{"id":19902,"date":"2011-09-06T00:00:00","date_gmt":"2011-09-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/new-vs-babubhai-on-6-september-2011"},"modified":"2018-09-17T17:15:57","modified_gmt":"2018-09-17T11:45:57","slug":"new-vs-babubhai-on-6-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/new-vs-babubhai-on-6-september-2011","title":{"rendered":"New vs Babubhai on 6 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
New vs Babubhai on 6 September, 2011<\/div>\n
Author: H.K.Rathod, Honble Kumari,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/325\/2006\t 19\/ 19\tJUDGMENT \n \n\n\t\n\n \n\n\tIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 325 of 2006with \n\n \n\nCIVIL\nAPPLICATION NO 1710 OF 2006 FOR STAY. \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD  \nTHE\nHON'BLE SMT. JUSTICE ABHILASHA KUMARI\n \n \n================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=================================================\n\n\n \n\nNEW\nINDIA ASSURANCE CO. LTD - Appellant(s)\n \n\nVersus\n \n\nBABUBHAI\nDIPUBHAI CHAUHAN & 4 - Defendant(s)\n \n\n================================================= \nAppearance\n: \nMR SHALIN N MEHTA for\nAppellant(s) : 1, \nNone for Defendant(s) : 1 -\n5. \n================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nTHE\n\t\t\tHON'BLE SMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 28\/02\/2006  \n \nORAL JUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE H.K.RATHOD)<\/p>\n
\tHeard
\nlearned advocate Mr. Shalin N.Mehta for appellant -New India
\nAssurance Co. Ltd. Through this appeal, appellant has challenged
\naward made by Motor Accident Claims Tribunal (Aux.), Ahmedabad City
\nin MACP No. 1297 of 2003 dated 25th April, 2005 wherein
\nthe Claims Tribunal has, while partly allowing the claim petition,
\ndirected opponents to pay Rs.5,62,000.00  jointly and severally to
\nthe claimants with interest at the rate of 6 per cent p.a. From the
\ndate of claim petition till realization with proportionate costs.\n<\/p>\n
2.\t\tBrief
\nfacts of this appeal are as under:\n<\/p>\n
\t\tIt
\nis the case of claimants that on 30th October, 2003 at
\nabout 4.00 p.m., deceased Ranjanben and her husband, petitioner no. 1
\nwere coming on their Motor Bike bearing Registration No. GJ-1-CL-4563
\nfrom Matar to Ahmedabad via Kheda, Mahemdavad and Khatraj. Said motor
\nbike was being driven by petitioner no.1 while deceased Ranjanben was
\nsitting as a pillion rider. When they were passing from Kheda
\nMahemdavad to Khatraj Cross Roads, at that time, at about 4.30 p.m.,
\nopponent No.1 came from the back side driving Eicher Motor Truck
\nBearing Registration No. GJ-4-U-8736 with full speed, rashly and
\nnegligently and dashed with the motor bike and, thereby,
\ndeceased Ranjanben succumbed to injuries. It is also case of
\nclaimants that the deceased Ranjanben was used to earn Rs.4000.00 to
\nRs.5000.00 p.m. By running Gruh Udyog. She was hale and hearty and if
\nunfortunate accident would not have
\noccurred, she would have survived long. Claimants are middle class
\nfamily and due to death of deceased, they are put in financial
\ncrisis.   Deceased Ranjanben had undergone plenty of pain, shock and
\nsuffering after accident and before her death. In view of the above
\nfacts, petitioners claimed Rs.6,00,000.00 by way of compensation loss
\nof income, pain, shock, suffering, funeral expenses, transportation
\netc. from the opponents.\n<\/p>\n
3.\t\tThough
\nnotice of claim petition was served on opponents, opponent no. 1 and
\n2 have not appeared before Claims Tribunal and have not filed any
\nreply to contest the claim petition, therefore, claim petition
\nproceeded against opponents no.1 and 2 in their absence.\n<\/p>\n
4.\t\tOpponent
\nNo. 3 New India Assurance CO. Ltd. Appeared before Claims Tribunal
\nand filed its reply at Exh. 26, contending inter alia, that the
\npetitioners should be put to strict proof of the factors like
\nparticulars of accident, injuries causing death of deceased
\nRanjanben, her age, income and other factors. Opponent No. 3 has
\ndenied that the accident has taken place due to rash and negligent
\nact on the part of opponent No. 1. It is alleged by Insurance Co.
