FA/2627/2001 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2627 of 2001 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 ? ========================================= NATIONAL INSURANCE CO LTD. Versus VALLABHDAS LADHABHAI JIVANI & Others. ========================================= Appearance : MR DAKSHESH MEHTA for the Appellant. MR RM CHHAYA for the respondents. ========================================= CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE S. D. DAVE FA/2627/2001 2/10 JUDGMENT Date : 04/02/2008 ORAL JUDGMENT : (Per : A. L. DAVE, J.) 1. The appellant herein challenges the judgment and award rendered by Motor Accident Claims Tribunal (Aux.), Rajkot, at Gondal, on 29th March, 2001 in Motor Accident Claim Petition No.409 of 1993. 2. The said Claim Petition was preferred by heirs and legal representatives of one Dalpatkumar Vallabhdas Jivani, who died in a vehicular accident that occurred on 12.07.1993, at 10.00 p.m. on Kolki-Supedi Road. The deceased was driving Motorcycle No. GUK- 1529 and was travelling along with his wife, Heena, and son, Sameer, aged about 10 years. Truck No. GTB 6522 was proceeding ahead of the motorcycle and the driver of the truck suddenly applied brakes. The deceased could not avert the accident because of on coming traffic and the motorcycle dashed against the truck from behind. The deceased sustained fatal injuries and succumbed to them. 2.1 The deceased was working as Assistant Teacher at Sodvadar Primary School and was drawing a gross salary of Rs.3343/ per month. After considering is contribution towards G.P.F., Insurance, etc., his net take home pay was Rs.3073/-. The claimants, therefore, claimed a compensation of Rs.10 lakh from the driver, owner and insurer of the truck. FA/2627/2001 3/10 JUDGMENT 3. The Tribunal, after considering the evidence led by parties, came to a conclusion that the deceased himself was responsible for the accident to the extent of 40 per cent while the truck driver was responsible to the extent of 60 per cent. The Tribunal also came to a conclusion that the claimants were entitled to a total compensation of Rs.18,10,000/- and, after deducting 40 per cent on account of negligence attributed to the deceased, the Tribunal came to a conclusion that the claimants were entitled to a total compensation of Rs.10,86,000/-. But since the claimants had restricted their claim to Rs.10 lakh, the Tribunal awarded the compensation in toto as prayed for with interest at the rate of 9 per cent per annum. 4. The insurer of the truck has approached this Court with this appeal challenging the judgment and award on account of negligence as well as quantum of compensation. 5. Learned Advocate, Mr. Mehta, is present before us. Learned Advocate for the respondents has chosen not to appear before us despite three calls. 6. Learned Advocate, Mr. Mehta, for the appellant submitted that the Tribunal has erred in assessing the negligence. According to Mr. Mehta, the deceased was proceeding on the motorcycle with two pillion riders. That act itself on the part of the deceased was of gross negligence and amounted to violation of section 128 of the Motor Vehicles Act. Mr. Mehta submitted further FA/2627/2001 4/10 JUDGMENT that the motorcycle was travelling behind the truck. The incident occurred during night hours and it would be reasonable to expect the driver of a vehicle travelling behind another vehicle to maintain a safe distance to enable him to meet with some such exigencies of sudden application of brakes by the vehicle travelling ahead. Mr. Mehta submitted that he does not plead for attributing total negligence to the motorcycle driver but the apportionment of negligence should have been more on the deceased and less on the driver of the truck. 6.1 Mr. Mehta submitted further that the Tribunal has grossly erred in assessing the amount of compensation under the head of dependency loss. The claimants examined the Principal, Mr. R. R. Amrutiya, of the school where the deceased was working to prove the income of the deceased and it emerges from evidence of the said Principal that, at the time of death, the deceased was drawing the salary of Rs.3343/- and had he not expired in the accident, his salary, as on 1.1.2001, would have been Rs.9467/-. The Tribunal has, while assessing the dependency loss, come to a conclusion that the income of the deceased was Rs.10,000/- at the time of accident and then added two folds of it and then divided it by 2 to assess the prospective income of the deceased and has, thus, arrived at a figure of Rs.15,000/- per month. Mr. Mehta submitted that