FA/1655/2002 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1655 of 2002 With FIRST APPEAL No. 457 of 2002 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 ? ========================================================= OREINTAL INSURANCE CO.LTD. - Appellant(s) Versus NILAMABEN RASIKGIRI GOSAI & 3 - Defendant(s) ========================================================= Appearance : MR AJAY R MEHTA for Appellant(s) : 1, None for Defendant(s) : 1, NOTICE SERVED for Defendant(s) : 1.2.1, 1.2.2,1.2.3 MS PAURAMI B SHETH for Defendant(s) : 1.2.1, 1.2.2,1.2.3 DELETED for Defendant(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 15/04/2008 FA/1655/2002 2/11 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. These two appeals arise out of a judgment and award rendered by Motor Accident Claims Tribunal (Aux.), Rajkot at Gondal in Motor Accident Claims Petition No.728 of 1989. 1.1. First Appeal No.457 of 2002 is preferred by the original claimants in the petition for enhancement of the claim whereas First Appeal No.1655 of 2002 is preferred by original opponent no.3 – insurer of Truck No.GTX 3655 to challenge the award. 1.2. For the sake of convenience, the appellants in First Appeal No.1655 of 2002 are referred to as the opponent as well as the appellant in First Appeal No.457 of 2002 is referred to as the original claimants. 3. The claim arose out of a vehicular accident that occurred between Truck No.GTX 3655 and Motor Cycle No.GBO 6217 on 20.10.1988 at about 10.45 to 11.00 hours on Padadhri – Dhoraji road at a distance of 10 kms., from Jetpur. The deceased Rasikgiri Gosai was proceeding on the motor cycle along with one Bavanjibhai Devrajbhai Sojitra from Padadhri to Dhoraji. When they reached near the place of incident, the truck came from opposite direction and the collision took place. According to the claimants, FA/1655/2002 3/11 JUDGMENT the accident occurred because of sole negligence on part of the truck driver. Both the persons travelling by the motor cycle expired and the claimants preferred Motor Accident Claim Petition No.728 of 1989 whereas the heirs of the deceased Bavanjibhai Devrajbhai Sojitra preferred Motor Accident Claim Petition No.381 of 1989. 3.1. In both these claim petitions, the claimants claimed that the deceased persons through whom they are claiming was the the pillion rider although a common averment was that the accident occurred because of sole negligence on part of the truck driver. It appears that Motor Accident Claim Petition No.381 of 1989 came to be decided by an award dated 21.9.1996 where the Tribunal took a view that deceased Rasikgiri Prabhatgiri Gosai was riding the motor cycle and deceased Bavanjibhai Devrajbhai Sojitra was the pillion rider. The Tribunal also came to a conclusion that the accident occurred because of negligence of both the drivers namely the truck driver and deceased Rasikgiri and attributed the negligence at the ratio of 80% and 20% respectively between them. That judgment of the Tribunal has not been challenged by any of the parties and has attained finality. 4. In the instant case, the Tribunal accepted the earlier verdict of the Tribunal so far as the accident and negligence is concerned and found that the accident did occur as alleged and that deceased FA/1655/2002 4/11 JUDGMENT Rasikgiri was responsible to the extent of 20% for the mishap whereas the truck driver was responsible to the extent of 80% for the mishap. 5. By Exh.51, it was proved by the claimants that the deceased was working as a teacher and was drawing a salary of Rs.2449/- which included certain allowances to the extent of Rs.325/-. The Tribunal deducted that amount from the income of the deceased for computing dependency loss, added 50% of the amount to come to prospective income of the deceased and then deducted 1/3rd therefrom for arriving at the dependency amount so far as the claimants are concerned. After multiplying that figure with 12 for calculating annual dependency, the Tribunal adopted a multiplier of 15 for the purpose of capitalizing the dependency loss. The Tribunal awarded Rs.20,000/- as conventional amount and calculated the total compensation of Rs.3,88,000/-. After deducting 20% therefrom, the Tribunal awarded Rs.3,10,400/- as compensation receivable by the claimants with proportionate costs and interest @ 9% p.a., from the date of application till realization. 