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FA/325/2006 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 325 of 2006with
CIVIL
APPLICATION NO 1710 OF 2006 FOR STAY.
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
THE
HON'BLE SMT. JUSTICE ABHILASHA KUMARI
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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 ?
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NEW
INDIA ASSURANCE CO. LTD - Appellant(s)
Versus
BABUBHAI
DIPUBHAI CHAUHAN & 4 - Defendant(s)
=================================================
Appearance
:
MR SHALIN N MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
5.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
THE
HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date
: 28/02/2006
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE H.K.RATHOD)
Heard
learned advocate Mr. Shalin N.Mehta for appellant -New India
Assurance Co. Ltd. Through this appeal, appellant has challenged
award made by Motor Accident Claims Tribunal (Aux.), Ahmedabad City
in MACP No. 1297 of 2003 dated 25th April, 2005 wherein
the Claims Tribunal has, while partly allowing the claim petition,
directed opponents to pay Rs.5,62,000.00 jointly and severally to
the claimants with interest at the rate of 6 per cent p.a. From the
date of claim petition till realization with proportionate costs.
2. Brief
facts of this appeal are as under:
It
is the case of claimants that on 30th October, 2003 at
about 4.00 p.m., deceased Ranjanben and her husband, petitioner no. 1
were coming on their Motor Bike bearing Registration No. GJ-1-CL-4563
from Matar to Ahmedabad via Kheda, Mahemdavad and Khatraj. Said motor
bike was being driven by petitioner no.1 while deceased Ranjanben was
sitting as a pillion rider. When they were passing from Kheda
Mahemdavad to Khatraj Cross Roads, at that time, at about 4.30 p.m.,
opponent No.1 came from the back side driving Eicher Motor Truck
Bearing Registration No. GJ-4-U-8736 with full speed, rashly and
negligently and dashed with the motor bike and, thereby,
deceased Ranjanben succumbed to injuries. It is also case of
claimants that the deceased Ranjanben was used to earn Rs.4000.00 to
Rs.5000.00 p.m. By running Gruh Udyog. She was hale and hearty and if
unfortunate accident would not have
occurred, she would have survived long. Claimants are middle class
family and due to death of deceased, they are put in financial
crisis. Deceased Ranjanben had undergone plenty of pain, shock and
suffering after accident and before her death. In view of the above
facts, petitioners claimed Rs.6,00,000.00 by way of compensation loss
of income, pain, shock, suffering, funeral expenses, transportation
etc. from the opponents.
3. Though
notice of claim petition was served on opponents, opponent no. 1 and
2 have not appeared before Claims Tribunal and have not filed any
reply to contest the claim petition, therefore, claim petition
proceeded against opponents no.1 and 2 in their absence.
4. Opponent
No. 3 New India Assurance CO. Ltd. Appeared before Claims Tribunal
and filed its reply at Exh. 26, contending inter alia, that the
petitioners should be put to strict proof of the factors like
particulars of accident, injuries causing death of deceased
Ranjanben, her age, income and other factors. Opponent No. 3 has
denied that the accident has taken place due to rash and negligent
act on the part of opponent No. 1. It is alleged by Insurance Co.
that the petitioner was negligent to a major extent namely 75% for
the occurrence of accident. Therefore, according to the Insurance
CO., petition was barred by non-joinder of necessary parties as the
driver, owner and insurance CO. of the Motor Bike were not joined as
party opponents. Insurance Co. further contended before the Claims
Tribunal that the petitioners must prove all the averments that are
made in the memo of claim petition by leading cogent, reliable and
trustworthy evidence. However, without prejudice to its right, it is
contended that the claim of the claimants is excessive and
exorbitant.
5. After
filing of pleadings by respective parties, claims tribunal framed
issues at Exh.19 which are as under:
(1) Whether
the applicant proves that the deceased died due to rash and negligent
driving by the driver of the vehicle involved?
(2) Whether
the applicant is entitled to get compensation ? If yes, what amount
and from whom?
(3) What
order and award?
6. By
answering issue No.1 in affirmative, tribunal held that the accident
in question has taken place solely due to rash and negligence on the
part of opponent No.1. Claims Tribunal examined merits in issues
no.2 and 3. Claims Tribunal fixed age of deceased Ranjanben as 40
years at the time of accident for the purpose of calculation of
compensation on the basis of petition, photo copy of PM Note and
other documentary evidence on record. Thereafter, factor of income
and occupation was examined by claims tribunal. Considering
deposition of petitioner at Exh.28, claims
tribunal fixed monthly income of deceased Ranjanben at Rs.3,000.00
for the purpose of computation of compensation.
Tribunal relied upon apex court decision in case of Smt. Sarla Dixit
and another versus Balwant Yadav and others, AIR 1996 SC 1274. After
adopting Gujarat Formula, tribunal has come
to the conclusion that considering income of Rs.3000.00 p.m.,
tribunal worked datum figure of Rs.4500.00 p.m. Following the formula
mentioned in case of Sarla Dixit (supra) by apex court. Tribunal
deducted 1/3rd as personal expenditure of deceased and
ultimately fixed average amount available to family of deceased i.e.
Dependency benefit. Thereafter, Tribunal fixed age of deceased 40
years and applied multiplier of 15 and ultimately worked out amount
of Rs.5,40,000.00 and added Rs.15000.00 as conventional figure for
loss of estate and consortium. Claimants claimed Rs.10,000.00 towards
funeral charges. However, considering that there is no iota of
evidence produced by claimants in support of such claim, tribunal
awarded Rs.5000.00 by way of transportation charges and
Rs.2000.00 by way of funeral expenses. Thus, under the impugned
award, tribunal awarded Rs.5,62,000.00 to claimants with 6 per cent
interest p.a. From the date of application till the date of
realization of amount.
7. Learned
advocate Mr. Shalin Mehta appearing for appellant Insurance Co.
raised contention that the claims tribunal has committed gross error
in assessing income of Rs.3000.00 of the deceased, since there was no
iota of evidence produced by claimants before claims tribunal.
According to his submission, in absence of any documentary evidence
or cogent evidence, assessment of income by claims tribunal is
erroneous or on higher side. Therefore, he submitted that the
assessment of income made by the claims tribunal is not correct and
is contrary to law. Except this contention, no other contention was
raised by Mr. Mehta. No decision was cited by Mr. Mehta in support of
his contention.
8. We
have perused impugned award made by Claims Tribunal. We have
thoroughly gone through the contention raised by learned Advocate Mr.
Mehta before us. Claims Tribunal has considered factor of income and
occupation of deceased in paragraph 12 and 13 of impugned award.
Claims Tribunal has relied upon the evidence of husband of deceased
i.e. Petitioner no.1 in respect of income of deceased though in cross
examination, petitioner no.1 has admitted that he has no
documentary evidence to support his version in respect of income of
the deceased. However, Tribunal considered circumstances and nature
of business being run by the deceased and on that basis, tribunal has
fixed income of deceased at Rs.3000.00 for the purpose of computation
of compensation. Thereafter, tribunal calculated compensation by
relying upon the decision of apex court in case of Sarla Dixit
(supra). Relevant discussion made by claims tribunal in para 12 and
13 of impugned award is reproduced as under:
?S12. So far as the factor
of income and occupation is concerned, petitioner No.1 has stated in
his deposition Exh.28 that eased Ranjanben used to earn Rs.150.00 per
day by running Gruh Udyog. But, at the same time, in the cross
examination, he admitted that he has no documents to support his
version. In these circumstances and considering the nature of
business being run by the deceased, I fix monthly income of deceased
Ranjanben as Rs.3000.00 for the purpose of compensation.
