Gujarat High Court
Tata Aig General Insurance Co Ltd vs Kunjal Jitendra Joshi on 13 May, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1850 of 2019
With
R/FIRST APPEAL NO. 1851 of 2019
With
R/FIRST APPEAL NO. 3305 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 3305 of 2021
With
R/FIRST APPEAL NO. 3304 of 2021
With
R/FIRST APPEAL NO. 6052 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 6052 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
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 or any order made thereunder ?
========================================================== TATA AIG GENERAL INSURANCE CO LTD Versus KUNJAL JITENDRA JOSHI ========================================================== Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1 MR HARDIK H DAVE(6295) for the Defendant(s) No. 1 Page 1 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 MR MAULIK J SHELAT(2500) for the Defendant(s) No. 4 RULE SERVED for the Defendant(s) No. 2,3 ========================================================== CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Date : 13/05/2022 COMMON CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. All these appeals, filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), arise out of the same accident and all the original claim petitions were heard together and came to be disposed of by common judgment and award dated 23.1.2019 passed by the Motor Accident Claims Tribunal (Aux), Ahmedabad (Rural) and hence, all the appeals were heard together and are disposed of by this common judgment and order.
2. First Appeal no. 1850/19 is filed by Tata AIG General Insurance Company Limited (insurer of Ford Icon car bearing registration no. GJ-1 HG-6986) challenging the judgment and award passed in MACP no. 89/07. First Appeal no.
1851/19 is also filed by the same insurance Company challenging the judgment and award passed in MACP no. 90/07. First Appeal no.6052/19 is filed by another insurance Company, namely, the Oriental Insurance Company Limited (insurer of truck bearing registration no. GJ-3 V-7066).
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3. The facts as narrated in First Appeal no.1850/19 (arising out of MACP no.89/07) are taken as basis of this judgment and order.
4. The following facts emerge from the record of the appeal:-
4.1 That, the accident took place on 14.12.2006.
It is the case of the original claimant that the deceased - Dr. Jitendrabhai P. Joshi is traveling in his Ford Icon car bearing registration no. GJ-1 HG-6986 from Vadodara to Surat along with his wife - Devyaniben and son Jaydeep. That, the car was being driven by Jaydeep at a moderate speed from Vadodara- Dhumad Express Road at about 05:30 a.m. It is the case of the original claimant that when the Ford Icon car reached the place of accident, a truck bearing registration no. GJ- 3 V-7066, being driven in an excessive speed, suddenly came in front of the Ford Icon car on Dhumad Cross Road junction and the car dashed forcefully with the said truck and all the 3 occupants of the car died on the spot. It is the case of the original claimant that the truck driver was solely negligent for the accident. MACP no. 89/07 was filed by the original claimant and claimed compensation of Rs.16,00,000/- for the death of deceased-Dr. Page 3 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 Jitendrabhai P. Joshi, MACP no. 90/07 was filed by the original claimant and claimed compensation of Rs.21,00,000/- for the death of the deceased - Devyaniben and MACP no.91/07 was filed by the original claimant and claimed compensation of Rs.21,00,000/- for the death of the deceased-Jaydeep Jitendra Joshi.
4.2 The original claimant was examined at Exh.49.
The original claimant also relied upon the documentary evidences, such as, income-tax return for the Assessment Year 2006-07 at Exh.50, income-tax return for the Assessment Year 2006-07 at Exh.51, FIR at Exh.67, Panchnama at Exh.68, inquest Panchnama of the deceased - Dr. Jitendra Joshi at Exh.69, postmortem report of the deceased - Dr. Jitendra Joshi at Exh.70, death certificate of the deceased - Dr. Jitendra Joshi at Exh.71, Saral Form 2D of the deceased - Dr. Jitendra Joshi at Exh.78, charge-sheet at Exh.83, salary certificate at Exh.53, inquest Panchnama of the deceased-Devyaniben at Exh.75, postmortem report of the deceased- Devyaniben at Exh.76, driving licenses of the deceased-Jaydeep at Mark 7/7, salary certificate of deceased - Jaydeep at Exh.52, inquest Panchnama of the deceased - Jaydeep Exh.72, postmortem report of the deceased - Jaydeep at Exh.73, death certificate of the Page 4 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 deceased-Jaydeep at Exh.74, migration certificate of the deceased - Jaydeep at Exh.79, MBA course fee receipt at Mark 60/2. The original opponent no.3 - the Oriental Insurance Company Limited has relied upon the insurance policy of the truck bearing registration no. GJ-3 V-7066 at Exh.87 and the original opponent no.4 - Tata AIG General Insurance Company Limited examined Mr. Sunil A. Vyas at Exh.91 and also relied upon the insurance policy of Ford Icon car bearing registration no. GJ-1 HG-6986 at Exh.92.
