FA/219/2005 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 219 OF 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ====================================== 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 ? ====================================== HIRABEN GOVINDBHAI PATEL - Appellant(s) Versus SURENDRASINH DILIPSINH RAUOL & ORS. - Respondent(s) ====================================== Appearance : Mr. A. V. Prajapati for Appellant(s). None for Respondent No.1 though served. Mr. Dakshesh Mehta for Respondent(s) : 2. None for Respondent(s) : 3 - 4. ====================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 25/06/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) FA/219/2005 2/12 JUDGMENT The present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (“the Act” for short) challenging the judgement and award dated 31st July, 2003 rendered in M.A.C.P. No.565 of 1999 by the Motor Accident Claims Tribunal (Auxiliary), Ahmedabad (“the Tribunal” for short), by which the claim petition filed under Section 66 of the Act by the appellant-claimant to recover the compensation is partly allowed. 2. The facts of the case in briefly stated are that on 17th July, 1999, the deceased – Jayeshbhai Govindbhai Patel was traveling as a pillion rider on a scooter bearing Registration No. GJ-1-AH-2803 and when they reached near Dadabhai Navroji Hall, Shahibaugh Police Station, Ahmedabad, one jeep bearing Registration No. GJ-2-7469 came from the opposite direction and lost the control and took it on the wrong side and dashed with the scooter, resulting in the accident, in which the deceased pillion rider suffered serious injuries and was ultimately taken to the hospital wherein he was treated as an indoor patient, but, after the treatment for about fourteen months, he succumbed to the injuries. Therefore, the claimant, mother of the deceased, claimed the compensation to the tune of Rs.20,00,000/- and averred that the deceased was the only breadwinner of the family and at the time of the accident, he was working as a Manager in M/s. Deep Marketing and was FA/219/2005 3/12 JUDGMENT earning Rs.8,000/- per month. Moreover, he was also doing agricultural operations at Village: Shertha and his monthly income was Rs.15,000/-. The appellant had produced evidence both with regard to negligence as well as quantum, including the income tax return showing the income of the deceased to be Rs.62,545/-, which include the income from agricultural operations. The case papers with regard to treatment which he had taken in the hospital for about 14 months were also produced. 2.1 The claim petition was contested by the respondent- Insurance Company and the written statement was filed inter alia contending that the driver of the offending vehicle was not negligent. Alternatively, it was contended about composite negligence of the driver of the scooter. Moreover, the income of the deceased as well as the claim for dependency benefit has also been denied, contending that the claim is inflated on higher side and therefore, the claimant is not entitled to claim the amount on the basis of the averments in the petition. 2.2 The Tribunal on the basis of the pleadings of the parties framed the issues and after considering the evidence, oral as well as documentary, adduced and produced by the parties and also considering the submissions advanced by the learned Advocates for the parties, came to the conclusion that the accident had occurred as a result of rash and negligent driving solely on the part of the driver of the jeep (offending FA/219/2005 4/12 JUDGMENT vehicle) and therefore, the deceased died as a result of the accident as a result of rash and negligent driving on the part of the driver of the offending vehicle. The Tribunal further held that as the driver of the truck (offending vehicle) was negligent in driving the truck, he was liable to pay the compensation and accordingly, the respondent- Insurance Company, as a insurer, was liable to indemnify the award and therefore, the award came to be passed holding that the respondents are liable jointly and severally to pay the compensation. 2.4. On appreciation of the evidence, the Tribunal also came to the conclusion that the deceased was earning Rs.62,545/- per annum, for which the income tax return was produced at Exh.52. Therefore, considering the income of the deceased at Rs.63,000/- (rounded off) and also considering the age of the deceased, the multiplier of 15 was adopted. However, as the deceased was unmarried, 2/3rd deduction was made for the purpose of loss of dependency and the appellant was entitled to only 1/3rd i.e. Rs.3,15,000/- under the head of the loss of dependency. The Tribunal further awarded Rs.75,000/- towards medical expenses and also Rs.35,000/- for the pain, shock and suffering. An amount of Rs.40,000/- was awarded towards attendant charges and transportation charges as the deceased was treated as an indoor patient in the hospital for 14 months. The Tribunal also awarded Rs.10,000/- for FA/219/2005 5/12 JUDGMENT funeral expenses and Rs.50,000/- towards the conventional amount for the loss of expectation of life relying upon a judgement of the Supreme Court in the case of Lata Wadhwa vs. State of Bihar, reported in 2001 ACJ 1745. 