Gujarat High Court
Bhartiben Mansukhbhai Desai vs Bhikhubhai Kurjibhai Desai on 6 August, 2019
Equivalent citations: AIRONLINE 2019 GUJ 221, 2019 AAC 1563 (GUJ)
Author: V.P. Patel
Bench: K.M.Thaker, V.P. Patel
C/FA/1626/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1626 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
and
HONOURABLE MR.JUSTICE V.P. PATEL
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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BHARTIBEN MANSUKHBHAI DESAI
Versus
BHIKHUBHAI KURJIBHAI DESAI
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Appearance:
NISHIT A BHALODI (9597) for the Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 2
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
and
HONOURABLE MR.JUSTICE V.P. PATEL
Date : 06/08/2019
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE V.P. PATEL)
1. This appeal is filed by the appellants - original claimants under Section 173 of Motor Vehicles Act, 1988 (for short "the M.V. Act"), being aggrieved and dissatisfied with the judgment and award dated 19.04.2018 passed by learned Motor Accident Claims Tribunal (Main), Page 1 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019 C/FA/1626/2019 JUDGMENT Rajkot in M.A.C.P Case No. 815 of 2012.
2. Heard learned advocate Mr. Nishit Balodi for the appellants.
Admit.
3. Learned advocate Mr. Dakshesh Mehta for the respondent no. 2 waives service of admission on behalf of Opponent No.2. Though the respondent no. 1 is duly served has chosen not to remain present before this Court.
4. At the request of both the learned advocates of the parties this matter is kept for final hearing.
Claim and Order under challenged:-
5.0 The appellants - Original claimants had filed Claim Petition under Section 166 of the M.V. Act against the present opponents to get compensation of Rs. 20,00,000/-. Initially, it was enhanced to Rs. 30,00,000/- for the death of deceased Mansukhbhai Kurjibhai Desai passed away in the vehicular accident which took place on 11.02.2012.
5.1 Considering the oral as well as documentary evidence produced by the parties on record, the learned Tribunal has partly allowed the claim petition, which read as under:
"The claimants are entitled to recover amount of compensation of Rs. 17,73,900/- (Rs. Seventeen Lacs Seventy Three Thousand Nine Hundred only) with proportionate cost and interest at the rate of 9% per annum from the date of the claim petition till realization of the amount from the opponents jointly and severally."
5.2 The appellants have prayed in this appeal in Para 8(B) as under:
"Be pleased to modify the judgment and decree dated 19/04/2018 passed by the learned Motor Accident Claims Tribunal at Rajkot in MACP No. 815 of 2012 and further be pleased to enhance the award amount of Rs. 20,00,000/- in the interest of justice".Page 2 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019
C/FA/1626/2019 JUDGMENT Arguments of the Parties:-
6.0 Learned advocate for the appellants has argued that the judgment and award are contrary to law and facts of the case and evidence on record. That the learned Tribunal has not appreciated oral and documentary evidence on record in proper perspective. That learned Tribunal has considered income and multiplier at lower side. The learned Tribunal has awarded inadequate compensation to the claimants.
6.1 It is further argued that the learned Tribunal has considered annual income of Rs. 3000/- from agricultural activity, which is at very lower side. That the learned Tribunal has committed error by considering the income of the business of deceased as Rs. 1,51,768/- per annum. That the learned Tribunal has not considered the Income Tax Return for the Financial Year 2011-2012 produced before the Tribunal. That the Tribunal has wrongly considered the 10% prospective income instead of 25%. That the has committed error by allowing multiplier of 11 years instead of 13 years. Learned advocate for the appellants has requested to allow the appeal and enhance the compensation by 20,00,000/-.
7. Learned advocate for the respondent has submitted that the order passed by the learned Tribunal is correct and legal in view of the law and facts. Tribunal has awarded just compensation There is no need to interfere with the judgment and award of learned Tribunal. Therefore, the appeal deserves to be dismissed with cost and requested to dismiss the appeal.
