Gujarat High Court
Shantaben vs Bachubhai on 9 September, 2010
Bench: A.M.Kapadia, J.C.Upadhyaya
FA/2019/1998 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2019 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
SHANTABEN
AMUBHAI ADATIA & ORS
Versus
BACHUBHAI
VIBHABHAI LUHAR & ORS
======================================
Appearance :
MR
MEHUL S SHAH WITH MR SURESH M SHAH for Appellants
NOTICE SERVED
for Respondent Nos. 1 - 4
Respondent Nos. 5 7 DELETED
MR
DAKSHESH MEHTA for Respondent
No.8
======================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 09/09/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) 1 Challenge in this Appeal under Section 173 of the Motor Vehicles Act, 1988 ( the Act for short) is to the judgment and award dated 16th January, 1998, rendered in MACP No.422 of 1990 by learned Motor Accident Claims Tribunal (Auxilliary), Surendranagar, whereby the above said claim petition preferred by the present appellants came to be partly allowed and the appellants-original claimants were held to be entitled to recover Rs. 1,86,000/- with 15% simple interest from the date of petition till its realization from all the opponents jointly and severally with proportionate costs. The claimants preferred this Appeal assailing the impugned judgment and award rendered by the Tribunal that the amount awarded by the Tribunal is inadequate and, therefore, the same is required to be enhanced.
2 The brief facts leading to the above mentioned claim petition are that the vehicular accident in question occurred on dated 11th April, 1990 between Ambassador - taxi, bearing Registration No. GQE 3292 and truck, bearing Registration No. GRZ 2003. It is the case of the claimants that at the time of the accident, deceased Amubhai Haribhai Aadatiya was travelling in the taxi and when the taxi reached near Pansara National Highway, a truck came from the opposite direction and there was head on collision between the two vehicles. The deceased Amubhai sustained serious injuries and is succumbed to the injuries. The claimants alleged that the vehicular accident occurred because of rash and negligent driving of the drivers of both the vehicles. The claimants who were depending upon the income of the deceased Amubhai, preferred the claim petition to recover in all Rs. 15,10,000/- by way of compensation from the drivers, owners and Insurance Companies of both the vehicles.
3 The claim petition preferred by the claimants was resisted only by the two Insurance Companies, namely, original opponent No.4 New India Assurance Co. Limited of the Truck and original opponent No.8 National Insurance Co. Limited of the Taxi, by filing written Statement at Exhibit-18 and Exhibit-27 respectively before the Tribunal. About the rash and negligent driving, both the Insurance Companies blamed the Driver of the opposite vehicle. The age and the income of the deceased pleaded by the claimants in their claim petition, came to be disputed by both the Insurance Companies. Both the Insurance Companies urged that the claim petition deserved to be dismissed.
4 The Tribunal recorded the oral and documentary evidence adduced by the parties. So far as the issue regarding the negligence is concerned, the Tribunal came to the conclusion that there was composite negligence of Drivers of both the vehicles in causing the accident. So far as the quantification of the amount of compensation is concerned, the Tribunal relying upon the oral evidence of the widow of the deceased as well as the documentary evidence like Income Tax Assessment Returns etc., attempted to prove that the deceased was earning approximately Rs. 1,25,000/- to Rs. 1,50,000/- per annum from his canteen business. However, relying upon the Income Tax Returns, Exhibit-48 and Exhibit-50, the Tribunal ultimately came to the conclusion that, though, the source of income of the deceased was from multiple business, but, ultimately, came to the conclusion that the monthly income of the deceased can be assessed at Rs. 3,000/- per month. However, the actual income the deceased was accordingly calculated to be Rs. 33,000/- per annum, which should be, as a matter of fact, Rs. 36,000/- per annum. The Tribunal assessed the self expenses of the deceased, which he would have incurred, had he been alive, and deducted one-third (1/3rd) amount towards his self expenses from his actual income of Rs. 33,000/- per annum and, accordingly, actual loss of dependency benefits was calculated at Rs. 22,000/- per annum. The Tribunal applied the multiplier of 8 years and assessed the loss of dependency benefits at Rs.1,76,000/-. Rs.10,000/- were granted under the head of conventional amount and accordingly the Tribunal fixed the amount of total compensation at Rs. 1,86,000/-. The amount which came to be awarded by way of compensation to the claimants appears to be quite inadequate and, therefore, the present Appeal is preferred.
