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FA/333/2010 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 333 of 2010
With
CIVIL
APPLICATION No.1733 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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 civil judge ?
=========================================================
AHMEDABAD
MUNICIPAL TRANSPORT CORPORATION - Appellant(s)
Versus
NATUBHAI
JUHABHAI DANTANI (VAGHRI) & 1 - Defendant(s)
=========================================================
Appearance
:
M/S
RJ RAWAL ASSOC. for
Appellant(s) : 1,MS SHIVYA A DESAI for Appellant(s) : 1,
None for
Defendant(s) : 1, 1.2.1,1.2.2 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date : 05/04/2010
ORAL JUDGMENT
1. This
Appeal is directed against the award dated 13th January,
2009 passed by the M.A.C.Tribunal (Auxi-II), Ahmedabad (Rural) in
M.A.C.P.No.1223 of 2006 whereby the learned Tribunal has awarded,
towards compensation, a sum of Rs.3,21,500/- with running interest at
the rate of 8.5% p.a. from the date of claim petition. Aggrieved by
the impugned award and the said directions, the appellant-Ahmedabad
Municipal Transport Commissioner has preferred present Appeal.
2. The
principal contention, on which the Appeal has been preferred is that
the learned Tribunal has committed error in taking the victim s
income at Rs.3,000/- p.m. particularly in absence of any evidence
regarding victim s income.
3. Ms.
S.A. Desai, learned advocate has appeared for the appellant-
Ahmedabad Municipal Transport Commissioner and assailed the award
submitting, inter alia, that the learned Tribunal ought to have
considered victim s income only at Rs.15,000/- p.a. and not at
Rs.36,000/- p.a. The learned counsel submitted that in view of the
provisions under Clause 6 of Schedule II and under Section 163-A of
the Act, the learned Tribunal should not have taken victim s income
at any rate higher than Rs.15,000/-p.a., and ought to have allowed
1/3rd deduction therefrom towards personal expenses. The
learned counsel submitted that instead of strictly applying the
provisions under Schedule II and Section 163-A of the Act, the
learned Tribunal has, without any justification, assumed victim s
income at Rs.3,000/- p.m. and after allowing 1/3rd
deduction, taken his income at Rs.24,000/- p.a. which is contrary to
the statutory provisions and settled legal position and that
therefore, the impugned award is bad in law. Any other contention
against the impugned award has not been raised.
4. The
applicants, heirs and legal representatives of one Smt. Somiben
Natubhai Dantani filed the MACP No.1223 of 2006 alleging, inter alia,
that on 30th august, 2006 at about 12.00 p.m. when the
claimant No.1 and said Smt. Somiben were passing through the market
and while they crossed the temple of Bahucharmata, a dumper bearing
registration No.GRR-6545 which being driven by opponent No.1, in rash
and negligent manner, hit the said Smt. Somiben who, as a result of
the said accident, fell down and the wheel of the dumper ran over
her. The claimants alleged that due to the injury suffered by said
Smt. Somiben on account of the said accident, she died. At the time
of accident, she was 42 years old and she was earning Rs.4,500/- p.m.
By engaging herself in household works and business. The Ahmedabad
Municipal Transport Services i.e. the appellant happened to be the
owner of the said vehicle/dumper. The claimants also stated that said
Smt. Somiben died on account of the said accident. In this
background, the heris and legal representatives of the deceased filed
the above mentioned claim petition claiming Rs.7,00,000/-.
5. At
the outset, it is necessary to mentioned that the appellant has not
disputed the conclusions of the learned Tribunal with regard to the
age of the deceased and/or the factum of accident or with regard to
the fact that the victim died due to the accident which occurred on
account of rash and negligent driving of the motor vehicle (Dumper)
bearing registration No.GRR-6545 driven by opponent No.1, in which
the victim suffered serious injuries and subsequently, succumbed to
the injuries and died.
6. It
also deserves to be noted that initially, the claim petition was
preferred under Section 166 of the M.V.Act, however, subsequently, it
was converted into an application under Section 163-A of the Act and
the claim for compensation was restricted to Rs.4,50,000/-.
7. The
learned Tribunal, considering the fact that the claim petition was
converted into a claim petition under Section 163-A of the Act
observed that it was not necessary to address the issue regarding
negligence more so, when neither the factum of the accident nor the
involvement of the vehicle and/or the cause of the death were in
dispute. The opponents had also not raised any dispute with regard to
the age of the deceased.
8. It
emerges from the award that the learned counsel of present appellant
had also consented or rather suggested that appropriate multiplier
would be 15, however, the learned tribunal considered and decided to
adopt and apply multiplier 13 and the said decision regarding
applicable multiplier also was not disputed. Thus, before the learned
Tribunal there was no dispute with regard to the appropriate
multiplier and in present Appeal also, any issue on that count has
not been raised.
9. In
this view of the matter, the only dispute which survives and which is
raised is with regard to the income of the victim. It would not be
out of place to take note of the observations and findings recorded
by the learned Tribunal in para 10 of the impugned award with regard
to the issue pertaining to income of the deceased. The said para 10
of the judgment reads thus:-
10. Looking
to the arguments advanced by parties advocates, in this case
petitioners fail to produced any reliable documentary evidence to
prove the income of deceased. However, considering the nature of
work, the income of the deceased can be considered at Rs.3,000/- per
month and yearly income come to Rs.36,000/- and if we deduct 1/3
amount for the personal expenses of the deceased, the yearly loss of
dependency comes to Rs.24,000/-. As per the P.M. Report produced vide
Ex.20, the deceased was aged about 50 years, so as per 2nd
Schedule of Section 163-A of M.V.Act, 13 multiplier is required to be
applied, so the petitioners are entitled to get Rs.3,12,000/- under
the head of loss of dependency. The petitioners are also entitled to
get Rs.2500/- under the head of loss to the estate and Rs.2,000/-
under the head of funeral expenses. The petitioner No.1 is also
entitled to get Rs.5,000/- under the head of loss of consortium.
Thus, the petitioners are entitled to get Rs.3,21,500/- as
compensation under all heads.
10. It
can be seen from the aforesaid discussion by the learned Tribunal
that the claimants were not able to produce any document to prove
that the income of the deceased was Rs.4,500/- p.m. The learned
Tribunal has, after taking into account the fact that there was total
lack of documentary evidence that the victim’s income was Rs.4,500/-
and after considering that the only evidence available on record was
that oral evidence of the appellant that the deceased was earning
Rs.4,500/- by engaging herself in house-hold work and business,
considered it appropriate to take victim’s income at Rs.3,000/- per
month.
11. In
light of the view taken by this Court in New India Assurance Co.
Ltd. V/s. Vallabhbhai Bhikhabhai (Decd.) Through His Heirs Josnaben @
Jashuben Vallabhbhai & Ors. [2008 (4) GLR 2876] holding,
inter alia, that even in case of housewife income may be presumed to
be not less than Rs.3,000/- p.m.; hence in case of a woman engaged in
doing household work, it would not be improper to consider Rs.3,000/-
p.m. as an average and notional income. Thus, I do not consider
present case as a fit case to warrant any interference under Section
173 of the Act.
