NATIONAL INSURANCE COMPANY LTD. vs. HEMLATABEN PANDHARINATH JAGTAP

C/FA/346/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 346 of 2014 With CIVIL APPLICATION NO. 1092 of 2014 In FIRST APPEAL NO. 346 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH Sd/- and HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/- ================================================================ 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 ? ================================================================ NATIONAL INSURANCE COMPANY LTD.....Appellant(s) Versus HEMLATABEN PANDHARINATH JAGTAP & 6....Defendant(s) ================================================================ Appearance: MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1 MR AMIT N CHAUDHARY, ADVOCATE for the Defendant(s) No. 4 - 7 RULE SERVED BY DS for the Defendant(s) No. 1 - 7 ================================================================ Page 1 of 12

C/FA/346/2014 JUDGMENT CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 18/02/2014

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Feeling aggrieved and dissatisfied with the impugned judgement and award dated 21/3/2013 passed by the learned Motor Accident Claims Tribunal (Main), Gandhinagar in Motor Accident Claim Petition No. 501 of 2006, by which the learned tribunal has awarded total compensation of Rs.29,40,000/- with interest at the rate of 9% per annum on the aforesaid amount from the date of application till realization as compensation for the death of husband of the respondent No.2 – original claimant No.1 and the father of the respondent Nos.4 to 7 herein – original claimant Nos.2 to 5, who died in a vehicular accident, the appellant – original opponent No.3 – National Insurance Company Limited - has preferred the present First Appeal. 2.00. Facts leading to the present appeal in nutshell are as under : 2.01. That in a vehicular accident which occurred on 16/10/2006 at about 2.30 PM near Randheja Bus Stand on Gandhinagar-Mehsana road between one Maruti Car bearing registration No.GJ-18-A-2029 and the motorcycle which was driven by the deceased, the deceased Vaghjibhai Mavjibhai Chaudhary sustained injuries due to which he succumbed to Page 2 of 12

C/FA/346/2014 JUDGMENT the injuries. That the respondent Nos.3 to 7 herein filed claim petition before the learned tribunal being Motor Accident Claim Petition No.501 of 2006 claiming Rs.30,00,000/- towards the compensation for the death of deceased Vaghjibhai Mavjibhai Chaudhary. It was the case on behalf of the original claimants that the deceased Vaghjibhai died in a vehicular accident which occurred due to the rash and negligent driving on the part of the driver of the Maruti Car. It was the case on behalf of the original claimants that the deceased was serving as a Range Forest Officer, Sidhhpur Sub-Division, Patan and was earning Rs.17,280/- per month by way of salary at the time of accident. It was also the case on behalf of the claimants that the deceased was also earning Rs.48,000/- from the animal husbandry business and Rs.4000/- from the income of his shop by way of rent. Thus, in all he was earning Rs.35,280/- at the time of accident. Therefore, it was requested to award compensation of Rs.30,00,000/- from the opponents. 2.02. The claim petition was opposed by the appellant – original opponent No.3 – National Insurance Company by filing Written Statement at Ex.16. It was specifically denied that there was any negligence on the part of the driver of the Maruti Car. It was also denied that the deceased was earning Rs.35,280 per month as alleged by the claimants. 2.03. That the learned tribunal framed the issues at Ex.20. 2.04. Both the parties led evidence oral as well as documentary. Page 3 of 12

C/FA/346/2014 JUDGMENT 2.05. On behalf of the claimants, claimant No.2 – son of the deceased came to be examined at Ex.23. To prove the income of the deceased at the time of his death, the claimants examined one Ajmalji Meramji Thakor, Junior Clerk of the Forest Department, Patan at Ex.30. On behalf of the claimants following documentary evidences were produced :- Sr. No. Documents Ex.No. 1 Letter of forest department. 31 2 Particular regarding pay from 1/1/2006 to 1/7/2006 32 3 Last Pay Certificate of the deceased 33 4 Particular of higher pay scale of deceased 34 5 Resolution of Finance Department 35 6 Statement of Salary of deceased 36 7 Pay Slip of deceased 37 8 Copy of F.I.R. 39 9 Panchnama 40 10 Inquest Panchnama 41 11 R.C.Book of Maruti Car 42 12 P.M.Note 43 13 Leaving Certificate of deceased 44 14 Copy of driving licence of deceased 45 15 Registration Certificate of Motorcycle 46 16 Insurance Policy 47 17 Receipt of Apollo Hospital, Ahmedabad 48 18 Bill of Rs.23,386/- 49 19 Death Certificate of deceased 50 20 Income Tax Card 51 21 Identity Card of Forest Department 52 22 Leaving Certificate of Ashaben 53 23 Copy of Village Form No.8A 54 24 Copy of Village Form No.7/12 55 Page 4 of 12

