FA/287/1988 1/43 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 287 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE R.S.GARG HONOURABLE MR.JUSTICE K.M.MEHTA ========================================= = 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 ? ========================================= = USHABEN WD/O.JASHUBHAI RANA & 3 - Appellant(s) Versus GENERAL MANAGER, ONGC-DELETED & 3 - Defendant(s) ========================================= = Appearance : MR KF DALAL for Appellant(s) : 1 - 4. DELETED for Defendant(s) : 1, 3, MR RAJNI H MEHTA for Defendant(s) : 2, 4, ================================================================== CORAM : HONOURABLE MR.JUSTICE R.S.GARG and HONOURABLE MR.JUSTICE K.M.MEHTA Date : 23/12/2005 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE K.M.MEHTA) FA/287/1988 2/43 JUDGMENT 1. Ushaben- widow of Jashubhai Rana, original plaintiff No.1 and her two minor sons and daughter (at the relevant time) viz. Plaintiffs No.2, 3 & 4 have filed this appeal under Section 96 of the Code of Civil Procedure, against the judgment and decree/award dated 30/10/1985 passed by the learned Judge, City Civil Court, Ahmedabad, in Civil Suit No. 659 of 1981. By the impugned judgment, the learned Judge was pleased to partly decree the suit of the plaintiff and ordered that Defendant no.4- Oil and Natural Gas Commission (hereinafter referred to as ONGC) do pay to the plaintiffs and parents of deceased Jasubhai Rana Rs.1,07,000/- (Rupees one lakh seven thousand only) as damages together with the proportionate costs of the suit of the plaintiff and running interest at the rate of 6% p.a. from the date of pauper petition till deposit if made within four months and at the rate of 9% p.a. if made thereafter in the manner as stated hereinafter. Rest of the claim of the plaintiffs is dismissed. 2. The relevant facts giving rise to this appeal are as under, as stated in the plaint: 2.1 One Shri Jashubhai Rana (deceased) – husband of Ushaben plaintiff No.1 was an employee of the ONGC - respondent no.4. Plaintiff No.1 is the widow of deceased, while plaintiffs nos. 2, 3 FA/287/1988 3/43 JUDGMENT and 4 were minor children of the deceased when the petition was filed before the Trial Court somewhere in 1980. It was stated that they are the only dependents of the deceased Jashubhai Rana. 2.2 It is the case of the plaintiffs in the plaint that deceased Jashubhai was working with the ONGC since 1969. Initially he commenced working as Fireman Grade-II from 6/6/1969 to 7/7/1975. Thereafter from 8/7/1975 he worked as Ringman, getting salary of Rs.900/- per month. Thereafter from 23/2/1979 to 31/10/1979, he worked as a Production Operator at Navagam- Nayaka. Deceased was appointed as Production Operator on 23/3/1979 but he was directed by the defendant to carry on the work of Ringman. It appears from the records that from 1976-77, he took up further studies in College also. 2.3 It is the case of the plaintiff that on 31.10.1979, the deceased resumed his duty at about 9:30 a.m. on well no.12 at Navagam-Nayaka, Ahmedabad Project of ONGC. That was a work of drilling the well. At about 4:30 p.m., the deceased went to the platform near which a traveling block known as KANI, weighed about 112 tones has been installed. The said KANI having a very heavy weight operates up and down and can be brought to a hault by a brake. According to the plaintiffs, when FA/287/1988 4/43 JUDGMENT the deceased was standing on the platform, on account of some default in the brakes of KANI it could not be stopped in time when it ought to have stopped and as the KANI could not be brought to hault by application of brake it ultimately fell upon the platform crushing some portion of platform completely, and, the deceased Jashubhai Rana who was trapped in between the platform and KANI, had succumbed to serious injuries. It is, therefore, the case of the plaintiff that the deceased Jashubhai Rana expired in the accident while performing his duty in course of his employment with a commission. 