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FA/4771/2006 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4771 of 2006
=====================================================
ARUNABEN
KANTILAL PATEL & 2 - Appellant(s)
Versus
AMIN
AHMAD KADODIYA & 2 - Defendant(s)
=====================================================
Appearance
:
MR H.S.MULIA for Appellant(s) :
1 - 3.
None for Defendant(s) : 1 -
3.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 22/09/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.R.VORA)
1. This
First Appeal is preferred by the original claimants against the
judgment and award delivered by the Motor Accident Claims Tribunal
(Auxi.), 4th Fast Track Court, Panchmahals at Godhra, on
11th August, 2006 in MAC Petition No. 34/2002, wherein,
claimants were awarded an amount of Rs. 9,58,000/- with running
interest at the rate of 7.5% from the date of the application till
realisation for the death of Kantibhai Dayabhai Patel in a motor
accident on 28.12.2001 within the limits of Kamrej Police Station
near village Pardi and Sugar Factory.
2. According
to the brief facts, the original respondent no. 1 was driving the
vehicle bearing No. GTX 8587 rashly and negligent, which was a
truck and caused accident, in which, Kantibhai Dayabhai Patel died.
Appellant no. 1 ori. Claimant is widow, while appellants no. 2
and 3 -ori. Claimants no. 2 and 3 are minor children of the deceased.
3. So
far as negligent aspect is concerned, the Tribunal came to the
conclusion that original opponent no. 1 – driver Amin Ahmad Kadodiya
was negligent in driving the vehicle and caused accident. However,
this conclusion is not subject matter of this appeal.
4. The
judgment and award in this appeal, mainly challenged on the ground of
quantum of compensation. Learned advocate Mr. H.S. Mulia for the
appellant was heard in detail in this respect and has provided
paper-book as well. His main grievance is that the Tribunal has erred
in considering the salary income of the deceased to Rs. 48,00/-,
which is, undoubtedly, basic pay only. Before the Tribunal, pay-slip
was produced by the claimants and was exhibited at ex. 51, from the
office of the deceased wherein he was serving as Work Assistant in
P.W.D. Department. A witness Shahid Husein Ganilal, at Ex. 49, has
also been examined and accordingly, it has been established that at
the time of accident, deceased was getting total salary of Rs. 7628/-
and not Rs. 4800/- because Rs. 4800/- was basic pay and over and
above this, the deceased was also getting Rs. 1968/- towards Dearness
Allowance, Rs. 100/- Medical Allowance, Rs. 660/- P.T.A. and Rs.
100/- towards Special Family Planning Pay, totalling to Rs. 7628/-
and considering this income and considering prospective income of
salary, average income would have been assessed at Rs. 9000/- and
dependency at Rs. 10,000/- after considering agricultural income.
However, instead, the Tribunal considered dependency only at Rs.
5900/- because the Tribunal erred in taking into account other
allowances with the basic pay of the deceased at the time of death,
and hence, this appeal.
5. On
going through the record, it appears that the Tribunal has considered
Rs. 4800/- as income of the deceased per month and Rs. 1000/- income
from agricultural land, totalling to Rs. 5800/-. Thereafter, the
Tribunal also considered prospective income and came to the
conclusion that the prospective income of the deceased could be
arrived at Rs. 5900/- from the salary income, while prospective
agricultural income was considered by the Tribunal at Rs. 1500/- per
month and after adding this amount of Rs. 1500/- in Rs. 5900/-, the
prospective income, in all, was considered by the Tribunal of the
deceased to the extent of Rs. 74,00/- per month. 1/3 amount was
deducted as pocket expenses and after awarding 15 multiplier, the
assessment was arrived at by the Tribunal that on account of
dependency benefit the claimants were entitled to an amount of Rs.
8,88,000/-, on account of loss of estate (expectation of life) an
amount of Rs. 50,000/-, towards transport and other funeral expenses
an amount of Rs. 5000/-, towards loss of consortium an amount of Rs.
15000/- to claimant no. 1. The Tribunal, in all, awarded Rs.
9,58,000/-.
6. It
must be taken note of that the damage for vehicular accident are in
the nature of compensation in money for loss of any kind caused to a
person. In any case, victim of the vehicular accident be injured or
dependents of deceased must be awarded just and reasonable
compensation but compensation should not be windfall for the victim
or bonanza. It should be just and reasonable compensation from all
corners.
7. True
it is that, the Tribunal did not take gross salary income of the
deceased in consideration as income from salary head, which was,
according to the appellants claimants was to the tune of Rs.
7628/. When we assess the case and the compensation to be awarded
overall, we found that even if we take the salary income of the
deceased at Rs. 7628/- per month and even after considering the
prospective income, the overall compensation awarded by the Tribunal
is just and proper and no interference would be required. This is so
because the Tribunal erred while considering the overall income and
gross salary of the deceased, at the same time, Tribunal has also
erred in assessing the agricultural income of the deceased to the
tune of Rs. 15,00/- per month. The deceased was full time employee
and could not have contributed towards agricultural land as to even
assess his supervisory dependency to the extent of Rs. 1500/- and,
therefore, overall, dependency benefit awarded by the Tribunal to the
extent of Rs. 8,88,000/- appears to us to be just and reasonable.
This is more so that the claimants are awarded 15 multipliers,
wherein, undoubtedly, deceased aged 41 years, as the date of birth of
the deceased proved to be 1.4.1960 vide ex. 28, the Tribunal,
according to us, erred in this arena also as the proper multipliers
to be awarded in this case ought to be 9 to 10 only and not 15
multiplier, which, in our view, awarded by the Tribunal as a windfall
to the claimants. We are fortified in this respect by the decision of
the Apex Court in the matter of The A.P. State Road
Transport Corporation vs. M. Ramadevi, reported in 2008(1)
Supreme 566, wherein, the Supreme Court was pleased to award 12
multiplier for the deceased who was aged 40 years.
8. Thus,
according to the learned advocate appearing for the appellants, when
the Tribunal erred in not taking the gross salary as salary income of
the deceased, at the same time, the Tribunal also erred in
considering the agricultural income of the deceased at Rs. 1500/- per
month and applying multiplier of 15. In these circumstances,
balancing the assessment, we feel that no enhancement, at all, is
required in compensation as prayed for in this appeal. Though there
is no appeal filed by the Original respondents and, therefore, no
question arises to interfere in respect of quantum of damage as
awarded by the Tribunal for the agricultural income and in respect of
multiplier awarded. But when just and reasonable assessment is
undertaken, we came to a definite conclusion that in no case the
compensation already awarded for the death of Kantibhai Dayabhai
Patel is required to be enhanced.
9. In
the above view of the matter, this appeal stands summarily dismissed.
(J.
R. VORA, J.)
(Z.K.
SAIYED, J.)
mandora/
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