C/FA/346/2014 JUDGMENT 25 Insurance Policy 59 26 Copy of Criminal Case No.12980/2006 60 27 Copy of Letter 61 28 Acknowledgment Slip 62 29 Copy of Receipt 63 30 Acknowledgment Slip 64 2.06. The claimants as well as the Insurance Company filed / submitted written arguments at Ex.Nos.66 and 69, respectively. 2.07. That on appreciation of evidence, the learned tribunal held the driver of the Maruti Car 100% negligent for the accident and death of the deceased. 2.08. Considering the income of the deceased at Rs.23,200 per month at the time of accident and adding 25% of the same as prospective income i.e. Rs.5800/-, the tribunal considered monthly income of the deceased at Rs.29,000/- and thereafter deducting 1/4th towards personal expenses of the deceased, the tribunal considered family dependency at Rs.21,750/- per month and thereafter applying multiplier of 11, the learned tribunal determined / awarded future economical loss at Rs.28,71,000 and thereafter also awarded Rs.15,000/- towards loss of consortium, Rs.15,000 under the loss of estate, Rs.10,000 towards pain, shock and suffering and Rs.24,000/- towards medical expenditure and Rs.5000/- towards funeral expenses and thus, by the impugned judgement and award the learned tribunal has awarded in all Rs.29,40,000/- towards compensation and held all the original opponents jointly and severally liable to pay said compensation with interest at the rate of 9% per annum and proportionate costs from the date of Page 5 of 12

C/FA/346/2014 JUDGMENT claim petition till realization. 2.10. Feeling aggrieved and dissatisfied with the impugned judgement and award passed by the learned tribunal, the appellant herein – original opponent No.3 – Insurance Company has preferred the present First Appeal. 3.00. Mr.Vibhuti Nanavati, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned tribunal has materially erred in awarding Rs.28,71,000/- under the head of future economical loss considering the income of the deceased at Rs.29,000/- per month i.e. dependency at Rs.21,750/- per month. It is submitted that as such at the relevant time the deceased was aged 55 years of age and his income was Rs.17,280/- and therefore, considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, nothing was required to be added towards prospective income. It is submitted that therefore, while considering the dependency, the learned tribunal has materially erred in considering the income of the deceased at Rs.29,000/- per month. It is submitted that therefore, the learned tribunal ought to have considered the income of the deceased at Rs.17,280/- and thereafter deducting 1/4th towards personal expenses of the deceased i.e. Rs.5760/- per month and thereafter applying multiplier of 11, the learned tribunal ought to have awarded Rs.12,44,160/- towards future economical loss to the claimants. By making above submissions it is requested to allow the Page 6 of 12

C/FA/346/2014 JUDGMENT present appeal to the aforesaid extent. 4.00. Present appeal is opposed by Mr.Amit Chaudhary, learned advocate appearing on behalf of the original claimants. It is submitted that as such the learned tribunal has not committed any error in considering the income of the deceased at Rs.29,000/- while considering the dependency and awarding compensation under the head of future economical loss. 4.01. Now, so far as the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra) relied upon by the learned advocate appearing on behalf of the appellant in support of his submission that at the relevant time the deceased was more than 50 years i.e. aged 55 years and therefore, nothing was required to be added towards prospective income is concerned, Mr.Chaudhary, learned advocate appearing on behalf of the original claimants has submitted that as per the decision of the Hon'ble Supreme Court in the case of Syed Sadiq Etc. Vs. Divisional Manager, United India, reported in 2014 (1) SCALE 377 as well as decision in the case of Sanjay Verma Vs. Haryana Roadways, reported in 2014 (1) SCALE 682, it is submitted that in the aforesaid two recent decisions the Hon'ble Supreme Court has not agreed with the view taken by the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra) that after the age of 50 years, no amount is to be added towards the prospective income. It is submitted that in the aforesaid two decisions and considering the decision of the Hon'ble Supreme Court in the case of Reshma Kumari Vs. Madan Mohan, reported in (2013) 9 SCC 65, the Hon'ble Page 7 of 12

