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FA/1028/1981 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1028 of 1981
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
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 ?
=========================================================
DOSANBU
N MAHUDAWALLA WD/O N I MAHUDAWALLA & 3 - Appellant(s)
Versus
GULAMSABBIR
B M SHAIKH & 2 - Defendant(s)
=========================================================
Appearance
:
MR
JITENDRA M PATEL for
Appellant(s) : 1 - 3, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5, 3.2.6,
3.2.7,3.2.8 - 4.
NOTICE SERVED for Defendant(s) : 1,
None for
Defendant(s) : 2,
MR SHASHIKANT S GADE for Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/10/2008
ORAL
JUDGMENT
Heard
learned Advocate Mr. Trilok J. Patel for appellants original
claimants and learned Advocate Mr. SS Gade for respondent No. 3.
Through
this appeal, appellants original claimants have challenged judgment
and award made by Claims Tribunal (Auxi.) at Baroda in MACP No. 252
of 1979 dated 10.3.1981 wherein claims tribunal has awarded
compensation of Rs.1,21,670.00 in favour of claimants. In this
appeal, while challenging said award, claimants are praying for
enhancing it by Rs.1,00,000.00 and have paid court fees on
Rs.1,00,000.00 in this appeal.
Learned
Advocate Mr. Patel for appellants has submitted that claims tribunal
has committed gross error while considering income of deceased from
two sources, one from M/s. Kaduji & Co. and another from M/s.
Mahudawala & Co.. He submitted that yearly income from both the
partnership firm received by deceased as per assessment order of
1973 and 1974 comes to Rs.7898.00 in Mahudawala and Co. and
Rs.18499.00 in M/s. Kaduji & Co., therefore, total amount comes
to Rs.26,397.00 but instead of that, claims tribunal has taken datum
figure of Rs.10000.00 being income per year of deceased, therefore,
learned advocate Mr. Patel submitted that if datum figure is to be
taken into account, then, it comes to 50% of total of both amount
but that has not been done by claims tribunal and in doing so,
claims tribunal has committed gross error in assessing annual income
of deceased. He submitted that claims tribunal has committed an
error in not awarding any amount for obsequial ceremony as against
demand made by claimants as discussed in paragraph 16. As per his
submission, claims tribunal has also erred in not awarding any
amount for pain, shock and suffering as well as medical treatment
as well as prescriptions for medicines Exh. 45 to 50. Ex,44 is the
prescription of Dr. HV Raval, Assistant Professor of Psychiatric,
Medical college, SSG Hospital, Baroda. Claims Tribunal has believed
that it is true that applicant no.1 has incurred expenses for her
treatment, there is no evidence what type of ailment has been
developed. Claims tribunal has observed that it cannot be gathered
from prescriptions and neither Dr. Khurana nor Dr. Raval has been
examined, no medical certificate of either of doctor has been
produced and, therefore, claimants are not entitled for any
compensation on that count. Learned Advocate Mr. Patel submitted
that claims tribunal has committed gross error in not awarding any
amount of compensation in that regard and award of claims tribunal
is required to be enhanced because at the time of death, deceased
was aged 32 years.
Learned
Advocate Mr. SS Gade for respondent NO.3 has seriously opposed
submissions made by learned Advocate Mr. Patel for appellants and
submitted that claims tribunal has rightly examined matter and datum
figure has also been rightly assessed for considering annual income
of deceased and claims tribunal has not committed any error in
making award in question and, therefore, award in question does not
require any interference of this Court.
I
have considered submissions made by learned advocates for both
sides. I have perused impugned award made by claims tribunal. I have
considered para 13, 14, 16, 17 and 18 of award in particular while
considering income from two sources means two companies for same
period, total income of which comes to Rs.26,397.00 but instead of
that, without any base or reason, claims tribunal has held that
income of deceased can be fixed at Rs.10,000.00 per year as datum
figure. Then, claims tribunal applied multiplier of 15 looking to
age of deceased, 32 years, at the time of accident. Para 13, 14, 16,
17 and 18 of award are reproduced as under:
?S13. From
the above evidence, it is borne out that the income of the deceased
during the last years was much less and particularly when deceased
was a partner in Mahudawala & Company in comparision to his
income while he was a partner of Kaduji & Company in earlier
years. It is borne out from the evidence of witness Ochhavalal
Chhaganlal a clerk in the firm of M/s. Kaduji & Company examined
at Exh.5 1 that the said firm was managed by the deceased while he
was a partner of the same. It is borne out from the evidence of
Mohmmedsalim Ismailbhai Partner of Mahudawala & Company examined
at Exh. 81 that the deceased was the main managing partner and that
gradually there was an increase in the income of the firm every
year. Lastly the income of the deceased of his share from the income
of the partnership firm of Mahudawala & Company was Rs.7898/-
while for the assessment year 1973-74 the income of the deceased as
a partner of Kaduji & Company was Rs.18499/-. Looking to the
above stated circumstances the income of the deceased can be fixed
at Rs.10,000.00 per year as the datum figure.
14. From
the above datum figure one unit comes to Rs.1111/-. The proper
multiple to be applied in the present case would be 15 since the age
of the deceased was 32 years at the time of accident. In the case of
Union Cooperative Insurance Company Limited Vs. Bharatiben reported
in 19 GLR at page 620[820] the deceased was aged 32 years and
multiple of 15 was adopted. According to this calculation, deduction
two units of the deceased each of the major applicants Nos. 1,3 and
4 would be each entitled to Rs.33334.00 and the minor applicant no.2
would be entitled to Rs.16667.00. To this compensation of Rs.5000.00
towards loss of expectation of life has to be added as approved in
case of Kjodhabhai Hirji [Khodabhai Bhagwanbhai & Ors. v. Hirji
Tapu & Anr. ] reported in 21 GLR at page 187. Therefore, each of
the major applicants no.1,3 and 4 are entitled to Rs.1428.60,
Rs.714.30 paise on this head.
