FA/206/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 206 of 2008 To FIRST APPEAL No. 207 of 2008 With CIVIL APPLICATION No. 472 of 2008 To CIVIL APPLICATION No. 473 of 2008 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 ========================================================= UNITED INDIA INSURANCE CO LTD. - Appellant(s) Versus KAMLABEN DAHYABHAI MANABHAI PARMAR & 4 - Defendant(s) ========================================================= Appearance : MR HASMUKH THAKKER for Appellant(s) : 1, None for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 24/01/2008 ORAL JUDGMENT 1. These appeals under section 173 of the Motor Vehicles Act, 1988 (for short, "the Act") FA/206/2008 2/9 JUDGMENT are preferred from the common award dated 30.6.2007 of Motor Accident Claims Tribunal (Aux.), Surat in Motor Accident Claim Petitions No.265 of 1995 and 266 of 1995. The Tribunal has, in the impugned award, awarded Rs.5,98,720/- with 7.5% interest and cost as compensation in the first case and Rs.6,39,176/- with 7.5% interest and cost in the second case as against the claims of Rs.5,00,000/- in each case. 2. Short facts as recorded in the impugned award and about which there is no controversy are that the deceased victims of the accident were traveling on a motorcycle on 27.3.1995 when the truck insured by the appellant dashed with them and both the riders died due to the accident. The driver of the truck did not enter the box and the Tribunal arrived at the correct finding of fact, on the basis of the material on record, that the accident was caused due to negligence of the driver of the truck. In MACP No.265 of 1995, widow of the deceased deposed at Exh.22 and stated that her deceased husband was earning Rs.4,000/- a month as a Talati. Although his pay- slip for the month immediately preceding his death showed total salary and allowance of Rs.2,833/-, it was claimed that he would have been getting Rs.9,983/- per month if he had continued in service. The Tribunal accepted FA/206/2008 3/9 JUDGMENT monthly dependency benefit of Rs.4,881/- and, in view of his age of 40 years, applying multiplier of 15, arrived at the figure of Rs.9,37,152/- and, deducting one-third therefrom, Rs.5,85,720/- was determined to be the loss of dependency benefit. Adding Rs.10,000/- and Rs.3,000/- towards loss of expectation of life and funeral expenses, total figure of Rs.5,98,720/- was arrived at. 3. In MACP No.266 of 1995, besides similar evidence of the claimant, a witness was examined from the Panchayat where the deceased was employed and he deposed that the deceased was drawing salary of Rs.3,061/- per month and if he had been alive, he would have been drawing Rs.9,541/-. Therefore, being supported by a certificate issued by the Taluka Development Officer, the Tribunal assessed average prospective income of Rs.4,892/- and, applying multiplier of 16 in view of the age of 32/33, the sum of Rs.9,39,264/- was arrived at and, deducting one-third, the sum of Rs.6,26,176/- was determined as the loss of dependency benefit. Adding thereto Rs.10,000/- towards loss of estate and Rs.3,000/- towards funeral expenses, total sum of Rs.6,39,176/- was awarded to the claimant. The Tribunal took into consideration the fact that during pendency of the claim petition for FA/206/2008 4/9 JUDGMENT almost 12 years, the actual figure of prospective income of the deceased had come on record and hence the Tribunal found itself justified in awarding larger amount of compensation than the amount claimed by the claimant. 4. Learned counsel Mr.Hasmukh Thakkar, appearing for the appellant, firstly submitted that both the riders of the motorcycle, who were killed in the accident, did not possess licence. Although that issue was not raised before the Tribunal, the submission was made on the basis that admittedly no evidence or proof in that regard were produced in the court by the claimants. It was, however, fairly conceded that in view of the finding that the accident was entirely attributable to negligence of the driver of the truck and in absence of any issue in that regard, lack of evidence in respect of licence of the riders of the motorcycle and insurance policy thereof would not be of any significance. 5. Referring to and relying upon the material, evidence and deposition of the witnesses on record, learned counsel submitted that the so-called certificates in respect of service record of the deceased were on plain paper and did not bear seal of the office of Taluka Development Officer concerned. He further FA/206/2008 5/9 JUDGMENT submitted that name of the signatory of the said certificates was not mentioned in the certificates and it could not be deciphered from the signatures. It was, however, seen from the photocopies of those certificates that they did bear signatures and stamp of Taluka Development Officer of Taluka Panchayat Mangrol and they were exhibited in evidence as genuine documents without any controversy in that regard. Since they are dated 18.1.2006 and appear to have been made for the purpose of being produced in evidence in the claim cases, they also contain the exact figures of calculations of what the total salary of the deceased would have been if they were alive in the year 2006. 