2.4 The plaintiffs' case in the plaint was that, when the plaintiff died, he was aged about 29 years only ( his birth-date being 20.5.1950). As he was working in ONGC, a very good prominent Corporation, he had a very bright prospects in future in this behalf. According to the plaintiffs as stated in para 6 of the plaint, the future prospects of the deceased could be as follows:- No. Year Basic Pay Total Pay Total Months Total Pay 1 2 3 3A 4 5 6 1 1979- 80 533 1 961-80 4 3667-20 FA/287/1988 5/43 JUDGMENT No. Year Basic Pay Total Pay Total Months Total Pay 2 1980- 81 548 2 981-60 12 11779- 20 3 1981- 82 563 3 1001-40 12 12016- 80 4 1982- 83 578 4 1021-20 12 12254- 40 5 1983- 84 598 5 1041-00 12 12492- 00 6 1984- 85 16 6 1080-70(9) 100 p.m. 12 12968- 40 7 1985- 86 638 7 1103-70(9) 100 p.m. 12 13244- 40 Promotion 8 1986- 87 658 8 1126-70(9) 100 p.m. 12 13520- 40 As Junior 9 1987- 88 678 9 1149-70(9) 100 p.m. 12 13746- 40 Assistant 10 1988- 89 698 10 1172-70(9) 100 p.m. 12 14072- 40 11 1989- 90 718 11 1212-70(9) 125 p.m. 12 14552- 40 12 1990- 91 738 12 2220-20(9) 100 p.m. 12 14642- 40 13 1991- 92 758 13 1266-70(9) 100 pm. 12 15200- 40 Promotion + 15 years 2008 15 1266-70(9) 100 pm. 15 22806- 40 As Senior Assistant 2.5 In view of the aforesaid circumstances, it is further stated that though salary of the deceased was Rs.900/- per month, FA/287/1988 6/43 JUDGMENT yearly income was Rs.11050/- and as the deceased was spending Rs.100/- per month on his ownself the plaintiffs claimed following amount: 1) Rs.2,88,000/- Plaintiff No.1 widow of the deceased. 2) Rs. 28,000/- Plaintiff No.2 daughter including her marriage expenses. 3) Rs.16,870/- Plaintiff No.3 4) Rs. 32,270/- Plaintiff No.4 5) Rs. 7,000/- Towards the loss of matrimonial company of plaintiff no.1 with the deceased. Rs.3,72,340/-. 2.6 In view of the aforesaid, in the suit the plaintiffs claimed Rs.3,72,340/- with running interest at 10% per annum. The suit was filed on 23/10/1980. 2.7 On behalf of respondent, particularly ONGC, written statement had been filed on 5.9.89 at Exhibit-14. In the written statement it was stated that about Rs. 62,555/- have been paid to the heirs of the deceased. According to the defendants, the work assigned was as per duty of the deceased as production operator. There is no dispute about the fact of accident in the course of drilling on 31/10/1979 on Well No.12 at Navagam, Nayaka and FA/287/1988 7/43 JUDGMENT the deceased having expired in such serious accident. However, it is contended that it was a sad accident beyond the imagination and control of the defendants and the persons working on the said drilling machinery and ring. However, it is contended that there was a fault on the part of the deceased in as much as he inattentively stood on the platform and did not remain vigilant to move away from the place of accident as other employees did. 2.8 The learned trial Judge has framed issue at Exhibit-20 on issue Nos. 4, 5 and 8 which are relevant, the recorded findings are as under: 2.9 (4) Do the plaintiffs prove that the deceased Jashubhai was appointed as Production Operator, but he was directed by the defendants to do the work of Ringman inspite of his protest? - Yes. 2.10 (5) Do the plaintiffs prove that deceased Jashubhai Rana met with the accident of the nature stated in plaint para (4) on account of some default in brake and when deceased was on his duty and in the course of performance of his duty? -Yes. 2.11 (8) Do the plaintiffs prove that by accidental death of FA/287/1988 8/43 JUDGMENT deceased, they have sustained loss of Rs.3,72,340/- as stated in plaint paras 9 to 11? - 1,07,000/-. Oral Evidence: 2.12 Before the trial Court, on behalf of plaintiff, widow Ushaben was examined at Exhibit-52, and One Jayantibhai, elder brother of Ushaben was also examined at Exhibit-78 whereas on behalf of defendant one Ishkumar, Petroleum Engineer was examined at Exhibit-82. 2.13 From the evidence of widow Ushaben which was recorded in the year 1984 it is established that when deceased died he was 29 years old and at the time of incident one daughter Ragani was 7 years old, one son Vijaykumar was 3 years old and Ajayjumar was 4 months old and age of widow was 25 years. She has also proved that, out of Rs.900/- income, the deceased was spending Rs.100/- to meet his personal expenses and was giving Rs.800/- to her for household expenses. She has admitted that she was given job by ONGC in the year 1982. It was also stated that in the Workmen Compensation proceedings she has received Rs.32,000/- which has been stated in Exh.79 but Rs.30,000/- which has been deposited before the Workmen Compensation, FA/287/1988 9/43 JUDGMENT the same was not taken by her. Similar is the evidence of brother of the deceased. He has also stated that deceased died in the accident. 