\nthat the petitioner was negligent to a major extent namely 75% for
\nthe occurrence of accident. Therefore, according to the Insurance
\nCO., petition was barred by non-joinder of necessary parties as the
\ndriver, owner and insurance CO. of the Motor Bike were not joined as
\nparty opponents. Insurance Co. further contended before the Claims
\nTribunal that the petitioners must prove all the averments that are
\nmade in the memo of claim petition by leading cogent, reliable and
\ntrustworthy evidence. However, without prejudice to its right, it is
\ncontended that the claim of the claimants is excessive and
\nexorbitant.\n<\/p>\n
5.\t\tAfter
\nfiling of pleadings by respective parties, claims tribunal framed
\nissues at Exh.19 which are as under:\n<\/p>\n
(1)\t\tWhether
\nthe applicant proves that the deceased died due to rash and negligent
\ndriving by the driver of the vehicle involved?\n<\/p>\n
(2)\t\tWhether
\nthe applicant is entitled to get compensation ? If yes, what amount
\nand from whom?\n<\/p>\n
(3)\t\tWhat
\norder and award?\n<\/p>\n
6.\t\tBy
\nanswering issue No.1 in affirmative, tribunal held  that the accident
\nin question has taken place solely due to rash and negligence on the
\npart of opponent No.1.  Claims Tribunal examined merits in issues
\nno.2 and 3. Claims Tribunal fixed age of deceased Ranjanben as 40
\nyears at the time of accident for the purpose of calculation  of
\ncompensation on the basis of petition, photo copy of PM Note and
\nother documentary evidence on record. Thereafter, factor of  income
\nand occupation was examined by claims tribunal. Considering
\ndeposition of petitioner at Exh.28, claims
\ntribunal fixed monthly income of deceased Ranjanben at Rs.3,000.00
\nfor the purpose of computation of compensation.
\nTribunal relied upon apex court decision in case of Smt. Sarla Dixit
\nand another versus Balwant Yadav and others, AIR 1996 SC 1274.  After
\nadopting Gujarat Formula, tribunal has come
\nto the conclusion that considering income of Rs.3000.00 p.m.,
\ntribunal worked datum figure of Rs.4500.00 p.m. Following the formula
\nmentioned in case of Sarla Dixit (supra) by apex court. Tribunal
\ndeducted 1\/3rd as personal expenditure of deceased and
\nultimately fixed average amount available to family of deceased i.e.
\nDependency benefit. Thereafter, Tribunal fixed age of deceased 40
\nyears  and applied multiplier of 15 and ultimately worked out amount
\nof Rs.5,40,000.00 and added Rs.15000.00 as conventional figure for
\nloss of estate and consortium. Claimants claimed Rs.10,000.00 towards
\nfuneral charges. However, considering that there is no iota of
\nevidence produced by claimants in support of such claim, tribunal
\nawarded Rs.5000.00 by way of transportation charges and
\nRs.2000.00 by way of funeral expenses. Thus, under the impugned
\naward, tribunal awarded Rs.5,62,000.00 to claimants with 6 per cent
\ninterest p.a. From the date of application till the date of
\nrealization of amount.\n<\/p>\n
7.\t\tLearned
\nadvocate Mr. Shalin Mehta appearing for appellant Insurance Co.
\nraised contention that the claims tribunal has committed gross error
\nin assessing income of Rs.3000.00 of the deceased, since there was no
\niota of evidence produced by claimants before claims tribunal.
\nAccording to his submission, in absence of any documentary evidence
\nor cogent evidence, assessment of income by claims tribunal is
\nerroneous or on higher side.  Therefore, he submitted that the
\nassessment of income made by the claims tribunal is not correct and
\nis contrary to  law. Except this contention, no other contention was
\nraised by Mr. Mehta. No decision was cited by Mr. Mehta in support of
\nhis contention.\n<\/p>\n
8.\t\tWe
\nhave perused impugned award made by Claims Tribunal. We have
\nthoroughly gone through the contention raised by learned Advocate Mr.
\nMehta before us. Claims Tribunal has considered factor of income and
\noccupation of deceased in paragraph 12 and 13 of impugned award.
\nClaims Tribunal has relied upon the evidence of husband of deceased
\ni.e. Petitioner no.1 in respect of income of deceased though in cross
\nexamination, petitioner no.1 has admitted that  he has no
\ndocumentary evidence to support his version in respect of income of
\nthe deceased.  However, Tribunal considered circumstances and nature
\nof business being run by the deceased and on that basis, tribunal has
\nfixed income of deceased at Rs.3000.00 for the purpose of computation
\nof compensation. Thereafter, tribunal calculated compensation by
\nrelying upon the decision of apex court in case of Sarla Dixit
\n(supra). Relevant discussion made by claims tribunal in para 12 and
\n13 of impugned award is reproduced as under:\n<\/p>\n
?S12.\t\tSo far as the factor
\nof income and occupation is concerned, petitioner No.1 has stated in
\nhis deposition Exh.28 that eased Ranjanben used to earn Rs.150.00 per
\n day by running Gruh Udyog. But, at the same time, in the cross
\nexamination, he admitted that he has no documents to support his
\nversion. In these circumstances and considering the nature of
\nbusiness being run by the deceased, I fix monthly income of deceased
\nRanjanben as Rs.3000.00 for the purpose of compensation.\n<\/p>\n
13.\t\tIn view of the
\nobservation made by His Lordship in a reported case, Smt. Sarla Dixit
\nand another V\/s. Balwant Yadav and others, AIR 1996 SC 1274, so far
\nas the adoption of the proper multiplier is concerned, it was
\nobserved that future prospects of advancement in life and career
\nshould also be sounded in terms of money to augment the multiplicand.
