FA/561/2003 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 561 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================= 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 ? ========================================= GSRTC - Appellant(s) Versus MINOR ALPESH VINODBHAI KADIYA & 5 - Defendant(s) ========================================= Appearance : MR ASHISH M DAGLI for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1 - 6. MR ASHUTOSH R BHATT for Defendant(s) : 1 - 5. ========================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 16/07/2008 FA/561/2003 2/11 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) The present appeal has been filed under Section 173 of the Motor Vehicles Act, (“the Act” for short) challenging the judgment and award dated 10th July, 2002 rendered in Motor Accident Claims Petition No. 1040/97 by the Motor Accident Claims Tribunal (Aux.), Ahmedabad City ('the Tribunal' for short) by which the claim petition filed under Sec. 166 of the Act by the respondents-original claimants to recover the compensation is partly allowed. 2. The facts of the case, briefly stated are, that on 23.8.1997 at about 5 p.m. deceased Vinodbhai @ Kanubhai Sathvara (Kadiya) was going by his scooter bearing Regn. No. GJ-12-C-9351 from Kalol to Mehsana on the highway. When he was proceeding near Gheghu Char Rasta with moderate speed after crossing the way, an ST Bus bearing Regn. No. GJ-18-V-1785 came from the opposite side driven in rash and negligent manner and with full speed and dashed against the scooter of the deceased. As a result, the deceased sustained multiple injuries and died in the hospital. The driver of the bus - original opponent No. 1 – filed a complaint before the Mansa Police Station being C.R. No.I-163/97. Therefore, the claimants, who are the heirs of the deceased, filed a petition for claiming compensation for untimely death of the deceased in a vehicular accident which occurred due to the rash and negligent driving by the driver of the ST bus – original opponent No. 1. 3. It has been contended for the claim that the deceased Vinodbhai was aged about 45 years and was having good health, having his own business as a building contractor under the name and style of Ambica Construction Co. It FA/561/2003 3/11 JUDGMENT has also been averred that he was earning Rs. 3,38,000/- per annum and was also an income-tax payer and he was the sole bread winner of the family. Thus, it has been alleged that the deceased was earning more than Rs. 25,000/- p.m. Therefore, the claim was made for total compensation to the tune of Rs. 35,00,000/-. 4. The opponents had filed written statement denying about the manner of the accident. It has been denied that the accident had occurred due to rash and negligent driving of the driver of the ST bus. It was also contended that the deceased, who was driving the scooter, was also liable for contributory negligence as it was a case of composite negligence of both the vehicles. 5. The Tribunal, on the basis of the pleadings of the parties, framed the issues and after considering the evidence, oral as well as documentary adduced and produced by the parties and also considering the submissions advanced by the learned advocates for the parties, came to the conclusion that the accident had occurred as a result of rash and negligent driving on the part of both the deceased as well as the driver of the ST bus and apportioned the negligence in the ratio of 35% and 65%. Thus, the deceased who died as a result of the accidental injury, was also held to be liable for contributory negligence to the extent of 35%. However, the Tribunal held that the driver of the offending bus – opponent No. 1- was also negligent to the extent of 65% in driving his vehicle, which was a heavy vehicle, and, therefore, he should be made liable. Therefore, the appellant-GSRTC, as the owner of the offending bus, was also FA/561/2003 4/11 JUDGMENT liable, jointly and severally, as the driver of the offending bus was then in course of its employment. Therefore, the award came to be passed holding that the appellant-Corporation, original opponent No. 2, was liable, jointly and severally, to pay the compensation. 6. On appreciation of the evidence, the Tribunal also came to the conclusion that the deceased was an income-tax payer having Permanent Account No. BWPK-4719P and relied upon the income-tax paid for which documentary evidence was produced at Exh. 35 disclosing the income of the deceased as follows: Financial Year Income shown Rs. Tax paid Rs. 1994-95 1,13,720.00 17,500.00 1995-96 1,34,570.00 25,363.00 1996-97 1,86,470.00 40,650.00 7. Therefore, the Tribunal has considered the income of the deceased for the purpose of dependency benefit at Rs. 15,000/- p.m. and deducted 1/4th towards personal expenses. As the deceased was aged about 45 years, multiplier of 15 was taken. Thus, total dependency loss was awarded to the tune of Rs. 18,66,000 (Rs. 11,200 x 12 x 15). The Tribunal also granted Rs. 15,000/- for loss of consortium, for loss of expectation of life Rs. 15,000/- and for funeral expenses Rs. 4000/-. Thus, total amount awarded was to the tune of Rs. 19,00,000/-. FA/561/2003 5/11 JUDGMENT 8. However, as the deceased was held to be liable for contributory negligence to the extent of 35%, the amount of compensation was reduced to Rs. 12,35,000/- and accordingly it has been awarded. 