4.3 The Tribunal, after appreciating the evidence on record and more particularly, the Panchnama at Exh.68 and considering the manner in which the accident took place, came to the conclusion that the driver of the truck as well as the driver of the Ford Icon car were responsible for the negligent driving and attributed negligence of the truck driver to the extent of 80%, whereas, attributed negligence of the driver of the Ford Icon car to the extent of 20%.
4.4 After appreciating the evidence on record, the Tribunal came to the conclusion that the deceased - Dr. Jitendra P. Joshi, who is aged 56 years, had income of Rs.15,000/- per month and following the judgment of the Hon'ble Apex Page 5 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, considered 10% prospective income and after deducting one- third towards personal expenses, applied multiplier of 9 and awarded a sum of Rs.11,88,000/- as compensation under the future loss of income and also awarded a sum of Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses and awarded total compensation of Rs.12,18,000/- in MACP no.89/07 while partly allowing the claim petition.
4.5 In case of deceased - Devyaniben, the Tribunal, after appreciating the evidence on record, came to the conclusion that the deceased - Devyaniben, aged 50 years who is working as teacher, had income of Rs.15,200/- per month and following the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra), considered 15% prospective income and after deducting one-third towards personal expenses, applied multiplier of 11 and awarded a sum of Rs.15,38,196/- as compensation under the future loss of income and also awarded a sum of Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses and awarded compensation of Rs.15,68,196/- and deducting Rs.3,13,639/- being 20% contributory Page 6 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 negligence, awarded total compensation of Rs.12,54,557/- in MACP no.90/07 while partly allowing the claim petition.
4.6 In case of deceased - Jaydeep P. Joshi, the Tribunal, after appreciating the evidence on record, came to the conclusion that the deceased - Jaydeep, aged 24 years, had income of Rs.8,000/- per month and following the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra), considered 50% prospective income and after deducting one- half towards personal expenses, applied multiplier of 18 and awarded a sum of Rs.12,96,000/- as compensation under the future loss of income and also awarded a sum of Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses and awarded compensation of Rs.13,26,000/- and deducting Rs.2,65,200/- being 20% contributory negligence, awarded total compensation of Rs.10,60,800/- in MACP no.91/07 while partly allowing the claim petition.
4.7 Over and above the amount so awarded, the Tribunal awarded interest at the rate of 9% per annum from the date of filing of the claim petitions till its realization along with proportionate costs in all the 3 claim petitions and being aggrieved by the same, the Page 7 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 present appeals are filed as mentioned hereinabove.
5. Heard Mr. Rathin P. Raval, learned advocate for Tata AIG General Insurance Company Limited, Mr. Maulik J. Shelat, learned advocate for the Oriental Insurance Company Limited and Mr. Vilav Bhatia, learned advocate for the original claimant in all the appeals. The original claimant has not filed any appeal for enhancement.
