FA/1113/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1113 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================= 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 ? ========================================= G.S.R.T.C. Versus BHAVNABEN R SHAH (DELETED) &ORS ========================================= Appearance : MR HARDIK C RAWAL for Appellant None for Respondent No.1 MR JB PARDIWALA for Respondents No. 2 - 3 ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 16/09/2008 ORAL JUDGMENT: (Per : HONOURABLE MR.JUSTICE J.R.VORA) FA/1113/2008 2/10 JUDGMENT 1. The present First Appeal is preferred by the original Opponent – Gujarat State Road Transport Corporation of Motor Accident Claim Petition No. 167 of 2003, against the judgment and award delivered by Motor Accident Claims Tribunal (Auxilliary), Valsad, on 17th of June, 2006, wherein the Tribunal was pleased to award, in all, compensation of Rs. 15,63,500/- to the claimants - present opponents with running interest at the rate of 7.5% from the date of application till realization, for the death of Rameshchandra Shah, caused by accident, who happens to be the father of present Respondents No. 2 and 3. 2. As per the brief facts of the case, Rameshchandra Shah, on 29th of August, 1997, was travelling from Dahej to Ankleshwar, in his Maruti car, which dashed near village Bhesli with S.T. Bus, bearing No. GJ-1-Z-1265, driven by driver of the original opponent – present Appellant - Gujarat State Road Transport Corporation and on account of which and on account of head on collision accident, death of Rameshchandra Shah was caused. 3. Claim Petition was preferred by widow - applicant No.1 Bhavnaben, daughter Hiral Rameshchandra Shah and son Ronak Rameshchandra Shah – Respondents herein - original applicants No. 2 FA/1113/2008 3/10 JUDGMENT and 3, for compensation of Rs. 1 crore, and as above stated, the Tribunal was pleased to award the above stated amount by way of compensation to the claimants through its judgment and award impugned in this Appeal. Being aggrieved by the said judgment and award passed by the Tribunal, the present Appeal is filed by the original Opponent – Gujarat State Road Transport Corporation under Section 173 of the Motor Vehicles Act, 1988. 4. Learned Advocate Mr. Hardik C. Raval for the appellant and learned Advocate Mr. J.B. Pardiwala for opponents - original claimants were heard in detail. 5. It is required to be noted here that widow of deceased Rameshchandra Shah i.e. Bhavnaben, died during the proceedings before the Tribunal and, therefore, she was deleted as party and now the son and daughter of the deceased continued as claimants and they are opponents herein. 6. So far as the issue of negligence is concerned, there is no dispute between the parties and, therefore, what is decided by the Tribunal in respect of negligence to the effect that the deceased was negligent to the extent of 50% and the driver of the ST Corporation was FA/1113/2008 4/10 JUDGMENT negligent to the extent of 50% in causing accident appears to have been accepted by the parties. 7. What is vehemently contested is the assessment of compensation. It appears that after perusing the evidence and by proper assessment of the same, learned Tribunal came to the conclusion that from Rachna Thin Mark Exim Co. Ltd. where the deceased was serving, he was paid salary of Rs.7,333/- per month. The learned Tribunal has placed reliance on Exhibit-80 for this conclusion. It appears that, so far as, this conclusion is concerned, there is no dispute amongst the parties. From salary income, dependency benefits is assessed by the learned Tribunal after considering the prospective income by recognized method and the income of the deceased was assessed by the Tribunal to the extent of Rs.10,999.50ps as base to award dependency benefits. Thereafter, the learned Tribunal deducted 1/3 portion of salary, which was the pocket expenses of the deceased, and learned Tribunal assessed clear dependency benefits to the claimants at Rs. 7,333/- monthly and Rs. 87,996/- yearly. The deceased was aged 45 years and vide Exhibit-54 a certificate of date of birth is produced and, therefore, the Tribunal applied 13 multiplier and dependency benefits was assessed by the Tribunal at Rs. 11,43,948/- and in round figure, Rs. 11,44,000/-. In addition to this, the Tribunal also assessed the income of the deceased FA/1113/2008 5/10 JUDGMENT from the business of the deceased. The evidence was assessed by the Tribunal in this respect about the income from Hirsha Corporation and Kamal Corporation, both belonged to HUF of deceased and from this, having regard to four partners, who were in both the companies, the profit part of the deceased was assessed by the Tribunal to the extent of Rs. 1,50,000/- p.a. Considering the prospective income of the deceased in this respect also, the Tribunal came to the conclusion that the dependency benefits of the claimants from the income of the deceased was about Rs. 1,50,000/- annually and giving 13 multiplier, the dependency benefits was assessed at Rs. 19,50,000/-. Thus, considering the dependency benefits from salary income and income of business, Tribunal awarded in all Rs. 30,94,000/- towards loss of dependency benefit. In addition to this, the Tribunal also awarded Rs. 26,000/- towards loss of expectancy of life; Rs. 7,000/- towards transportation and funeral expenses, totalling to Rs. 31,27,000/-. However, since the Tribunal held that the deceased was contributory negligent to the extent of 50%, the amount of compensation also was slashed down to 50% and, therefore, the Tribunal held that the claimants were entitled to Rs. 15,63,500/- towards compensation. 