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FA/6112/1995 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 6112 of 1995
To
FIRST
APPEAL No. 6115 of 1995
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
DAKSHABEN
DILIPBHAI VASANT & 2 - Appellant(s)
Versus
PRAAVINSINH
JILUSA PARMAR (DRIVER) & 4 - Defendant(s)
=========================================================
Appearance :
MR
SANDIP C SHAH for
Appellant(s) : 1 - 3. MR HA SEJPAL for Appellant(s) : 1 -
3.
RULE SERVED for Defendant(s) : 1,
UNSERVED-REFUSED (R) for
Defendant(s) : 2,
MR RAJNI H MEHTA for Defendant(s) : 3,
RULE
SERVED BY DS for Defendant(s) : 4,
MS AMEE YAJNIK for Defendant(s)
: 5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 14/12/2010
ORAL
JUDGMENT
1. These
appeals have been filed against the common judgment and award passed
by the Motor Accident Claims Tribunal (Main), Rajkot in M.A.C.P.
Nos.256/1990 to 258/1990 & 260/1990 dated 25.05.1995, whereby,
the claim petitions were partly allowed to the extent that;
(i) In M.A.C.P. No.256/1990
the original claimants were held to be entitled to recover
compensation of Rs.2,40,000/- along with interest and proportionate
costs from opponent nos.1 to 3 jointly and severally.
(ii) In M.A.C.P. No.257/1990
the original claimants were held to be entitled to recover
compensation of Rs.74,000/- along with interest and proportionate
costs from all the opponents jointly and severally. However, the
liability of opponent no.5-Insurance Company was limited to the
extent of Rs.15,000/- only with interest and proportionate costs.
(iii) In M.A.C.P. No.258/1990
the original claimants were held to be entitled to recover
compensation of Rs.1,60,000/- along with interest and proportionate
costs from all the opponents jointly and severally. However, the
liability of opponent no.5-Insurance Company was limited to the
extent of Rs.15,000/- only with interest and proportionate costs.
(iv) In M.A.C.P. No.260/1990
the original claimants were held to be entitled to recover
compensation of Rs.84,000/- along with interest and proportionate
costs from all the opponents jointly and severally. However, the
liability of opponent no.5-Insurance Company was limited to the
extent of Rs.15,000/- only with interest and proportionate costs.
2. The
facts in brief are that on 17.04.1990, at about 0130 hrs., deceased
Amitkumar Vinodray Vasant, deceased Vrajlal Girdharlal Vasant and
deceased Manjulaben Vrajlal Vasant were travelling in a Car bearing
registration no. GJ-1-529 driven by deceased Dilipbhai Vrajlal
Vasant. However, at a particular place, a Tanker bearing registration
no. GRP 4197, driven by respondent no.1 herein, dashed the said Car.
As a result thereof, all the four persons, including the driver of
the Car, sustained severe injuries and ultimately, died.
3. The
legal heirs of the deceased persons filed claim petitions before the
Tribunal. The Tribunal partly allowed the claim petitions as
aforesaid by way of the impugned award. Hence, the present appeals
for enhancement of the amount of compensation as awarded by the
Tribunal.
4.0
Mr. Sandip C. Shah, learned counsel for the appellants (In First
Appeal No.6112/1995), original claimants, submitted that the accident
in question took place on account of the sole negligence of the
driver of the Tanker and therefore, the Tribunal was not justified in
holding that there was contributory negligence and consequently,
apportioned negligence to the extent of 25% on the deceased. Learned
counsel further submitted that the Tribunal has also not properly
appreciated the actual income and prospective income of deceased
while calculating future loss of income. Further, the multiplier of
15 years is also on the lower side since the deceased was only 29
years of age at the relevant point of time. Hence, the impugned award
passed by the Tribunal in M.A.C.P. No.256/1990 deserves to be
modified accordingly.
4.1 Learned
counsel for the appellants (In First Appeal Nos.6113/1995 to
6115/1995) submitted that while calculating future loss of income,
the Tribunal has not appreciated the evidence on record in its proper
perspective. It has been submitted that the Tribunal has not properly
considered the oral and documentary evidence produced on record with
regard to the income of the deceased. It has also been submitted that
the multiplier adopted by the Tribunal is also on the lesser side.
Hence, the impugned award passed by the Tribunal deserves to be
modified by enhancing the amount of compensation.
5. Learned
counsel for respondent-Insurance Company (In First Appeal
Nos.6112/1995 to 6115/1995) submitted that the Tribunal has assessed
the future income of the deceased after considering all the relevant
documents on record. He further submitted that the Tanker in question
was found to be on the correct side of the road and therefore, the
Tribunal has rightly held that it was a case of contributory
negligence. Hence, this Court may not interfere with the impugned
award passed by the Tribunal.