5.1 There was no reason to disbelieve the figures in view of actual constant rise in the wages of the deceased employees if only they had continued in service. In view of the remaining period of service of around 15 years in both the cases, prospective income of the deceased could have been assessed at much higher rate in view of the actual rise in salaries by the time the claim petitions came to be heard. However, the Tribunal has reduced the amounts of prospective salary to less than half of what the deceased would have drawn at the time of hearing. Thus, practically the future prospective rise in income FA/206/2008 6/9 JUDGMENT after the date of hearing and during the period of almost 15 years of remaining service is not taken into consideration at all. 5.2 However, it was submitted by Mr.Thakkar that in MACP No.266 of 1995 actual salary of Rs.3,061/- at the time of death was increased to Rs.4,892/- by arithematical mistake for calculating prospective loss of income since multiplying Rs.3,061/- by three and dividing the product by half would come to Rs.4,591/-. It was, however, in the face of the fact that the deceased would have been actually earning Rs.9,541/- if he were alive in the year 2006. It was also argued that all the figures of monthly income or salary, taken as the basis for arriving at the multiplicand, were figures of gross salary including allowances, such as, dearness allowance, medical allowance, house rent allowance etc. and the necessary and statutory deductions were not taken into consideration. He, therefore, submitted that the Court ought to have taken as the basis only the figures of net income of the deceased and determined the amount of dependency benefit on that basis. 5.3 It was also submitted that the Tribunal could not have legally awarded larger amounts of compensation than the amounts claimed in the FA/206/2008 7/9 JUDGMENT petitions by the claimants, without the claim petitions being amended and the appellant having notice and an opportunity to meet the case of the claimants. Learned counsel relied upon Full Bench decision of this Court in Dr.Urmila J. Sangani v. Pragjibhai Mohanlal Luvana [2000 ACJ 1125] and judgment of the Supreme Court in Nagappa v. Gurudayal Singh and others [2003 ACJ 12] in support of his submission that before more compensation than the amount claimed is awarded, the opposite party should be put to notice, the requisite additional issue should be raised and the parties should be permitted to adduce evidence on the additional issue. 6. It was seen from the judgment of Nagappa (supra) that, after referring to the observations in Dr.Urmila J. Sangani (supra), it was observed by the Apex Court that, from the observations in Dr.Urmila J. Singania (supra), it could not be held that there was a bar for the Claims Tribunal to award compensation in excess of what was claimed, particularly when the evidence brought on record was sufficient to pass such award. After referring to the judgment in Nagappa (supra), Division Bench of this Court in Nasimbanu and others v. Ramjibhai Bachubhai Ahir and others [2005 ACJ 1816] has upheld the award in excess of the amount claimed by the claimants. FA/206/2008 8/9 JUDGMENT Therefore, the arguments of learned counsel in that regard cannot be accepted. As for the other contentions with respect to quantum of compensation, it was seen, as discussed hereinabove, that the Tribunal has, in the impugned award, practically disregarded prospect of future rise in income insofar as even the salary which the deceased would have normally earned at the time of hearing was reduced to half for arriving at the figure of prospective loss of dependency benefit. As held on 30.11.2006 by another Division Bench of this Court in First Appeal No.1069 of 2006 (New India Assurance Co. Ltd. v. Takhuben Raghabhai etc.), compensation for loss of expectation of life, treated as conventional amount for loss to the estate in the case of fatal accidents, has to be Rs.25,000/- and compensation for loss of consortium has to be Rs.15,000/-. Such amounts at such rates are not awarded to the claimants in the impugned award. Therefore, even though it is true that there is an arithematical error in calculating the amount of prospective income in MACP No.266 of 1995, its effect having been more than offset by less amounts being awarded under other heads, the appeals are not required to be admitted and entertained in absence of any substantial ground being made out. FA/206/2008 9/9 JUDGMENT 7. Accordingly, the appeals are dismissed at the threshold, with no order as to costs, after perusal of the relevant evidence on record and hearing of the arguments in extenso. The amount of Rs.25,000/- deposited in each appeal for the purpose of preferring the appeal shall be refunded to the appellant after copies of receipt for full payment of the awarded amounts in the Tribunal are produced. Civil Applications stand disposed as rejected in view of dismissal of the appeals. Sd/- ( D.H.Waghela, J.) (KMG Thilake)