FA/4659/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4659 of 2007 With CIVIL APPLICATION No. 12170 of 2007 IN FIRST APPEAL NO.4659 of 2007 With CIVIL APPLICATION No. 438 of 2008 In CROSS OBJECTION (STAMP NUMBER) No. 1 of 2008 With CROSS OBJECTION (STAMP NUMBER) No. 1 of 2008 In FIRST APPEAL No. 4659 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 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 ? 1 to 5 NO ========================================================= NEW INDIA ASSURANCE CO. LTD. - Appellant(s) Versus AWALSINH ADESINH SOLANKI & 3 - Defendant(s) ========================================================= Appearance : MR SUNIL B PARIKH for Appellant(s) : 1, MR ARPIT A KAPADIA for Defendant(s) : 1, RULE NOT RECD BACK for Defendant(s) : 2 - 4. ========================================================= FA/4659/2007 2/8 JUDGMENT CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 17/01/2008 ORAL JUDGMENT 1. The appeal under section 173 of the Motor Vehicles Act, 1988 from the award dated 5.2.2007 of Motor Accident Claims Tribunal, Godhra in Motor Accident Claim Petition No.652 of 2000 was pressed mainly for reduction of the amount of compensation awarded by the Tribunal. Relevant facts in brief are that, on 10.3.2000 at 11.00 p.m., son of respondents No.1 and 2-parents was killed in a motor accident and, after perusal of evidence, driver of the jeep insured by the appellant was held to be responsible for the accident. Deceased son, aged 30, was a qualified person employed at monthly wage of Rs.1,866/- according to the pay-slip at Exh.40. Pay-slips of his co-workers were produced at Exhs.58 and 60 and affidavit of an officer of the employer of the deceased was also filed to prove that the deceased would have been earning more than Rs.8,500/- if he were alive in the year 2006. The deponent of that affidavit was cross-examined wherein he had admitted that the deceased was employed as a casual employee who could have been FA/4659/2007 3/8 JUDGMENT discharged at any time. 2. The Tribunal has, in the impugned award, counted monthly income of the deceased to be Rs.3,000/- after taking into consideration the future prospect and, applying multiplier of 15 and taking one-third amount as his own expenses, awarded Rs.3,60,000/- towards loss of future income. The claimants have also filed cross- objection alongwith an application for condoning delay in filing the cross-objection and having appeared through learned counsel Mr.Arpit Kapadia, the counsel were heard in extenso. 3. Learned counsel Mr.S.B.Parikh vehemently argued that the Tribunal had seriously erred in applying multiplier of 15 in view of the age of the parents being 45 and 44 and submitted that monthly income of Rs.3,000/- could not have been made the basis for calculating the loss of dependency benefit. He also argued that not one- third but two-thirds of the income of the deceased had to be deducted towards his own expenses in view of the fact that he was an unmarried person and would have married in near future. Therefore, dependency benefit for the parents ought to have been counted after deducting two-thirds of the income of the deceased towards his prospective family expenses. FA/4659/2007 4/8 JUDGMENT As against that, learned counsel Mr.Kapadia submitted that amounts under other heads of compensation were assessed at lower rate insofar as prospective income of the deceased was taken to be only Rs.3000/- p.m. and the amounts under the head of mental pain and suffering as also loss of expectation of life were put at Rs.10,000/- each. He relied upon relevant evidence and material, of which a paper-book was submitted, and argued that the amount of compensation was required to be suitably increased. 4. On perusal of the evidence, more particularly documentary evidence at Exhs.31 to 38, 58, 60 and the affidavit at Exh.56, it clearly appears that the deceased was already employed at the age of 25 years with reasonably good prospects in life and there was no reason why he would have not progressed at least at the rate at which his colleagues employed in the same company had progressed in terms of wages and seniority. The Tribunal has not, in the impugned award, given any plausible reason to discard the relevant evidence in respect of future loss of income for the deceased. On the other hand, as held by this Court in Somabhai Vajabhai & Another v. Babubhai Bhailalbhai & Others [1982 (1) GLR 785], two-thirds of the income of deceased could FA/4659/2007 5/8 JUDGMENT have been diverted for maintenance of his own family, if he were married or likely to marry and the amount available for maintenance of parents would have been one-third of the income of the deceased. Learned counsel Mr.Parikh also relied upon recent judgment of the Supreme Court in Bijoy Kumar Dugar v. Bidyadhar Dutta [2006 ACJ 1058] wherein parents aged 45 and 50 of the deceased aged 24 were awarded compensation applying multiplier of 12 and calculating dependency benefit at 50% of the income of the deceased. Although two-thirds of the nett income of the deceased were assessed to be the loss to the parents, it was observed that dependency has to be calculated on the basis that within two or three years deceased would have married and raised family and monthly allowance to the parents would have been cut down. The award, however, on the basis of dependency benefit to the extent of two-thirds of income of the deceased, was held as just and reasonable. Learned counsel Mr.Kapadia relied upon judgment of the Apex Court in Fakeerappa v. Karnataka Cement Pipe Factory [(2004) 2 SCC 473] for the observations as under made therein: "7. What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of FA/4659/2007 6/8 JUDGMENT universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction. "8. It has to be noted that the ages of the parents as disclosed in the claim petition were totally unbelievable. If the deceased was aged 27 years as found at the time of post-mortem and about which there is no dispute, the father and mother could not have been aged 38 and 35 years respectively as claimed by them in the claim petition. Be that as it may, taking into account special features of the case we feel it would be appropriate to restrict the deduction for personal expenses to one-third of the monthly income....." He also relied upon recent judgment of the Supreme Court in A.P.S.R.T.C. v. M.Pentaiah Chary [AIR 2007 SC 3141] to submit that the multiplier specified in the Second Schedule ought not to be altered except for strong relevant circumstances. FA/4659/2007 7/8 JUDGMENT 5. In the facts and in view of the submissions mentioned hereinabove, while the Court would be justified in increasing the amount of prospective income of the deceased, it would also be necessary to decrease the ratio of dependency benefit which the parents could expect in view of unmarried status of the deceased and the prospect of his marrying and rearing his own family. However, since reasonable increase in the multiplicand on the basis of proved rise of income within a short time for co-workers of the deceased would more than offset reduction on account of decreasing dependency benefit for the parents, the amount of compensation is not required to be interfered. In the peculiar facts and circumstances of the case, the total amount of Rs.3,60,000/- towards loss of future benefits for the parents is found and held to be just and reasonable requiring no revision. 6. Therefore, the appeal is dismissed and the cross-objection is not required to be entertained. Accordingly, the civil application for condoning delay in filing the cross-objection is also rejected with the cross-objection and the civil application for stay would not survive. Rule issued in that civil application is discharged with no order as to costs and with the FA/4659/2007 8/8 JUDGMENT clarification that the amount may be disbursed in terms of the impugned award, with the only modification that only 30% of the awarded amount shall be permitted to be withdrawn and 70% of the amount shall be invested. Sd/- ( D.H.Waghela, J.) (KMG Thilake)