6. Heard
learned counsel for the respective parties and perused the documents
on record. Though served, none appears on behalf of respondent nos.1,
2 & 4.
FIRST
APPEAL No. 6112/1995 :
7. In
order to prove the income of the deceased, the appellants had
produced on record the Income-Tax Returns of the deceased vide
Exhibits – 59 to 62 & 95. On the basis of the said
documents, the Tribunal assessed the average annual income of the
deceased for the last five years at Rs.27,300/-. However, the
Tribunal has assessed the prospective income of the deceased at
Rs.30,000/-, which, in my opinion, is improper and inappropriate. If
we calculate the prospective income by adopting the formula of
doubling the income and then taking the average thereof, viz. (27300
+ 54600 = 81900 & 81900/2), then the income would come to
Rs.41,000/-. Thereafter, by deducting 1/3rd amount towards
the expenses of the deceased, the income under the head of loss of
dependency benefit would come to Rs.27,300/-. The multiplier of 15
years adopted by the Tribunal, in my opinion, is just and appropriate
since it is in consonance with the provisions of the M.V. Act and
also as per the latest law on the subject. Thus, by adopting the
multiplier of 15 years, the income under the head of future loss
would come to (27,300 X 15) Rs.4,09,500/-. However, the Tribunal has
awarded only Rs.3,00,000/-. Hence, the appellants shall be entitled
for additional amount of Rs.1,09,500/- under the head of future loss
of income.
8. It
has come on record that the panchnama (Exh.79) does not say the
actual spot of impact or the spot where the vehicles had actually
collided. It is required to be noted that the driver of the Tanker
was not examined by the original opponents as their Witness for
reasons best known to them. However, merely on that ground, it could
not be concluded that the driver of the Tanker was solely negligent
for the accident, particularly, when the panchnama (Exh.79) is unable
to throw any light as regards the place of actual impact. On the
basis of the above, the Tribunal apportioned negligence between the
driver of the Tanker and the Car at 75 : 25 per cent, which, in my
view, is just and appropriate.
9. Now,
if we deduct 25% of the amount out of the total amount of Rs.4,29,500
(4,09,500 + 20,000, viz. being the conventional amount), it would
come to Rs.3,22,125/-. Thus, the original claimants shall be entitled
for an additional amount of Rs.82,125/- (3,22,125 – 2,40,000 =
82,125).
10. So
far as the rate of interest of 12% awarded by the Tribunal is
concerned, in my opinion, the same is on the higher side and also
against the provisions of the Act and the guidelines framed by the
Hon’ble Apex Court in such cases. Looking to the present scenario and
keeping in mind the guidelines framed by the Hon’ble Apex Court, it
would be appropriate to grant interest 7.5% p.a. as against 12%
granted by the Tribunal. Hence, the original claimants shall be
entitled for interest @ 7.5% p.a. from the date of application till
its realization along with proportionate costs from original opponent
nos.1 to 3.
FIRST
APPEAL Nos. 6113/1995 :
11. There
is no dispute regarding the fact that the deceased was 14 years of
age at the time of his death. The Tribunal has considered the
notional / actual income of the deceased at Rs.900/- per month on the
premise that the deceased was attending the shop of his father.
However, considering the fact that the Tribunal has adopted the
multiplier of 15, which, admittedly, is on the lower side keeping in
mind his age, even then I do not find it fit to interfere with the
award since the ultimate difference, if any, which may be arrived at
by reducing the income and by increasing the multiplier, would be
meager. Hence, I agree with the final award passed by the Tribunal in
M.A.C.P. No. 257/1990.
FIRST
APPEAL Nos. 6114/1995 & 6115/1995 :
12. As
regards the amount of compensation awarded in M.A.C.P. Nos.258/1990 &
260/1990, in my opinion, the same are just and appropriate. The
amounts have been arrived at by relying upon cogent documentary
evidence, particularly, the Income Tax Returns of the deceased. The
multipliers adopted by Tribunal is also in consonance with the recent
guidelines framed by the Hon’ble Apex Court. Hence, I find no reasons
to interfere with the awards passed in M.A.C.P. Nos.258/1990 &
260/1990.
13. For
the foregoing reasons, the following order is passed;
(i) F.A. No.6112/1995
: The appeal is partly allowed. The impugned award passed by the
Tribunal is modified to the extent that the original claimants shall
be entitled for additional compensation of Rs.82,125/-, over and
above what has been awarded by the Tribunal, along with interest @
7.5% p.a. from the date of application till its realization with
proportionate costs from original opponent nos.1 to 3. The rest of
the award passed in M.A.C.P. No.256/1990 remains unaltered.
(ii) F.A. No.6113/1995 to
6115/1995 : The appeals are dismissed.
The
appeals stand disposed of accordingly. No order as to costs.
[K.
S. JHAVERI, J.]
Pravin/*
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