FA/1477/2008 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1477 of 2008 With CIVIL APPLICATION No. 3797 of 2008 In FIRST APPEAL No. 1477 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA 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 ? ========================================================= NATIONAL INSURANCE CO. LTD. - Appellant(s) Versus VIDYABEN W/O. VIRSINH DHANJIBHAI GARASIYA & 5 - Respondent(s) ========================================================= Appearance : MS MEGHA JANI for Appellant(s) : 1, MR NIRZAR S DESAI for Respondent(s) : 1 - 3. MR TEJAS M BAROT for Respondent(s) : 4 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 18/07/2008 FA/1477/2008 2/29 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in this appeal filed under Section 173 of the Motor Vehicles Act, 1988 ('the Act' for short) is to the correctness of the judgment and award dated 31.7.2006 rendered in Motor Accident Claim Petition No. 1765 of 1996 by the Motor Accident Claims Tribunal (Aux), Presiding Officer, 8th Fast Track Court, Nadiad ('the Tribunal' for short) by which the claim petition filed under Section 166 of the Act by respondent Nos. 1 to 3 ('the claimants' for short) against the appellant – National Insurance Company Limited and respondent Nos.4, 5 and 6, being the heirs and legal representatives of deceased Ramanbhai Chandubhai Vasava, the driver-cum- owner of the jeep bearing registration No.GJ-7-H- 2206 ('the offending vehicle' for short) claiming compensation of Rs.50 lakhs on account of the untimely demise of Virsinh Dhanjibhai Garasiya in a vehicular accident which took place on 9.9.1996 FA/1477/2008 3/29 JUDGMENT at 6 A.M. near Ramdev Pir Temple, Karamsad while he was walking on the left side of the road and dashed by the offending vehicle, has been partly allowed and thereby the claimants were held entitled to recover compensation of Rs.23,96,000 together with interest at the rate of 12% per annum from the date of filing of the claim petition till realization and proportionate costs of the claim petition and accordingly the appellant-insurance company and the respondent Nos.4 to 6, being the heirs and legal representatives of deceased Ramanbhai Chandubhai Vasava, were jointly severally held liable to pay the said amount as compensation to the claimants and they were ordered to deposit the said amount in the Tribunal within 30 days. 2. As per the averments made in the claim petition, on the fateful day, i.e., 9.9.1996 at about 6 A.M., Virsinh Dhanjibhai Garasiya, was walking on the left side of the road, near Ramdev Pir Temple, at Karamsad. At that time, Ramanbhai FA/1477/2008 4/29 JUDGMENT Chandubhai Vasava, driver-cum-owner of the offending vehicle came there driving his vehicle in a rash and negligent manner and at an excessive speed and hit the offending vehicle with Virsinh. As a result of the impact, he fell on the road and received serious injuries on his head and succumbed to the same during the course of his treatment on 17.9.1996. 2.1. As per the averments made in the claim petition, the accident had taken place due to rash and negligent driving on the part of Ramanbhai Chandubhai Vasava who was the driver- cum-owner of the offending vehicle. Therefore he being the driver-cum-owner of the offending vehicle was primarily liable to pay compensation and was also liable under the principle of vicarious liability. The offending vehicle was insured with the appellant at the relevant time and, therefore, the appellant is liable to indemnify the insured against the award that may be passed by the Tribunal in favour of the FA/1477/2008 5/29 JUDGMENT claimants. Therefore, according to the claimants, the appellant being the insurer of the offending vehicle and respondent Nos. 4 to 6 being the heirs and legal representatives of the driver- cum-owner of the offending vehicle as Ramanbhai Chandubhai Vasava died during the pendency of the claim petition, jointly and severally, were liable to pay compensation as may be awarded by the Tribunal in favour of the claimants. 2.2. Putting forward the claim for compensation, it was averred by the claimants that at the time of accident Virsinh Dhanjibhai Garasiya was serving as a cashier in the Bank of India and was drawing monthly salary of Rs.9,578/- and also other allowances and in all he was earning aggregate income of Rs.10,000 per month. It was also averred that looking to the inflationary trend ad hike in the salary of bank employees, by passage of time, he would have earned at least Rs.17,000/- per month and he would have reached upto Rs.25,000-30,000 per FA/1477/2008 6/29 JUDGMENT month at the time of his retirement. On account of his untimely demise, the claimants who were fully dependent on his income, have lost the dependency benefits available from him. Therefore, on all counts, the claimants have claimed total compensation of Rs.50 lakhs together with interest and cost from the driver- cum-owner and insurer of the offending vehicle. 3. The claim petition was contested by the appellant-National Insurance Company Limited by filing written statement wherein, inter alia, the brief particulars of the accident were not admitted. It was denied that Virsinh was walking on the left side of the road and at that time the driver-cum-owner of the offending vehicle came there driving the offending vehicle in a rash and negligent manner and at an excessive speed and hit it with Virsinh. It was also denied that as a result of the negligent driving on the part of the driver of the offending vehicle the accident had taken place. It was contended that the FA/1477/2008 7/29 JUDGMENT accident had taken place when Virsinh was trying to cross the road all of a sudden and therefore he himself was negligent in crossing the road and as he was crossing the road without following rules and regulations of the traffic, he fell down and sustained injuries. According to the appellant, the driver of he offending vehicle was not negligent in driving the vehicle and he cannot be held responsible for the accident and hence the appellant was not liable to pay any amount of compensation to the claimants. 3.1. So far as the claim of compensation put forward by the claimants is concerned, it was denied by the appellant. The income of the deceased was also denied by the appellant. It was pleaded that the claimants were not entitled to interest on the amount of compensation. It was also pleaded that the claim was exaggerated. On these grounds it was prayed by the Insurance company to dismiss the claim petition. FA/1477/2008 8/29 JUDGMENT 4. On the pleadings of the parties, the Tribunal framed issues and after considering the oral as well as documentary evidence and more particularly FIR, Ex.28, Panchnama of the scene of accident Ex.29 and copy of the charge sheet filed against Ramanbhai Chandubhai Vasava, driver-cum-owner of the offending vehicle, who has died during the pendency of the claim petition, at Ex.30, came to the conclusion that the accident was the result of rash and negligent driving on the part of the driver of the offending vehicle and his negligent driving claimed the life of a promising person and he being the tortfeasor he was primarily liable being the driver of the offending vehicle and he being the owner of the offending vehicle was vicariously liable and since the appellant being the insurer of the offending vehicle was liable to indemnify the driver-cum-owner of the offending vehicle and hence it was also liable to pay compensation to the claimants. The Tribunal therefore held that the appellant and respondent FA/1477/2008 9/29 JUDGMENT Nos.4 to 6 were jointly and severally liable to pay compensation to the claimants. 4.1. So far as the quantification of compensation is concerned, the Tribunal on the basis of the evidence of claimant Vidyaben, widow of Virsinh Ex.24 and also the evidence of Ramjibhai Rabari Ex.44, an employee of Bank of India, Karamsad Branch, has assessed the prospective income of the deceased at Rs.18,000 per month and thereafter deducted 1/3rd for his personal upkeep and assessed the dependency benefit to the members of the claimants at Rs.12,000/- per month and thereafter applied 16 multiplier and awarded total compensation of Rs.23,04,000/- Thereafter the Tribunal added Rs.50,000/- for mental pain, shock and sufferings and also as consortium and Rs.10,000/- loss of expectation of life and loss to estate, Rs.25,000 for medical expenses, Rs.2,000 for funeral expenses and Rs.5,000 transportation charges and accordingly the Tribunal has awarded total FA/1477/2008 10/29 JUDGMENT compensation to the claimants in the following break-up: Rs.23,04,000.00 loss of prospective income Rs. 50,000.00 mental pain, shock and sufferings and consortium Rs. 10,000.00 loss of expectation of life Rs. 25,000.00 medical expenses Rs. 2,000.00 funeral expenses Rs. 5,000.00 transportation charges ------------------ Rs.23,96,000.00 total compensation =============== 4.2. The Tribunal has awarded interest on the above mentioned amount at the rate of 12% per annum from the date of the claim petition till realization and proportionate costs of the claim petition, which has given rise to instant appeal at the instance of the appellant-National Insurance Company Limited. FA/1477/2008 11/29 JUDGMENT 5. Ms. Megha Jani, learned advocate for the appellant, in support of the appeal, has mainly raised the following submissions: (i) That the accident had taken place due to negligence of the deceased