5 We have considered the submissions advanced by Mr. M.S. Shah, learned Advocate representing the appellants original claimants and Mr. Dakshesh Mehta, learned Advocate representing the respondent No.8 National Insurance Co. Limited of the taxi. Respondent Nos. 5, 6 and 7 came to be deleted during the pendency of this Appeal by the appellants. The rest of the respondents including the respondent No.4 - New India Assurance Co. Limited, though served, none appeared for the rest of the respondents.
6 Mr. M.S. Shah, learned Advocate for the appellants claimants, relied upon the decision of the Hon'ble Apex Court in the case of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., reported in AIR 2009 SC 3104 and stated that in the instant case, the Tribunal erred in applying the multiplier of only 08 years. It is submitted that at the time of the death of the deceased, he was 55 years of age and as held in the case of Smt. Sarla Verma (supra), as per the table given in Para-19 in the said judgment, the appropriate multiplier which should have been selected by the Tribunal comes to 11 years.
6.1 Mr. Shah, learned Advocate for the appellants further submitted that the Tribunal deducted one-third (1/3rd) amount towards the self expenses of the deceased out of his actual income. Relying upon the case of Smt. Sarla Verma (supra) and especially the observations made in para-14 of the said judgment, it is submitted that the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth where the number of dependent family members is 4 to 6 and one-fifth (1/5th) where the number of dependent family members exceed six. It is submitted that in the instant case, there are six dependents, who are the claimants and accordingly instead of deducting one-third ((1/3rd) towards the self expenses of the deceased, the Tribunal should have deducted one-fourth (1/4th) amount.
6.2 Mr. Shah, learned Advocate for the appellants assailing the impugned judgment and award rendered by the Tribunal, submitted that the Tribunal completely lost sight of one important fact about the future prospective income of the deceased. It is submitted that bare reading of the impugned judgment and award rendered by the Tribunal, would suggest that only the existing income of the deceased at the time of his death is considered.
6.3 Mr. Shah, learned Advocate, for the appellants urged that the Tribunal erred in not appropriately considering the other major heads, under which the claimants were entitled to get the compensation, namely, loss of estate, consortium and obsequial ceremony charges. It is submitted that, in the instant case, only Rs.10,000/- came to be awarded under conventional amount. It is submitted that considering the large number of decisions rendered by the Hon'ble Apex Court and by this Court, the claimants are entitled to recover Rs. 15,000/- under the head of loss of estate, Rs. 15,000/- for consortium and Rs. 3,000/- towards obsequial ceremony.
6.4 Ultimately, Mr. Shah, learned Advocate, representing the claimants appellants submitted that the Appeal may be allowed and the compensation may be considerably enhanced.
7. Mr. Dakshesh Mehta, learned Advocate, representing the respondent No.8 National Insurance Co. Limited, vehemently opposed this Appeal and submitted that the amount of compensation fixed by the Tribunal is just and proper and no enhancement is warranted. He, therefore, fully supported the judgment and award rendered by the Tribunal. It is, therefore, submitted that the Appeal may be dismissed.
8 We have examined the Record and Proceedings in context with the submissions made by the rival sides.
9 Before we re-examine and re-appreciate the evidence adduced by the parties, in the instant case, it would be necessary to consider the ratio laid down by the Hon'ble Apex Court in Smt. Sarla Verma (supra). So far as selection of appropriate multiplier is concerned, the Hon'ble Apex Court in Paragraphs 19, 20 and 21 observed as under :
19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249].
