FA/2243/1999 13/ 15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2243 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ==================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5. Whether it is to be circulated to the civil judge ? NO ====================================RAMESHRE B VERMA - Appellant Versus DIRECTOR GENERAL OF POLICE & 1 - Defendants ==================================== Appearance : MR BHARAT JANI for Appellant. MRS VS PATHAK, AGP for Defendant No. 1. MS LILU K BHAYA for Defendant No. 2. ==================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 02/07/2008 ORAL JUDGMENT
The
appellant ý original claimant has filed this appeal under Section
173 of the Motor Vehicles Act, 1994 challenging the judgment and
award dated 03.11.1998 passed by the learned Judge, Motor Accident
Claims Tribunal (Auxiliary) at Ahmedabad in MACP No. 307 of 1990
whereby the claim petition was partly allowed and the respondent ý
Insurance Company was directed to pay to the appellant a sum of
Rs.50,500/- together with interest @ 12% p.a. from the date of the
petition till the payment and proportionate cost of the petition.
The appellant has claimed compensation of Rs.1,50,000/- for the
injuries sustained by him in a vehicular accident which occurred on
01.09.1990.
It
is the case of the appellant that respondent No.1, the Director
General of Police is the owner of vehicle ý Police Mobile van
bearing registration No. GUD 4153 and the respondent No.2 is the
Insurance Company with whom the said vehicle was insured. The claim
petition was filed by the appellant and he has produced various
documents along with the petition. The respondent No.1 has filed
his written statement at Exh. 48 and contended that the driver of
the vehicle was driving the said vehicle as per the instructions of
the appellant in slow speed and on correct side of the road and at
that time, the mob of students were throwing stones and at the place
of incidence, there were ditches on the road and hence, the driver
of offending vehicle had lost his control over the said vehicle and
as a result, the said vehicle had fallen down in the ditch which was
on the left side of the road and thus the said accident was taken
place. It was, therefore, contended that the appellant was not
entitled to get any amount towards compensation. It was further
contended in the written statement that since the driver of the
offending vehicle was driving the said vehicle as per the
instructions of the appellant, the appellant himself was responsible
and even on this ground also, the appellant was not entitled to any
amount of compensation. The respondent No. 2 Insurance Company
filed its written statement at Exh. 16 and inter alia, prayed for
dismissal of claim petition.
The
learned Judge of the Motor Accident Claims Tribunal has examined the
entire evidence on record, oral as well as written and after
appreciating the rival contentions of the parties as well as the
relevant documents, had partly allowed the claim petition and
awarded compensation of Rs.50,500/- along with interest @ 12% p.a.
This award is under challenge in the present appeal. There is no
dispute about the fact that the respondent ý Insurance Company has
not filed any appeal against the award passed by the Tribunal.
Mr.
Bharat Jani, learned advocate appearing for the appellant has
submitted that the amount of compensation of Rs.50,500/- awarded by
the Tribunal is arrived at as under :-
Future economic loss
:- 2,500 / 10% disability
= 250 X 12 X 8
(multiplier) :- Rs. 24,000/-.
Present loss of
income :- Rs. 6,500/-.
Medical, diet,
conveyance and
attendance charges
etc. :- Rs.10,000/-
Pain, shock and
suffering :- Rs. 10,000/-
Total Rs.50,500/- Mr.
Jani has challenged the impugned award on the ground that multiplier
of 8 taken by the Tribunal is not just and proper. The appellant
was serving as Police-Sub-Inspector in police department and on the
date of accident, his age was 45 years and, therefore, the
appropriate multiplier to be applied for calculation for future loss
of income would be atleast 12 and not 8. For this purpose, he
referred to and relied on 2nd Schedule for compensation
for third party fatal accidents / injury cases claims prescribed
under Section 163-A of the Act. Since the appellant was at the age
of 45 years, multiplier mentioned therein is 13. He has, therefore,
submitted that multiplier of 12 is just and proper as against 8
adopted by the Tribunal. He has further submitted that the Tribunal
has taken the future economic loss at the rate of Rs.2,500/- on the
basis of his salary on the date of accident, without considering the
future prospects of earning and increase in salary and other
incidental benefits. The oral evidence of the appellant at Exh. 42
where the appellant had deposed that on the date of evidence, his
salary was Rs.7,000/- per month was not taken into consideration by
the Tribunal. The Tribunal should have taken Rs.6,000/- for
calculating future loss of income and ought to have applied
multiplier of 12 looking to the age of the appellant i.e. 45 years
on the date of the accident. He has further submitted that the
Tribunal should have also considered in their proper perspectives
the injury certificate, the disability certificate and evidence of
Dr. S.G. Patel to come to the correct conclusion in respect of
permanent partial functional disability. The disability certificate
at Exh.45 issued by Dr. S. G. Patel clearly shows that partial
permanent functional disability is 21%. The Tribunal has grossly
erred in taking only 10% disability as a whole to arrive at future
economic loss. At least, as per the evidence of Dr. S. G. Patel at
Exh.44, along with disability certificate at Exh. 45, the Tribunal
should have taken disability at 15%. He has further submitted that
the Tribunal has also awarded only Rs.6,500/- under the head of
present loss of income which is contrary to the evidence on record.