Brief facts of the Case:
8.0 On 11.02.2012 at about 1.00 a.m., the deceased Mansukhbhai was travelling in Car No. GJ-5-CL-8418 and when the said car reached at Kuvadava -Rajkot road, Opp. Krishna Water Park, at that time, an animal Page 3 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019 C/FA/1626/2019 JUDGMENT came in between and as the driver of said Car No. GJ-5-CL-8418 was driving his vehicle in a full speed and in rash and negligent manner endangering human life and thereby, the said vehicle turned turtle. As a result of the accident the deceased sustained serious injuries and succumbed to the same. It is alleged in the claim petition that due to rash and negligent driving on the part of the driver of Car, the accident has occurred. Hence, the claimants have preferred the claim petition for compensation of Rs. 30,00,000/- form the opponents along with interest as mentioned in claim petition.
Negligence:
9.0 Learned Tribunal has framed the issue no. 1 for negligence that whether the claimants proved that the deceased died due to rash and negligence driving of the driver of the vehicle involved in the accident.
9.1 Learned Tribunal has decided this issue in affirmative and found that the accident occurred due to sole negligence on the part of the driver of the Car No. GJ-5-CL-8418. There is no dispute and controversy about the findings of the learned Tribunal as regards to negligent on the part of the driver, therefore issue of negligence is not required to be dealt with.
Quantum:
10 General Principle: This Court has come across the judgment reported in AIR 2017 Supreme Court 5157 in the case of National Insurance Company Limited vs. Pranay Sethi and Ors. the Apex Court has held in Para 61 as under:
"(iv) In case the deceased was self-employed or on a fixed salary, an additional of 40% of the established income should be the warrant where the deceased was below the age of 40 years.
An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of Page 4 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019 C/FA/1626/2019 JUDGMENT computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the Courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraphs 42 of that Judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rare of 10% in the every three years."
11 Age: The claimant i.e. Bhartiben Mansukhbhai Desai wife of the deceased has stated on oath that deceased was 50 years of the age, at the time of the accident and his date of birth is 07.03.1961, this fact is not disputed by other side. The claimant has produced copy of the School Leaving Certificate of the deceased, Mansukhbhai at Exh. 39. On perusal the said School Leaving Certificate the date of birth of Mansukhbhai is shown as 07.03.1961. The learned Tribunal has also considered the age of the deceased is 50 years and 11 months.
12 Income: The claimant has stated in the claim Petition that the deceased was earning Rs. 23,000/- per month. The claimant no. 1 has also deposed on oath that the deceased was earning more than Rs. 23,000/- and she has produced the Income Tax Returns for the year 2008-09, 2009-10, 2010-11. The learned Tribunal has considered the Income Tax Returns and held that the deceased was earning Rs. 12,647/- from the business and Rs. 3000/- from the agricultural income. The learned Tribunal has considered total income of the deceased of Rs.
Page 5 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019C/FA/1626/2019 JUDGMENT 15,647/- per month.
12.1 The learned advocate for the appellants has submitted that income form the business wrongly considered lower side, it should be Rs. 15,888/-. Considering the documentary evidence produced by the appellants at Exhs. 35, 36, 37 i.e. Income Tax Returns submitted by the deceased for the year 2008-09, 2009-10, 2010-11 respectively. Considering the necessary deduction we find that the income of the deceased from the business is required to be considered as Rs. 15,888/- Per month and Rs. 3000/- from the agricultural income. We considered income of the deceased Rs. 18,888/- per month, at the time of accident for the calculation of the compensation.
13. Prospective Income: The learned Tribunal has considered 10% perspective income in this case. As per the ratio laid down by the Apex Court in the case of Pranay Sethi (Supra) the deceased was self employed and his age is 50 years therefore, prospective income at the rate of 25% is required to be considered.
14. Multiplier: The learned Tribunal has considered the multiplier of 11 for the calculation of compensation. The learned advocate for the appellants has submitted that considering the age of the deceased at the time of accident was 50 years and 11 months, the multiplier is required to be considered for the age group of 46-50, 13 multiplier is required to be considered for calculation of compensation.