6. The claimants have preferred the appeal on the ground that the Tribunal did not consider the prospective income of the deceased which was proved through evidence. The Tribunal ignored the evidence to the effect that in the year 2000, the income of the deceased would have been Rs.14,028/- per month. It is also contended that the Tribunal erred in FA/1655/2002 5/11 JUDGMENT deducting the allowances of Rs.325/- from the salary drawn by the deceased at the time of accident. Though feebly, it was contended that the Tribunal committed an error in assessing the contribution of the deceased to the accident to the extent of 20%. The Tribunal ought to have held the truck driver solely responsible for the accident. 7. The opponent – insurer of the truck has approached this Court with the appeal on the ground that the Tribunal has adopted a higher multiplier. The age of the deceased was 36 and multiplier of 15 ought not to have been adopted by the Tribunal. It was also contended that the Tribunal has not taken into consideration the tax incidence on the income of the deceased while calculating the dependency loss. The insurer has also challenged the involvement of the truck in the accident. 8. We have taken into consideration rival side contentions and have perused the Record and Proceedings from the context of their respective arguments. 9. It is not in dispute that Motor Accident Claim Petition No.381 of 1989 arising out of this accident came to be decided by the Tribunal by judgment and award dated 21.9.1996 where the Tribunal held that the deceased Rasikgiri was driving the motor cycle and was responsible to the extent of 20% towards the cause of accident. That judgment and FA/1655/2002 6/11 JUDGMENT award has not been challenged by anyone and has attained finality and on that basis, the Tribunal in the instant case also held deceased Rasikgiri to be responsible for the accident to the extent of 20%. We do not find any mistake on part of the Tribunal calling for any interference in exercise of appellate powers. This would also negative the contention of the opponent – insurer about non-involvement of the truck in the accident as no appeal is preferred to challenge that verdict of the Tribunal in Motor Accident Claim Petition No.381 of 1989. We do not, therefore, deem it necessary or expedient to interfere with the finding of the Tribunal on negligence aspect or on involvement aspect. 10. Now coming to the question of quantum, we find that the income of the deceased at the time of accident was Rs.2499/- per month as per Exh.51. The Tribunal has deducted Rs.325/- forming part of the said amount as various allowances which is an error on part of the Tribunal. According to us, the income of the deceased, therefore, ought to have been taken at Rs.2449/- per month for computing dependency loss. 10.1. It was vehemently contended by learned advocate for the claimants – appellants that for purpose of calculating dependency loss, while calculating prospective income, the income that the deceased would have earned ought to have been taken into consideration by the Tribunal and there is evidence to show that the deceased would have earned FA/1655/2002 7/11 JUDGMENT the salary of Rs.14028/- in the year 2000. According to the learned advocate for the claimants, these two figures ought to have been clubbed together and divided by two for arriving at the prospective income of the deceased. We are afraid, we will not be able to accept this contention in light of the decision of the Apex Court in case of Oriental Insurance Company Ltd. V/s Jashuben and others 2008(2) Scale 474 where it is observed in para 13 that the amount of compensation should be determined having regard to the pecuniary loss caused to the dependents by reason of death of the victim and in doing so, it is necessary to consider the earnings of the deceased at the time of accident. It was, however, further observed that further prospect is not out of bound for such consideration but the same has to be founded on some legal principle. It is then observed that income of the deceased on the date of retirement was not a relevant factor in that case and that it was impermissible in law to take into consideration the effect of revision in scale of pay with effect from 1.1.1997 or what would have been the scale of pay in the year 2000. The date of accident in that case was 23.6.1994. Under these circumstances, we are of the view that the Tribunal cannot be said to have committed any error in not considering the future income of the deceased that he would have drawn in the year 2000. For