FA/486/2004 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 486 of 2004 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 ? ========================================================= SUSHILABEN KANTILAL VITHLANI - Appellant(s) Versus UNITED INDIA INSURANCE CO. & 1 - Defendant(s) ========================================================= Appearance : MR PREMAL S RACHH for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 MS HINA DESAI for Defendant(s) : 1, RULE SERVED for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 27/06/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) FA/486/2004 2/11 JUDGMENT The present appeal has been filed under sec. 173 of the Motor Vehicles Act, 1988 ('the Act' for short) challenging the judgment and award dated 6th May, 2003 in Motor Accident Claims Petition No. 507/95 by the Presiding Officer, Motor Accident Claims Tribunal (Main), Jamnagar, by which the Claim Petition filed under sec. 166 of the Act by the heirs and legal representatives of deceased Kantilal Gordhandas Vithlani against the appellant-United India Insurance Co. and respondent No. 2, owner of the vehicle, to recover the compensation on account of untimely death of deceased Kantilal Gordhandas Vithlani in a road accident has been allowed. The Tribunal directed the original opponent Nos. 1 & 2, owner and the insurer, to pay jointly and severally the compensation to the tune of Rs. 6,73,216/- with proportionate interest and costs at the rate of 9% per annum from the date of application till realization. 2. The facts of the case, briefly summarized, are that the deceased Kantilal Gordhandas Vithlani was going on his bicycle on 30.9.1995 on Saru-section Road, near Amizara Apartment. At that time the opponent No. 1-driver of the offending public carrier bearing Regn. No. PB-04-2596 came in full speed and in rash and negligent manner and hit the deceased Kantilal, who sustained serious bodily injury and died instantaneously. The driver of the offending public carrier fled away after the accident and an FIR was lodged for the accident by RTO Officer FA/486/2004 3/11 JUDGMENT Madhubhai Khodabhai at City 'B' Division Police Station, Jamnagar. It is averred that the deceased Kantilal was serving as Assistant Operator Gr.-III as a Technical Officer with GEB and was earning Rs. 5,646/- p.m. and he was aged about 53 years at the time of accident. It is also averred that he would have earned future promotion and he would have earned Rs. 8,000/- p.m. had he lived the full span of his life. Therefore, the heirs and legal representatives of the deceased Kantilal had filed the Claim Petition to get compensation of Rs. 13,00,000/- as and by way of compensation together with interest and cost. Appellant No. 1-original opponent No. 2 Insurance Company had filed written statement Exh. 19 denying all the averments and the allegations including about the negligence as well as the income of the deceased. 3. On pleadings of the parties, the Tribunal framed the issues and after considering the evidence, oral as well as documentary, produced by the parties and the arguments advanced by the learned advocates appearing for the parties, the Tribunal came to the conclusion that the accident was the result of rash and negligent driving of the driver of the truck opponent No. 1 and on the basis of the evidence produced, passed the judgment and award for awarding the compensation to the tune of Rs. 6,73,216/-. The Tribunal has considered the income of the deceased in light of the documentary evidence produced like salary certificate and oral evidence. FA/486/2004 4/11 JUDGMENT 4. It is this judgment and award which has been challenged by the appellants-heirs of the deceased on various grounds, inter alia, that the Tribunal, while considering the income and other benefits like payment of gratuity, has not considered and appreciated it in light of the evidence. Though gratuity of Rs. 1,00,000/- has been paid directly by the GEB to the claimants, the Tribunal has failed to appreciate that as per GSO, Exh. 87, the limit of gratuity has been enhanced up to Rs. 3,50,000/-. However, on the basis of the submissions made, referring to the Payment of Gratuity Act, 1972, the Tribunal has accepted that the amount of gratuity of Rs. 1,00,000/- paid by the GEB is just and proper and has failed to appreciate and consider the submissions advanced by the learned advocate for the claimants that as the amount of gratuity has been enhanced to Rs. 3,50,000/- as per GSO, Exh. 87, the claimants would be entitled to the enhancement on this count. It was submitted that though the amount of gratuity has been paid considering the last pay drawn under the Payment of Gratuity Act, the Tribunal has not appreciated that had the