6. Mr. Rathin P. Raval, learned advocate for Tata AIG General Insurance Company Limited (insurer of Ford Icon car), referring to the FIR at Exh.67, Panchnama at Exh.68 and charge-sheet at Exh.83, contended that the original claimant in the pleadings has nowhere stated that the Ford Icon car was negligent. Mr. Raval pointed out that firstly, at the first instance, the insurer of the Ford Icon car was not joined as party respondent in the proceedings and it was joined only after insistence of the insurer of the truck. Mr. Raval also contended that the original claimant did not allege any negligence on the Ford Icon Car and even after the insurer of the Ford Icon car was joined, no amendment has been made in the pleadings to allege any negligence on the Ford Icon Car. Mr. Raval Page 8 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 further contended that this was not merely because the brother was driving the vehicle, but also because only truck was negligent. Relying upon and referring to the FIR at Exh.67 and the Panchnama at Exh.68 respectively, Mr. Raval contended that the FIR is filed by the police officer of Fateganj Police Station who was not an interested person and therefore, it cannot be said that the original complainant has falsely indicated negligence of the truck. Relying upon the Panchnama at Exh.68, it was contended by Mr. Raval that the Panchnama also indicates that the truck was at fault. Mr. Raval contended that considering the evidence on record and the manner in which the accident has occurred at the junction of the national highway, wherein the truck has rashly tried to cross, it resulted in the accident in wee hours. Mr. Raval also contended that the contention raised that the judgment and award passed in MACP no.91/07 is not challenged is not a tenable argument as the insurer of the Ford Icon car was never a party to the proceedings and hence, there was no occasion to challenge the said judgment. It was also contended that as the death has occurred simultaneously, Section 155 of the Act would not be applicable. Mr. Raval also contended that the claimant was a permanent Page 9 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 resident of Canada and was having independent income and residing separately from his parents/brother and therefore, he cannot be considered as dependent. Mr. Raval relied upon the judgment of this Court in the case of United India Insurance Company Limited Vs. Diptiben Ureshbhai Vora, reported in 2017 ACJ 234 to buttress his argument. Alternatively, it was also submitted that the claimant not being dependent, the deduction has to be considered one-half instead of one-third as he is the sole claimant. Mr. Raval further contended that even this factor was not disputed by the learned advocate for the original claimant. Mr. Raval relied upon the judgment of the Hon'ble Apex Court in the case of New India Assurance Company Limited Vs. Vinish Jain, reported in (2018) 2 SCC 619 to buttress his argument.
6.1 Mr. Raval further contended that the Tribunal has not taken into consideration the aspect that the original claimant is legal heir of the deceased - Dr. Jitendra P. Joshi and the claim is filed against the owner/insurance Company of the truck and as the deceased- Devyaniben is the owner/insured of the car, the claimant is recipient of claim from himself being the legal heir of the owner. Mr. Raval also relied upon the decisions in the Page 10 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 case of Bharati Axa General Insurance Company Ltd. Vs. Gafurbhai Kalabhai Desai & Ors., rendered in First Appeal no.1445/14 and in the case of Iffco Tokio General Insurance Company Ltd. Vs. Deepakbhai Bhikhabhai Patel, reported in 2017 (2) GLR 1100. Mr. Raval further contended that the claimant is the only legal surviving heir and the claimant has not joined any person as the respondent being owner of the vehicle and hence, no order can be passed against the appellant-insurance Company in absence of owner. Mr. Raval also contended that the decree only against the insurance Company cannot be passed as the insurer is only an indemnifier for liability incurred by the owner and therefore, the claimant is the recipient of the amount and also the hypothetical respondent.
6.2 On the aforesaid grounds, Mr. Raval contended that the appeals filed by the appellant-Tata AIG Insurance Company Limited insurer of the Ford Icon car deserve to be allowed as prayed for.
7. Mr. Maulik J. Shelat, learned advocate for the Oriental Insurance Company Limited (insurer of the truck), relying upon the provision of Regulation 8 of the Road Regulation, 1989, contended that the duty cast upon the driver Page 11 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 of the vehicle to slow down his vehicle when approaching at road junction and also give way to tariff coming from his right hand side is provided for. Mr. Shelat contended that the manner in which the accident has occurred, it was the duty of the driver of the car to reasonably slow down his car when approaching the road intersection and by not doing so, the same has resulted into collusion between the car and truck. Mr. Shelat further contended that the truck came from right side of car on junction and while crossing junction, due to uncontrollable speed of car, it dashed with truck on its cleaner side and could not avoid collision and therefore, it is not true that it is a case of sole negligence of truck driver, but it is a case of equal negligence and the Tribunal has committed no error while deciding the issue of negligence. Mr. Shelat also contended that the insurer of the Ford Icon car has not challenged the negligence as held in MACP no.91/07. It was contended by Mr. Shelat that only because the insurer is not party to it, it cannot challenge the award, but the same could have been challenged by the insurer of Ford Icon car by filing an application for leave to appeal and it is not permissible under law to challenge the award on the ground of negligence. Mr. Shelat also contended that as far as the quantum is Page 12 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 concerned, the original claimant is the sole surviving legal heir of the deceased who lost his father, mother and unmarried brother in the accident. It was further contended that it is also undisputed that at the time of the accident, the claimant was residing separately from the deceased at Canada and not dependent upon the deceased on their income. It was thus contended that it is proved on record that the claimant was not dependent upon the deceased. Relying upon the decision in the case of Diptiben Ureshbhai Vora (supra), it was contended by Mr. Shelat that the claimant is not dependent and therefore, is not entitled to any claim under the head of future loss of income. Mr. Shelat also relied upon Paragraph 15 of the judgment of the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121, judgment of the Hon'ble Apex Court in the case of Manjuri Bera Vs. Oriental Insurance Company Ltd., reported in AIR 2007 SC 1474 and the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Birender, reported in (2020) 11 SCC 356 to buttress his argument.