The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years):
-------------------------------------------------------------------------------------------------------
Age
of the Multiplier Multiplier Multiplier Multiplier
Multiplier actually
deceased
scale as scale as scale in specified in
used in Second
envisaged
adopted Trilok second column Schedule to MV
in
Suasmma by Trilok Chandra in the Table Act (as
seen from
Thomas
Chandra as clarified in II Schedule the quantum
of
Charlie
to MV Act. of compensation
---------------------------------------------------------------------------------------------------------------------------
(1)
(2) (3) (4)
(5) (6)
---------------------------------------------------------------------------------------------------------------------------
Upto 15 yrs - - -
15 20---------------------------------------------------------------------------------------------------------------------------
15 to 20 yrs. 16 18 18 16 19---------------------------------------------------------------------------------------------------------------------------
21 to 25 yrs. 15 17 18 17 18---------------------------------------------------------------------------------------------------------------------------
26 to 30 yrs. 14 16 17 18 17--------------------------------------------------------------------------------------------------------------------------
31 to 35 yrs. 13 15 16 17 16--------------------------------------------------------------------------------------------------------------------------
36 to 40 yrs. 12 14 15 16 15--------------------------------------------------------------------------------------------------------------------------
41 to 45 yrs. 11 13 14 15 14---------------------------------------------------------------------------------------------------------------------------
46 to 50 yrs. 10 12 13 13 12---------------------------------------------------------------------------------------------------------------------------
51 to 55 yrs. 09 11 11 11 10---------------------------------------------------------------------------------------------------------------------------
56 to 60 yrs. 08 10 09 08 08---------------------------------------------------------------------------------------------------------------------------
61 to 65 yrs. 06 08 07 05 06---------------------------------------------------------------------------------------------------------------------------
Above 65 05 05 05 05 05 yrs.
20. Tribunals/Courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
10. Now re-appreciating the evidence adduced before the Tribunal, there is no dispute that at the time of accidental death, the deceased was of 55 years of age. The Tribunal, considering the age of the deceased and the age of the claimants, held that the appropriate multiplier to be applied was of 08 years. However, in Smt. Sarla Verma's case (supra), so far as the age group between 51 years to 55 years is concerned, in Column No.4, the appropriate multiplier is stated to be 11 years. We are, therefore, of the considered opinion that the Tribunal should have applied the multiplier of 11 years instead of 08 years.
11 In the instant case, as stated above, the Tribunal held that one-third (1/3rd) amount towards the self expenses out of the income of the deceased was required to be deducted. There is no dispute that, had the deceased been alive, he would have spent something for his own personal expenditure. In this connection, in Smt. Sarla Verma's case (supra) in paragraphs 12, 13 and 14, under the head of deduction for personal and living expenses, the Hon'ble Apex Court observed as under:
12.
We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one. It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income, if the deceased was a married, and one-half (50%) of the income, if the deceased was a bachelor. This practice was evolved out of experience, logic and convenience. In fact one-third deduction, got statutory recognition under Second Schedule to the Act, in respect of claims under Section 163A of the Motor Vehicles Act,1988 (`MV Act' for short).
13. But, such percentage of deduction is not an inflexible rule and offers merely a guideline. In Susamma Thomas, it was observed that in the absence of evidence, it is not unusual to deduct one-third of the gross income towards the personal living expenses of the deceased and treat the balance as the amount likely to have been spent on the members of the family/dependants. In UPSRTC v. Trilok Chandra [1996 (4) SCC 362], this Court held that if the number of dependents in the family of the deceased was large, in the absence of specific evidence in regard to contribution to the family, the Court may adopt the unit method for arriving at the contribution of the deceased to his family. By this method, two units is allotted to each adult and one unit is allotted to each minor, and total number of units are determined. Then the income is divided by the total number of units. The quotient is multiplied by two to arrive at the personal living expenses of the deceased. This Court gave the following illustration:
"
X, male, aged about 35 years, dies in an accident. He leaves behind his widow and 3 minor children. His monthly income was Rs. 3500. First, deduct the amount spent on X every month. The rough and ready method hitherto adopted where no definite evidence was forthcoming, was to break up the family into units, taking two units for an adult and one unit for a minor. Thus X and his wife make 2+2=4 units and each minor one unit i.e. 3 units in all, totaling 7 units. Thus the share per unit works out to Rs. 3500/7=Rs. 500 per month. It can thus be assumed that Rs.1000 was spent on X. Since he was a working member, some provision for his transport and out-of-pocket expenses has to be estimated. In the present case, we estimate the out-of-pocket expense at Rs. 250. Thus the amount spent on the deceased X works out to Rs.1250 per month leaving a balance of Rs.3500-1250 = Rs.2250 per month. This amount can be taken as the monthly loss of X's dependents."