8. This assessment is vehemently challenged by the S.T. Corporation - appellant herein, firstly, on the ground that the income FA/1113/2008 6/10 JUDGMENT from the business has not been properly assessed by the Tribunal and that the multiplier awarded by the Tribunal is on the higher side. It is submitted by learned Advocate for the appellant that except salary income, the Tribunal ought not to have considered the income of the business of the deceased and that in facts and circumstances of the case, when the deceased was 45 years of age and since the widow of the deceased was also died during the proceedings, 13 multiplier appears to be on quite higher side. While on the other hand, learned Advocate for the claimants i.e. opponents herein, submitted that, in fact, Schedule-II of the Motor Vehicles Act allows 15 multiplier for the age of 42 to 45. The Tribunal, in fact, applied less multiplier than the claimants were entitled to. It is submitted that the deceased was hale and healthy and was likely to live longer life and in the facts and circumstances, it could not be said that the Tribunal was in error awarding multiplier of 13. It is also submitted by learned Advocate for the opponents – original claimants that the learned Tribunal assessed the income from the business properly and deceased was proprietor of two companies i.e. Rachna Thin Marketing Co Ltd and Kamal Corporation. The claimants has been examined in this respect and witness Kishor Gheewala was Auditor and Chartered Accountant, produced on record the income tax returns and audit reports of these companies. Therefore, the assessment of the Tribunal as to the income FA/1113/2008 7/10 JUDGMENT of the deceased from those two companies is established sufficiently. 9. We have considered the contentions raised extensively. We have gone through the record and proceedings of the Tribunal and while considering the assessment made by the Tribunal, it becomes clear that the claimants could establish sufficiently the income of the deceased from salary and from business. It is proved that the deceased was doing business of cement and building materials through both the above companies. These companies were audited by recognized Chartered Accountant, who is examined by the claimants, and he is witness Kishor Gheewala. The income tax returns filed by these companies are placed on record. Mr. Gheewala is an independent witness and, therefore, it could not be said that there was no income of the deceased from companies from business salary as it has been proved by the evidence. The learned Tribunal has extensively considered this aspect in paras 12 and 13 of of the judgment and award impugned in this Appeal. Nothing could be shown by the appellant to interfere in this conclusion of the Tribunal that the dependency benefits of the claimants from the salary income of the deceased was monthly Rs. 7,333/- and that Rs. 1,50,000/- yearly from business. 10. However, it clearly appears that the learned Tribunal has FA/1113/2008 8/10 JUDGMENT awarded higher multiplier in the facts and circumstances of the case. True it is that, in Second Schedule, 15 multiplier is allowed to the age of 45 years, but then, the Schedule – II of the Act is a guideline and not mandate. Many various factors are to be looked into while applying multiplier for future dependency benefits. In TAMIL NADU STATE ROAD TRANSPORT CORPORATION vs S. RAJPRIYA AND ORS, as reported in (2005) 6 SCC 236, the Supreme Court allowed 12 multiplier when deceased was aged about 38 years. Dependency, expectancy of life, age of the claimants, other relevant factors are required to be considered while applying multiplier. We find that the Tribunal clearly erred in this regard. We find that the widow of the deceased Bhavnaben died during proceedings leaving two claimants i.e. son and daughter of the deceased. Even at the time of filing of this Appeal, daughter was aged 21 years and had married while son was aged 19 years. Now, the question which arises is whether 13 multiplier applied by the Tribunal is just and proper. Having regard to various decisions, specifically above decision of the Supreme Court, and considering various factors, we feel that, proper multiplier which ought to have been awarded by the Tribunal is 11 and not 13 and, therefore, we reduce the award of compensation impugned in this Appeal to the extent of two multiplier. FA/1113/2008 9/10 JUDGMENT 11. Now applying the 11 multiplier to the dependency benefits as assessed by the Tribunal, the loss of future income to the claimants on the account of salary would come to Rs. 9,67,956/- instead of Rs. 11,44,000/- as awarded by the Tribunal. Like wise, the amount of dependency benefits from the income of business after applying 11 multiplier, would come to Rs. 16,50,000/- instead of Rs. 19,50,000/- as has been awarded by the Tribunal. Totalling Rs. 9,67,956/- and Rs. 16,50,000/-, the amount comes to Rs. 26,17,956/- and this is the amount for which the claimants are entitled and not the amount of Rs. 31,27,000/- as warded by the Tribunal towards the future loss of income i.e. dependency benefits. Considering 50% contributory negligence of the deceased, this amount comes to Rs. 13,08,978/- instead of Rs. 15,63,500/-, as awarded by the Tribunal. Adding the amount of Rs. 26,000/- towards loss of expectancy of life, Rs. 7,000/- towards transportation and funeral charges, the amount comes to Rs. 13,41,978/-. This is the amount for which the claimants are entitled and, therefore, we modify the judgment and award impugned in this Appeal to the above extent that instead of Rs. 15,63,500/- the claimants would be entitled to the compensation of Rs. 13,41,978/- with running interest at the rate of 7.5% from the date of application till realization. FA/1113/2008 10/10 JUDGMENT 12. In the result, this Appeal is partly allowed. The judgment and award impugned in this Appeal is modified and it is held that the opponents – original claimants are entitled to the compensation of Rs. 13,41,978/- instead of Rs. 15,63,500/- awarded by the Tribunal with running interest at the rate of 7.5% from the date of application till realization from the appellant. 13. Appellant is directed to deposit the amount of award as afore-stated within four weeks from today in the Tribunal. Tribunal shall disburse the amount as per Award accordingly. (J. R. VORA, J.) (Z.K.SAIYED, J.) pnnair