12. It
is noted from the impugned award that the learned Tribunal has noted
that as per the FIR and panchnama, it was evident that the vehicle
ebaring registration No.GRR-6545 was involved in the accident, which
resulted into the death of said Smt. Somiben. The learned Tribunal
also noted that from the P.M. Report (Exh.22) it was also established
that the death occurred due to the accident. The learned Tribunal has
also noted that the claimants had not produced any reliable
documentary evidence from which the actual income of the deceased can
be ascertained. The learned Tribunal, however, took into
consideration the nature of the work, which was being done by the
deceased and on that premise, the learned Tribunal has considered it
appropriate to consider deceased’s income at Rs.3,000/- p.m. The
learned Tribunal, upon taking Rs.3,000/- p.m. i.e. Rs.36,000/- p.a.
as victim’s income and upon considering the fact that the victim was
a married woman of 42 year’s age and having her family, has deducted
1/3rd amount towards personal expenses and considered
deceased’s income at Rs.24,000/- for determining the loss of
dependency. In this backdrop the learned advocate for appellant is
not right in his submission that the learned Tribunal has committed
error by not following proper and settled procedure for deciding the
application under Section 163-A of the Act.
13. Furthermore,
it also emerges from the record that any serious dispute with regard
to the victim’s age was not raised by the opponents i.e. present
appellant when the claimants asserted that at the time of accident
the victim was 42 year’s old. The learned Tribunal has also taken
note of the fact that the P.M. Report mentioned that the victim’s age
was about 50 years. However, the learned Tribunal, ultimately,
adopted multiplier 13 instead of 15. In absence of any contrary
evidence from the side of the appellant, coupled with the absence of
any serious dispute on this count before the learned Tribunal, the
decision of the learned Tribunal cannot be faulted.
14. Accordingly,
treating the victim s income at Rs.24,000/- (after allowing 1/3rd
deduction towards personal expenses) and applying 13 multiplier, the
learned Tribunal has awarded Rs.3,12,000/- towards loss of
dependency. The learned Tribunal has awarded Rs.2,500/- under the
head of loss of estate and Rs.2,000/- towards funeral expenses. The
learned Tribunal has also awarded Rs.5,000/- towards the loss of
consortium. In the result, the total compensation awarded by the
impugned award comes to Rs.3,21,500/-.
15. On
careful consideration of the award, it is noticed that so far as the
issue about the age of the deceased is concerned, the learned
Tribunal has, in absence of any contrary evidence from the side of
the opponent take into consideration the age mentioned in the P.M.
Report and has proceeded on that premise. It cannot be said that the
decision and/or the approach is erroneous. Likewise, the learned
Tribunal has, with regard to appropriate multiplier relied upon the
2nd Schedule under the Act and upon taking into account
its decision regarding deceased’s age the learned Tribunal has
adopted multiplier 13 and rejected the submission that multiplier 15
should be adopted. Having regard to the provisions under 2nd
Schedule and the learned Tribunal’s conclusion with regard to the age
of the deceased, it is not possible to hold that the learned Tribunal
has committed any error in adopting appropriate multiplier in the
facts of present case. Actually, the said decisions are not under
challenge and any dispute on that count has not been raised. So far
as the issue about income of the deceased is concerned, as noted
hereinabove earlier, this Court has taken the view that in case of
woman doing household work, monthly income of Rs.3,000/- cannot be
considered excessive or unreasonable and income of Rs.3,000/- in such
cases can be considered as reasonable, average and notional income.
In that view of the matter and in the facts of present case, I am not
inclined to entertain appellant’s objection with regard to the
learned Tribunal’s decision of considering deceased’s income at
Rs.3,000/- p.m. The appellant has not been able to make out a case
against the learned Tribunal’s conclusion of taking deceased’s income
at Rs.3,000/-.
16. Thus,
upon examination of the award impugned in the appeal, it emerges that
there is no illegality or arbitrariness or manifest error in respect
of the amounts awarded towards loss of estate or funeral expenses or
loss of consortium, etc. and the same are in consonance with
provisions under Section 163-A read with Schedule II thereof. Even
the multiplier of 13 applied by the learned Tribunal is on
conservative side and no fault can be found on that count as well.
17. Thus,
I do not find any justification to interfere with the impugned award.
The
Appeal, therefore, fails and the same is rejected.
In
view of rejection of the main First Appeal, the civil application for
stay does not survive and the same also stands disposed of.
[K.M.Thaker,
J.]
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