In Fakeerappa vs Karnataka Cement Pipe Factory - 2004 (2) SCC 473, while considering the appropriateness of 50% deduction towards personal and living expenses of the deceased made by the High Court, this Court observed:
"What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction."
In view of the special features of the case, this Court however restricted the deduction towards personal and living expenses to one-third of the income.
14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
12 Now, in the instant case, there is no dispute that there are six dependants who are the claimants. Applying the ratio laid down by the Hon'ble Apex Court, in the instant case, one-fourth (1/4th) amount is required to be deducted towards the self expenses of the deceased.
13 About the income of the deceased, the Tribunal relying upon the oral and documentary evidence adduced on record, came to the conclusion that the monthly income of the deceased can suitably be assessed at Rs.3,000/- per month. There is no dispute that the deceased was doing multiple business and was a tax payer. It was also alleged by the claimants that the deceased over and above the income derived from business, had agricultural income. However, considering the evidence on record, the Tribunal came to the conclusion that the deceased was full time engaged in his business and, therefore, it was not possible for him to devote any time for agricultural operation.
14 We have reassessed, re-examined and re-scrutinized the oral and documentary evidence adduced by the claimants on record before the Tribunal and we are of the considered opinion that the Tribunal did not commit any error in coming to the conclusion that the monthly net income of the deceased, after deducting all the legitimate expenses required to be incurred to run his business, can be assessed at Rs.3,000/- per month. On behalf of the appellants, grievance is ventilated about non-consideration of future prospective income of the deceased. However, considering the facts and circumstances of the case and more particularly the age of the deceased at the time of the accident and further the fact which has come on record that after the death of the deceased, his two sons continued the business of the deceased which he had left and more particularly considering the peculiar facts and circumstances of the instant case, we are of the considered opinion that the loss of benefits which the claimants sustained on account of accidental death of the deceased can be fixed at Rs. 36,000/- per annum. One-fourth (1/4th ) amount, out of the total annual income of the deceased, is required to be deducted towards his self expenses and that comes to Rs. 9,000/- per annum and deducting Rs. 9,000/- from Rs. 36,000/-, the loss of dependency benefits comes to Rs. 27,000/- per year and applying the multiplier of 11 years, the loss to the dependency benefits comes to Rs. 2,97,000/-. We are of the considered opinion that the claimants are entitled to recover Rs.15,000/- towards loss of estate, Rs. 15,000/- towards consortium and Rs. 3,000/- towards expenses for obsequial ceremony. The total comes to Rs. 33,000/-. Now, therefore, the claimants are entitled to the compensation in following break-up:
i) Loss to the dependency benefits (Rs.27,000/-
x 11) : Rs. 2,97,000.00
ii) Loss
of estate : Rs. 15,000.00
iii) Loss
of Consortium : Rs. 15,000.00
iv) Expenses
of obsequial ceremony : Rs. 3,000.00
---------------------------
Total
Compensation : Rs. 3,30,000.00
==========15 Now,
the Tribunal awarded Rs.1,86,000/- by way of compensation and, therefore, the amount already awarded by the Tribunal is required to be deducted from the aforesaid amount of Rs. 3,30,000/- and the net additional amount of compensation, therefore comes to Rs.
1,44,000/-. Thus, the claimants are entitled to an additional amount of Rs. 1,44,000 (Rupees One lac and forty four thousand only). So far as the interest on the additional amount of compensation is concerned, in Smt. Sarla Varma's case (supra), the Hon'ble Apex Court awarded 6% interest on the additional amount. We are therefore of the opinion that, in the instant case, the claimants are entitled to recover running interest at the rate of 6% per annum on the additional amount of compensation from the date of application till the realization, jointly and severally from the respondents.
16 For the foregoing reasons, the appeal succeeds in part and accordingly it is partly allowed. The appellants claimants are entitled to an additional amount of Rs. 1,44,000 (Rupees One lac and forty four thousand only) in addition to what was already awarded by the impugned judgment and award by the Tribunal with running interest at the rate of 6% per annum from the date of the petition till the date of realization on the additional amount of compensation. The appellants are entitled to recover the additional amount of compensation with interest from the respondents jointly and severally. Parties to bear respective costs.
17 Modified award be drawn up accordingly.
(A.M.KAPADIA, J.) (J.C.UPADHYAYA, J.) pnnair