The appellant had taken 5 months treatment after the date of
accident and, therefore, the present loss of income should have been
taken at least of Rs.12,500/- under this head. The amount of
Rs.10,000/- awarded under the head medical expenses, diet, attendant
charges and conveyance charges is also inadequate. It should have
been increased at least to Rs.15,000/-. He has lastly submitted
that the amount of Rs.10,000/- awarded by the Tribunal under the
head pain, shock and suffering should have also been increased to
Rs.15,000/- looking to the injury of upper and left tibia – intra
articular with head injury, 15 days hospitalization and prolonged
treatment thereafter for about five months. Considering all these
aspects, Mr. Jani has submitted that the appellant is entitled to
the compensation of Rs.1 Lac and hence, enhancement to the extent of
about Rs.49,500/- is required to be made.
In
support of his submissions, Mr. Jani relied on the decision of the
Hon’ble Supreme Court in the case of Kaushnuma Begum and others
V/s. New India Assurance Company Limited and others, 42 (1) GLR 593
and the decision of this Court in the case of National
Insurance Company Limited V/s. Mangiben Bhikhabhai Vasava and
others, 47 (4) GLR 2804.
Ms.
Lilu K. Bhaya, learned advocate appearing for the Insurance Company,
on the other hand, has strongly objected to any sort of enhancement
and submitted that appeal deserves to be dismissed with cost. She
has submitted that the claim made by the appellant is highly
exaggerated and since the respondent ý Insurance Company has not
filed any appeal, she restrains herself from submitting that claim
is bogus one and the appellant himself is responsible for occurrence
of the accident. She has further submitted that there is no
evidence with regard to the age of the appellant. In absence of any
evidence with regard to the age, the multiplier adopted by the
Tribunal is just and proper. There is no evidence with regard to
the income of the appellant at the time of recording of his
evidence. The Tribunal is, therefore, justified in adopting the
figure on the basis of the pay slip produced by the appellant on the
date of accident. So far as the amount awarded by the Tribunal for
future loss of income, medical diet, conveyance charges as well as
pain,shock and suffering is concerned, no interference is called for
by this Court as the Tribunal has considered all the aspects of the
matter and arrived at the just and proper conclusion.
With
regard to the multiplier, she relied on the decision of the Hon’ble
Supreme Court in the case of The Managing Director, TNSTC V/s.
Sripriya and others, 2007 (4) Scale 222 wherein the Hon’ble
Supreme Court has held that the multiplier method involves the
ascertainment of the loss of dependency or the multiplicand having
regard to the circumstances of the case and capitalizing the
multiplicand by an appropriate multiplier. The choice of the
multiplier is determined by the age of the deceased (or that of the
claimants whichever is higher) and by the calculation as to what
capital sum, if invested at a rate of interest appropriate to a
stable economy, would yield the multiplicand by way of annual
interest. In ascertaining this, regard should also be had to the
fact that ultimately the capital sum should also be consumed up over
the period for which the dependency is expected to last. The Court
further held that the highest multiplier has to be for the age group
of 21 years to 25 years when an ordinary Indian Citizen starts
independently earning and the lowest would be in respect of a person
in the age group of 60 to 70, which is the normal retirement age.
Considering the age of the deceased in the case before the Hon’ble
Supreme Court, the Court held that appropriate multiplier would be
12. In that case, the deceased age was 37 years. The Court took
the view that the appropriate multiplier would be 12. In the
present case, the appellant’s age is 45 years and hence, multiplier
of 8 taken by the Tribunal is just and proper.