2.14 As regards evidence of Ishkumar Jatva Exh.82 on behalf of defendant he has stated that the accident took place on 31st October, 1979. He has described the manner in which the accident occurred. He has stated that there was no defect of the ONGC took place. 2.14A The plaintiff has produced certain documents. The details of the said documents are as under: 2.15 Documentary Evidence Exh.54 in the year 1966-1977 Certificate for passing National Physical Efficiency Test. Exh.55 15/4/1965 Plaintiff passed drawing elementary examination. Exh.56 1/12/1965 Deceased passed drawing intermediate examination. Exh.57 1/5/1966 Deceased passed intermediate drawing examination. Exh.58 In the year 1966 Deceased passed elementary grade FA/287/1988 10/43 JUDGMENT drawing examination Exh.62 18/11/1978 Deceased got interview call from ONGC. Exh.63 3/3/1979 Interview call received from ONGC. Exh.64 21/8/1971 Service record of the deceased. Exh.65 29/3/1979 ONGC given permission to the deceased of passing university examination. Exh.66 23/4/1979 Order of the Production Operator to the deceased, appointed as a Production Operator. Exh.67 In the year 1979 A letter of ONGC to the deceased for taking charge. Exh.68 6/4/1979 Identification carried by the defendant of the deceased. Exhs.69,70,71 and 72 Various salary slips of the deceased for the year 1979. Exh.73 Report of Inquiry for accident took place on 31/10/1979 while working at Navagam in the case of deceased. Plaintiff has also relied upon Exh.97- Schedule showing qualification prescribed for direct recruitment and promotions which shows future prospects of the plaintiff in service. Plaintiff has also produced photocopy of the fix deposit receipt of Rs. 2,100/- at Exh.76. Exh.79 where plaintiff has admitted that the plaintiff has received Rs. 10,000/- as Benevolent fund, Rs.10,000/- as group insurance, FA/287/1988 11/43 JUDGMENT Rs.3,425 as Gratuity fund, Rs.6,103/- as C.P. fund, Rs.1,779/- as Leave salary encashment amount, Rs.513/- as salary for duty period for October 1979, Rs.38/- as overtime and Rs.697/- as dues in salary , In all Rs.32,555/- somewhere on 29/6/1984. The defendant has produced a sketch of the place of accident at Exh.96, Exh.87 – Accident report in respect of deceased. Exh.88- Hospital report. 2.16 From the records, it appears that defendant has produced one statement of one Shri I.K.Katial, Assistant Drilling Officer taken on 15/9/1981 and also photographs in this behalf. From the record it appears that original plaintiff did not include his parents as dependents but subsequently the plaintiffs have stated that deceased parents were also dependents, and if any damages are allowed, the share of the parents may also be given. Amendment was carried out on 21/2/1985. Name of parents as dependents were included. This, in all is the documentary evidence produced by the parities in this behalf. Trial Court Findings: 2.17 The learned trial Judge considered the aforesaid facts and circumstances of the case, so also oral as well as documentary evidence, and also relied upon the Division Bench FA/287/1988 12/43 JUDGMENT Judgment of this Court in the case of Bhupendrakumar Kohli v. ONGC, Sabarmati, Ahmedabad, reported in 1981 ACJ 386. The learned trial Judge has also taken into consideration the said decision which is almost identical with the present case. The learned Judge has also considered that the Division Bench has also relied upon the judgment of Hon'ble Supreme Court in the case of Shyam Sundar v. State of Rajasthan , reported in 1974 ACJ 296 and principle of Negligence from the book of Charlesworth on Negligence, 6th Edition and came to the conclusion that principle of “res ipsa loquitur” applied to this case. The learned Judge, after considering this principle, and after considering documentary as well as oral evidence of the parties, on page 26 has held that “I come to the conclusion that the relevant accident took place on account of negligence and/or default of the Commission and its relevant employees in charge of the operation, in particular Mr.Katiyal – shift in-charge”. Death of Jashubhai Rana in the accident is not in dispute and ultimately the learned Judge held that plaintiff successfully proved that deceased Jashubhai while on duty met with an accident of