FA/4506/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4506 of 2008 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 ? ===================================================== ORIENTAL INSURANCE CO LTD - Appellant(s) Versus SULAOCHANABEN SUSHILKUMAR KAPADIA & 3 - Defendant(s) ===================================================== Appearance : MR KK NAIR for Appellant(s) : 1, MR MP PRAJAPATI for Defendant(s) : 1 - 2. None for Defendant(s) : 3 - 4. ===================================================== CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 18/09/2008 ORAL JUDGMENT FA/4506/2008 2/10 JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. Heard Mr. KK Nair learned advocate appearing for the appellant and Mr. MP Prajapati learned advocate appearing for the claimants. 2. This First Appeal is preferred by the appellant – Insurance Company against the judgment and award passed by the Presiding Officer, FastTrack Court No. 2, Ahmedabad (Rural) at Mirzapur (hereinafter referred to as “the Tribunal”) in MAC Petititon No. 337 of 2005. 3. The brief facts of the present case is that, on 30.1.2005, the deceased Shushilbhai was passing near CTM Char Rasta, Hanumannagar, Pavitrakunj Society by driving his motorcycle bearing No. GJ-1-CM-1529, at that time, respondent no. 3 – original opponent no. 1 came by driving Truck No. GJ-17-X-2634 with full speed, in rash and negligent manner and dashed with the motorcycle, as a result, deceased sustained serious injuries and immediately shifted to L.G. Hospital, where, doctor has declared him as died. Therefore, the claimants have filed MAC Petition No. 337/2005 for the compensation of Rs. 20,00,000/- FA/4506/2008 3/10 JUDGMENT under various heads. 4. Before the learned Tribunal it was clearly established that the deceased serving as a Helper since 1983 and drawing net salary of Rs. 7,913/-, therefore, the Tribunal has assessed monthly salary of the deceased at Rs. 7,900/-. Placing reliance on the decision of this Court in the case of Champaben w/o Chandrasinh Dhulabhai Rathod & Anr vs. Anopsinh Somanbhai Baria & Anr, reported in [2007] 15 G.H.L. 474, the Tribunal has considered the prospective income of the deceased at Rs. 15,800/-. After adding this amount, the amount comes to Rs. 23,700/- and average prospective income comes to Rs. 11,850/- and after deducting 1/3 amount towards personal expenses of the deceased, monthly dependency value assessed at Rs. 7,900/- and yearly dependency of the family comes to Rs. 94,800/-. Before the Tribunal, claimants have not produced any documentary evidence with regard to the age of the deceased, however, in the PM Note produced at Ex. 33, the age of the deceased was shown as 45 years. Therefore, considering the age of deceased as 45 years, at the time of accident, multiplier of 12 was given. Therefore, under the head FA/4506/2008 4/10 JUDGMENT of loss of dependency, the claimants were awarded the compensation of Rs. 11,37,600/-. The Tribunal has awarded Rs. 25,000/- under the head of loss of consortium and loss of expectation of life, Rs. 10,000/- was awarded under the head of loss of estate, Rs. 15,000/- was awarded under the head of pain, shock and suffering and Rs. 5000/- was awarded under the heard of funeral expenses. In all, the Tribunal has awarded Rs. 11,92,600/- with 9% interest and proportionate costs to the claimants from the date of claim petition till realization. 5. Mr. KK Nair learned advocate appearing for the appellant – Insurance Company has contended that the judgment and award passed by the Tribunal is contrary to law, facts and weight of evidence on record. It is also contended by Mr. Nair that Tribunal has not properly appreciated the decision of the Apex Court on the point of prospective income because it is not a straight jacket formula, but the same has to be applied on the basis of facts and circumstances of each case. It is also argued that the Tribunal has failed to appreciate that in absence of any evidence FA/4506/2008 5/10 JUDGMENT as to the future prospects adduced by the claimants, there was no justification to apply the principles as to prospective income in the instant case. Mr Nair has placed reliance on the decision of the Apex Court in the case of Tamil Nadu S.T.C. Ltd. Vs. S. Rajapriya and Ors, 2005(4) Scale 336. It is also contended that the Tribunal has committed an error in considering the prospective income of the deceased at Rs. 11,850/-. It is further contended that the claimants have not adduced any cogent and convincing evidence to prove the future prospects of the deceased. It is further submitted that the Tribunal has failed to appreciate the principles laid down by the Apex Court in the case of Bijoy Kumar Duggar vs. Bidyadhar Dutta and Ors, reported in 2006 SCW 1116. It is also contended that in absence of any evidence as to the future prospects adduced by the claimants, there was no justification to apply the principles as to prospective income in the instant case. It is also argued by Mr. Nair that in light of the latest decision of the Apex Court, the Tribunal has not