7.1 Mr. Shelat further contended that major, married and earning sons of the deceased have a right to apply for compensation and there is Page 13 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 no cavil to such proposition. It was further contended Mr. Shelat that the question of quantification of compensation arise when the claimant-legal representative is not dependent unlike partial dependent. Mr. Shelat also contended that the Tribunal, while calculating the compensation, lost sight of its own observation made and calculated the compensation as if the claimant was fully dependent upon the deceased. Mr. Shelat, relying upon the decisions in the cases of Sarla Verma (supra) and Pranay Sethi (supra), contended that dependency is one of the factor to be considered while awarding compensation in fatal cases and the compensation under the head of dependency benefit could not have been awarded by the Tribunal. Mr. Shelat also contended that the compensation is required to be sliced down to one-half as the claimant cannot claim full dependency. Mr. Shelat further contended that the Tribunal has wrongly considered the income of Rs.15,000/- per month instead of Rs.10,000/- per month in MACP no.89/07. It was also contended by Mr. Shelat that the claimant is not entitled to receive any dependency benefit in MACP no.91/07 and would be entitled to receive Rs.50,000/-.
Page 14 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 7.2 On the aforesaid grounds, it was contended that First Appeals no.6052/19, 3304/21 and 3305/21 may be allowed and the appeals filed by other insurance Company on negligence be dismissed.
8. Mr. Vilav Bhatia, learned advocate for the original claimant in all the appeals contended that the accident has occurred due to sole negligence of the driver of the truck. It was contended that the Ford Icon car was passing from expressway and the heavy truck was entering into the express highway, crossing the junction and therefore, it is the duty of the driver of the motor vehicle entering into the express highway to check whether any vehicle is passing by the junction or nearby to pass the junction and should allow that vehicle to pass the junction first but instead of that the driver of the heavy vehicle truck, ignored the said rule and entered the crossing junction of the express highway in a rash and negligent manner, endangering the human life, without following any highway traffic rules and dashed with the Ford Icon car, due to which, the family members of the claimant died on the spot. It was further contended by Mr. Bhatia that the Tribunal has rightly considered the loss of dependency in favour of the claimant as the claimant is the only Page 15 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 surviving representative in the present claim who represents the estate of the deceased. Mr. Bhatia relied upon the judgment of this Court in the case of Birender (supra) and First Appeal no.1792/20 with First Appeal no.2222/20 to buttress his argument. It was contended by Mr. Bhatia that the term 'legal representative' should be given a wider interpretation for the purpose of Chapter XII of the Act and should not be confined only to mean the spouse, parents and children of the deceased because the Motor Vehicles Act, 1988 is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families and therefore, it was contended that the said Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. Relying upon the provisions of Section 166 of the Act, it was contended by Mr. Bhatia that the said provision makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation. Mr. Bhatia also relied upon Section 1A of the Fatal Accidents Act, 1855 and has submitted that the original claimant is entitled to loss of dependency. On the aforesaid grounds, it was contended by Mr. Page 16 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 Bhatia that all the appeals be dismissed on the ground of dependency and the appeals filed by the insurance Company of the Ford Icon car on negligence be allowed.