the purpose of dependency loss, the income of the deceased, therefore, ought to have been taken without deducting the allowances and without considering the future income. The principle FA/1655/2002 8/11 JUDGMENT that will have to be followed would be to add two folds the income of the deceased at the time of accident and divide it by two for purpose of arriving at the prospective income of the deceased. In the instant case, the income of the deceased was Rs.2449/- per month which can be rounded off to Rs.2450/- per month and if we add two folds the income, the figure would be Rs.7350/- which if divided by two would fetch an amount of Rs.3675/- as dependency loss per month and if we multiply the same by 12, the annual dependency loss would be Rs.44,100/-. 10.2. Some deduction has to be made for the expenditure that the deceased would have made on his own self and for purpose of his vocation. It was contended by learned advocate for the opponent – insurer that income tax incidence is not considered by the Tribunal. In our view, since the deceased was working as a teacher, he would not be required to spend much on his vocation and if we apply the Rule of Thumb by deducting 1/3rd from the income, it would take care of the income tax incidence. 1/3rd of Rs.44,100/- would be Rs.14,700/- and if that amount is deducted, the actual dependency loss would be Rs.29,400/- p.a. 10.3. The Tribunal has adopted a multiplier of 15, however, keeping in light the decision of the Apex Court in case of Tamil Nadu State Road Transport Corporation Ltd. V/s S.Rajapriya and others, 2005 ACJ FA/1655/2002 9/11 JUDGMENT 1441, a multiplier of 14 can reasonably be adopted which would fetch an amount of Rs.4,11,600/- as compensation under head of dependency loss. 11. The Tribunal has awarded conventional amount of Rs.20,000/-. Our attention is drawn to the decision of this Court in case of United India Insurance Co. V/s Bharti Kanaiyalal Chauhan & Ors., reported in 2007(2) GLR 1464 and Neetaben Hasmukhbhai Kuberbhai Chaudhary & Ors. V/s Shakrabhai Raimalbhai Rabari & Anr., reported in 2007(2) GLR 1598 and keeping that in mind, the claimants would further be entitled to a compensation of Rs.25,000/- under the head of loss of estate and Rs.15,000/- under the head of loss of consortium. It is also contended that no compensation is awarded for the expenditure on funeral etc. In our view, Rs.5,000/- if awarded under the head, the ends of justice would be met. The claimants, therefore, would be entitled to total amount of compensation of Rs.4,56,600/-. 11.1. However, since the deceased himself is held responsible to the extent of 20% in the accident, 20% therefrom will have to be deducted which would be Rs.91,320/-. The claimants, therefore, would be entitled to a net amount of compensation of Rs. 3,65,280/-. 12. The Tribunal had awarded a compensation of Rs.3,10,400/- with proportionate costs and interest @ 9% from the date of application till realization. The FA/1655/2002 10/11 JUDGMENT claimants, therefore, would be entitled to an additional compensation of Rs.54,880/- with proportionate costs and interest @ 9% p.a., from the date of application till realization. 12.1. So far as disbursement is concerned, we would like to follow the order of this Court passed on 17.9.2002 and we hold that each of the claimants would be entitled to 15% of the additional amount that may be deposited by the appellant – insurer of truck. The amount that is already deposited by earlier order dated 17.9.2002 and the amount that may remain with the Tribunal after disbursing 15% to each of the claimants, would be disbursed to the claimants no.1,2 and 3 in the ratio of 50% - 25% - 25% respectively. Amount going to the share of claimant no.1 shall be placed in Fixed Deposit for a period of five years with any nationalized bank of her choice. The periodical interest that may accrue thereon shall be receivable by claimant no.1. The amount going to the share of claimant nos.2 and 3 shall be paid to them and invested through claimant no.1 as natural guardian, claimant nos.2 and 3 being minor. The amount will be placed in Term Deposit initially for a period of five years and renewed from time to time till claimant nos.2 and 3 attain majority. Interest that may accrue thereon shall be payable to claimant no.1 as guardian of minor claimant nos.2 and 3. 13. Both the appeals would stand partly allowed. Award accordingly. FA/1655/2002 11/11 JUDGMENT ( A.L.DAVE, J ) ( SHARAD D DAVE, J ) srilatha