deceased lived full life and served till the age of retirement, he would have otherwise been entitled for the higher amount of gratuity according to his pay-scale at the time of retirement as per Payment of Gratuity Act. Therefore, learned advocate Mr. Premal Rachh, referring to the observations made in the judgment, pointedly submitted that had the deceased survived and not met with the accidental death, he would have been FA/486/2004 5/11 JUDGMENT entitled to the full amount of gratuity which is required to be considered. He, therefore, submitted that the payment of gratuity to the tune of Rs. 1,00,000/- paid directly by the GEB, which has been accepted as just and proper by the Tribunal, is misconceived. 4.1 Learned advocate Mr. Premal Rachh for the appellants submitted that the Tribunal has not taken into consideration the recent trend while awarding the compensation on the count of conventional amount as only Rs. 10,000/- has been awarded. It was submitted, relying upon the judgments of the Hon'ble Apex Court, that the award of conventional amount has been enhanced up to Rs. 50,000/-. Therefore, the learned advocate has stated that he has filed the present appeal for enhancement of the compensation to the tune of Rs. 2,60,000/-. 5. Learned advocate Ms. Hina Desai for respondent No. 1-Insurance Co. submitted that the award has been made as per the documentary evidence produced on record. She referred to the GSO Exh. 87 and the deposition of Mr. Mayur Kansara, Dy. Supdt. Engineer, GEB at Exh. 86 and submitted that this witness has stated that the payment was made as per the provisions of the Payment of Gratuity Act, 1972. She has submitted that the amount of gratuity as stated by the witness is to be calculated on the basis of the last pay received by the employee even if he expires in the accident and, therefore, it has been FA/486/2004 6/11 JUDGMENT calculated accordingly. Learned advocate Ms. Hina Desai has also submitted that the amount awarded by the Tribunal is just and proper and does not call for any interference. 6. We have considered the submissions advanced by learned advocate Mr. Premal Rachh for the appellants and learned advocate Ms. Hina Desai for the respondents. We have also perused the impugned judgment and award as well as the oral and documentary evidence supplied by the learned advocates appearing for the parties during the course of the submissions. 7. As the present appeal is only confined to quantum of compensation inasmuch as there is no dispute with regard to any negligence aspect, we do not deem it expedient to examine that issue and therefore, we have not deliberated on that aspect. 8. Therefore, the only aspect which is required to be focused is with regard to the quantum. It is not in dispute that the deceased was serving with GEB as an Asst. Operator and the documentary evidence as regards his salary has been produced and also future prospects of his income has also been produced suggesting that he could have reached up to the salary of Rs. 8,000/- at the time of his retirement. Therefore, these aspects have been undisputed. The only aspect which requires consideration is the aspect regarding payment of FA/486/2004 7/11 JUDGMENT gratuity, which learned advocate Mr. Rachh for the appellants has pointedly referred to from the judgment that it is admitted in view of the GSO produced at Exh. 87 that the limit of gratuity has been enhanced up to Rs. 3,50,000/- for the GEB employees. However, as observed in the judgment of the Tribunal, payment of gratuity has been confined to Rs. 1,00,000/- relying on the deposition of Mr. Mayur Kansara, Dy. Supdt. Engineer, who has been examined and who has stated that the amount of gratuity is required to be calculated only on the basis of the last pay received even if the employee expires in the accident. It is this aspect which is highlighted by the learned advocate for the appellants that requires consideration. 9. Though the payment of gratuity is required to be made under the Payment of Gratuity Act, 1972 depending on the length of service in ordinary course, however, in such a situation when the untimely death has occurred as a result of the accident, while considering the compensation and the aspect of quantum of compensation to be assessed, it is required to be considered as to what amount the deceased would have got had he not met with the accident and caused the untimely death and had he served the full span, then what he would have been entitled to as gratuity. It is in these circumstances that the payment of Rs. 1,00,000/- has been made by the employer-GEB and one has to see whether he would have earned higher amount and FA/486/2004 8/11 JUDGMENT therefore this aspect is required to be considered for