FA/4442/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4442 of 2006 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 ? ===================================================== THE ORIENTAL INSURANCE CO.LTD. - Appellant(s) Versus KRISHNABAN GANUBHA RANA & 1 - Defendant(s) ===================================================== Appearance : MR MAULIK J SHELAT for Appellant(s) : 1, None for Defendant(s) : 1, RULE SERVED for Defendant(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 2. MR RAXIT J DHOLAKIA for Defendant(s) : 2, ===================================================== CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 12/09/2008 ORAL JUDGMENT FA/4442/2006 2/7 JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. This appeal has been filed by the appellant – The Oriental Insurance Company Ltd., challenging the judgment and award dated 26.4.2006 passed by the Motor Accident Claims Tribunal, (Aux.) Fast Track Court No. 2, Jamnagar, in MAC Petition No. 91/2004. 2. The facts of the present case is that, on 18th January, 2004, the deceased was going on his motor- cycle No. GJ-10-G-176 in a moderate speed and in his own side and when he reached near Rabari Gate in Dwarka Town, at about 9.30 hrs, at that time, Bus No. GJ-7-T-7408 came in excessive speed in a negligent manner and dashed with the motorcycle of the deceased and due to that he got serious injuries and he died. So, it was the sole negligence of the bus driver. The FIR was also lodged at Dwarka Police Station. The deceased was 45 years of age and he was serving as an A.S.I. in the Police Department and would have got two promotions and earned more income had there been no accident to him. For the expenses of the death ceremony of the deceased and for the lost of company, love and affection of the deceased, the original claimants have claimed Rs. 20,00,000/- along with interest at the rate of 20% with costs. The ori. Claimants have got Rs. 50,000/- by way of interim compensation. 3. Before the Claim Tribunal, claimants have led evidence to establish that the driver of the Bus was FA/4442/2006 3/7 JUDGMENT driving the bus on a wrong side in rash and negligent manner and therefore, Tribunal came to the conclusion that the accident occurred on account of sole negligence of the bus driver. 4. With respect to the question of quantum of compensation, the original claimants averred before the Claims Tribunal that the deceased was an employee of Police Department and was working as A.S.I. in the Police Department and on the day of accident, he was drawing Basic Pay of Rs. 4400/- as per the Salary Certificate and presumptive leave salary (Ex. 34) he might have been drawing Rs. 5400/- as monthly salary and at the time of accident, he was aged 48 years and the retirement age in the Police Department being 58 years, he would have retired after 10 years. The case of the claimants before the Tribunal was that in addition to receiving promotions and other benefits and allowances, etc., the claimants also came with a contention that the deceased was likely to receive promotion in future, so the pay-scale of the deceased was also likely to be revised. 5. In addition to the oral evidence of the witnesses, that is, claimant Krishnaba Ganubha Rana widow of deceased Ex. 39, the documentary evidence produced by the claimants, that is, Salary Certificate at Exh. 34 in support of salary and income issued by the Police Department indicating the pay-scale of the deceased, panchnama of scene of offence and birth certificate Ex. 32. FA/4442/2006 4/7 JUDGMENT 6. The Claims Tribunal has, on the basis of evidence produced by the claimants, came to the conclusion that deceased was getting salary of Rs. 4400/- and as per presumptive leave salary, he might have been drawing Rs. 5400/- as monthly salary and the Tribunal has found that he was getting Rs. 7201/- as salary at the relevant time and assessing the quantum of amount, deceased having notional income, so then prospective income was considered and 1/3 of the income was added to the actual income and other allowances was considered, that is, basic pay plus 50% of it, i.e., Rs. 2700/- = Rs. 8100/-. Dearness allowance was also considered 25% considering the prevalent rate of D.A. on it. Therefore, due to the said consideration, D.A. Of Rs. 2025/- was calculated and Rs. 205/- as allowance and it was considered as a salary and in all, rounded of Rs. 10,500/- was considered for the prospective income and deceased was married, so 1/3 income of Rs. 3500/- was deducted for personal expenses and remaining amount of Rs. 7000/- was considered as a dependency amount per month and annually it was counted as Rs. 84,000/- and 13 multiplier was applied and Rs. 10,92,000/- figure was considered as loss of future income and Rs. 20,000/- was considered as conventional allowance and Rs. 2,39,999/- granted under the head of “leave salary” by Tribunal and Rs. 13,52,000/- was considered as an award amount. 7. The appellant- Insurance Company as a insurer of FA/4442/2006 5/7 JUDGMENT the Bus, has preferred this appeal challenging the conclusion of the Tribunal, both, on the question of negligence as well as quantum of compensation awarded. 8. Learned advocate Mr. Maulik Shelat for the insurance company has vehemently argued that the judgment and award passed by the Tribunal is erroneous, based on conjecture and surmises and requires to be quashed and set aside. He has relied upon the decision of this Court reported in 1997(1) GLR 631(DB) and 2001(3) GLR 2528 for the issue of negligence. It is also argued regarding the income of the deceased and submitted that the Tribunal has wrongly calculated the amount of leave salary and contended that it is required to be set aside. 9. It is challenged by the insurance company that deceased was 48 years old at the time of accident and the Tribunal ought not to have applied 13 multiplier and in support of this issue, the insurance company has relied upon the decision reported in 2005(6) SCC 236. 10. On the other hand, learned advocate Mr. Dholakiya appearing for the original claimants has opposed the appeal and contended that the award amount cannot be considered as a excessive amount. It is also contended that the Tribunal has considered the award amount in a proper and legal manner. Reliance was also placed on the decision of this Court in the case of National Insurance Co. Ltd. vs. FA/4442/2006 6/7 JUDGMENT Ramilaben Chinubhai Parmar & Ors., reported in 2007 ACJ 1565, wherein, this Court has applied 8 multiplier in the case of 58 years aged deceased. 11. Heard the leaned advocates appearing for the parties and considered the submissions made by the learned advocates appearing for the parties. It is found from the record that at the event of accident, the deceased was 48 years old and in this case, the Tribunal has applied 13 multiplier but observation made by this Court in the above case of National Insurance Company Ltd. vs. Ramilaben Chinubhai Parmar & Ors. (supra), in the above case, the age of the deceased was 58 years and multiplier of 8 was applied. In the present case, the Tribunal has wrongly considered and applied 13 multiplier. We are of the opinion that in the light of the judgment of the Apex Court as well as this Court, multiplier 8 is just, proper and legal in the eye of law. So, multiplier of 13 is wrongly considered in place of multiplier 8. We are also of the opinion that leave salary of deceased is wrongly calculated and amount under the head of “leave salary” cannot be considered. It is true that Tribunal has calculated the amount of leave salary even if deceased would have survived, yet he cannot enjoy any leave and Tribunal has also not considered all probabilities. 12. In view of the above observation, we found that interference is required to be made in the judgment and award passed by the MAC Tribunal (Aux.), Fast FA/4442/2006 7/7 JUDGMENT Track Court No. 2, Jamnagar, dated 26.4.2006 to the effect that amount of Rs. 2,39,939/- awarded under the head of “leave salary” is hereby rejected and instead of multiplier 13, multiplier of 8 is hereby applied. The impugned judgment and award dated 26.4.2006 passed by the MAC Tribunal (Aux.), Fast Track Court No. 2, Jamnagar, is hereby modified to the above extent. The First Appeal is accordingly partly allowed. (J.R. VORA, J.) (Z.K. SAIYED, J.) mandora/