C/FA/346/2014 JUDGMENT Supreme Court has not agreed with the observations made by the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra) in para 24 of the said decision that where the deceased was above 50 years, there shall be no addition as prospective income while considering the dependency. It is submitted that in the aforesaid two decisions, the Hon'ble Supreme Court has directed to make addition of 50% to the income that the claimant was earning at the time of accident as prospective income. It is submitted that therefore, the learned tribunal has not committed any error in awarding Rs.28,71,000/- towards loss of dependency benefits. By making above submission it is requested to dismiss the present appeal. 5.00. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned judgement and award passed by the learned tribunal as well as considered the entire record received from the record and proceedings received from the tribunal. 5.01. Having heard the learned advocates appearing on behalf of the respective parties, the only question which is required to be considered by this Court in the present appeal is, whether the tribunal has rightly awarded Rs.28,71,000/- towards the loss of dependency benefit to the claimants considering the income of the deceased at Rs.29,000/- per month? 5.02. It is not in dispute that at the relevant time the salary of the deceased was Rs.17,280/- per month. However, it Page 8 of 12

C/FA/346/2014 JUDGMENT has come on record and considering the documentary evidence produced at Ex.Nos.31 and 32, after granting benefit of 6th Pay Commission, salary of the deceased as on September, 2006 can be considered at Rs.19,900/- per month. It is not in dispute that at the relevant time, deceased was aged 55 years. Considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra), more particularly para 24, as the deceased at the time of death was above 50 years of age, more particularly 55 years, nothing further is required to be added towards the prospective income. The Hon'ble Supreme Court in the decision of Sarla Verma (Smt) and others (supra) in para 24 has observed and held as under :- “24. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.” Page 9 of 12

C/FA/346/2014 JUDGMENT Now, so far as reliance placed upon the decisions of the Hon'ble Supreme Court in the case of Syed Sadiq Etc. (supra) as well as Sanjay Verma (supra) relied upon by the learned advocate appearing on behalf of the claimants in submitting that in the said two decisions the Hon'ble Supreme Court has not agreed with the view taken by the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra) and even with respect to the deceased above 50 years, prospective income is required to be added, is concerned, considering the decisions of the Hon'ble Supreme Court in the case of Syed Sadiq Etc. (supra) as well as Sanjay Verma (supra), the said two decisions would not be applicable with respect to the deceased who was a salaried persons getting periodical increment / wages etc. the observations made in the aforesaid two decisions are with respect to case of those deceased who were self-employed or on a fixed wages. Under the circumstances, even in the aforesaid two decisions, the Hon'ble Supreme Court has not disagreed with the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra), more particularly para 24 that where the deceased is salaried person getting annual increment etc. and if he is above 50 years, there shall be no addition. Therefore, considering the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra), nothing further was required to be added towards prospective and therefore, as such the learned tribunal has committed an error in awarding compensation under the head of future economical loss considering the income of the deceased at Rs.29,000/- per month. As stated above, at the relevant time as on September, 2006 the salary of the deceased was Rs.19,000/- per month Page 10 of 12

C/FA/346/2014 JUDGMENT and therefore, for the purpose of awarding future economical loss, the income of the deceased can be considered at Rs.20,000/- per month. As per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra) and considering the number of claimants, 1/4th is required to be deducted towards personal expenditure of the deceased i.e. Rs.5000/- per month. As the deceased was aged 55 years i.e. more than 50 years, as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others (supra) multiplier of 11 is required to be applied. Accordingly, the claimants would be entitled to Rs.19,80,000/- (20,000-5000X12X11) towards the loss of dependency / future economical loss instead of Rs.28,71,000/- as awarded by the learned tribunal. The rest of the judgement and award passed by the learned tribunal is not interfered with and the same is confirmed as it is. 6.00. In view of the above and for the reasons stated above, present appeal succeeds in part and the impugned judgement and award dated 21/3/2013 passed by the learned Motor Accident Claims Tribunal (Main), Gandhinagar in Motor Accident Claim Petition No. 501 of 2006, is modified and it is held that the original claimants shall be entitled to compensation of Rs.19,80,000/- under the head of dependency benefits / future economical loss; Rs.15,000/- under the head of loss of consortium; Rs.15,000/- under the head of loss to estate; Rs.10,000/- under the head of pain, shock and suffering, Rs.24,000/- actual medical expenses and Rs.5000/- towards funeral expenses, thus, the original claimants shall be entitled to total compensation of Rs.20,49,000/- with interest at the rate of 9% per annum from the date of claim petition till Page 11 of 12

C/FA/346/2014 JUDGMENT realization. The impugned judgement and award passed by the tribunal is modified to the aforesaid extent. Consequently amount deposited by the appellant – National Insurance Company Limited in excess of the aforesaid amount of Rs.20,49,000/- of compensation with interest at the rate of 9% per annum from the date of claim petition till realization, the same be returned / refunded to the appellant – National Insurance Company Limited on production of the certified copy of the the present order. Present appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. Sd/- (M.R.SHAH, J.) Sd/- (R.P.DHOLARIA,J.) Rafik Page 12 of 12