9. It is this judgment which is challenged in the present appeal by the appellant-original opponent No. 2, inter alia, contending that the Tribunal has committed a grave error in appreciating the evidence. It has also been contended that the deceased scooter driver himself was also liable to the fullest extent and alternatively it was contended that contributory negligence of the scooter driver (deceased) should have been to the extent of 50% as it was a composite negligence. It has also been contended that the Tribunal has committed serious error while considering the monthly income of the deceased relying upon the income-tax certificate produced at Exh. 35 and the judgments referred to therein. It has also been contended that the Tribunal has committed an error in applying the multiplier of 15, which is on higher side. 10. Heard learned advocate Mr. Ashish Dagli for the appellant-GSRTC and learned advocate Mr. A.R. Bhatt for respondents Nos. 1-5-original claimants. Learned advocate Mr. Dagli has mainly raised the following contentions: (i) The Tribunal has erred in appreciating the evidence inasmuch as it was a case of composite negligence and the scooter driver (deceased) should have been held liable for contributory negligence (to the extent of 50%). FA/561/2003 6/11 JUDGMENT (ii) The Tribunal has taken the assessed income of the deceased for dependency benefit on a higher side. (iii) The Tribunal has erred in making deduction of 1/4th from the datum figure arrived at for the dependency benefit instead of 1/3rd which the deceased would have spent for himself. (iv) It is also contended that multiplier of 15, which has been adopted, is on higher side considering that the age of the deceased was 45 years. 11. Per contra, learned advocate Mr. A.R. Bhatt for the respondents- original claimants submitted that the award does not call for any interference by this court as the Tribunal has passed the award which is by and large just and proper. It has been contended that the Tribunal has considered the income as per the income-tax returns of the deceased and has therefore rightly considered the income of the deceased at Rs. 15,000/- p.m. for the purpose of dependency benefit and out of the same 1/4th has been deducted for personal expenses and on that basis adopted the multiplier of 15 and dependency benefit has been arrived at, which is just and proper. Mr. Bhatt, learned advocate, submitted that as the age of the deceased was 45 years, the multiplier of 15 adopted is also just and proper and, therefore, this court may not interfere with the award which is just and proper and it does not require any modification. FA/561/2003 7/11 JUDGMENT 12. We have considered the submissions made by learned advocate Mr. Ashish Dagli for the appellant and learned advocate Mr. A.R. Bhatt for the respondents 1 to 5-original opponents. We have also perused the impugned judgment and award as well as oral and documentary evidence and other material evidence on record, which has been referred to by the learned advocates appearing for the parties during the course of submissions. 13. On perusal of the judgment and award, it is evident that the Tribunal, while considering the aspect of negligence, held the deceased scooter driver negligent to the extent of 35%. It is required to be appreciated that on the basis of evidence of the driver of the offending bus, opponent No. 1, and also the evidence of the eye witness, the Tribunal has considered the aspect of negligence and held the deceased liable for contributory negligence to the extent of 35%. Therefore, it is an appreciation of evidence in the form of FIR, panchnama, deposition of the driver of the offending bus and the evidence of the eye witness and therefore we do not deem it proper to interfere with the findings on the aspect of negligence arrived at by the Tribunal. 14. On perusal of the impugned award as regards the quantum of compensation, it is required to be appreciated that the Tribunal has considered the income of the deceased on the basis of income-tax returns filed by him and has taken the income of the deceased at Rs. 15,000/- per month. It is required to be mentioned that the deceased was an income-tax payer having Permanent Account Number and had also filed the income-tax returns in the previous FA/561/2003 8/11 JUDGMENT years, which has been referred to hereinabove. 15. While considering the income of the deceased for the purpose of dependency benefit, the guidelines laid down in the judgment of this court in the case of Smt. Rafia Sultan v. ONGC reported in 1985(2) GLR 1315 and also in the case of Somabhai Vajabhai v. Babubhai reported in 23(1) GLR 765 are required to be followed. In this case, the High Court has arrived at the datum figure taking the income of the deceased at the time of the accident and also considered the income, which he could have at least earned had he lived full span of life and thereafter taking the average of the same, the dependency benefit has to be arrived at and these guidelines have been followed till recently following the judgment in Smt. Rafia Sultan (supra) even in the case of KSRTC v. Susamma Thomas reported in 1994 ACJ 1 (SC) and in case of GSRTC v. Kamlaben Valjibhaik Vora, 2001(3) GLR 2528, it is now well settled that for arriving at the datum figure for the purpose of dependency benefit, the present income and future prospects are required to be considered and in order to arrive at a datum figure, the broad guidelines laid down by the courts as stated hereinabove have to be followed. 