9. Mr. Rathin P. Raval, learned advocate for Tata AIG General Insurance Company Limited (insurer of Ford Icon car) as well as Mr. Maulik J. Shelat, learned advocate for the Oriental Insurance Company Limited (insurer of the truck) submitted that the judgment in the case of Birender (supra) would not be applicable to the present case. It was contended by the learned advocates for both the insurance Companies that the judgment has to be read in context of the facts of the case. It was further contended that in the present case, sole claimant was residing at Canada having independent income and hence, cannot be considered as dependent. Distinguishing the said judgment, it was contended by the learned advocates for the insurance Companies that the Hon'ble Apex Court has noted that the evidence on record suggest that the claimants were working as agricultural laborers on contract basis and were earning meager amount of Rs.1,00,000/-to Rs.1,50,000/- per annum and in that sense, they were largely dependent on the earning of their mother. It was therefore contended by both the learned advocates for Page 17 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 the insurance Companies that the ratio laid down by the Hon'ble Apex Court in the case of Birender (supra) would not be applicable to the present case. Mr. Raval specifically contended that the reliance placed for by the learned advocate appearing for the claimant on the decision of the Coordinate Bench in First Appeal no. 1792/20 and allied appeals is subject matter of challenge before the Hon'ble Apex Court and the said issue is pending at large before the Hon'ble Apex Court being Special Leave to Appeal (C) no.2918/22.
10. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.
11. Upon considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the original record and proceedings, the following questions emerge for consideration of this Court in these appeals:-
[i] Whether the Tribunal has committed any error in coming to the conclusion that it is a case of contributory negligence of both the drivers and has attributed 80% Page 18 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 negligence to the driver of the truck and 20% on the Ford Icon car?
[ii] Whether it is open for the appellant of First Appeals no.1850/19 and 1851/19 to raise question of negligence though no challenge is there to the point of negligence decided in MACP no.91/07 or not?
[iii] Whether the claimant can be considered to be dependent on the deceased or not?
12. Upon reappreciation of the evidence on record and more particularly, FIR at Exh.67, Panchnama at Exh.68 and the charge-sheet at Exh.83, it clearly appears that the FIR is filed by the police officer and the charge- sheet is filed against the driver of the truck. However, the driver of the truck has not been examined. Upon reappreciating the evidence in the form of Panchnama at Exh.68, it clearly appears that the impact of the accident was such that all the 3 occupants of the car died on the spot and the occupants and driver of the Ford Icon car were removed from Ford Icon car with the help of crane machine. It further appears that the impact on the car and the damage to the car indicates that the Ford Icon car was also being driven at a high Page 19 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 speed that too on cross roads. It is an admitted position that the accident has occurred at wee hours in the morning at 05:30 a.m. Upon reappreciation of the evidence on record therefore, both the drivers should have been more careful in driving and more particularly, at cross road junction. Hence, upon reappreciation of the evidence on record, though all the 3 occupants of the car including the driver lost their lives, it cannot be said that the accident occurred only because of sole negligence of the driver of the truck. Upon reappreciation of the evidence on record as a whole and more particularly, the manner in which the accident has occurred only because the charge-sheet is filed against the driver of the truck, it cannot be said that the driver of the truck alone was negligent. Thus, this Court is of the opinion that the findings on negligence arrived at by the Tribunal does not require any modification or alteration. Question no.[i] arising in these appeals is answered accordingly. In view of the above, question no.[ii] arising in these appeals is not necessary to be decided.
13. It is an admitted position that the claimant is son of the deceased - Dr. Jitendra Joshi and Devyani Joshi and brother of the deceased- Jaydeep Joshi. There is a clear evidence on Page 20 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 record that the claimant is permanent resident of Canada and he and his wife have independent income at Canada. There is no evidence on record to show that the original claimant was dependent on income of any of the deceased. The learned Single Judge of this Court in the case of Diptiben Ureshbhai Vora (supra) has observed thus:-
8.00. In view of the aforesaid decisions of the Hon'ble Supreme Court as well as this Court and even considering the provisions of the Motor Vehicles Act, more particularly section 166 of the Motor Vehicles Act, even in cases where heirs and legal representatives are not dependent, claim petition seeking compensation under the Motor Vehicles Act shall be maintainable. Under the circumstances, the learned tribunal has not committed any error in entertaining the claim petitions filed by the original claimant - a married daughter who admittedly was heir and legal representative of the respective deceased - victim of the accident, who died in the vehicular accident.
9.00. Now, the next question which is posed for consideration of this Court is, what amount of compensation and under which head the claimant, who is heir and legal representative but not dependent on the deceased shall be entitled to.