\nWhile the chance of the multiplier is determined by two factors
\nnamely the rate of interest appropriate to a stable economy and the
\nage of the deceased or of the claimant whichever is higher, the
\nascertainment of the multiplicand  is a more difficult exercise.
\nIndeed, many factors have to be put into the scales to evaluate the
\ncontingencies of the future. All contingencies of the future need not
\nnecessarily be baneful.  Applying these principles to the facts of
\nthe case before this Court in the aforesaid case, it was observed
\nthat the deceased in that  case was of 39 years of age. His income
\nwas Rs.1032.00 p.m. He was more or less on a stable job and
\nconsidering the prospects of advancement in future career, proper
\nhigher estimate of monthly income of Rs.2000.00 as gross income to be
\ntaken as average gross future income of the deceased and deducting at
\nleast 1\/3rd therefrom by way of personal living expenses,
\nhad he survived the loss of dependency, could be capitalized by
\nadopting the multiplicand of Rs.1400.00 per month or Rs.17000.00 per
\nyear and that figure could be capitalized by adopting multiplier??.
\nConsidering the above ratio, in the present case, monthly income of
\ndeceased Ranjanben is Rs.3000.00 had she survived in life and had
\nsuccessfully completed her future career till the time of her life,
\nthe average gross future monthly income could be arrived at by adding
\nthe actual gross income at the time of death, namely Rs.3000.00 per
\nmonth to the maximum which she would have otherwise got had she not
\ndied a premature death i.e. Rs.3000.00 per month x 3 = Rs.9000.00
\ndivided  that figure by two, thus, the average gross monthly income
\nspread over her entire future career had it  been available to work
\nout to Rs.4500.00 per month would have been the gross monthly average
\nincome available to the family of the deceased had she survived as a
\nbread winner. From the gross monthly income, at least 1\/3 will have
\nto be deducted  by way of her personal expenses and other liabilities
\nthat would roughly work out to Rs.3000.00 per month and deducting the
\nsame by way of average personal expenses of the deceased from the
\naverage gross earning of Rs.4500.00 per month, balance of Rs.3000.00
\nwould have been average amount available to the family of the
\ndeceased i.e. Her dependents. As  the age of deceased   Ranjanben was
\n40 years at the time of her death, the proper multiplier would be\n<\/p>\n
15.Rs.36,000=00 multiplied by 15 will work out to Rs.5,40,000.00. To
\nthis  figure will have to be added  the conventional figure of
\nRs.15000.00 by way of loss of e state and consortium.??\n<\/p>\n
\t\tDeceased
\nRanjanben was working, having business of Gruh Udyog. Deceased was
\nearning member in the family. That fact was proved by her husband
\nbefore the Claims Tribunal. According to his evidence, deceased was
\nearning Rs.150.00 per day from Gruh Udyog.  On that basis, Tribunal
\ncalculated and fixed amount of Rs.3000.00 being income of deceased.
\nApex Court in Lata Wadhva and others v. State of Bihar and others,
\nreported in AIR 2001 SC 3218, decided question of fixing or assessing
\nincome of housewife in absence of data in para 10 of said decision.