the purpose of compensation. Therefore, as admitted in the deposition of Mr. Mayur Kansara, who has been examined as a claimant witness at Exh. 40, wherein he has stated that had the deceased survived and not met with the untimely death as a result of the accident, he would have been entitled to Rs. 2,73,370/- towards gratuity. Thus, it is evident that the amount of Rs. 1,73,000/- which he would have otherwise earned by way of gratuity had he not met with the accident and survived and served full span of his service is required to be awarded. The Tribunal has misconceived on this aspect and therefore, the appellants would be entitled to claim additional compensation of Rs. 1,73,000/- on this count by way of gratuity as additional compensation. 10. It has been submitted by learned advocate Mr. Rachh for the appellants that only Rs. 10,000/- has been award under the head conventional amount towards loss of estate and consortium together. However, learned advocate Mr. Rachh for the appellants has submitted that considering the catena of decisions of the Hon'ble Apex Court, the amount under this head has been revised and for that purpose has has also referred to the observations made by the Hon'ble Apex Court in the case of General Manager, Kerala state Road Transport Corpn. v. Susamma Thomas, 1994 ACJ 1(SC) and GSRTC v. Kamla Devi v. Govt. of NCT of New Delhi & anr., 2005 ACJ 216. FA/486/2004 9/11 JUDGMENT 11. According to us, the submission made by the learned advocate Mr. Rachh as regards the revision of the amount awarded on the count of loss of estate and consortium is well-founded. In view of the catena of decisions and the observations made by the Hon'ble Apex Court referring to the revision due to inflation and fall in the rupee value for the award of conventional amount towards the loss of estate and consortium, requires enhancement. The Hon'ble Apex Court in the case KSRTC v. Susamma Thomas (supra) has observed, “....., to which is added the usual award for loss of consortium and loss to the state each in the conventional sum of Rs. 15,000/-.” 12. The same judgment has also been considered in a subsequent judgment in the case of Nagappa v. Gurudayal Singh. 2003 ACJ 12 (SC) wherein the Hon'ble Apex Court has discussed at length with regard to the conventional figure observing that it requires to be upgraded. In this judgment, the Hon'ble Apex Court has also observed that while calculating such damages, the Tribunal/Court is required to have some guess work taking into account the inflation factor. 13. Therefore, we are of the opinion that the amount of Rs. 10,000/- awarded towards the loss of estate and consortium together requires modification and it has to be enhanced to Rs. 30,000/-. FA/486/2004 10/11 JUDGMENT 14. Therefore, the present appeal deserves to be allowed partly. The claimants are entitled for enhancement of compensation, as discussed hereinabove, in the following break-up: (1)Rs. 1,73,000 additional amount of gratuity (Rs. 2,73,000-Rs. 1,00,000 already paid by the GEB directly) (2)Rs. 30,000 enhancement for the loss of estate and consortium _________ Total 2,03,000 _________ Therefore, the claimants are entitled to Rs. 2,03,000/- as and by way of enhancement of compensation, which is rounded off to Rs. 2,00,000/-. Therefore, the claimants are entitled to recover the additional amount of enhancement compensation to the tune of Rs. 2,00,000/- together with the proportionate interest and cost at the rate of 9% per annum from the date of petition till realization. 15. For the foregoing reasons, the appeal succeeds in part and accordingly it stands allowed partly. The impugned judgment and award dated 6.5.2003 awarding compensation of Rs. 6,73,216/- is hereby modified by awarding additional compensation of Rs. 2,0,000/- together with proportionate interest and FA/486/2004 11/11 JUDGMENT costs @ 9% per annum from the date of the application till realization. The additional/enhanced amount of compensation of Rs. 2,00,000/- is directed to be paid/apportioned in the following ratio by A/c payee cheque drawn in favour of the apellants after due verification. (i)Claimant No. 1, widow of the deceased, shall be paid 50% of the amount of additional/enhanced compensation i.e. Rs. 1,00,000/-. (ii)Claimant Nos. 2 to 5, who are the children, shall be entitled to get 12.5% of the amount of additional/enhanced compensation each. 16. Respondent No. 1-United India Insurance Co., Jamnagar is directed to deposit the additional/enhanced amount of compensation within a period of 10 weeks hereof failing which it would be open for the claimants to file execution petition to recover the said sum. 17. Modified award to be drawn up accordingly. (A.M. Kapadia, J.) (R.H. Shukla, J.) (hn)