the salary at the time of the accident was Rs.3343/- and not Rs.9467/-, as is held by the Tribunal, as can be seen from the evidence on record (Exhibit 38). He also submitted that Rs.9467/- is the salary which the deceased would have drawn as on 1.1.2001 had he not expired in the accident. There was no question of FA/2627/2001 5/10 JUDGMENT doubling the income and then adding it to the income and then dividing it by one half. Mr. Mehta, therefore, submitted that the Tribunal has committed a grave error in assessing the dependency loss. According to Mr. Mehta, the Tribunal has also erred in adopting a multiplier of 15, which, according to him, should have been much less. Mr. Mehta, therefore, submitted that the appeal may be accordingly allowed. 7. As we have already recorded, none appeared for the respondents earlier but while the matter was during the course of being dictated, learned Advocate, Mr. Chhaya, has appeared before us. He has opposed this appeal raising a contention that the Tribunal, though apparently appears to have adopted an erroneous figure while computing the prospective income, has worked out a correct figure for the reason that the income of the deceased that has been brought on record through Exhibit 38 was relating to 1.1.2001 and not as on the date of his superannuation. The income that the deceased would have drawn at the time of superannuation would have been much higher considering the length of service that the deceased had then to put in and considering the pay revisions. He, therefore, submitted that the figure that is taken by the Tribunal as foundation is not very much on higher side. Mr. Chhaya was, however, unable to support the formula that was adopted by the Tribunal while computing the dependency loss. He submitted that the appeal may be dismissed. 8. We have taken into consideration the submissions made before us. We have examined the record and proceedings which FA/2627/2001 6/10 JUDGMENT are before us. 9. Considering the question of negligence, we may record that the incident occurred at 10.00 p.m. The deceased was driving the motorcycle with two pillion riders with him. Even if we take the case of the claimants as it is, the truck was going ahead of the motorcycle and the driver of the truck suddenly applied the brake. The deceased could not avert the accident because of on coming traffic. This could have happened only if the deceased was driving the motorcycle at a speed, which was not sufficiently controllable. This would also mean that the motorcycle was not being driven at a safe distance from the truck and, last but not the least, the deceased was carrying two pillion riders on the motorcycle, which would reduce the manoeuvrability of the vehicle and would also be in violation of Section 128 of the Motor Vehicles Act. But, at the same time, we may not lose sight of the fact that the truck is a larger vehicle. The driver of the truck has not entered into the box to explain as to how the accident has occurred. The accident occurred on a main road. There is no evidence to show that there was any obstruction or that there was a junction near the place of incident. We, therefore, do not have any material to know what prompted the driver of the truck to suddenly apply the brake. As a person in charge of a larger vehicle, the driver of the truck owed greater degree of care, caution and respect towards other traffic, which he has failed to perform. In our opinion, this cannot be considered to be a case where the entire responsibility for the accident can be thrown on driver of either vehicle. But considering the fact that driver of the truck was in-charge of a larger vehicle and that he FA/2627/2001 7/10 JUDGMENT applied the brakes suddenly, we do not think any error is committed by the Tribunal when the Tribunal has attributed 60 per cent negligence to the driver of the truck and 40 per cent negligence to the deceased and, therefore, the appeal cannot be accepted in this regard. 10. Now, coming to the question of quantum, we have depositions of claimant-Heenaben, widow of the deceased. According to her, the deceased was aged 37 years and was working as an Assistant Teacher. She refers to the certificate of income of the deceased and states that the salary of the deceased was Rs.2300/-. She then states that the deceased used to earn about Rs.1000/- to 1200/- by rendering private tuitions. She then states that had he not meet with the accidental death, his salary at the time of superannuation would have been Rs.6550/-. The claimant has been cross-examined at length on negligence aspect and she then states that the salary of her husband was Rs.3073/- per month at the time of accident and that she gets a pension of Rs.2,000/- per month. She admits that her husband had not sought any permission for rendering private tuitions nor does she have any proof to show that her husband was rendering private tuitions. 