13. In view of the
observation made by His Lordship in a reported case, Smt. Sarla Dixit
and another V/s. Balwant Yadav and others, AIR 1996 SC 1274, so far
as the adoption of the proper multiplier is concerned, it was
observed that future prospects of advancement in life and career
should also be sounded in terms of money to augment the multiplicand.
While the chance of the multiplier is determined by two factors
namely the rate of interest appropriate to a stable economy and the
age of the deceased or of the claimant whichever is higher, the
ascertainment of the multiplicand is a more difficult exercise.
Indeed, many factors have to be put into the scales to evaluate the
contingencies of the future. All contingencies of the future need not
necessarily be baneful. Applying these principles to the facts of
the case before this Court in the aforesaid case, it was observed
that the deceased in that case was of 39 years of age. His income
was Rs.1032.00 p.m. He was more or less on a stable job and
considering the prospects of advancement in future career, proper
higher estimate of monthly income of Rs.2000.00 as gross income to be
taken as average gross future income of the deceased and deducting at
least 1/3rd therefrom by way of personal living expenses,
had he survived the loss of dependency, could be capitalized by
adopting the multiplicand of Rs.1400.00 per month or Rs.17000.00 per
year and that figure could be capitalized by adopting multiplier??.
Considering the above ratio, in the present case, monthly income of
deceased Ranjanben is Rs.3000.00 had she survived in life and had
successfully completed her future career till the time of her life,
the average gross future monthly income could be arrived at by adding
the actual gross income at the time of death, namely Rs.3000.00 per
month to the maximum which she would have otherwise got had she not
died a premature death i.e. Rs.3000.00 per month x 3 = Rs.9000.00
divided that figure by two, thus, the average gross monthly income
spread over her entire future career had it been available to work
out to Rs.4500.00 per month would have been the gross monthly average
income available to the family of the deceased had she survived as a
bread winner. From the gross monthly income, at least 1/3 will have
to be deducted by way of her personal expenses and other liabilities
that would roughly work out to Rs.3000.00 per month and deducting the
same by way of average personal expenses of the deceased from the
average gross earning of Rs.4500.00 per month, balance of Rs.3000.00
would have been average amount available to the family of the
deceased i.e. Her dependents. As the age of deceased Ranjanben was
40 years at the time of her death, the proper multiplier would be
15.Rs.36,000=00 multiplied by 15 will work out to Rs.5,40,000.00. To
this figure will have to be added the conventional figure of
Rs.15000.00 by way of loss of e state and consortium.??
Deceased
Ranjanben was working, having business of Gruh Udyog. Deceased was
earning member in the family. That fact was proved by her husband
before the Claims Tribunal. According to his evidence, deceased was
earning Rs.150.00 per day from Gruh Udyog. On that basis, Tribunal
calculated and fixed amount of Rs.3000.00 being income of deceased.
Apex Court in Lata Wadhva and others v. State of Bihar and others,
reported in AIR 2001 SC 3218, decided question of fixing or assessing
income of housewife in absence of data in para 10 of said decision.