16.The
claimants have claimed compensation on the head of obsequiel
ceremonies. During the course o argument, Rs.2000/- are claimed on
this head. If anything certain in this life is the death. Deceased
was to die one day or the other. In that case also, expenses would
have been incurred for obsequiel ceremonies. The applicants are
therefore not entitled to any compensation on this head.
17. The
claimants have claimed compensation on the head of pain, shock and
sufferings on account of the death of the deceased and in particular
by applicant NO.1, the widow. She has deposed that she is unable to
bear the loss of her husband. On account of the death of her
husband, she has suffered a shock and she is not keeping well. She
was admitted as indoor patient in the SSG Hospital, Baroda for 15
days. She was taking the treatment of Dr. Khurana and still the
treatment is continued. She has deposed that her mind has become
weak and some times, she becomes unconscious. On this point, Shri
Gandhi LA for the applicant relied upon aforesaid Bharatiben’s case
(19 GLR at page 820). In this case, it has been held that;
??Damages
for nervous shock caused by the sight of an accident to a close
relative can be awarded. However, such damages cannot be a warded
for grief or sorrow caused by the death of a close relative because
in any event such death would have caused much sorrow and mourning.
In other words, to claim damages on account of the mental shock and
sufferings there must be positive evidence showing that there is
something more than mere sorrow or grief or mourning and that
additional or extra element has aken the form of any recognizable
paychiatric illness which is attributable and really wholly
attributable to the misfortune of having actually witnessed
accident.It is imporotant to note that damages on this head even if
admissible, they can be given only when the close relative of the
dec eased has actually witnessed accident. In other words, the
accident has taken place within his her sight. ??
Now
turning to the facts of this case it is very clear that neither
applicant no.1 nor rrest of the applicants have witnessed the actual
accident. Therefore, neither applicant No.1 nor rest of the
applicants are entitled to any compensation on this head.
18. No
doubt, from the evidence on record, it is borne out that applicant
has taken the treatment of Dr.Khurana Professor of
Psychiatric,Medical College, SSG Hospital, Baroda vide prescriptions
of the medicine at Exh. 45 to 50. Ex.44 is the prescription of Dr.
HV Raval, Asstt. Professor of Psychiatric Medical College, SSG
Hospital Baroda.It is true, the applicant no.1 has incurred expenses
for her treatment. There is no evidence what type of ailment has
developed. It cannot be gathered from the prescription Neither Dr.
Khurana nor Dr. Raval has been examined. NO medical certificate of
either of the doctor has been produced. The result is that the
applicants Nos.1 to 4 are entitled to compensation as aforesaid
only. They are entitled to get the same from all the opponents who
are jointly and severally liable to pay the same. Point NO.2 is
answered accordingly.??
According
to my opinion, claims tribunal has committed gross error in not
considering future prospects of a young man of 32 years while
assessing income from two sources as aforesaid. Claims tribunal has
also committed an error in not considering future prospects of
deceased and straightway considering Rs.10,000.00 as annual income
being datum figure and multiplier of 15 and therefore, according to
my opinion, considering impugned award as a whole, claims tribunal
has committed gross error in not properly calculating amount of
compensation and also committed an error in not awarding any amount
for shock, pains and suffering and obsequial ceremony and expenses
for treatment and medicines. Claims tribunal has also committed an
error in not considering future prospects. These are the heads on
which claims tribunal has not applied mind properly. Therefore,
total compensation of Rs.1,21,670.00 awarded by claims tribunal is
very much on its lower side and therefore, it is according to my
opinion compensation awarded by claims tribunal is unjust and
unreasonable as it is on lower side, therefore, compensation awarded
by claims tribunal is required to be enhanced by this court as
basically claims tribunal has committed gross error in calculating
and assessing compensation on different heads and, therefore, amount
awarded by claims tribunal on different heads cannot be considered
to be just, reasonable and proper. Therefore, considering datum
figure of annual income of Rs.10,000.00 fixed by claims tribunal as
against total income received by deceased from two partnership firms
as per assessment order for the year 1973 and 1974 and applying
multiplier of 15 considering age of deceased and also considering
future prospects of deceased aged about 32 years and also
considering fact that claims tribunal has awarded no compensation
for pains,shock and suffering, obsequial ceremony, treatment and
expenses for medicines etc. as discussed above, according to my
opinion, it would be just and proper if award of compensation made
by claims tribunal is enhanced by Rs.1,00,000.00, then,total
compensation would come to Rs.2,21,670 [Rs.1,21,670 awarded by
claims tribunal+ Rs.1,00,000 enhanced in this appeal], that would
met ends of justice considering award as a whole and same would be,
according to my opinion, a just, reasonable and proper
compensation. Therefore, this appeal is required to be allowed as
prayed for.
Accordingly,
this appeal is allowed as prayed for. Award made by Claims Tribunal
(Auxi.) at Baroda in MACP No. 252 of 1979 dated 10.3.1981 is further
enhanced by Rs.1,00,000.00 (Rupees one lac only) and respondents are
jointly and severally directed to pay said enhanced amount of
compensation to appellants with interest thereon at 6 per cent per
annum from date of application till date of realization. Respondents
are directed to pay said enhanced amount of compensation to
appellants original claimants with interest thereon at 6 per cent
per annum from date of application till date of realization within
three months from date of receipt of copy of this order. There is no
order as to costs.
(H.K.
Rathod,J.)
Vyas
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