considered the rate of interest properly. He has also contended that the Tribunal ought to have awarded FA/4506/2008 6/10 JUDGMENT rate of interest at 7.5% instead of 9% because the rate of interest would depend upon the facts and circumstances of each case and the award of interest would normally depend upon the bank rate prevailing at the relevant time. Learned advocate Mr. Nair contended that the claimants have conveniently suppressed the available evidence regarding the date of birth of the deceased with a view to get more multiplier, therefore, the multiplier of 8 is required to be applied instead of multiplier 12 applied by the Tribunal. Reliance is also placed on the decision of this Court in the case of National Insurance Co. Ltd. vs. Ramilabewn Chinubhai Parmar & Ors., reported in 2007 ACJ 1565, wherein, this Court has applied 8 multiplier in the case of 46 years aged deceased. It is also contended by Mr Nair that in the instant case, loss of dependency can be only to the mother of the deceased as the widow herself was and is working as a Staff Nurse in the Civil Hospital at Ahmedabad, and was earning more than what the deceased was getting. Therefore, while assessing the loss and the multiplier in the present case, the Tribunal ought to have considered that the widow was FA/4506/2008 7/10 JUDGMENT herself earning, the couple had no issue, the mother was very old, and that, in the peculiar facts of the case, the dependency even if it is considered as loss, would not last for a longer period, and that, not only the interest from the amount awarded, but even some part of the principal has to be consumed during the period dependency lasts and the entire amount should be consumed by the time the dependency lasts, therefore, the multiplier ought to have been much less than what is awarded. It is also argued that the accident being of the year 2005, the Tribunal has committed an error in awarding interest at the rate of 9%p.a. which ought to have been 7.5%p.a. 6. On the other hand, learned advocate Mr. MP Prajapati appearing on behalf of the respondents vehemently submitted that the judgment and award passed by the learned Tribunal is just, proper and legal and no interference is called for and compensation awarded by the learned Tribunal is just, proper and reasonable. He also submitted that the appeal preferred by the appellant – Insurance Company FA/4506/2008 8/10 JUDGMENT requires to be dismissed. 7. We have gone through the contentions raised by Mr. KK Nair learned advocate appearing for the appellant and Mr. MP Prajapati learned advocate appearing for the respondents – ori. Claimants. We have perused the documentary as well as oral evidence adduced by both the sides before the learned Tribunal. It is clear from the record that the claimants have not produced any documentary evidence so far as the age of the deceased is concerned, but in the PM Note produced at Ex. 33, the age of the deceased has been shown as 45 years at the time of accident and the Tribunal has applied 12 multiplier but in view of the decision of this Court in the case of National Insurance Company Ltd. vs. Ramilaben Chinubhai Parmar & Ors, reported in 2007 ACJ 1565, in this case, the age of the deceased was 46 years and the multiplier of 8 was applied. In the present case, the Tribunal has wrongly applied 12 multipliers. In view of this, we are of the opinion that in light of the decision of this Court, as stated above, multiplier of 8 is just, proper and FA/4506/2008 9/10 JUDGMENT legal in the eye of law. So far as the interest part is concerned, the Tribunal has awarded rate of interest at 9% which is on higher side in view of the decision of the Apex Court in the case of Dharampal & Ors vs. U.P. State Road Transport Corporation, reported in 2008(7) Scale 306, wherein, the Apex Court has observed that “rate of interest would depend upon the facts and circumstances of each case and the award of interest would normally depend upon the bank rate prevailing at the relevant time.” In light of the above decision of the Apex Court, we are of the opinion that the rate of interest which is awarded as 9% by the Tribunal, is required to be reduced to the extent of 7.5% considering the current bank rate and rest of the award is required to be confirmed. 8. In view of the above discussion, we found that interference is required to be made in the judgment and award dated 11.3.2008 passed by the Presiding Officer, Fast Track Court No. 2, Ahmedabad (Rural), at Mirzapur in MAC Petition No. 337/2005 to the effect that instead of multiplier 12, multiplier of 8 FA/4506/2008 10/10 JUDGMENT is hereby applied and the rate of interest 9.00% awarded by the Tribunal is hereby reduced to the extent of 7.5%. Rest of the judgment and award dated 11.3.2008 passed by the Presiding Officer, Fast Track Court No. 2, Ahmedabad (Rural) at Mirzapur, is confirmed. The appeal is, accordingly partly allowed. 9. The Registry is directed to transmit Rs. 25,000/- deposited by the Appellant in this Court to the Tribunal, forthwith. (J.R. VORA, J.) (Z.K. SAIYED, J.) mandora/