FA/38719/1998 12/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 387 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA 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 ? ========================================================= KAILASHBEN FATEHSINH PARMAR & 3 - Appellant(s) Versus SOMABHAI HARMABHAI PARMAR & 3 - Defendant(s) ========================================================= Appearance : MR JITENDRA MALKAN for Appellant(s) : 1 - 4. SERVED BY AFFIX.-(R) for respondent (s) : 1, NOTICE SERVED for respondent (s) : 2, MS MEGHA JANI for respondent (s) : 3, DELETED for respondent (s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 16/10/2008 ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE R.P.DHOLAKIA)
This
appeal under Sec.96 of the Code of Civil Procedure, 1908 has been
filed by the appellants-original applicants being aggrieved and
dissatisfied with the judgment and award dated 24th
October, 1997 passed by the learned Motor Accident Claims Tribunal
(Aux.), Vadodara, in Motor Accident Claims Petition No.1107 of 1991
whereby the Tribunal has awarded Rs.2,15,000/- as compensation for
death of the deceased Fatehsinh Somsinh Parmar along with
proportionate costs and interest @ 12% p.a. from the date of the
petition till its realisation.
This
appeal has been listed as per the present roster in our board of
final hearing in the month of October, 2008.
It
is required to be noted that initially claim petition has been filed
by five persons but since mother of the deceased died during the
pendency of the claim petition, her name was deleted from the
petition as reflects from para 16 on page 16 of the judgment passed
by the Tribunal.
Short
facts of the case of the appellants are that the deceased Fatehsinh
Somsinh Parmar, aged 38 years, residing in Village Ampad, Taluka
and District Vadodara, who is the husband of appellant No.1 and
father of appellant Nos.2 to 4, was doing the business of collecting
the milk from his Village and selling the same in the city of
Vadodara along with other work. On 15-3-1991, the deceased was
going towards Vadodara City on his bicycle with a milk can. When he
reached near Sevasi on Gotri Road, Vadodara, one motor truck
No.GTK-2919 driven in a rash and negligent manner by its driver
(opponent No.1) came from behind and the front portion of the said
motor truck dashed with the back portion of the motor cycle causing
serious injuries to the deceased. The deceased was taken to the
hospital where he succumbed to the injuries. Hence, the claim
petition has been filed by the heirs and legal representatives of
the deceased. Against the claim of Rs.14,87,666/-, the Tribunal has
awarded Rs.2,15,000/- as compensation. Hence, the present appeal has
been filed claiming Rs.12,72,000/- being remaining part of the claim
amount which has not been awarded by the Tribunal.
We
have heard learned counsel for the appellants, Mr.Jitendra Malkan
and learned counsel for the respondent No.3-Insurance Company,
Ms.Anushri for Ms.Megha Jani. As far as respondent Nos.1 and 2, who
are driver and owner of the vehicle involved in the accident are
concerned, though they have been duly served, they have chosen not
to remain present either personally or through advocate.
Mr.Malkan
has drawn our attention towards oral as well as documentary
evidences and more particularly oral evidence of witness
No.1-Kailashben, who is the widow of the deceased Mansinh Fatesinh
Parmar, Ex.28. She has categorically narrated in paras 2, 3 and 4
of her deposition about the work her husband was doing.
She has deposed that her husband was doing the business of
collecting the milk from his Village as well as milk of his 10
buffaloes and selling the same in the City of Vadodara and for that
he used to maintain register which she has proved by way of register
Ex.29. She has further deposed that her husband was getting profit
of Re.1/- per litre and was earning about Rs.10,000/- from the sale
of milk. She has further deposed that her husband was collecting
vegetables and was selling the same in the City of Vadodara. In para
4, she has deposed that her husband used to sell 130 liters of milk
twice a day i.e. in the evening and in the evening. She has
deposed that her husband had worked as a Sanchalak of Mid-day Meal
Scheme for the period from 1984 to 1990. He was also doing
agricultural activities on his own land as well as on the land of
others on a crop-sharing basis and for looking after the same, he
had engaged a person by paying Rs.1,000/- per month. She has further
deposed that now she is not getting any income which she used to get
when her husband was doing agricultural activities. She has further
deposed that her husband had served as a Sarpanch for the period
from 1975 to 1980, Secretary of the milk dairy for the period from
1968 to 1976 and had taken training in paultry farming and was
desirous of doing the paultry farming. She has further deposed that
her husband used to give her Rs.10,000/- for household expenses. In
para 5, she has deposed about the longivity of her husband’s family
by stating that father of the deceased died at the age of 77, mother
at the age of 73 and grandfather at the age of 87.
In her
cross-examination, a question was asked as to whether there was any
record with the Panchayat pertaining to her buffaloes. She has
replied that Panchayat had no such practice. She has also admitted
that though her husband was selling milk in the City of Vadodara,
she has no record for the same but if required, she will examine the
traders for proving the same. The question of denial was also asked
regarding her husband’s working as a Sanchalak in Mid-day Meal
Scheme. She has proved the revenue records and form No.8-A. She has
admitted in para 13 that although her husband was earning profit of
Re.1/- per litre, Rs.10,000/- per month from the sale of milk as
well as income from mid-day meals scheme, her husband was not paying
any income tax. She was also asked as to whether any writing was
there about her doing the paultry farming business and she replied
in negative.
It is clear from her
entire evidence including cross-examination that there was no denial
on the aspects of her husband’s business of selling of milk as well
as of agricultural activities and earning income therefrom. The only
denial was regarding the quantity of milk.
Another witness
examined by the applicants was witness No.2, Mansinh Somsinh Chavda
at Ex.30, who is a villager and who is knowing the deceased since
his birth. He has categorically deposed that his friend i.e. the
deceased Fatesinh was a person doing multi-farious activities
including social work. According to him, the deceased was also
interested in doing agricultural activities, buying and selling of
milk and also selling vegetables. He has further deposed that by
selling milk alone, he used to earn Rs.5,000/-. He has also deposed
that he was active in politics. He has also taken training in
paultry farming and was doing paultry farming. In his
cross-examination, he has admitted that he and the deceased are from
the same community.
It is established from
the cross-examination of the above referred witness that the
deceased was doing agricultural activities of his own. As far as
paultry farming is concerned, he has admitted that he had seen him
preparing papers for that and was arranging loan from the bank for
said purpose.
Similarly, one
Shantilal Ramanlal Kachiya has been examined by the original
applicants as witness No.3 at Ex.32 to prove the aspect of business
activities of deceased. He has categorically deposed that he is
selling the vegetables at Vadodara as a commission agent. He used to
bring two quintals of vegetables per month and used to sell the same
to him. In his cross examination, he has admitted that he is doing
the work as a commission agent. He has also admitted that he is not
keeping any books of account.
As regards taking
training in paultry farming, the original applicants have examined
one Muzzamithussain Sahirhussain Saiyed as witness No.4 at Ex.37.
Through him, training certificate of paultry farming has been proved
at Ex.38. For proving the age of the deceased, the original
applicants have examined Prakashchandra Sumantlal as witness No.5
at Ex.39 and his age has been proved at Ex.40 while the School
Leaving Certificate has been proved at Ex.42 through School
Register. To prove that he was a member of the Co-Operative Society,
the applicants have examined one Amarsinh Chavda, witness No.7,
Ex.44. To prove that he was working as a Secretary of milk dairy for
the period from 1968 to 1976, one Ishwarbhai Fulabhai Solanki was
examined as witness No.8, Ex.47 and proved the same by way of Ex.48.
It has also been proved that he was a Sarpanch of the Gram Panchayat
for the period of five years.
Insurance Company has
examined one witness, Dilipsinh Jaysinh Jadeja as witness No.1 at
Ex.55. It is required to be noted that evidence of said witness has
not been believed by the Tribunal and the Insurance Company has not
challenged the same and, therefore, we are not dealing with the
same.