16. Therefore, considering the overall income of the deceased and the fact that he was running a business as a building contractor, the income of Rs. 15,000/- p.m. arrived at by the Tribunal for the purpose of dependency benefit cannot be said to be on higher side. Therefore, the submission made by learned advocate Mr. Dagli for the appellant that the Tribunal has considered the FA/561/2003 9/11 JUDGMENT income of the deceased for the purpose of dependency benefit on higher side is misconceived. However, at the same time, instead of deducting 1/3rd, which is normally made for the purpose of personal expenses and upkeep in order to arrive at the datum figure for the net dependency benefit, the Tribunal has erroneously deducted 1/4th which requires modification. Therefore, from out of the income of the deceased at Rs. 15,000/- p.m., 1/3rd is required to be deducted for personal expenses, leaving Rs. 10,000/- p.m. for the dependency benefit, which works out to Rs. 1,20,000/- p.a. As the deceased was aged about 45 years and was having good health, the multiplier of 15 which has been adopted cannot be said to be on higher side and, therefore, we are not inclined to interfere even on this aspect. Therefore, the net dependency benefit could be arrived at Rs. 18,00,000/- (Rs. 10,000 x 12 x 15). However, as the deceased has been held to be liable for contributory negligence to the extent of 35%, this amount is required to be sliced down to that extent, leaving the net dependency benefit at Rs. 11,70,000/- (Rs. 18,00,000 – Rs. 6,30,000). Moreover, the following amounts is also required to be added: Rs. 15,000.00 for the loss of consortium Rs. 15,000.00 for loss of expectation of life However, Rs. 4,000/- for funeral charges as awarded by the Tribunal cannot be awarded. 17. However, as there is a mistake in the arithmetic calculation in the judgment of the Tribunal while computing the dependency benefit inasmuch as the amount of Rs. 12,35,000/- mentioned in the operative order is erroneous FA/561/2003 10/11 JUDGMENT and in fact it should have been Rs. 13,32,500/-. However, as discussed above, the award is required to be modified as follows. Rs. 11,70,000.00 towards loss of dependency benefit as discussed hereinabove Rs. 15,000.00 for the loss of consortium Rs. 15,000.00 for loss of expectation of life ----------------- Rs. 12,00,000.00 Total Therefore, amount of Rs. 12,35,000/- mentioned in the operative order is reflecting an arithmetic mistake in the calculation and also, as discussed above, requires modification and the award shall accordingly stand modified. The actual award, as discussed above, on all counts, shall stand modified at Rs. 12,00,000/-. 18. For the foregoing reasons, the appeal filed by the appellant-GSRTC stands allowed partly with no order as to costs. The impugned judgment and award dated 10th July, 2002 awarding compensation of Rs. 12,35,000/- shall stand modified, awarding total compensation of Rs. 12,00,000/- together with interest @ 9% p.a. from the date of application till realization as per the award made by the Tribunal. 19. The appellant-GSRTC is accordingly directed to deposit the said amount with proportionate costs and interest in the Tribunal within 10 weeks. The Tribunal is also directed to apportion the amount of compensation in the following ratio : FA/561/2003 11/11 JUDGMENT 40% to Respondent No. 4-widow Pushpaben 20% to respondent No. 5-mother Dhuliben 10% each to respondent Nos. 1, 2 & 3, who are the children. The apportionment shall be subject to the order passed by this court in Civil Application No. 4546/03 filed in the present appeal. 20. The Tribunal is directed to disburse the amount in the same ratio from out of the share falling to their share and shall invest 70% of the amount in the fixed deposit with any nationalized bank for a period of 3 years and disburse 30% of the amount by account payee cheque drawn in the name of the respective claimants. It is however clarified that the respondents-claimants shall be permitted to withdraw periodical interest accrued on the said amount but shall not create any encumbrance on the aforesaid amount invested by the Tribunal for the period of 3 years. It is clarified that as the award even after modification stands to the tune of Rs. 12,00,000/- and the amount deposited as reflected in Civil Application No. 4546/03 in First Appeal No. 561/03 is Rs. 10,18,248/-, the appellant-GSRTC shall have to deposit the further amount as per the modified award. The appellant-GSRTC is accordingly directed to deposit the deficit as per the modified award within 10 weeks from today. 20. The modified award to be drawn accordingly. (A.M. Kapadia, J.) (hn) (R.H. Shukla, J.)