Gujarat High Court
Manish Jamnadas Chudasama ... vs Kalyanjibhai Vallabhbhai Patel & 2 on 29 March, 2016
Author: K.J.Thaker
Bench: K.J.Thaker
C/FA/3751/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3751 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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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 ?
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MANISH JAMNADAS CHUDASAMA DECD.THR'HEIRS....Appellant(s)
Versus
KALYANJIBHAI VALLABHBHAI PATEL & 2....Defendant(s)
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Appearance:
MR TUSHAR L SHETH, ADVOCATE for the Appellant(s) No. 1 - 1.2
MR GC MAZMUDAR, ADVOCATE for the Defendant(s) No. 3
MR HG MAZMUDAR, ADVOCATE for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 29/03/2016
ORAL JUDGMENT
1. By way of this appeal, the appellants- original claimants have challenged the judgment and award passed by the learned M.A.C.T., Gondal (for short, 'the Tribunal'), Dated:16.02.2006, in M.A.C.P. No. 99 of 2001, whereby, the Tribunal allowed the said claim petition.
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2. The brief facts of the case, as can be culled out from the material on record, are that the deceased Manish was serving as cleaner with Respondent No.2-Traveling Company. On the fateful day, i.e. on 26.05.1994, the deceased Manish was discharging his duties as cleaner on the luxury bus bearing registration No. GJ-3T-9473, which was proceeding towards Surat from Rajkot, and he was giving signals to the vehicles coming behind the bus, which was being driven by Respondent No.1, herein. When the bus reached near Village Lathundra, Respondent No.1 suddenly applied the brakes of the bus, on account of that the deceased was thrown off the bus and sustained grave injuries. Later on, Manish succumbed to the injuries sustained by him. Hence, the original claimants being the heirs and legal representatives of the deceased Manish preferred the aforesaid claim petition, whereas, the respondent Nos, 1 to 3, herein, are the driver, owner and the insurance company of the vehicle involved in the accident, respectively. The Tribunal, then, passed the impugned judgment and award in the aforesaid claim petition. Hence, the present appeal.
3. Mr. Sheth, learned Advocate for the original claimants-appellants, herein, submitted Page 2 of 9 HC-NIC Page 2 of 9 Created On Tue Apr 05 00:33:34 IST 2016 C/FA/3751/2006 JUDGMENT that the Tribunal committed a grave error in passing the impugned award, inasmuch as it failed to appreciate the material on record. He submitted that the Tribunal erred in assessing the income of the deceased and the amount awarded by the Tribunal towards loss of income is not sufficient. He, further, submitted that the amounts awarded by the Tribunal under the conventional heads are also on lower side and requires to be enhanced. He submitted that the Tribunal ought to have awarded 15 per cent interest on the award amount in place of 7.5 per cent and that it ought to have deducted 1/3 amount towards personal expenses in place of 2/3 amount. He, therefore, prayed to allow the present appeal.
4. In support of his submissions, Mr. Sheth placed reliance on the following decisions;
(1)"KISHAN GOPA VS. LALA", 2013(0) GLHEL-SC 54344; and (2) "HERIS OF DECD. NIKHIKLUMAR MADHUSUDAN & ANR. VS. VEJARAJA MER & OTHERS", First Appeal No. 5279 of 2007;
5. On the other hand, Mr. Mazmudar, learned Advocate for the Respondent No.3-Insurance Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Apr 05 00:33:34 IST 2016 C/FA/3751/2006 JUDGMENT Company supported the order of the Tribunal and submitted that the same was passed after taking into consideration the entire material on record, and hence, no interference is called for at the hands of this Court. In support of his submission, Mr. Mazmudar placed reliance on a decision of this Court in First Appeal No. 4168 of 2009.
6. Though served, none appears on behalf of Respondent Nos. 1 and 2.
7. Heard learned Counsels for the appellants-claimants and Respondent No.3- Insurance Company and perused the material on record including the impugned judgment and award.
8. At the outset, it may be noted that this is an appeal by the original claimants and that the driver, owner and insurance company of the offending bus has not preferred any appeal or x- objections against the impugned award. Meaning thereby, they have accepted the judgment and award passed by the Tribunal, and therefore, this Court is not required to go into the aspect of negligence and the findings of the Tribunal to that extent requires to be confirmed.
9. Here, the note of the certain facts may Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Apr 05 00:33:34 IST 2016 C/FA/3751/2006 JUDGMENT be taken, which are not in dispute, viz. the vehicle being insured with Respondent No.3 is not in dispute. Further, the accident having taken place and that the deceased Manish was serving as a cleaner is also not in dispute. Therefore, all that this Court is required to do is to decide, as to whether the quantum of compensation awarded by the Tribunal is just and proper or not.