Virsinh. The deceased crossed the road in spite of the jeep which was proceeding towards him. The claimants have failed to establish that the accident happened due to negligence of the driver of the jeep. (ii)he driver-cum-owner of the offending vehicle had taken the deceased to hospital after the accident for treatment and he was told by the injured Virsinh that he did not want to file a complaint as is mentioned in the FIR. (iii) The driver-cum-owner of the offending vehicle instead of fleeing from the spot of accident or trying to save himself, took the deceased to hospital and also informed the police about the accident which speaks volumes about he FA/1477/2008 12/29 JUDGMENT being not negligent in driving the offending vehicle. (iv)The Tribunal has erred in holding the driver- cum-owner of the offending vehicle negligent in driving the vehicle merely on the basis of the fact that charge sheet was filed against him. (v) The quantum of compensation awarded by the Tribunal is excessive and on higher side. (v) The prospective income of the deceased assessed at Rs.18,000/- per month by the Tribunal is on the higher side. The Tribunal ought to have considered only the net income of the deceased for arriving at the just compensation as held by the Supreme Court in the case of Asha Rani and others v. United India Insurance Company Limited, 2004 ACJ 448. (vi)The Multiplier of 16 adopted by the Tribunal is excessive and is on the higher side. Considering that the deceased was aged 39 the Tribunal ought to have adopted a lower multiplier as is done by the Supreme Court in the case of Tamil Nadu Road Transport Corporation v. S. FA/1477/2008 13/29 JUDGMENT Rajapriya and others, 2005 ACJ 1441. (vii) The Tribunal has committed an error in directing the respondents to pay compensation with interest at the rate of 12% per annum in view of change in economy and change in policy of Reserve Bank of India with respect to interest and in view of the recent judgments of the Supreme Court appropriate rate of interest would be 7.5% per annum. 5.1. On the aforesaid premises, it is contended by her that the deceased himself was negligent while crossing the road and, therefore, the claimants are not entitled to receive any compensation from the insurance company. She therefore urged to allow the appeal and quash and set aside the impugned judgment and award. 5.2. Alternatively it is submitted by her that the impugned judgment and award may be modified by awarding just and adequate compensation and the appeal may be allowed to that extent. FA/1477/2008 14/29 JUDGMENT 6. Per contra, Mr. Nirzar Desai, learned advocate for respondent Nos.1 to 3, original claimants, has contended that the impugned judgment and award does not require any interference. According to him, the Tribunal has rightly held that no negligence can be attributed to the deceased as he was walking on the left side of the road. It is also contended by him that the charge-sheet came to be filed against Ramanbhai Chandubhai Vasava, which speaks of the volumes of his negligence in driving the offending vehicle. The Tribunal has rightly considered the average prospective income of the deceased and has also applied the correct multiplier. It is also emphasised by him that the amount awarded is just compensation looking to the erosion of rupee value and inflationary trend. According to him, in view of the erosion of money value the quantification of compensation assessed by the Tribunal cannot be considered on higher side requiring interference of this Court. FA/1477/2008 15/29 JUDGMENT It is also asserted by him that looking to the age of the deceased who was 39 years at the time of accident, the Tribunal has rightly applied 16 multiplier for finding out the loss of dependency benefits to the claimants. In sum and substance, according to him, the Tribunal has rightly awarded just compensation which does not require any interference of this Court. He therefore urged to dismiss the appeal and confirm the judgment and award passed by the Tribunal in favour of the claimants and against the appellant as well as respondent Nos.4 to 6. 