Gujarat High Court Case Information System
Print
FA/2387/1998 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2387 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
ABATES
AS PER EXHIBIT.50 & 5 - Appellant(s)
Versus
SHRIRANG
GULABRAV GHUMAR & 2 - Respondent (s)
=========================================================
Appearance
:
MR.HIREN
M MODI for
Appellant(s) : 1 - 6.
DELETED for Defendant(s) : 1,
NOTICE
SERVED BY DS for Defendant(s) : 2,
MR RITURAJ M MEENA for
Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 29/09/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. Challenge
in this appeal under section 173 of the Motor Vehicles Act, 1994
[for short ‘the Act’] is to the judgment and award dated 19/12/1997
rendered in M.A.C. Petition No. 348 of 1988 with M.A.C.P. No. 536 of
1988 by the Ld. Motor Accident Claims Tribunal [Aux.-IV], Kheda at
Nadiad [for short ‘the Tribunal’], whereby so far as M.A.C.P. No. 348
of 1988 is concerned, the Tribunal awarded Rs.3,41,000/- by way of
compensation to the appellants herein, who were original claimants
in the said claim petition with running interest at the rate of 15%
p.a., from the date of the said claim petition till realization with
proportionate costs thereof. The Tribunal further directed that the
respondents herein who were original opponents in the aforesaid claim
petition, shall pay the aforesaid compensation with interest jointly
and severally. Being aggrieved and dissatisfied with the impugned
judgment and award rendered by the Tribunal that the amount awarded
by way of compensation is on lower side and inadequate, the original
claimants preferred this appeal.
2. The
facts leading to the claim petition, in brief, are that the vehicular
accident occurred on 13/1/1988 between scooter bearing Registration
No. GBV 6800 and Truck bearing Registration No. MHQ 3287 near Vasad
on National Highway No. 8. Deceased Rajendrabhai Narsinhbhai, son of
appellant – claimant no. 1 and husband of appellant –
claimant no. 2 and deceased Jagdishkumar Vallabhdas were proceeding
on the scooter and at the place of accident, the truck which came
from the opposite direction driving rashly and negligently by its
driver, dashed with the scooter and both the occupants of the scooter
sustained serious injuries and both of them succumbed to the
injuries.
2.1. As
per the case of the appellants – claimants, deceased
Rajendrabhai was aged about 27 years at the time of his death and
that he was deriving income from two sources, namely he was serving
in Mahalaxmi Pulse Mill and was getting Rs.1,500/- per month by way
of salary as well as he was cultivating agricultural lands of his
father, mother and aunt and he was getting his share from the
agricultural income. Accordingly, the appellants – claimants in
M.A.C.P. No. 348/1988 claimed Rs.20 lacs by way of compensation.
3. Before
the Tribunal, the claim petition
came to be contested by respondent – opponent no. 3 –
Oriental Insurance Co. Ltd., by filing written statement at exh. 21,
wherein, in short, the negligence on the part of the driver of the
truck was denied. The age, nature of profession, income, etc., of
the deceased Rajendrabhai was also denied.
4. The
Tribunal consolidated both the claim petitions, namely M.A.C.
Petition No. 348 of 1988 and M.A.C. Petition No. 536 of 1988 and
common evidence was recorded and by impugned judgment and award dated
19/12/1997, both the claim petitions came
to be disposed of by the Tribunal. However, as stated above, the
claimants of M.A.C. Petition No. 348 of 1988 felt that the amount
awarded by way of compensation was on lower side and was inadequate
and, therefore, the instant appeal came to be preferred.
5. Mr.
Hiren Modi, learned advocate for the appellants submitted that the
amount awarded by way of compensation is on lower side and
inadequate. The Tribunal only took into consideration the income
derived by the deceased by way of salary, but did not take into
consideration the income which the deceased derived as an
agriculturist. Mr. Modi, learned advocate for the appellants assailed
the judgment and award rendered by the Tribunal on the count that the
Tribunal did not consider future prospective income of the deceased
though at the time of accidental death, the deceased was aged about
27 years. Mr. Modi, learned advocate for the appellants further
submitted that the claimants examined appellant no. 3 –
original claimant no. 2 – Bhanumatiben before the Tribunal and
produced relevant documents like extracts of revenue records of
agricultural lands cultivated by the deceased as well as the
agreements entered into between the deceased and the owners of the
land whereby 50% share of the agricultural income derived from the
agricultural land was agreed to be paid to the deceased. Resultantly,
it is submitted that the appeal may be allowed and just and
appropriate amount of compensation be awarded to the appellants –
claimants.
6. Per
contra, Mr. R M Meena, learned advocate representing Insurance
Company, vehemently opposed this appeal and submitted that the
Tribunal did not commit any error in considering the income by way of
salary which the deceased was earning. It is submitted that
considering the impugned judgment and award rendered by the Tribunal,
the Tribunal has observed that the documents like the agreements
allegedly entered into between the deceased and owners of the land
were concocted documents and rightly not relied upon those documents.
It is submitted that as per the salary slips produced by the
claimants, the deceased was earning Rs.1,500/- per month by way of
salary, yet the Tribunal considered the income of the deceased at
Rs.2,000/- p.m. Therefore, it is submitted that the amount awarded by
the Tribunal to the appellants – claimants is just and
reasonable amount and cannot be said to be on lower side.
6.1. Ultimately,
it is submitted that the appeal may be dismissed.
7. We
have considered the submissions advanced by Mr. Hiren M Modi,
learned advocate for the appellants – claimants and Mr. R. M. Meena,
learned advocate representing respondent – opponent no. 3 –
the Oriental Insurance Co. Ltd. We have examined the record and
proceedings of M.A.C. Petition No. 348 of 1988 in context with the
submissions made by the rival side.
8. Considering
the impugned judgment and award rendered by the Tribunal, so far as
the vehicular accident is concerned, the Tribunal, appreciating the
evidence on record, came to the conclusion that the vehicular
accident occurred between the truck and scooter on account of sole
rash and negligent driving of the truck by its driver. It is
pertinent to note that neither the insurance company nor driver/owner
of the truck preferred any appeal nor any cross appeal is preferred
challenging the judgment and award rendered by the Tribunal.
Therefore, the findings arrived at by the Tribunal that the vehicular
accident occurred on account of sole rash and negligent driving by
the driver of the truck had attained finality and even otherwise,
considering the evidence on record, we find no illegality or any
irregularity committed by the Tribunal in arriving at such
conclusion.
9. Re-appreciating,
re-analyzing and re-evaluating the oral and documentary evidence on
record, there is no dispute that deceased Rajendrabhai was serving in
Mahalaxmi Pulse Mills and as per the salary slip produced on record,
his monthly salary was Rs.1,500/-. Considering the evidence of the
widow of the deceased, she stated that over and above the service,
the deceased was cultivating the agricultural land of her
father-in-law, mother-in-law and aunt and the owners of the lands had
agreed to pay 50% share of the agricultural income to the deceased.
Mr. Modi, learned advocate for the appellants – claimants
stated that considering bills and vouchers showing the sale of the
crops to different agricultural market committees, the annual income
which the deceased derived as an agriculturist was Rs.75,000/- p.a.
Mr. Modi, learned advocate for the appellants relied upon the
documentary evidence like the agreements entered into between the
deceased and the owners of the lands, so also the bills and receipts
showing sale of the crops to different societies.
10. Considering
the oral and documentary evidence on record and as stated above, so
far as the income derived by the deceased by way of salary is
concerned, there is no dispute. However, so far as agricultural
income is concerned, it is pertinent to note that the lands which,
according to the claimants, the deceased used to cultivate were his
family lands, namely the lands belonging to his parents and aunt. In
the aforesaid background, the Tribunal rightly did not rely upon the
agreements entered into between the deceased and his parents and
aunt, referring the share of the agricultural income of the deceased.
However, the Tribunal considered the actual monthly income of the
deceased at Rs.2,000/-. Perusing the impugned judgment and award
rendered by the Tribunal, it is clear that the deceased was aged
about 27 years. However, while determining the quantum of
compensation under the head of loss to the dependency benefits, the
Tribunal did not take into consideration the future prospective
income of the deceased. Considering his income derived from salary
as well as the fact that deceased was cultivating his family lands by
rendering his special skill and expertise as an agriculturist and
considering the expenditure which the deceased was required to incur
while cultivating the agricultural lands and the fact that the
deceased died in the accident in the year 1988, we are of the
considered view that the Tribunal should have taken into
consideration future prospective income of the deceased and
accordingly, it would be in the interest of justice if the additional
future prospective monthly income is considered to be Rs.750/-.
Deducting 1/3rd amount of the self expenses which the
deceased would have incurred had he been alive, from Rs.750/- per
month, the net additional monthly dependency benefit comes to
Rs.500/- [Rs.750 – Rs.250 = Rs.500/-]. Thus, the annual loss to
the additional future dependency benefits would come to Rs.6,000/-.
The Tribunal has applied multiplier of 17 years. Considering the
facts and circumstances of the case and considering the age of the
deceased and relying upon the decision rendered in the case of Smt.
Sarla Verma v. Delhi Transport Corporation reported in 2010 [1]
G.L.R. p.17 delivered by
Hon’ble the Apex Court, the Tribunal has rightly adopted the
multiplier of 17 years for the deceased, who was aged about 27 years.
Thus, accordingly, the additional future loss to the dependency
benefits would come to Rs.1,02,000/- [Rs.6,000 x 17 = Rs.1,02,000/-],
making rounded of, it would come to Rs.1,00,000/-. Therefore, we are
of the considered opinion that the claimants are entitled to get
additional amount of compensation at Rs.1,00,000/- together with
running interest at the rate of 9% p.a., from the date of the claim
petition till the realization on the additional amount of
compensation. Other amount of compensation awarded by the Tribunal on
the count of loss of expectation of life, loss of consortium and
transportation and funeral charges, etc., appears to be just and
reasonable.
11. For
the foregoing reasons, the appeal partly succeeds and accordingly it
is partly allowed. The appellants original claimants are entitled to
recover Rs.1,00,000/- [Rupees one lac only] by way of compensation in
addition to what was awarded vide impugned judgment and award dated
19/12/1997 rendered in M.A.C. Petition No. 348 of 1988 by the Ld.
Motor Accident Claims Tribunal [Aux. IV], Kheda at Nadiad, with
running interest at the rate of 9% p.a., from the date of the claim
petition till the date of realization on the additional amount of
compensation with proportionate costs thereon. The Tribunal is
directed to disburse the additional amount of compensation together
with interest and proportionate costs to the appellants –
claimants in equal share.
12. The
respondents – original opponents shall deposit jointly and/or
severally the additional amount of compensation of Rs.1,00,000/-
together with interest and proportionate costs referred to
hereinabove, within 8 [eight] weeks hereof, with the Tribunal.
13. Modified
award to be drawn up accordingly.
(A.M.
Kapadia, J.)
(
J.C. Upadhyaya, J.)
*
Pansala.
Top