Para 10 of said decision is reproduced as under:
?S10. So far as the
deceased housewives are concerned, in the absence of any data and as
the housewives were not earning any income, attempt has been made to
determine the compensation on the basis of services rendered by them
to the house. On the basis of the age group of the housewives,
approximate multiplier has been applied but the estimation of the
value of services rendered to the house by the housewives, which has
been arrived at Rs.12,000.00 per annum in cases of some and
Rs.10,000.00 for others, appears to us to be grossly low. It is true
that the claimants who ought to have given datas for determination of
compensation, did not assist any manner by providing the datas for
estimating the value of services rendered by such housewives. But
even in absence of such datas and taking into consideration the
multifarious services rendered by the housewives for managing the
entire family, even on a modest estimation, should be Rs.3000.00 per
month and Rs.36000.00 per annum. This would apply to all those
housewives between the age group of 34 to 59 and as such who were
active in life. The compensation awarded, therefore, should be
re-calculated. Taking the value of services rendered per annum to be
Rs.36,000.00 and thereafter applying the multiplier, as has been
applied already and so far as the conventional amount is concerned,
the same should be Rs.50000.00 instead of Rs.25000.00 given under the
report. So far as the elderly ladies are concerned, in the age group
of 62 to 72, the value of services rendered has been taken at
Rs.10,000.00 per annum and multiplier applied is eight. Though the
multiplier applied is correct, but the value of services rendered at
Rs.10000.00 per annum, cannot be held to be just and, we, therefore,
enhance the same to Rs.20,000/- per annum. In their case, therefore,
the total amount of compensation should be re-determined, taking the
value of services rendered at Rs.20,000 per annum and then after
applying the multiplier, as already applied and thereafter adding
Rs.50,000.00 towards the conventional figure.??
Thus,
in Lata Wadhwa and others (supra), apex court fixed income of
housewives between the age group of 34 to 59 at Rs.3000.00 who were
active in life. In this case, age of deceased was fixed at 40 years,
covered by said decision of apex court. Apart from the earning by the
deceased, roll of the housewife in running a house is not that of
rendering services as a slave. Her contribution to keep family
together, providing household services besides matrimonial duties
cannot be treated lightly. It has got nothing to do with the earning
capacity of the husband which is an addition to what is taken care
by the housewife. No matter what the status of the family may be,
contribution of the housewife towards household may be treated to be
at minimum Rs.3000.00 p.m. In the facts of this case, deceased was
not merely a housewife but she was earning member of family. These
two factors were taken into account by the claims tribunal while
fixing Rs.3000.00 as income of the deceased which, according to our
opinion, cannot be considered as excessive or exorbitant and evidence
of husband in absence of documentary evidence must have to be
believed by the claims tribunal. In private Gruh Udyog carried out by
the deceased, husband may not be having any documentary proof to
prove income of the deceased. So, merely because there is no
documentary evidence to prove income of deceased, it cannot be
considered to be a ground for disbelieving or discarding oral
evidence of husband ? petitioner no.1, therefore, according to our
opinion, claims tribunal was right in assessing the income of
deceased and was also right in calculating amount of compensation
based upon such assessment and in doing so, according to our opinion,
tribunal has not committed any error while awarding compensation in
favour of claimants. [See : The Municipal Corporation of Greater
Bombay v. Shri Laxman Iyer and Anr., III (2003) ACC 551 (SC) = VI
(2003) SLT 706=JT 2003 (8) 108; judgment of the High Court of Jammu
and Kashmir in Oriental Insurance Co. Ltd. v. Shamsher Singh and
Ors., I (200) ACC 209=396 (SC) = 1996 ACJ 581; Amarsinh Thakur and
others v. Sandeep Chatwal & Anr. Dated 5th July, 2004
of Delhi High Court in FAO 8 of 1989; Mathura Dutt v. DTC reported in
I 2005 ACC 33].
Therefore,
in view of the above discussion, contention raised by Mr. Mehta
cannot be accepted. Same is, therefore, rejected. Except that
contention, no other contention was raised by Mr.Mehta before us.
Therefore, compensation awarded by Claims Tribunal cannot be
considered to be excessive or exorbitant. Findings given by the
claims tribunal are legal and valid based on cogent evidence. There
is no perversity in the finding given by the tribunal. There is no
contradictory finding given by the claims tribunal.
Consequently,
this appeal is dismissed. Civil Application No. 1710 of 2006 for Stay
is also dismissed. Registry is directed to transmit the amount of
Rs.25,000.00 (Rupees twenty five thousand only) deposited by the
appellant insurance company as required under section 173 of the MV
Act to the claims tribunal for payment to claimants.
(H.K.
Rathod,J.)
(Abhilasha
Kumari,J.)
Vyas
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