7. We have considered the submissions advanced by Ms. Megha Jani, learned advocate for the appellant, Mr. Nirzar Desai, learned advocate for the claimants and Mr. Tejas Barot, learned advocate for respondent Nos.4, 5 and 6, who are the heirs and legal representatives of Ramanbhai Chandubhai Vasava, who was the driver-cum-owner of the offending vehicle and who have been joined as party respondents as Ramanbhai has died during FA/1477/2008 16/29 JUDGMENT the pendency of the claim petition. We have also perused the impugned judgment and award as well as the averments made in the claim petition and the memo of appeal so also the paper book and also the judgment cited at the bar. 8. It may be noted that to prove the negligence on the part of the driver-cum-owner of the offending vehicle, no eye witness has been examined from either side. The only evidence available is in the form of FIR Ex.28, Panchnama Ex.29, charge-sheet filed against the driver-cum- owner of he offending vehicle, Ex.30. On a perusing the FIR it is seen that it was lodged by the driver-cum-owner of the offending vehicle. As per the FIR, on 9.9.1996 when he was proceeding with his jeep from his agricultural farm after collecting flowers, at 6 A.M., when he reached near Ramdev Pir Temple one person tried to cross the road and dashed with the bumper of the vehicle. He immediately applied brake but the person who hit with the vehicle fell down and FA/1477/2008 17/29 JUDGMENT sustained injuries on his head. He immediately shifted the injured person to hospital and the injured person told him that he did not want to file complaint. Thereafter he (complainant- Ramanbhai) left the hospital. He also visited the injured person in the hospital. On perusal of the panchnama Ex.29 the spot of the accident is shown as 4 ft. north side from the southern edge of the road. On perusing charge-sheet Ex.30, it is seen that at the end of investigation charge sheet came to be filed against the driver- cum-owner of the offending vehicle but as he has died the complaint was abated. 8.1. On reappraisal of the documentary evidence, it is not swallowable or gulpable that the deceased - a pedestrian was negligent in crossing the road. According to us, the contention that the pedestrian was negligent while crossing the road does not appeal to us. Merely because the driver-cum-owner had taken the injured to hospital for the purpose of treatment FA/1477/2008 18/29 JUDGMENT cannot absolve him from his negligence as he was driving the offending vehicle in a rash and negligent manner and at an excessive speed. As per the Act, it is the statutory duty of the driver of the vehicle to take the injured to hospital for medical treatment. We are, therefore, of the opinion that the Tribunal has rightly held the driver-cum-owner of the offending vehicle solely responsible for the accident and because of negligent driving of the offending vehicle by its driver-cum-owner the accident occurred and in the accident Virsinh Dhanjibhai Garasiya sustained injuries and during the course of treatment he succumbed to the same. Therefore we affirm the finding of the Tribunal that the driver-cum-owner of the offending vehicle was solely responsible for the accident as he was driving the offending vehicle in a rash and negligent manner and the mishap has taken away the life of a promissing person aged 39 years, serving as a cashier in Bank of India. FA/1477/2008 19/29 JUDGMENT 9. Now the question which falls for consideration of this Court is as to whether the assessment of average prospective dependency benefit as well as the multiplier of 16 adopted by the Tribunal is just and reasonable or it is on higher side requiring interference of this Court by modifying the same. 9.1. In this connection, adverting to the oral testimony of the claimant-respondent No.1 Vidyaben, widow of Virsinh at Ex.24, she has inter alia testified that after the accident her husband was taken to Krishna Hospital at Karamsad but looking to the seriousness of injuries sustained by him he was shifted to Bhailalbhai Amin General Hospital, Vadodara and during the course of treatment, after eight days he succumbed to the injuries. She has further deposed that for treatment of Virsinh, for operation as well as for medicines) they have spent approximately Rs.60,000/- During treatment two persons were attending the injured. After the FA/1477/2008 20/29 JUDGMENT accident till his death, he was writhing with severe pain and he suffered tremendous mental pain, shock and sufferings. On account of untimely death, she lost her husband and her two children lost their father. The deceased was hale and hearty and he was having no vices. He was working as a bank officer at the early age. At the time of accident he was drawing monthly salary of Rs.9,578/- as per salary certificate at Ex.40 and with other allowances and perks his monthly income was Rs.10,000/- She has also testified that his income also would have been increased as other co-employees who were working with her husband were getting Rs.16,000/- per month in the year 2005 when her evidence was recorded. Therefore, according to her, her husband would have also got Rs.17,000/- per month in 2005 and at the time of retirement he would have drawn salary of Rs.25,000 to Rs.30,000 per month. 