FA/498419/1995 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4984 of 1995 With FIRST APPEAL No. 156 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 ? ====================================== REKHABEN JAYANTIBHAI PATEL & ANOTHER Versus RAVJIBHAI JIVABHAI PATEL & OTHERS ====================================== Appearance : MR NILESH A PANDYA for the Appellants (s) : 1, 1.2.1,1.2.2 - 2. MR RAJNI H MEHTA for Defendant(s) : 1 - 2. MR SUNIL B PARIKH for Defendant(s) : 3, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT FA/498419/1995 2/6 JUDGMENT Date : 12/08/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) By the present judgment First Appeals being First Appeal No.4984 of 1995 and 156 of 1995 are being disposed of. The first First Appeal No.4984 of 1995 was filed on behalf of he claimants and the second is filed by the driver and owner of the vehicle involved in the accident. Another proceedings relating to the same accident being First Appeal No.155 of 1995, filed by the wife of deceased, have been decided by this Court by an agreed compromise order by virtue of which it was left open that the parties will be at liberty to raise all necessary averments in the cognate matters and their rights would not be prejudiced by the fact that the other proceedings are being disposed of as compromised. Be that as it may, the present appeals may be decided on their own merits. Two principal questions have been urged on behalf of the claimants in these appeals. One, when the question of negligence has been decided by compromise, the same has become final and has attained finality and would operate as res judicata. To press this point, the learned counsel for the claimants has relied on the following decisions:- 1. 2002(1) GLR 474 – Darayas Bamshah Medhora v. Nariman Bamansha Medhora 2. Judgment dated 17.1.2002 in First Appeal No.1609 of 2001 Second that the claimants have failed to prove dependancy. First we taken up the question of what was the dependency of the claimants on the deceased and to decide the question it would be fruitful to look into the decision of the Supreme Court in the case of Tamil Nadu FA/498419/1995 3/6 JUDGMENT State Transport Corporation Limited v. Rajapriya and two others, JT 2005 (4) SC 531. The relevant paragraphs are quoted herein below:- 7. The measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant. Thus "except where there is express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Act must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of damages." Lord Wright in the Davies's case (supra) said, "The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever sources comes to him by reason of the death." These words of Lord Wright were adopted as the principle applicable also under the Indian Act in Gobald Motor Service Ltd. v. R.M.K. Veluswami (1962 (1) SCR 929) where this Court stated that the general principle is that the actual pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimant of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death, must be ascertained. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase.” (emphasis supplied) FA/498419/1995 4/6 JUDGMENT Thus, according to the law laid down by the Hon'ble Supreme Court the cardinal principle is that the actual pecuniary loss of each individual entitled to sue has to be ascertained to calculate the damage. To judge that, it would be necessary to go into the pleadings and evidence led by the claimants. It was urged on behalf of the appellant's driver and owner of the bus that this is a claim petition arising out of a claim where the claimants have miserably failed to show any dependency and unless the question of dependency is established, there is no question of claim being granted. So much so that in the appeal itself the claimants have stated in paragraph 28 as under:- “28. Because the Tribunal ought to have seen that the appellants wishes to set up a residential Educational Institution in the name of deceased and to give the amount of compensation in charity.” Not only that, in the appellate pleadings the claimants have not shown any dependancy for their use. The claimants have not stressed for the dependency claim for themselves. In the claim petition itself it has been averred very cursorily that on the basis of the income the claimants have been passing their life. The exact words as stated in Gujarati are :- “temna> Aa2are temno +vn invaRh krta> hta” But no details have been incorporated in the claim petition. This is not an end of the matter. Out of the two claimants, Rekhaben has not been examined and other claimant – Jayantibhai has stated in his FA/498419/1995 5/6 JUDGMENT statement that for the purposes of their sustenance, the income of Kamlesh is not necessary. The statement of Jayantibhai as stated by him in Gujarati reads as under:- “te A>ge mare kmlexnI Aavk ]pr Aa6ar raqvo jrurI nhto” It shows that not only that there was no sufficient pleading, but there was no proper proof of the fact that the claimants in any way were dependent on the income of the deceased. The case of the wife has already been decided by an agreed compromise order as she claimed to be dependent on the income of the deceased. On the contrary, the claimant states that the averment in the claim petition was there. The claim is based on a beneficial legislation and should be granted. We have heard learned counsel for the parties and perused the record. This fact assumes importance that the family of the deceased i.e. husband and wife were living separately from the parents as nucleus families. As the families were not living together, in absence of specific averments in the pleadings it is felt that it is only being remotely alleged and not sufficiently pursued and proved because the deceased and parents were living separately. The realm of charity out of compensation amount is not a known factor in the Motor Vehicles Act. In the facts and circumstances of the case, when the claimants themselves have stated that they were not dependent on the income of the deceased and they needed it only for the purposes of charity, we are constrained to observe that it is not a fit case for grant of compensation. The requirement for grant of the claim is on the basis of the dependency of the claimants on the income of deceased. The compensation cannot FA/498419/1995 6/6 JUDGMENT be awarded for the purposes extraneous to the dependency. Dependency having not been established by pleadings specifically and having been negated in evidence, we feel that the claim as granted by the Tribunal was misconceived. The Tribunal in its order too has not addressed to the point as to how much dependency of the claimants was in this case. It has only gone on ad hoc assessment of 1/3rd to the parents, which, unless established that the parents were dependent on the income of the deceased, no claim could have been granted in favour of the appellants. It may also be noted here that it was not the case of claimants that the deceased himself has launched a charity and the same was dependent on the income of the deceased. In absence of such a case for charity it appears to be out of place to grant a compensation. In view of the same, the claim awarded in favour of the parents is misconceived and deserves to be set aside and accordingly the same is set aside. The appeal of the claimants is dismissed. The appeal of the owner and driver is allowed. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd