DARIYABEN RAVJIBHAI SHANKARBHAI vs. BALUBHAI DAHYABHAI RATHOD

C/FA/1288/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1288 of 2009 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE V. B. MAYANI ========================================================== 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 ? ========================================================== DARIYABEN RAVJIBHAI SHANKARBHAI Versus BALUBHAI DAHYABHAI RATHOD ========================================================== Appearance: MR MTM HAKIM(1190) for the PETITIONER(s) No. 1,2,3,4,5,6,7 MR MAULIK J SHELAT(2500) for the RESPONDENT(s) No. 2 MR RM PARMAR(591) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE V. B. MAYANI

Date : 18/02/2019 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) 1. Being aggrieved and dissatisfied by the judgment and award dated 22/10/2007 passed by the Motor Accident Claims Tribunal (Auxiliary), Fast Track Court No.4, Bharuch in Motor Page 1 of 8

C/FA/1288/2009 JUDGMENT Accident Claim Petition No.1110 of 1999, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereafter referred as 'the Act' for the sake of brevity). 2. Heard Mr. MTM Hakim, learned advocate for the appellants-original claimants, Mr. R. M. Parmar, learned advocate for respondent no.1 and Mr. Maulik J. Shelat, learned advocate for respondent no.2-insurance company and also perused the original record and proceedings. 3. In a nutshell as can be culled out from the record, the accident took place on 24/07/1999. The record indicates that deceased Ravjibhai was driving his Hero Honda Motor Cycle bearing registration no.GJ-16-E-9893 and was on Ganesh Society road. At that time, the tanker bearing registration no.GRV-5398 being driven in rash and negligent manner and in excessive speed came from other side and dashed with the motor cycle because of which Ravjibhai sustained fatal injuries and succumbed to the said injuries. FIR came to be lodged with Ankleshwar Rural Police Station being CR No.I-81 of 1999. The appellants-claimants filed claim petition under Section 166 of the Act and claimed compensation of Rs.40/- lakhs. The record further indicates that the claimants adduced 23 documentary evidences. 4. It was the case of the appellants-claimants that the deceased was working as Ring Man (Drilling) with ONGC and relying upon pay slips at Exh.40, 41 and 42, the appellants- claimants contended before the Tribunal that deceased was earning about Rs.20,000/- per month. Over and above the Page 2 of 8

C/FA/1288/2009 JUDGMENT said aspect, it was the case of the appellants-claimants that the appellant no.1, wife of the deceased Ravjibhai has lost her husband at tender age and minor children have lost their father. It was also the case of the appellants-claimants that the appellants have incurred Rs.5,000/- as funeral expenses and also contended that motor cycle is damaged to the extent of Rs.12,000/- to Rs.13,000/-. 5. The Tribunal, relying upon the evidence in form of panchnama at Exh.35 came to the conclusion that the accident has occurred because of negligence on part of the driver of the truck. The Tribunal further appreciated the evidence as regards income of the deceased and determined the income of the deceased at Rs.6,200/- per month by taking basic salary of Rs.3,250/- per month as well as Dearness Allowance of Rs.2,949/- per month. The Tribunal did give benefit of prospective income to the extent of 50% of the same and granted multiplier of 11 considering the age of the deceased and granted Rs.8,18,400/- as compensation under the head of future loss of income and granted Rs.27,000/- under other different conventional heads and thus, granted total compensation of Rs.8,45,400/-. The Tribunal after appreciating the evidence on record, has come to the conclusion that the deceased who was driver of the motor cycle was negligent to the tune of 10% and thereby, deducting 10%, awarded compensation of Rs.7,60,860/- with 9% interest from the date of filing of the claim petition till its realization. 6. Being aggrieved and dissatisfied with the aforesaid judgment and award, the appellants-original claimants have preferred this appeal. Page 3 of 8

C/FA/1288/2009 JUDGMENT 7. Mr. MTM Hakim, learned advocate for the appellants has contended that the Tribunal has erred in appreciating the evidence of income of the deceased. Mr. Hakim, learned advocate, relying upon Exh.40, 41 and 42, further contended that the Tribunal has not considered other allowances which were paid to the deceased and instead of considering the gross income deducting tax, only considered basic pay and dearness allowance. It was, therefore, contended that considering Exh.40, 41 and 42, income of the deceased would came to Rs.14,443/-. Mr. Hakim, learned advocate further candidly submitted that from the said income, 10% income tax deserves to be deducted and, therefore, according to Mr.Hakim, learned advocate, actual income should be calculated accordingly. Relying upon panchnama at Exh.35, Mr. Hakim, learned advocate has also contended that the Tribunal has erred in considering negligence of the deceased to the tune of 10%. According to Mr. Hakim, learned advocate, it appears that deceased was not at all negligent and driver of the truck should have been held solely negligent. On the aforesaid grounds, it was, therefore, contended by Mr.Hakim, learned advocate that the appeal be allowed as prayed for and the award be modified and the compensation be enhanced suitably with interest at the rate of 9% per annum. 8. Per contra, Mr. Maulik Shelat, learned advocate for the respondent no.2-insurance company has supported the impugned award. He has contended that the Tribunal has committed no error in awarding the compensation. Even if pay slips are taken into consideration, the learned Tribunal Page 4 of 8