9.01. In the case of R.D. Hatangadi Versus Pest Control (India) Pvt. Ltd.Page 21 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022
C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 and others, reported in 1995 ACJ 366, the Hon'ble Supreme Court has observed that while fixing the amount of compensation payable to a victim of an accident, damages have to be assessed separately as pecuniary damages and special damages. In other words, peculiar loss and non-
pecuniary loss. Pecuniary damages are which are capable of being calculated in terms of money, whereas non-
pecuniary damages which are incapable of being assessed by arithmetical calculation. It is further observed that pecuniary damages includes (1) medical expenses (2) loss of earning or other profit (3) loss of earning capacity or incapacity in the labour work and (4) material loss because of the injuries which leave him which set back for the rest of his life. The non-pecuniary damages includes - (1) damages for pain, shock and suffering already suffered and/or likely to be suffered in future (2) loss of amenities of life which may include incapability to work or sit (3) damages for the loss of expectation of life on account of injury the normal longevity of the person concerned is shortened (4) damages for inconvenience, discomfort, disappointment, frustration and mental stress etc. The aforesaid would be in case of fatal accident as well as in case of injury. In fatal case, these pecuniary damages would include (1) future loss of income / loss of dependency (2) medical expenses (3) damages for pain, shock and suffering, if any (4) loss of estate (5) loss of love and and affection, funeral expenses, transportation etc. Page 22 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 Future loss of income/loss of dependency, medical expenses, funeral expenses, transportation would fall under pecuniary loss/ pecuniary damages and pain, shock and suffering, loss of consortium, loss of estate etc. would fall under non- pecuniary loss / non- pecuniary damages.
9.02. In the case of Sarla Verma (supra), the Hon'ble Supreme Court has considered in detail as assessment of compensation and the following relevant principles relevant to assessment of compensation in case of death and has observed and held in para 10 to 19 as under:-
"The general principles
10. Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death.
Earlier, there used to be
considerable variation and
inconsistency in the decisions of Courts/Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. [1951 AC 601] and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601].
11. The difference between the two methods was considered and explained by this Court in General Manager, Kerala State Road Transport Page 23 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, this Court preferred the Davies method to Nance method.
12. We extract below the principles laid down in Susamma Thomas:
"In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death."
"9. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether."
10. The matter of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self maintenance and pleasure, and to ascertain what part of his net income Page 24 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase."
"13. 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."
"16. It is necessary to reiterate that the multiplier method is logically sound and legally well- established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 year of age at the time of death and the life Page 25 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 expectancy is 70 years, this method would multiply the loss of dependency for 45 years - virtually adopting a multiplier of 45 - and even if one- third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible."
13. In U.P. State Road Transport Corporation vs. Trilok Chandra [1996 (4) SCC 362], this Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus:
"16. In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, re-marriage, accelerated payment and increased earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very often as a rough and ready measure, one-third to one-half of the dependency was reduced, depending on the life-span taken. That is the reason why courts in India as well as England preferred the Davies' formula as being simple and more realistic.Page 26 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022
C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 However, as observed earlier and as pointed out in Susamma Thomas' case, usually English courts rarely exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/Courts began to use a hybrid method of using Nance's method without making deduction for imponderables."
"15. .....Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly Income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier."
14. The lack of uniformity and consistency in awarding compensation has been a matter of grave concern. Every district has one or more Motor Accident Claims Tribunal(s). If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system.
15. We may refer to the following observations in Trilok Chandra :
"We thought it necessary to reiterate the method of working out 'just' Page 27 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 compensation because, of late, we have noticed from the awards made by Tribunals and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realized that the Tribunal/Court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused."
16. Compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. For example, if on the same or similar facts (say deceased aged 40 years having annual income of 45,000/- leaving him surviving wife and child), one Tribunal awards Rs. 10,00,000/- another awards Rs. 5,00,000/- and yet another awards Rs. 1,00,000/-, all believing that the amount is just, it cannot be said that what is awarded in the first case and last case, is just compensation. "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.
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17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision-making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated:
"16. ...The proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation."
18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are : (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the Page 29 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the Insurance Companies to settle accident claims without delay.
19. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:-
Step 1 (Ascertaining the
multiplicand):
The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court.
Page 30 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.
10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added.