10.1 Apart from this, the claimants have produced the salary slip of the deceased for the month of June, 1993, at Exhibit 29, which shows that the gross salary of the deceased was Rs.3343/- and, after deductions under the heads of G.P.F., Insurance, etc., net take home pay was Rs.3073/-. Then, we have deposition of Ramnikbhai Ravjibhai Amrutiya (Exhibit 37), who was the Principal FA/2627/2001 8/10 JUDGMENT of the School where the deceased was working. He deposed that the salary of the deceased would have been Rs.9467/- as on 1.1.2001 had he not met with the accidental death. He also deposed that the salary of the deceased would have increased from time to time as per the Government Resolutions. He also produced detailed calculation of income of the deceased at Exhibit 38. 11. With the above evidence on record, if we see the reasoning adopted by the Tribunal, we find that the Tribunal has come to a conclusion in paragraph 9 that the monthly income of the deceased can reasonably be assessed at Rs.10,000/- per month on the basis that the deceased was earning Rs.9467/- per month. In fact, the deceased was not earning Rs.9467/- per month, but was earning only Rs.3343/- and, therefore, the Tribunal has committed an error while assessing the income of the deceased. 12. It is true that the deceased was young and had a long service ahead of him. But, unfortunately, no evidence is led to bring on record what his income would have been at the time of superannuation had he not met with the unfortunate accident. All that we have on our hand is his income as on the date of the accident and the income that he would have earned on 1.1.2001, as can be seen from Exhibit 38. Therefore, for computing dependency loss on account of prospective income, these two figures will have to be clubbed and divided by two. That would bring a figure of Rs.6405/-, which would be the monthly dependency loss of the claimants. For arriving at the annual loss of prospective income, we may multiply the said figure with 12. That would bring us to a FA/2627/2001 9/10 JUDGMENT figure of Rs.76,860/- as annual loss of prospective income. The deceased must have been spending some amount on his own self and applying the principle of rule of thumb, we may deduct 1/3rd out of the said figure to arrive at the figure of loss of annual dependency, which would fetch us an amount of Rs.51,240/-, as annual dependency loss. Considering the age of the deceased, the Tribunal has adopted a multiplier of 15 and we do not propose to disturb the same in view of the peculiar circumstances of this case and that would take us to an amount of Rs.7,68,600/- as compensation under the head of dependency loss. 12.1 Now, the negligence which is attributed to the deceased towards the cause of the accident will have to be taken into consideration. The amount, therefore, will have to be reduced by 40 per cent. That would take us to a figure of Rs.4,61,160/- as compensation under the head of dependency loss, to which the claimants would be entitled to. Added to this would the usual figure of Rs.10,000/-, which the Tribunal has awarded as conventional figure for loss of expectation of life. The claimants, therefore, would be entitled to a total compensation of Rs.4,71,160/-. 13. The Tribunal has, instead, awarded compensation of Rs.10,00,000/ and that error will have to be rectified by partly allowing the appeal. The appeal is partly allowed. The claimants are entitled to a compensation of Rs.4,71,160/- with proportionate costs and interest at the rate of 9 per cent from the appellant and respondents No. 6 and 7, which they are jointly and severally liable FA/2627/2001 10/10 JUDGMENT to satisfy. 14. We understand that the appellant has deposited the awarded amount with proportionate costs and interest with the Tribunal. The amount of Rs.4,71,160/- with proportionate costs and interest at the rate of 9 per cent per annum will be disbursed to the claimants in the ratio decided by the Tribunal. Rest of the amount would be receivable by the appellants. We clarify that, if any disbursement is already made by the Tribunal earlier, the same would be taken into consideration while passing the order of disbursement pursuant to this judgment. Award accordingly. No costs. [ A. L. DAVE, J. ] [ S. D. DAVE, J. ] gt