the nature stated in the plaint on account of some default in the brake and when deceased was in the course of performance of his duty. Thus, answer to issue no.5 is in the affirmative. FA/287/1988 13/43 JUDGMENT 2.17A The learned trial Judge has held that at the time of the incident the deceased was aged about 29 years ( the date of birth being 20th May 1950). The learned trial Judge also held that the deceased's salary income was about Rs.900/- per month and he was spending Rs.100/- per month for his personal expenses and was giving Rs.800/- per month to his family or Rs.9600/- every year to his family. The learned trial Judge rounded the figure to Rs.10,000/- and therefore held that the plaintiffs were entitled to Rs.1,60,000/- in this behalf. The learned trial Judge has also taken into consideration that after the death of the deceased the Corporation has given employment to the widow of deceased and the said wife is getting Rs.900/- per month salary. In view of the same, out of Rs.1,60,000/-, 1/3rd amount was deducted and the learned trial Judge has reduced the figure to Rs.1,07,000/-. Out of said amount the learned trial Judge has apportioned the amount and awarded Rs.25,000/- to each of the minor (total Rs.75,000/-) and Rs.10,000/- to each parent (total Rs.20,000/-) and the remaining amount plus interest and costs to the widow as it was observed that the amount of Rs.32,555/- of benevolent fund etc., were given to the widow. The learned trial Judge also awarded interest at the rate of 6% p.a. from the date of pauper petition till deposit if made within four months and at the rate of 9% p.a. if the same is deposited thereafter. FA/287/1988 14/43 JUDGMENT Contention of the learned Advocate for the appellant- original plaintiff Mr.K.F.Dalal. 2.17B Mr.K.F. Dalal, learned advocate appearing for the appellants submitted that in this case as regards occurrence of accident in question the trial court (which we have referred earlier) has relied upon the Division Bench Judgment of this Court as well as another judgment of the Hon'ble Supreme Court in the case of Shyam Sundar v. State of Rajasthan. 2.17C He also submitted the ONGC has not filed appeal and as such the plaintiffs-appellants are now not supposed to prove the question of negligence. However, he has stated that principle regarding absolute liability has been reiterated by the Hon'ble Supreme Court in the case of M.C.Mehta and another v. Union of India and others, reported in AIR 1987 SC 1086, and in the case of Indian Council for Enviro-Legal Action etc. v. Union of India, reported in AIR 1996 SC 1446, particularly para 65 on page 1465 and also the judgment of Apex Court in the case of M.P.Electricity Board v. Sahil Kumari, reported in 2002 (1) Scale 119:2002 (2) SCC 162. He has further submitted that all these decisions have been considered by the Division Bench of this Court in the case of Executive Engineer, GEB, Jamnagar v. FA/287/1988 15/43 JUDGMENT Zubedbhai Ibrahim and ors., reported in 2004 (1) GLR 227, particularly para 6A, 6B, 7 and 10. Therefore the finding of the learned trial Judge regarding negligence must be upheld. 2.17D As regards compensation, the learned advocate for the appellants stated that the deceased was aged 29 years. (His birth date has been shown as 20/5/1950 and he has died on 31/10/1979). He was getting monthly salary of Rs.900/- and however his yearly income was Rs. 11050/-. So monthly income can be taken as Rs.920/- p.m. In the plaint future prospects of the deceased have been explained. He has also relied upon Exh.97 which shows the position of direct recruitment of working with the ONGC and various other certificates which show that deceased was a talented man and in fact had a bright future. The learned advocate also submitted that deceased resumed studies in the University for higher education and qualifications. If the man is young and working in a good organization, future prospects are always very bright, which should also be taken into consideration and they are sure to get higher pay-scale in future. 2.17E The learned counsel therefore submits that, this Court, while awarding compensation, should not be impressed by the last salary of the deceased which he was getting at the time of his death. For taking into consideration the future prospects, FA/287/1988 16/43 JUDGMENT he has relied upon the judgment of the Apex Court in the case of General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, reported in (1994) 2 SCC 176 in para 19, the Hon'ble Supreme Court has observed as under: “In the present case the deceased was 39 years of age. His income was Rs.1,032/- per month. Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs.1,032/- per month. We think, having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not FA/287/1988 17/43 JUDGMENT be in error in making a higher estimate of monthly income at Rs.2,000/- as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was spartan or bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependents.“ 2.17F The learned Counsel further submitted that in the judgment of the Hon'ble Supreme Court in the case of Sarla Dixit v. Balwant Yadav, reported in 1996 ACJ 581, on the point of computation of compensation the Apex Court in para 6 on page 584, has observed as under: “On the question of computation of proper compensation to be awarded to the appellants certain well established facts on the record of this case are required to be noted. The deceased was the only bread-winner in the family of the appellants. He was cut short in the prime period of life at the age of 27 by the accident caused by the truck driver, respondent No.2. He had put in seven years of military service by that time. He was earlier a Lieutenant in the FA/287/1988 18/43 JUDGMENT Army. The he was promoted to the rank of a Captain and was fully qualified for promotion to the rank of a Major at the time of his death. The certificate issued by Dy.Comdt. And OC Tps. Rampal Singh showed that the deceased had obtained the following medals during active service in various operation areas: (a) Sena Seva Service Medal (b) Sangram Medal (c) Poorvi Star (d) 25th Indept. Anniversary Medal.“ 2.17G Thereafter, the Hon'ble Supreme Court has referred to the case of Susamma Thomas (supra) and in same para at page 587, it is observed that: “Adopting the same scientific yardstick as laid down in the aforesaid judgment, the computation of compensation in the present case can almost be subjected to a well settled mathematical formula. Deceased in the present case, as seen above, was earning gross salary of Rs.1,543/- per month. Rounding it up to figure of Rs.1,500/- and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over FA/287/1988 19/43 JUDGMENT 7 years, and also keeping in view the other imponderables like accidental death while discharging military duties and the hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least double than what he was earning at the time of his death, i.e., up to Rs.3,000/- per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average gross future monthly income could be arrived at by adding the actual gross income at the time of death, namely, Rs.1,500/- per month to the maximum which he would have otherwise got had he not died a premature death, i.e., Rs.3,000/- per month and dividing that figure by two. Thus, the average gross monthly income spread over his entire future career, had it been available, would work out to Rs.4,500/- divided by 2, i.e., Rs.2,200/-. Rs.2,200/- per month would have been the gross monthly average income available to the family of the deceased had he survived as a bread-winner.” 2.17H The learned counsel has also relied upon the judgment of the Apex Court in the case of Lataben Wadhva v. State of Bihar, reported in 2001 (8) SCC 197, particularly para 8 at page 208, as under. The Court also referred to G.M.Kerala SRTC v. Susamma FA/287/1988 20/43 JUDGMENT Thomas (supra) and observed as under: 2.17H(i) “It was also stated that much of the calculation necessarily remains in the realm of hypothesis and in that region, arithmetic is a good servant but a bad master, since there are so often many imponderables. In every case, “it is the overall picture that matters”, and the court must try to assess as best as it can, the loss suffered. On the acceptability of the multiplier method, the Court observed: 2.17H(ii) “The multiplier method is logically sound and legally well-established method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. A departure from this method can only be justified in rare and extraordinary circumstances and very exceptional cases.” 2.17I The Hon'ble Court further observed that the proper method of computation is the multiplier method