Taking
over all view of the matter, she has strongly urged that no case is
made out by the appellant for enhancement of the amount of
compensation and hence, the appeal deserves to be dismissed.
Mrs.
V. S. Pathak, learned Assistant Government Pleader appearing for the
respondent No.1 supported the case of the appellant and submitted
that the claim of enhancement made by the appellant is just and
proper and the same should have been accepted by the Court.
Having
heard learned advocates appearing for the respective parties and
having considered the documents produced before the Tribunal as well
as before this Court, the Court is of the view that the Tribunal has
not adequately compensated the appellant and committed an error
while adopting the multiplier at 8 and also considering the future
economic loss only to the extent of Rs.2,500/-. It is true that no
direct evidence with regard to the age of the appellant is produced.
However, from the circumstantial evidence, it becomes clear that
the appellant was aged 45 years old at the time of accident. When
his evidence was taken in 1997, he has stated his age as 52 years.
He retired in 2003 and the age of retirement is 58 years. In 1990,
he was 45 years and if 13 years are added, then the retirement age
of 58 years would come in 2003. Even in the disability certificate,
his age is mentioned which is also tallied with the age stated by
him. Thus, the appellant’s claim cannot be rejected only on the
ground that birth certificate was not produced. Once it is accepted
that he is of 45 years of age at the time of accident and his
retirement age is 58 years, in that case, based on 2nd
Schedule, the multiplier should have been taken at 12.
The
order of the Tribunal deserves an interference by this Court even on
the ground of amount of compensation determined by the Tribunal on
the basis of future economic loss. Considering the appellant’s
salary on the date of accident and without considering the future
prospects of earning and increase in salary and other incidental
benefits, the claim of the appellant was rejected by the Tribunal on
the ground that no evidence is produced by the appellant at the time
of recording of his evidence. It is, however, submitted by Mr. Jani
that the Tribunal has taken into consideration the pay slip produced
by the appellant on the date of accident which is of Rs.2451/-. In
1997, when the appellant’s evidence was recorded, he has stated that
his income was of Rs.7,000/- per month. The oral evidence produced
by the appellant assumes significance and it cannot be discarded.
In the case of National Insurance Company Limited V/s. Mangiben
Bhikhabhai Vasava and others, 47 (4) GLR 2804 (supra), this
Court has taken the view that although, there is no documentary
proof of the income as well as the age of the deceased, in the
post-mortem note, his age has been shown as 40 years and,
therefore, the Tribunal has taken his age to be in between 40 to 45
years. Therefore, the multiplier of 14 cannot be said to be
excessive. Thus the due weightage was given to the oral evidence
and on that basis, the multiplier as well as the income was
considered by this Court. Considering the oral evidence of the
appellant and applying the multiplier of 12 years, the Court
estimates the amount of Rs.53,500/- under the head of future
economic loss.
In
absence of any appeal by the Insurance Company, the Court is not
accepting the arguments canvassed by Ms. Lilu K. Bhaya that the
claim is bogus or exaggerated. The decision relied on by Ms. Bhaya
for the purpose of multiplier would not help the case of the
Insurance Company. Even in the case of Kaushnuma Begum and
others V/s. New India Assurance Company Limited and others (Supra),
the Hon’ble Supreme Court has held that in calculating the amount of
compensation, the structured formula provided in the 2nd
Schedule of the Motor Vehicles Act may be adopted. Though, it was
formulated for the purpose of Section 163-A of the Act, it is the
safer guidance for arriving at the amount of compensation then any
other method. Based on this formula, the multiplier is required to
be adopted at 12.
With
regard to the other points canvassed by Mr. Jani, the Court is not
convinced and no enhancement is required on those grounds.
Considering
the entire facts and circumstances of the case, the compensation
awarded by the Tribunal is enhanced from Rs.50,500/- to Rs.80,000/-
and this enhancement is made considering the submissions made in
respect of increase in multiplier as well as future economic loss.
Thus, the appellant is entitled to the compensation of Rs.80,000/-
as against Rs.50,500/- awarded by the Tribunal.
The
appeal is, therefore, partly allowed to the aforesaid extent.
Sd/-
[K.
A. PUJ, J.]
Savariya