9.03. Now, so far as the amount awarded under the head of loss of dependency / future loss of income is concerned, it is required to be noted and it cannot be disputed that the amount awarded under the said head is on the premise that the loss suffered by the claimant, if the deceased upon whose income the claimant was dependent, would not have died. Even while awarding amount of compensation under the head of loss of dependency / future loss of income, Page 31 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 as observed by the Hon'ble Supreme Court in the case of Sarla Verma (supra) and even while considering deduction towards personal expenses of the deceased, number of dependents are required to be considered. In the case of Sarla Verma (supra), while considering proper deduction towards personal expenses of the deceased in case of the deceased who was a bachelor and the claimants are the parents, the Hon'ble Supreme Court in paragraph Nos. 31 and 32 has observed and held as under:-
"31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered Page 32 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
9.04. Therefore, as such while assessing / awarding compensation under the head of loss of dependency / future loss of income, whether the claimant/s was/were dependent or not, is a relevant consideration. Therefore, if the claimant who is not at all dependent upon the deceased, shall not be entitled to any loss of dependency / future loss of income.
9.05. The nomenclature "loss of dependency" itself is suggestive of the fact that it is towards the loss which the dependents would be suffering because of untimely death of the deceased - victim of the accident, upon whom he/she/they was/were dependent.
9.06. Even in the case of Manjuri Bera (supra) the Hon'ble Supreme Court has observed and held that even if there is no loss of dependency, claimant, if he or she is a legal representative, will be entitled to compensation, quantum of which shall not be less than the liability Page 33 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 flowing from section 140 of the Act. it is required to be noted that in the said decision the Hon'ble Supreme Court was considering the maintainability of the application for getting compensation under section 140 of the Motor vehicles Act which is as such statutorily provided under section 140 of the Act. In the said decision the Hon'ble Supreme Court has further observed and held that "no fault liability" envisaged in section 140 of the Act is distinguishable from the rule of "strict liability". It is further held that in the former compensation amount is fixed which is Rs.50,000 in cases of death. It is a statutory liability. Since the amount is fixed amount/crystallized amount, the same has to be considered as part of the estate of the deceased. It is further held that therefore, statutory compensation could constitute part of his estate and therefore, his legal representative namely his daughter has inherited his estate and therefore, she is entitled to inherit his estate.
9.07. Even in the case of Ramanbhai Prabhatbhai (supra) the Hon'ble Supreme Court was considering the principle of "no fault liability"."
14. The Hon'ble Apex Court in the case of Birender (supra) has observed thus:-
"15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it 12 Page 34 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."
15. Even at the cost of repetition, it deserves to be noted that in the case on hand, the claimant is resident of Canada since more than a decade and is having his independent income as well as income of his wife and the evidence on record therefore does not exhibit that the claimant in any manner can be said to be largely dependent on earning of his parents/brother, nor it is the case of the claimant that he was staying with his parents/ brother. Hence, in the instant case, it cannot be termed as 'dependent'. We are conscious of the fact that the Motor Vehicles Act, 1988 is Page 35 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 a benevolent legislation. However, the facts as considered by the Hon'ble Apex Court in the case of Birender (supra) were totally different, whereas, in the instant case, the claimant is well-settled in Canada and is earning in foreign currency and hence, the judgment in the case of Birender (supra) would not be applicable and following the judgment of this Court in the case of Diptiben Ureshbhai Vora (supra), the claimant cannot be termed as 'dependent'. Though the claim petitions are maintainable as the claimant is the legal representative of the estate, even applying principle of Hindu Law, though all the 3 occupants of the car have died simultaneously, it has to be presumed that Dr. Jitendra P. Joshi being eldest died first followed by Devyaniben and then Jaydeep. In such circumstances, the claimant would be entitled to Rs.50,000/- in each of the claim petitions along with interest at the rate of 9% per annum from the date of filing of the claim petitions till its realization.
16. Thus, the appeals are partly allowed. The impugned judgment and award stands modified to the aforesaid extent. The appellant-insurance Company shall be entitled to refund of the amount deposited before the Tribunal. However, as 30% of the awarded amount is already Page 36 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022 C/FA/1850/2019 CAV JUDGMENT DATED: 13/05/2022 disbursed, the same be adjusted towards the amount of compensation as determined by this Court and in case if any excess is there, the same may not be recovered from the claimant with proportionate costs and interest. However, there shall be no order as to costs in these appeals. Registry is directed to remit the record and proceedings back to the Tribunal forthwith. Connected Civil Applications, if any, also stand disposed of.
(R.M.CHHAYA,J) (HEMANT M. PRACHCHHAK,J) Maulik Page 37 of 37 Downloaded on : Sat Dec 24 16:48:12 IST 2022