FA/3958/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3958 of 2007 To FIRST APPEAL No. 3963 of 2007 With CIVIL APPLICATION No. 10617 of 2007 To CIVIL APPLICATION No. 10622 of 2007 In FIRST APPEAL No. 3963 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA ========================================================= 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 PRABHUDAS @ PRAFULCHANDRA PARMAR & 8 - Defendant(s) ========================================================= Appearance : MR GC MAZMUDAR for Appellant(s) : 1,MR HG MAZMUDAR for Appellant(s):1 None for Defendant(s) : 1, RULE UNSERVED for Defendant(s) : 1.2.1,1.2.2 UNSERVED-EXPIRED (R) for Defendant(s) : 1.2.3 RULE SERVED for Defendant(s) : 1.2.4 ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 12/02/2008 ORAL JUDGMENT 1. All the appeals under Section 173 of the Motor Vehicles Act, 1988 are preferred from FA/3958/2007 2/6 JUDGMENT common judgment and award dated 08.05.2006 of M.A.C.T.(Auxiliary), Jamnagar in total nine claim petitions which had arisen from the same accident in which, on 16.05.2000, a rickshaw carrying passengers had dashed with the dumper near village Ranuja. 2. The appeals preferred by the insurance company were restricted to challenging only the award of compensation in six of the cases and the arguments were restricted to urging marginal reduction of the amounts of compensation. 3. Learned counsel Mr.G.C. Majmudar, appearing for the appellant, took the Court through the Record and Proceedings which were called for and pointed out from the evidence and the impugned award that even as higher amounts of income were alleged to have been earned by the deceased victims of the accident, there was apparent lack of concrete and sufficient evidence to prove such income. Therefore, the Tribunal had itself reduced the figures of income in its discretion but the figures of income were further required to be reduced to the bare minimum due to lack of sufficient evidence, according to his submission. It was also submitted that the Tribunal had, in some of the cases, deducted only one-fifth or one-seventh of the income of the FA/3958/2007 3/6 JUDGMENT deceased in view of the number of dependents in the family and thus deviating from the standard of deducting one-third of the income of the deceased towards his own expenditure. He also submitted that there was no evidence of prospective rise in income of the deceased victims and, therefore, the Tribunal was not justified in considering the prospective income of the deceased for deciding upon the multiplicand. Learned counsel relied upon judgment of the Supreme Court in Bijoy Kumar Dugar V/s. Bidya Dhar Dutta and others [(2006)3 SCC 242] in support of the submission that mere assertion of the claimants that the deceased would have earned certain amount in the span of his life-time could not be accepted as legitimate income unless all the relevant facts were proved by leading cogent and reliable evidence before the Tribunal. Mr.Majmudar also relied upon recent judgment in R.M. Yellatti V/s. Asstt. Executive Engineer [(2006)1 SCC 106] to submit that in most cases the claimant can call upon the employer to produce before the Court some documentary evidence and drawing of adverse inference would ultimately depend upon the facts of each case. He submitted that in most of the cases, the insurance company cannot produce any documentary evidence about the actual income of the deceased and, therefore, it was all the more FA/3958/2007 4/6 JUDGMENT important and necessary that the Tribunal would insist upon reliable evidence before basing its calculation of compensation on mere assertions of the claimants. 4. As against the above submissions, learned counsel appearing for the respondents submitted that in each of the claim petition, the Tribunal had, almost arbitrarily, reduced the figures of income of the deceased only by saying in the impugned award that the claim of income of the deceased could not be accepted. It was submitted that the claimants being mostly poor and illiterate dependents of the deceased victims, hailing from the lower strata of society, they could at best examine themselves in the witness- box and they were in fact subjected to cross- examination by the advocate of insurance company. It was not even suggested or found anywhere on record that the claimants could have produced any documentary evidence of the income of the deceased. Therefore, the Tribunal was justified in partly accepting the evidence of the claimants in absence of any evidence to the contrary, but further reduction of such income of the deceased, without any plausible reason, was not justified. It was, on that basis, submitted that if the monthly income of the deceased, as claimed by the claimants, were accepted, the actual loss and the FA/3958/2007 5/6 JUDGMENT dependency benefits would have been much higher, even disregarding the future prospect of rise in the income of each of the claimants. As for the argument regarding deduction on account of personal expenditure of the deceased, it was submitted that the criteria of deducting one- third of income of the deceased could not be rigidly applied in every case, particularly in cases where the deceased belonged to lower strata of society because a labourer cannot afford to spend one-third of his income on himself when the rest of his family might be starving. Learned counsel relied upon recent judgment dated 07.02.2008 of this Court in Gujarat State Road Transport Corporation V/s. Kamleshwar Rameshwar Sharma, wherein it is observed: “It is also a common place that among the people belonging to lower strata of society with very low income, the earning member of the family cannot afford to spend one-third of his income on himself when other members of the family might be starving.” 5. Having perused the impugned award in each of the claim petitions in which the appeal is preferred, it was found that the monthly income of the deceased was not accepted by the Tribunal and there was some evidence in support of the claim of income of the deceased. Therefore, in absence of any evidence to the contrary, the FA/3958/2007 6/6 JUDGMENT Tribunal had no alternative but to rely upon the evidence on record and, in each case, a figure lesser than the amount stated by the claimants has been accepted as the monthly income of the deceased. Application of proper multiplier and deduction of the amount towards expenditure of the deceased himself were also shown from the charts prepared and produced by the learned counsel. Thus, in short, no ground was made out to interfere with the final amount of compensation awarded by the Tribunal in each case and the amounts were found to be just and reasonable in the facts and circumstances of each case. Therefore, the appeals are dismissed with no order as to costs. Civil Applications for stay are also accordingly disposed as rejected and Rule issued in each of them is discharged. (D.H.WAGHELA, J.) Hitesh