10. The case of the claimants-appellants before the Tribunal was that the deceased Manish war earning Rs.3300/- per month by working as cleaner. It was, further, their case that the deceased was also doing courier service and used to earn some reasonable amount from the same. However, the Tribunal observed that the appellants-claimants did not produce any documentary evidence to substantiate their say, and therefore, the Tribunal relying on the decision of this Court in "RITABEN @ VANITABEN WD/O. DIPAKBHAI HARIBHAI AND ANR. VS.AMC", 1999 [1] GLR 388, considered the income of the deceased at Rs.1600/- per month. Then, the Tribunal multiplied the same by 2 and then, divided it by 2 and that is how it assessed the monthly income of the deceased at Rs.2400/- and after deducting 2/3 amount towards personal expenses from the same, awarded an amount of Rs.1,44,000/- towards loss of income by applying Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Apr 05 00:33:34 IST 2016 C/FA/3751/2006 JUDGMENT the multiplier of 15.
11. Here, it may be noted that in the case on hand the deceased, Manish, was aged about 19 years and was working as cleaner. Therefore, there is no need to determine the income of the deceased Manish notionally, as is done by the Apex Court and this Court in the above cited decisions. As per the claim of the appellants- claimants, the deceased was earning about Rs.3,300/- per month by working as cleaner and some reasonable amount by doing courier service, but, they produce no documentary evidence to substantiate the same. However, taking into consideration the fact that the accident is of the year 1994 and the deceased was working as cleaner, the income of the deceased can be reasonably assessed at Rs.3,000/- per month. The deceased Manish was bachelor, and hence, as per the ratio laid down by the Apex Court in the case of "SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANR.", (2009) 6 SCC 121, 1/2 amount is required to be deducted towards personal expenses and not 2/3 as is done by the Tribunal. Thus, on deducting ½ amount, the monthly loss of income would come to Rs.1500/-. The deceased was aged about 19 years, and therefore, the proper multiplier would be 18, as is laid down by the Apex Court in "SARLA VERMA Page 6 of 9 HC-NIC Page 6 of 9 Created On Tue Apr 05 00:33:34 IST 2016 C/FA/3751/2006 JUDGMENT AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANR." (Supra). Therefore, the loss of future income would come to Rs.1500 X 12 X 18 = Rs.3,24,000/-. The tribunal has awarded Rs.1,44,000/- under the aforesaid head, and hence, the claimants-appellants shall be entitled to an additional amount of Rs.(3,24,000 - 1,44,000)=1,80,000/-.
12. Further, the Tribunal has awarded Rs.20,000/- towards conventional amount and Rs.2,000/- towards funeral expenses, which appear to be on lower side. Hence, if, an additional amount of Rs.50,000/- is awarded under the conventional head same would be just and proper. Resultantly, the total amount of compensation would come to Rs.3,75,000/- and not Rs.5,00,000/- as is claimed by the claimants. The aforesaid figure is worked out considering the accident is of the year 1994, no proof of income was produced, and therefore, his income is considered to be Rs.3,000/- per month, which is reduced to Rs.1500/- as the deceased Manish being bachelor and that is how the figure of Rs.3,74,000/- is worked out.
13. Insofar as the rate of interest is concerned, the Tribunal has warded 7.5 per cent interest on the amount of compensation, which is Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Apr 05 00:33:34 IST 2016 C/FA/3751/2006 JUDGMENT on lower side. Hence, if, the appellants claimants are awarded 9 per cent interest from 2010 onwards, same would meet the ends of justice. Hence, the additional amount of compensation shall carry the interest at 7.5 per cent for the period from 2006 to 2010 and pursuant thereto the rate of interest shall be 9 per cent per annum, till realization.
14. In the result, this appeal is PARTLY ALLOWED. The appellants-claimants shall be entitled to an additional amount of Rs.1,80,000/- under the head of loss of future income and Rs.50,000/- under the conventional heads, thus, coming to a total of Rs.(1,80,000 + 50,000)=Rs.2,30,000/-, over and above the amount of compensation already awarded by the Tribunal along with interest at 7.5 per cent for the period from 2006 to 2010 and pursuant thereto the rate of interest shall be 9 per cent per annum, till realization,. The impugned judgment and award of the Tribunal, Dated: 16.02.2006, stands MODIFIED to the aforesaid extent. The aforesaid amount shall be deposited with the concerned Tribunal within a period of EIGHT WEEKS from today. R&P be sent back to the concerned Tribunal, forthwith. No order as to costs.
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