3. It is this judgement and award, which is challenged in the present appeal by the appellant-original claimant, inter alia contending that the Tribunal has committed a grave error in not considering the agricultural income of the deceased and also ought to have appreciated that the deceased was earning Rs.8,000/- per month at the time of the accident and therefore, considering the agricultural income as well as future prospects, the income of the deceased could have been considered at Rs.15,000/- per month for the purpose of dependency benefits. It has also been contended that instead of 15, the multiplier of 18 should have been awarded looking to the young age of the deceased. 4. Heard Mr. A. V. Prajapati, learned Advocate for the appellant. He has mainly raised the following contentions: (i) The Tribunal has erred in not considering the agricultural income of the deceased; (ii) The Tribunal has erred in not appreciating the fact that the deceased was earning Rs.8,000/- per month at the time of the accident FA/219/2005 6/12 JUDGMENT and considering the agricultural income as well as future prospects, the income of the deceased could have been taken at Rs.15,000/- per month for the purpose of dependency benefit. (iii) The deceased was hospitalised as an indoor patient in L.G. Hospital for 14 months and therefore, the award of Rs.35,000/- towards the pain, shock and suffering was on lower side and Rs.50,000/- could have been awarded under the said head. (iv) It is also contended that the multiplier of 18 could have been awarded instead of 15 and therefore, the award may be enhanced by allowing this appeal. 5. Per contra Mr. Dakshesh Mehta, learned Advocate for the respondent-Insurance Company, has submitted that the award does not call for any interference by this Court as the Tribunal has passed the award which is by and large just and proper. It has been contended that the Tribunal has considered the income as per the income tax return of the deceased and has taken the income of Rs.63,000/- which includes the agricultural income, as clearly observed in the judgement and award of the Tribunal. Mr. Mehta also submitted that considering the income of Rs.63,000/-, the dependency has been arrived at which is just and proper. He also submitted that it is well settled that the multiplier FA/219/2005 7/12 JUDGMENT higher than 15 cannot be awarded and therefore, it does not require any modification. He strenuously submitted that the Tribunal has leniently awarded the amount of Rs.40,000/- towards the attendant charges and conventional amount to the tune of Rs.50,000/- for the loss of expectation of life, which appear to be on higher side. Therefore, the judgement and award of the Tribunal is just and proper and does not require any modification or enhancement in the present appeal and the present appeal may be dismissed. 6. We have considered the submissions made by Mr. A. V. Prajapati, learned Advocate for the appellant, and Mr. Dakshesh Mehta, learned Advocate for the respondent-Insurance Company. We have also perused the impugned judgement and award as well as oral and documentary evidence and the material evidence on record, which has been referred to by the learned Advocates appearing for the parties during the course of submissions. 7. On perusal of the impugned award as regards the quantum and on scrutinising and appreciating the evidence of both the sides, it is required to be appreciated that the Tribunal has considered the income on the basis of the income tax return filed by the deceased and has taken the income of the deceased as Rs.63,000/- which even include the agricultural income. Therefore, the submission that the Tribunal has FA/219/2005 8/12 JUDGMENT erred in not considering the agricultural income is misconceived. At the same time, the Tribunal has not considered the future prospects of the income of the deceased in light of the judgement of this Court in the case of Smt. Rafia Sultan vs. O.N.G.C., reported in 1985 (2) GLR 1315, wherein the broad guidelines have been laid down referring to the earlier judgement in the case of Somabhai Vajabhai vs. Babubhai, 23(1) GLR 765. In the said case, the High Court has arrived at the datum figure taking the income of the deceased at the time of the accident and also considered the income, which he could have at least earned had he lived full span of life and thereafter, taking the average of the same, the dependency benefit has to be arrived at. It has also been observed that 2/3rd deduction is required to be made in case the deceased has been unmarried at the time of the accident. It has been observed that, “It is well settled by a catena of decisions of this Court that where the dependents are parents or brothers and sisters and when the deceased had died at a young age without having married, the datum figure has to be sliced down by 2/3rd deduction and only 1/3rd has to be computed as available to the other dependents (see Somabhai Vajabhai 23(1) GLR 765)”. A useful reference can be made to the observations made in the case of Ward vs. James, (1965) 1 All ER 563, which read as under: FA/219/2005 9/12 JUDGMENT “Although you cannot give a man, so gravely injured much for his lost years, you can, however, compensate him for his loss during his shortened span, that is, during his expected years of survival. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid” he may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to raise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern and they keep it in line with the changes in the value of money.” 8. Therefore, in the present case also, in light of the aforesaid judgements and more particularly, in view of the observations made in the judgement in the case of K.S.R.T.C. vs. Susamma Thomas, reported at 1994 ACJ 1 (SC), and in the case of Gujarat State Road Transport Corporation vs. Kamlaben Valjibhai Vora, reported at 2001 (3) G.L.R. 2528, it is now well settled that for arriving at a datum figure for the purpose of dependency benefit, the present income and future prospects are required to be considered. In order to arrive at a datum figure, the broad guidelines have been laid down by the Courts, as stated above, in the judgement reported in the case of Smt. Rafia Sultan (supra), and in FA/219/2005 10/12 JUDGMENT the subsequent judgements stated hereinabove, that the income of the deceased at the time of the accident and income which he could have earned had he lived full span of his life are to be taken together and thereafter, average of the same is taken for the purpose of arriving at the datum figure. In the present case, taking the income of the deceased at the time of the accident to be Rs.63,000/- per year and also considering his future income of Rs.1,20,000/- per annum (Rs.10,000/- x 12 = Rs.1,20,000/-), which he might have earned, and adding this income to the present income i.e. Rs.63,000/-, it would come to Rs.1,83,000/-. Taking the average of the same for the purpose of arriving at a datum figure, it would come to Rs.90,000/- (rounded off) per annum. However, as the deceased was unmarried, the dependency benefit will have to be sliced down to 2/3rd and therefore, the net dependency benefit would come to Rs.30,000/- per annum. Moreover, in light of the observations made time and again by the Apex Court in the catena of decisions, the multiplier of 15 would be proper which the Tribunal has adopted. Therefore, the net dependency benefit would be Rs.4,50,000/- instead of Rs.3,15,000/-, as awarded by the Tribunal. However, at the same time, the Tribunal has awarded the attendant charges to the tune of Rs.40,000/- without any evidence and has also leniently awarded conventional amount of Rs.50,000/- for loss of expectation of life, etc., which is also not disturbed . We, therefore, are of the opinion that if the amount of dependency is enhanced by Rs.1,25,000/- as additional FA/219/2005 11/12 JUDGMENT amount, it would be just and proper. We do not deem it necessary to make any other modification in the award on any other count. 9. Therefore, the present appeal deserves to be allowed to the aforesaid extent. The claimant is entitled to the additional amount of compensation of Rs.1,25,000/- as discussed hereinabove and we propose to accordingly enhance the award to the extent of the additional amount of Rs.1,25,000/-. 10. For the foregoing reasons, the present appeal stands partly allowed with no order as to costs. The impugned judgement and award dated 31st July, 2000 awarding compensation Rs.5,25,000/- stands modified by awarding total compensation of Rs.6,50,000/- together with interest at the rate of 9% per annum from the date of application till the date of realisation with proportionate costs and interest thereon. The respondent-Insurance Company is accordingly directed to deposit the additional amount of Rs.1,25,000/- with proportionate costs and interest with the Tribunal within a period of ten weeks. The Tribunal is directed to disburse the additional amount of compensation in the same ratio, that is, it shall invest 70% of the additional amount of Rs.1,25,000/- in Fixed Deposit Receipt with any nationalised bank initially for a period of 3 years and disburse 30% of the amount by an account payee cheque drawn in the name of the appellant-claimant. However, it is clarified that FA/219/2005 12/12 JUDGMENT the appellant-claimant shall be permitted to withdraw the periodical interest accrued on the said amount and shall not create any encumbrance on the aforesaid amount invested by the Tribunal for the period of three years. Award be drawn accordingly. [A. M. Kapadia, J.] [R. H. Shukla, J.] kamlesh*