FA/4442/2006 7/ 7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4442 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE Z.K.SAIYED ============================================================================ 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 ? ===================================================== THE ORIENTAL INSURANCE CO.LTD. - Appellant(s) Versus KRISHNABAN GANUBHA RANA & 1 - Defendant(s) ===================================================== Appearance : MR MAULIK J SHELAT for Appellant(s) : 1, None for Defendant(s) : 1, RULE SERVED for Defendant(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 2. MR RAXIT J DHOLAKIA for Defendant(s) : 2, ===================================================== CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 12/09/2008 ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. This
appeal has been filed by the appellant ý The Oriental Insurance
Company Ltd., challenging the judgment and award dated 26.4.2006
passed by the Motor Accident Claims Tribunal, (Aux.) Fast Track Court
No. 2, Jamnagar, in MAC Petition No. 91/2004.
2. The
facts of the present case is that, on 18th January, 2004,
the deceased was going on his motor-cycle No. GJ-10-G-176 in a
moderate speed and in his own side and when he reached near Rabari
Gate in Dwarka Town, at about 9.30 hrs, at that time, Bus No.
GJ-7-T-7408 came in excessive speed in a negligent manner and dashed
with the motorcycle of the deceased and due to that he got serious
injuries and he died. So, it was the sole negligence of the bus
driver. The FIR was also lodged at Dwarka Police Station. The
deceased was 45 years of age and he was serving as an A.S.I. in the
Police Department and would have got two promotions and earned more
income had there been no accident to him. For the expenses of the
death ceremony of the deceased and for the lost of company, love and
affection of the deceased, the original claimants have claimed Rs.
20,00,000/- along with interest at the rate of 20% with costs. The
ori. Claimants have got Rs. 50,000/- by way of interim compensation.
3. Before
the Claim Tribunal, claimants have led evidence to establish that the
driver of the Bus was driving the bus on a wrong side in rash and
negligent manner and therefore, Tribunal came to the conclusion that
the accident occurred on account of sole negligence of the bus
driver.
4. With
respect to the question of quantum of compensation, the original
claimants averred before the Claims Tribunal that the deceased was an
employee of Police Department and was working as A.S.I. in the
Police Department and on the day of accident, he was drawing Basic
Pay of Rs. 4400/- as per the Salary Certificate and presumptive
leave salary (Ex. 34) he might have been drawing Rs. 5400/- as
monthly salary and at the time of accident, he was aged 48 years and
the retirement age in the Police Department being 58 years, he would
have retired after 10 years. The case of the claimants before the
Tribunal was that in addition to receiving promotions and other
benefits and allowances, etc., the claimants also came with a
contention that the deceased was likely to receive promotion in
future, so the pay-scale of the deceased was also likely to be
revised.
5. In
addition to the oral evidence of the witnesses, that is, claimant
Krishnaba Ganubha Rana widow of deceased Ex. 39, the documentary
evidence produced by the claimants, that is, Salary Certificate at
Exh. 34 in support of salary and income issued by the Police
Department indicating the pay-scale of the deceased, panchnama of
scene of offence and birth certificate Ex. 32.
6. The
Claims Tribunal has, on the basis of evidence produced by the
claimants, came to the conclusion that deceased was getting salary of
Rs. 4400/- and as per presumptive leave salary, he might have been
drawing Rs. 5400/- as monthly salary and the Tribunal has found that
he was getting Rs. 7201/- as salary at the relevant time and
assessing the quantum of amount, deceased having notional income, so
then prospective income was considered and 1/3 of the income was
added to the actual income and other allowances was considered, that
is, basic pay plus 50% of it, i.e., Rs. 2700/- = Rs. 8100/-.
Dearness allowance was also considered 25% considering the prevalent
rate of D.A. on it. Therefore, due to the said consideration, D.A.
Of Rs. 2025/- was calculated and Rs. 205/- as allowance and it was
considered as a salary and in all, rounded of Rs. 10,500/- was
considered for the prospective income and deceased was married, so
1/3 income of Rs. 3500/- was deducted for personal expenses and
remaining amount of Rs. 7000/- was considered as a dependency amount
per month and annually it was counted as Rs. 84,000/- and 13
multiplier was applied and Rs. 10,92,000/- figure was considered as
loss of future income and Rs. 20,000/- was considered as conventional
allowance and Rs. 2,39,999/- granted under the head of ýSleave
salaryýý by Tribunal and Rs. 13,52,000/- was considered as an award
amount.
7. The
appellant- Insurance Company as a insurer of the Bus, has preferred
this appeal challenging the conclusion of the Tribunal, both, on the
question of negligence as well as quantum of compensation awarded.
8. Learned
advocate Mr. Maulik Shelat for the insurance company has vehemently
argued that the judgment and award passed by the Tribunal is
erroneous, based on conjecture and surmises and requires to be
quashed and set aside. He has relied upon the decision of this Court
reported in 1997(1) GLR 631(DB) and 2001(3) GLR 2528
for the issue of negligence. It is also argued regarding the income
of the deceased and submitted that the Tribunal has wrongly
calculated the amount of leave salary and contended that it is
required to be set aside.
9. It
is challenged by the insurance company that deceased was 48 years old
at the time of accident and the Tribunal ought not to have applied 13
multiplier and in support of this issue, the insurance company has
relied upon the decision reported in 2005(6) SCC 236.
10. On
the other hand, learned advocate Mr. Dholakiya appearing for the
original claimants has opposed the appeal and contended that the
award amount cannot be considered as a excessive amount. It is also
contended that the Tribunal has considered the award amount in a
proper and legal manner. Reliance
was also placed on the decision of this Court in the case of National
Insurance Co. Ltd. vs. Ramilaben Chinubhai Parmar & Ors.,
reported in 2007 ACJ 1565,
wherein, this Court has applied 8 multiplier in the case of 58 years
aged deceased.
11. Heard
the leaned advocates appearing for the parties and considered the
submissions made by the learned advocates appearing for the parties.
It is found from the record that at the event of accident, the
deceased was 48 years old and in this case, the Tribunal has applied
13 multiplier but observation made by this Court in the above case
of National Insurance Company Ltd. vs. Ramilaben Chinubhai Parmar
& Ors. (supra), in the above case, the age of the deceased
was 58 years and multiplier of 8 was applied. In the present case,
the Tribunal has wrongly considered and applied 13 multiplier. We are
of the opinion that in the light of the judgment of the Apex Court as
well as this Court, multiplier 8 is just, proper and legal in the
eye of law. So, multiplier of 13 is wrongly considered in place of
multiplier 8. We are also of the opinion that leave salary of
deceased is wrongly calculated and amount under the head of ýSleave
salaryýý cannot be considered. It is true that Tribunal has
calculated the amount of leave salary even if deceased would have
survived, yet he cannot enjoy any leave and Tribunal has also not
considered all probabilities.
12. In
view of the above observation, we found that interference is required
to be made in the judgment and award passed by the MAC Tribunal
(Aux.), Fast Track Court No. 2, Jamnagar, dated 26.4.2006 to the
effect that amount of Rs. 2,39,939/- awarded under the head of ýSleave
salaryýý is hereby rejected and instead of multiplier 13,
multiplier of 8 is hereby applied. The impugned judgment and award
dated 26.4.2006 passed by the MAC Tribunal (Aux.), Fast Track Court
No. 2, Jamnagar, is hereby modified to the above extent. The First
Appeal is accordingly partly allowed.
(J.R.
VORA, J.)
(Z.K.
SAIYED, J.)
mandora/