\nPara 10 of said decision is reproduced as under:\n<\/p>\n
?S10.\t\tSo far as the
\ndeceased housewives are concerned, in the absence of any data and as
\nthe housewives were not earning any income, attempt has been made to
\ndetermine the compensation on the basis of services rendered by them
\nto the house. On the basis of the age group of the housewives,
\napproximate multiplier has been applied but the estimation of the
\nvalue of services rendered to the house by the housewives, which has
\nbeen arrived at Rs.12,000.00 per annum in cases of some and
\nRs.10,000.00 for others, appears to us to be grossly low. It is true
\nthat the claimants who ought to have given datas for determination of
\ncompensation, did not assist any manner by providing the datas for
\nestimating the value of services rendered by such housewives. But
\neven in absence of such datas and taking into consideration the
\nmultifarious services rendered by the housewives for managing the
\nentire family, even on a modest estimation, should be Rs.3000.00 per
\nmonth and Rs.36000.00 per annum. This would apply to all those
\nhousewives between the age group of 34 to 59 and as such who were
\nactive in life.  The compensation awarded, therefore, should be
\nre-calculated. Taking the value of services rendered per annum to be
\nRs.36,000.00 and thereafter applying the multiplier, as has been
\napplied already and so far as the conventional amount is concerned,
\nthe same should be Rs.50000.00 instead of Rs.25000.00 given under the
\nreport. So far as the elderly ladies are concerned, in the age group
\nof 62 to 72, the value of services rendered has been taken at
\nRs.10,000.00 per annum and multiplier applied is eight. Though the
\nmultiplier applied is correct, but the value of services rendered at
\nRs.10000.00 per annum, cannot be held to be just  and, we, therefore,
\nenhance the same to Rs.20,000\/- per annum. In their case, therefore,
\nthe total amount of compensation should be re-determined, taking the
\nvalue of services rendered at Rs.20,000 per annum and then after
\napplying the multiplier, as already applied and thereafter adding
\nRs.50,000.00 towards the conventional figure.??\n<\/p>\n
\tThus,
\nin Lata Wadhwa and others (supra), apex court fixed income of
\nhousewives between the age group of 34 to 59 at Rs.3000.00 who were
\nactive in life. In this case, age of deceased was fixed at 40 years,
\ncovered by said decision of apex court. Apart from the earning by the
\ndeceased, roll of the housewife in running a house is not that of
\nrendering services as a slave. Her contribution to keep family
\ntogether, providing household services besides matrimonial duties
\ncannot be treated lightly. It has got nothing to do with the earning
\ncapacity of the husband   which is an addition to what is taken care
\nby the housewife. No matter what the status of the family may be,
\ncontribution of the housewife towards household may be treated to be
\nat minimum Rs.3000.00 p.m. In the facts of this case, deceased was
\nnot merely a housewife but she was earning member of family. These
\ntwo factors were taken into account by the claims tribunal while
\nfixing Rs.3000.00 as income of the deceased which, according to our
\nopinion, cannot be considered as excessive or exorbitant and evidence
\nof husband in absence of documentary evidence must have to be
\nbelieved by the claims tribunal. In private Gruh Udyog carried out by
\nthe deceased, husband may not be having any documentary proof to
\nprove income of the deceased. So, merely because there is no
\ndocumentary evidence to prove income of deceased, it cannot be
\nconsidered to be a ground for disbelieving or discarding oral
\nevidence of husband ?  petitioner no.1, therefore, according to our
\nopinion, claims tribunal was right in assessing the income of
\ndeceased and was also right in calculating amount of compensation
\nbased upon such assessment and in doing so, according to our opinion,
\ntribunal has not committed any error while awarding compensation in
\nfavour of claimants. [See : The Municipal Corporation of Greater
\nBombay v. Shri Laxman Iyer and Anr., III<\/a> (2003) ACC 551 (SC) = VI
\n(2003) SLT 706=JT 2003 (8) 108; judgment of the High Court of Jammu
\nand Kashmir in Oriental Insurance Co. Ltd. v. Shamsher Singh and
\nOrs., I (200) ACC 209=396  (SC) = 1996 ACJ 581; Amarsinh Thakur and
\nothers v. Sandeep Chatwal & Anr. Dated 5th July, 2004
\nof Delhi High Court in FAO 8 of 1989; Mathura Dutt v. DTC reported in
\nI 2005 ACC 33].\n<\/p>\n
\t\tTherefore,
\nin view of the above discussion, contention raised by Mr. Mehta
\ncannot be accepted. Same is, therefore, rejected. Except that
\ncontention, no other contention was raised by Mr.Mehta before us.
\nTherefore, compensation awarded by Claims Tribunal cannot be
\nconsidered to be excessive or exorbitant. Findings given by the
\nclaims tribunal are legal and valid based on cogent evidence. There
\nis no perversity in the finding given by the tribunal. There is no
\ncontradictory finding given by the claims tribunal.\n<\/p>\n
\tConsequently,
\nthis appeal is dismissed. Civil Application No. 1710 of 2006 for Stay
\nis also dismissed. Registry is directed to transmit the amount of
\nRs.25,000.00 (Rupees twenty five thousand only) deposited by the
\nappellant insurance company as required under section 173 of the MV
\nAct to the claims tribunal for payment to claimants.\n<\/p>\n
\t\t\t\t\t\t\t(H.K.\n<\/p>\n
Rathod,J.)<\/p>\n
\t\t\t\t\t\t(Abhilasha
\nKumari,J.)<\/p>\n
Vyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court New vs Babubhai on 6 September, 2011 Author: H.K.Rathod, Honble Kumari, Gujarat High Court Case Information System Print FA\/325\/2006 19\/ 19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 325 of 2006with CIVIL APPLICATION NO 1710 OF 2006 FOR STAY. For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD THE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-19902","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNew vs Babubhai on 6 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/new-vs-babubhai-on-6-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"New vs Babubhai on 6 September, 2011 - 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