considering the evidence led before it, came to the conclusion that the accident occurred because of negligence on the part of opponent No.1 driver of the motor cycle and he would be responsible to pay compensation, primarily and the owner and insurer would be liable to pay compensation vicariously and as indemnifier. 3.1. The Tribunal found that dependency loss of the claimants was Rs.7418/- per month and adopted multiplier of 11 to arrive at the amount of compensation under the head of dependency loss i.e.,Rs.9,79,176/-. The Tribunal also considered various other heads and awarded compensation of Rs.10,000/- for loss of love and affection, Rs.10,000/- for loss of consortium, Rs.10,000/- for loss to estate, Rs.3,000/- towards funeral expenses, Rs.25,000/- towards pain, shock and suffering and Rs.42,392/- towards medical expenses, totalling to Rs.1,00,392/-. The total award was of Rs.10,79,568/- with interest and costs. 4. Aggrieved by the said judgment and award, the Insurance Company has preferred this appeal. We have examined the question of maintainability aspect and found that the application under Section 170 of the Motor Vehicles Act was preferred before the Tribunal and was granted by the Tribunal and, FA/4952/2007 4/9 JUDGMENT therefore, the Insurance Company contested the claim before the Tribunal on all counts. 5. Learned advocate for the appellant Mr.Nair submitted that the Tribunal has committed error in assessing dependency loss. He has drawn our attention to Exh.37, 38 and 39 besides the evidence of Vamanbhai Vasudev Devashrayi at Exh.36. He submitted that according to this evidence, gross income of the deceased at the time of his accident was Rs.6643/- and not Rs.7148/- as is assessed by the Tribunal. He submitted further that as per Exh.37, salary of the deceased at the time of his retirement on 31.7.2002 would have been Rs.8405/- whereas the Tribunal has taken that at Rs.14217/-. The Tribunal has, thus, committed error in calculating prospective income and dependency loss. According to Mr.Nair, the Tribunal has committed error in adopting multiplier of 11 which is on higher side considering the age of the deceased as well as claimants. He, therefore, submitted that the appeal may be allowed to the extent it challenges the award i.e., Rs.3,65,772/-. 6. On the other hand, learned advocate Mr.Majmudar appearing for the original claimants has opposed this appeal strongly. According to him, the Tribunal has not committed any error in calculating dependency loss. He has drawn our attention to Exh.38 which is the calculation issued by the Divisional Controller, Vadodara which would show that gross salary of the deceased would have been Rs.14,217/- FA/4952/2007 5/9 JUDGMENT and the basic salary of the deceased would have been Rs.8405/-. He submitted that what is reflected in Exh.37 is the basic salary and not the gross salary. Mr.Majmudar also submitted that salary of the deceased at the time of accident was Rs.7418/- as is reflected in the deposition of claimant no.1 where the claimant in her cross-examination has indicated the income to be Rs.7418/-. Mr.Majmudar, therefore, submitted that no error can be said to have been committed by the Tribunal in assessing dependency loss. He submitted further that in adopting multiplier also, the Tribunal has taken into consideration Schedule II of the Motor Vehicles Act and no error, therefore, can be said to have been committed by the Tribunal. He submitted that the appeal may be dismissed. 7. We have taken into consideration rival side submissions. Since the appellant – Insurance Company does not challenge the finding of the Tribunal on negligence, the same attains finality. 8. So far as compensation awarded by the Tribunal under various heads is concerned, learned advocate Mr.Nair states that the appellant does not challenge the same and, therefore, the same attains finality. 9. The only aspect of the judgment and award under challenge is the compensation under the head of dependency loss. FA/4952/2007 6/9 JUDGMENT 9.1. Claimant no.1 has deposed at Exh.27 and she has stated in clear terms that the deceased was earning Rs.7418/- per month at the time of death. This aspect emerges during the cross-examination itself and we can find no fault with the Tribunal when the Tribunal has taken that as foundation. 9.2. So far as prospective rise in income is concerned, the claimants examined Vamanbhai Vasudev Devashrayi as witness from the GSRTC at Exh.36. From his deposition, it is clear that the deceased had no prospects of getting promotion but even he had remained in the cadre, his salary would have been Rs.8405/- basic and Rs.14217/- gross at the time of his retirement comprising of dearness allowance, house rent allowance and local allowance of Rs.4371.00, Rs.1261.00 and Rs.180.00 respectively (Exh.38). The Tribunal was, therefore, justified in taking this gross salary as foundation for calculating dependency loss. 9.3. The Tribunal has fallen back on Schedule II for adopting multiplier. In our view, the Tribunal ought to have taken into consideration the age of the deceased and the age of the dependents. The Tribunal ought to have considered average life span and so also imponderables of life while adopting multiplier. The compensation under the head of dependency loss is not to be calculated in a manner which would be windfall to the claimants. It has to be just FA/4952/2007 7/9 JUDGMENT compensation and it is to be calculated in a manner that some part of the corpus of compensation under that head gets consumed gradually towards the maintenance of the claimants. The interest that such amount would fetch should be little lesser than the amount required for their maintenance. In our view, the Tribunal has adopted higher multiplier when it adopted multiplier of 11. The reasonable multiplier would have been 9 considering the age of the deceased and age of superannuation. 9.4. The amount of compensation under the head of dependency loss will have now to be calculated afresh in light of the above discussion. The income of the deceased was Rs.7418/- per month. He would have earned gross income of Rs.14217/- at the time of his retirement. If these two figures are added and are divided by 2, that would fetch the amount which can be considered as future rise in income considering imponderables of life and that would be Rs.10817.50 ps. If that is multiplied by 12, it would fetch the figure of Rs.1,29,810/- as annual prospective income of the deceased. The deceased would have spent some money on his own self and applying the Rule of Thumb, 1/3rd of the said amount is deducted as expenditure by the deceased towards himself. Remaining 2/3rd would be the amount which would be available to the claimants as dependency which would be Rs.86540/- per annum. As discussed earlier, multiplier of 9 has to be adopted which would fetch the amount of Rs.7,78,860/- as compensation to the claimants under the head of loss FA/4952/2007 8/9 JUDGMENT of dependency. 10. The claimants, therefore, would be entitled to the total compensation of Rs.8,79,252/- as under. Rs.7,78,860/- Loss of dependency. Rs.10,000/- Loss of love and affection. Rs.10,000/- Loss of consortium Rs.10,000/- Loss to estate Rs.3,000/- Funeral expenses. Rs.25,000/- Pain, shock and suffering Rs.42,392/- Medical expenses. ------------ Rs.8,79,252/- Total 11. The Tribunal has instead awarded a total amount of Rs.10,79,568/- as compensation. 12. The appeal, therefore, would stand partly allowed to the extent of Rs.2,00,316/-. 13. The claimants would be entitled to Rs.8,79,252/- with proportionate costs and interest as awarded by the Tribunal. The disbursement of compensation would be as per the order of the Tribunal. Remaining amount deposited by the appellant would be refunded by the Tribunal after following due procedure. There shall be no order as to costs. 14. In light of the above order, the Civil Application stands disposed of. FA/4952/2007 9/9 JUDGMENT ( A.L.DAVE, J ) ( SHARAD D DAVE, J ) pathan