9.2. To corroborate the evidence, the FA/1477/2008 21/29 JUDGMENT claimants have has also examined one witness Ramjibhai Rabari, Ex.44. He has inter alia testified that he was serving at Karamsad Branch of Bank of India. He has testified that Virsinh Garsaiya who died in the vehicular accident, was known to him. He has testified that he Virsinh had continued in service he would have got Rs.22,752 per month. He has also testified that the bank officers are getting promotion in every four years. At the time of accident the deceased was first grade officer. If he had survived then he would have got promotion as a 3rd grade officer and he would have earned much more salary. In support of the above, he has also produced one statement from the settlement record of the bank at Ex.47. In the certificate at Ex.47 it is mentioned that had Virsinh Garasiya continued in service he would have got Rs.22,752 per month on 22.10.2005. 10. On overall reappraisal of the evidence, there is no manner of doubt that at the time of FA/1477/2008 22/29 JUDGMENT death the deceased was getting salary of Rs.9,578 as per salary certificate at Ex.40 and with other perks and benefits the total salary would have come to Rs.10,000 per month. If he had continued in service, as per certificate Ex.47 he would have earned Rs.22,752/- Considering other hazardous of the life, we assess the income of the deceased at the fag end of his life at Rs.20,000/- 10.1. In order to find out the average prospective salary of the deceased we apply the standard formula adopted by the Supreme Court in catena of decisions by doubling the basic pay and allowing D.A. and other allowances available to the deceased at the time of death and in doing so considering the average income in the instant case as the deceased was getting Rs.10,000 per month at the time of accident and in future he would have earned Rs.20,000, his average prospective income comes to Rs.15,000 (10,000+20,000=30,000 and ½ of 30,000=15,000). FA/1477/2008 23/29 JUDGMENT Therefore the average prospective salary of the deceased is assessed at Rs.15,000/- per month instead of Rs.18,000/- per month as assessed by the Tribunal. 11. In order to find out the dependency benefits available to the claimants, we have also to consider the amount which would have spent by the deceased on himself had he not met with the accident for his personal upkeep and in doing so (and also considering other hazardous of the life) we propose to deduct 1/3 of Rs.15,000 i.e., Rs.5,000 from Rs.15,000 which comes to Rs.10,000 per month and according to us this is the net dependency benefit available to the claimants. Thus the yearly dependency loss comes to Rs.1,20,000. 12. On over all reappraisal of the evidence, according to us, the calculation made by the Tribunal for determination of proscriptive income is on higher side and hence we reduce the same to FA/1477/2008 24/29 JUDGMENT Rs.1,20,000/- per annum. 13. So far as the application of multiplier is concerned, the Tribunal, on the basis of the age of the deceased who was 41 years and 9 months, has applied 16 purchaser factor, which, according to us, is on higher side in view of the latest decisions of the Supreme Court. In the case of Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097, the deceased was aged 35 years and was an Assistant with ONGC and in that case the Supreme Court has adopted 13 multiplier. In the case of A.P. State Road Transport Corporation v. M. Ramadevi, 2008 ACJ 930, where the deceased was 40 years old, the Supreme Court has adopted 10 multiplier. In the case of T.N. State transport Corporation Ltd. v. S. Rajapriya (supra) the deceased was of 38 years and the Supreme court has applied 12 multiplier. 14. Applying the principles laid down by the Supreme Court in the above referred to judgments FA/1477/2008 25/29 JUDGMENT to the facts of the present case, according to us, 13 multiplier would be just and proper in order to find out the correct, just and adequate net dependency benefits available to the claimants. We have worked out the dependency benefits at the rate of Rs.1,20,000/- per annum and applied 13 multiplier which comes to Rs.15,60,000 to which we add Rs.50,000.00 towards mental pain, shock and sufferings and also as consortium, Rs. 10,000.00 loss of expectation of life, Rs.25,000.00 towards medical expenses, Rs. 2,000.00 for funeral expenses and Rs.5,000.00 for transportation charges. Therefore, the entitlement of the claimants comes in the following break up: Rs.15,60,000.00 loss of dependency benefits Rs. 50,000.00 consortium/medial pain, shock and sufferings. Rs. 10,000.00 loss of expectation of life Rs. 25,000.00 medical expense Rs. 2,000.00 funeral expense Rs. 5,000.00 transportation charges FA/1477/2008 26/29 JUDGMENT ================ Rs.16,52,000.00 total compensation