C/FA/1288/2009 JUDGMENT has rightly not considered the same as part of the income. Mr. Shelat, learned advocate further contended that the Tribunal has rightly considered that the deceased was also negligent to the extent of 10%. According to him, considering the manner in which the accident has occurred, the deceased could have avoided the accident and therefore, the Tribunal has not committed any error in coming to the conclusion that the deceased was also negligent at least to the extent of 10%. Mr. Shelat, learned advocate also contended that on the contrary the Tribunal has awarded interest at the rate of 9% which is not corresponding to the bank rates and the same should be suitably reduced by dismissing the appeal. 9. No other or further submissions have been made by learned advocates appearing for the parties. 10. Upon considering the submissions made and on perusal of the original record and proceedings, it is an admitted position that the deceased was working as a Ring Man (Drilling) with ONGC which is a public undertaking. Pay slips at Exh.40. 41 and 42 clearly indicate that except professional tax and income tax, all other deductions from the gross pay of Rs.14,443/- relate either to some schemes of the appellants or towards LIC which is to be considered while determining the income of the deceased. At this juncture, it would be appropriate to refer judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. vs. Indira Srivastava and others reported in (2008) 2 SCC 763 wherein in para-8 and 9, the Hon'ble Apex Court has observed as under: Page 5 of 8

C/FA/1288/2009 JUDGMENT “8. Mr. Rao, however, submitted that apart from the basic salary, contributions made by the employee should also be taken into consideration for calculation of the amount of compensation, inter alia, on the premise that the same would have become payable to him at a future date as, for example, voluntary retirement, superannuation, etc. which would be beneficial to the entire family. It was pointed out that the contributions towards provident fund, Life Insurance Corporation, gratuity, etc. are includable in the definition of income. 9. The term “income” has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay-packet the employee carries home at the end of the months but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms.” 11. Similar view is also expressed by the Hon'ble Apex Court in the case of Sunil Sharma and others vs. Bachitar Singh and others reported in (2011) 11 SCC 425. Even in the case of National Insurance Company Ltd. vs. Pranay Shethi and ors. reported in (2017) 16 SCC 680, the Hon'ble Apex Court has observed that actual salary should be read as actual salary less tax. In view of the such binding decisions of the Hon'ble Apex Court, the Tribunal has erred in determining the income of the deceased by considering only basic pay and dearness allowance. Upon re-appreciating all the evidence on record particularly pay slips at Exh.40, 41 and 42, in order to see that the appellants-claimants are being awarded just compensation, monthly income of the deceased is to be determined at Rs.14,443/-. Thus, annual income of the deceased would come to Rs.1,73,316/-. After deducting 10%, net income of the deceased would come to Rs.1,55,984/-. Page 6 of 8

C/FA/1288/2009 JUDGMENT Following the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation And Another reported in (2009) 6 SCC 121 and National Insurance Company Ltd. vs. Pranay Shethi and ors. reported in (2017) 16 SCC 680, as the deceased was below 40 years, the appellants would be entitled to prospective rise of 50% which comes to Rs.77,992/- and thereby, adding the same, the amount comes to Rs.2,37,976/-. The record also indicates that father of the deceased was 60 years old and so considering him to be a senior citizen, he would not only be dependent on the deceased and considering the dependents to be 7, an amount of 1/5th to be deducted as personal expenses of the deceased. After deducting 1/5th , the amount comes to Rs.1,87,181/- (Rs.2,33,976/- - Rs.46,795/-). Considering the age of the deceased, the Tribunal has erred in applying multiplier of 11. Following the judgment of the Hon'ble Apex Court in case of Sarla Varma (supra), the appellants would be entitled to multiplier of 15 and, thus, the appellants would be entitled to compensation under the head of lose of dependency of Rs.28,07,715/- after applying 15 multiplier. Over and above, the appellants would also be entitled to get Rs.70,000/- under different conventional heads. Thus, the appellants would be entitled to get compensation of Rs.28,77,715/-. As far as contention raised by Mr. MTM Hakim, learned advocate as regards negligence of the deceased is concerned, upon re- appreciation of the evidence on record more particularly FIR and panchnama at Exh.35, it appears that the accident occurred on high way and the manner in which the deceased came from other side and dashed with the tanker suddenly before even the driver of the tanker applied the break and the Page 7 of 8

C/FA/1288/2009 JUDGMENT said fact is evident from the panchnama at Exh.35. In light of the aforesaid, 10% of the negligence is perfectly determined and, therefore, said finding of the Tribunal is not disturbed. In view of the aforesaid, therefore, an amount of Rs.2,87,772/- shall stand deducted as 10% negligence of the deceased. Thus, the appellants would be entitled to total compensation of Rs.25,89,943/-. As the Tribunal has already awarded Rs.7,60,860/-, the appellants would be entitled to get additional amount of compensation of Rs.18,29,083/- from the date of claim petition till its realization. However, as far as interest is concerned, the appellants would be entitled to interest at the rate of 9% per annum on the amount originally awarded i.e. Rs.7,60,860/-. However, considering the fact that accident has occurred on 24/07/1999, we deem it fit, in exercise of our discretion to award only 7.5% interest per annum on the amount enhanced by this Court i.e. upon Rs.18,29,083/- from the date of filing of this appeal. 12. Thus, the appeal is partly allowed. The award be modified to the aforesaid extent. Rest of the order passed by the Tribunal remains as it is. However, there shall be no order as to costs for the additional amount awarded. Registry is directed to send back the record and proceedings to the Tribunal forthwith. (R.M.CHHAYA, J) (V. B. MAYANI, J) ila Page 8 of 8