It is required to be
noted that as per the evidence on record, deceased was aged about 40
years and it has been proved by the applicants by way of documentary
evidence Ex.40 to 42. They have also proved that the deceased was
doing multifarious activities. He was Sarpanch for a period of five
years of the same Village, member of the Co-Operative Society,
Secretary of Milk Dairy and also obtained training in paultry
farming and was interested in doing the paultry farming in future
and for that, he also prepared the some papers.
In short, at the time
of incident, deceased was aged about 40 and same has been accepted
by the Tribunal and it has not been challenged. Keeping in mind the
said age of the applicant, we proceed further.
As far as future
economic loss is concerned, it is required to be noted that the
Tribunal has believed that he used to sell 50 liters of milk per
day. The Tribunal has held that as per panchnama of scene of
offence, deceased was having burnt can of milk, one another 24
liters of milk. The Tribunal has not believed other cogent
evidence on record wherein the witness has categorically deposed
that her husband used to sell 130 liters of milk twice a day. That
fact is also denied by the otherside. He used to get profit of
Re.1/- per liter of milk. The Tribunal has believed the same but
the only thing to be taken into consideration is that on the date
of incident, he was having 24 liters of milk with him and only on
that ground, it can be presumed that he used to bring 24 liters of
milk every day.
To prove the case of
the original applicants further, though they have examined various
witnesses, the Tribunal has not believed the same. However, it is
required to be noted that the deceased was doing the business of
trading of milk. We are not in a position to accept the say of the
Tribunal that he used to sell only 50 liters of milk per day.
However, facts remain that the deceased was doing multifarious
activities of collecting and selling the milk. He was also selling
vegetables in the City of Vadodara. He was also doing agricultural
activities but the Tribunal has ignored the income which he was
deriving by doing agricultural activities on his own land and has
not awarded any single rupee towards the same. The Tribunal has also
ignored the business of selling vegetables and only believed that he
used to earn Rs.100/- per month from the sale of vegetables.
It is to be noted that
the deceased was maintaining his family consisting of six persons.
He was also an active political worker and was rendering his service
as a Sarpanch of the Village, Secretary of the Mid-day Meal Scheme
and member of a Co-Operative Society. He also obtained training in
paultry farming and was interested in doing paultry farming but
before starting the same, he met with an accident and succumbed to
the injuries. His income cannot be assessed on the basis of income
of able bodied persons. However, his income can be considered
something more than the able bodied person but something lesser than
the skilled workers. In short, the Tribunal has calculated Rs.1600/-
as his monthly income on the basis that he used to earn Rs.50/- by
sale of milk and Rs.100/- per month from the sale of vegetables. We
believe that he was earning about Rs.3,000/- per month and which
will meet the ends of justice.
On
going through the entire evidence on record, we are not convinced
with the reasons assigned and the conclusions arrived at by the
Tribunal qua quantim. Looking to the evidence on record and also the
facts and circumstances of the case, we consider the monthly income
of the deceased at Rs.3,000/- i.e. Rs.36,000/- per annum and
deducting one-third towards his personal expenses, Rs.24,000/- are
awarded towards future economic loss of the deceased. We do not
disturb the multiplier of 15 as it has not been challenged and hence
applying the same multiplier, the original applicants would be
entitled to receive Rs.3,60,000/- and deducting therefrom the amount
of Rs.1,92,000/- as has already been awarded by the court below
under this head, the original applicants are entitled to receive
additional amount of Rs.2,68,000/- towards future economic loss
plus. We also hold that the original applicants are entitled to
receive interest @ 7.5% p.a. on the additional amount from the date
of claim petition till realisation. The order for disbursement will
be made after the awarded amount is deposited in the Tribunal. This
First Appeal stands disposed of accordingly.
(R.P.DHOLAKIA,J)
(Z.K.SAIYED,J.)
radhan/