14.1 He has also relied upon the judgment of the Hon'ble Supreme Court reported in 2015 ACJ 1239 in case of Shashikala and Ors. Vs. Gangalakshmamma and Anr. wherein, it is held in Para 17 as under:
"Insofar as appropriate multiplier, the date of birth of the deceased as per driving licence was 16.6.1961. On the date of accident, I.e.Page 6 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019
C/FA/1626/2019 JUDGMENT 14.12.2006 the deceased was aged 45 years, 5 months and 28 days and the Tribunal has taken the age as 46 years. Since the deceased has completed only 45 years the High Court has rightly taken the age of the deceased as 45 years and adopted multiplier of 14 which is the appropriate multiplier and the same is maintained. Total loss of dependency is calculated at Rs. 16, 82,310/- (Rs. 1,20,165 *14)."
14.2 Considering the ratio laid down in the above referred judgment of the Hon'ble Apex Court in the case of Shashikala and Ors. (Supra); The date of birth i.e. 07.03.1961 and date of accident i.e. 11.02.2012, in this case the multiplier of age group of 46-50 i.e. 13 is required to be adopted.
15. Deduction: The learned Tribunal has considered ¼ amount is to be deducted towards personal living expenses of the deceased. Considering the ratio laid down by Hon'ble Apex Court rendered in the case of Pranay Sethi (Supra) and 4 dependents of the deceased at the time of accident, we consider ¼ deduction is according to law.
16. Further loss of Income: In view of the above discussion, considering the income of the deceased Rs. 23,610/- per month, (actual income of Rs. 18,888/- + 25% prospective income Rs. 4722/-), the amount of Rs. 5903/- (Rs. 23,610/- * 25% = Rs. 17,707/-) is deducted towards personal expense of the deceased, would be the monthly income of the deceased at the time of accident. Rs. 2,12,484/- (Rs. 17,707 *12 months) would be the annual income of the deceased and by using multiplier 13, the amount of figure comes to Rs. 27,62,292/- (Rs. 2,12,484/- * 13 multiplier). The claimants are entitled to receive Rs. 27,62,292/- on the head of future loss of income.
17. Conventional Amount: As per the ratio laid down in Pranay Sethi and Ors., (Supra) the claimant are entitled an additional compensation of Rs. 15000/- on the head of loss of estate, Rs. 40,000/-
Page 7 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019C/FA/1626/2019 JUDGMENT on the head of loss of consortium and Rs. 15000/- on the head of funeral expenses.
18. In view of the above claimants are entitled the additional amount of compensation Rs. 10,58,392/- on the different heads which is described as under:
Sr. Head Amount (Rs)
1 Future loss of Income 27,62,292/-
2 Loss of Estate 15,000/-
3 Loss of Consortium 40,000/-
4 Funeral Expenses 15,000/-
5 Total 28,32,292/-
6 Compensation awarded by Tribunal is 17,73,900/-
deducted
7 Additional Amount of Compensation 10,58,392/-
19. Interest: The tribunal has awarded interest at a rate of 9% per annum from the date of claim petition till realization of the amount from the opponent jointly and severally. The accident took place on 12.02.2012, the decision was taken by the tribunal is on 19.04.2018. Considering the above period, prevailing rate of interest in the Bank deposit, change in economic, and policy of RBI, it will be appropriate to award interest at the rate of 9% P.A. on the additional amount of compensation from the date of filing of claim Petition till realization of the amount.
20. Conclusion: The claimants are entitled for Rs. 10,58,392/- as an additional amount of compensation with cost and interest at the rate of 9% per annum from the date of claim application till realization of amount from respondents jointly or severally. The rest of the findings of the learned Tribunal is unaltered.
Page 8 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019C/FA/1626/2019 JUDGMENT
21. Learned Tribunal is directed to disburse and deposit for a period of 5 years the additional amount of compensation in terms of Para 5 to 7 of the impugned order dated 19.04.2018 passed by the learned Tribunal.
22. In view of the above, the appeal is partly allowed to the aforesaid extent.
(K.M.THAKER, J) (V. P. PATEL,J) PIYUSH K Page 9 of 9 Downloaded on : Wed Aug 07 23:01:29 IST 2019