DOLATSINH FATEHSINH RATHOD vs. ZARIFKHAN R. PATHAN DELETED

C/FA/5395/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 5395 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Sd/-

================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ DOLATSINH FATEHSINH RATHOD & 1....Appellant(s) Versus ZARIFKHAN R. PATHAN DELETED & 2....Defendant(s) ================================================================ Appearance: MR RC KAKKAD, ADVOCATE for the Appellant(s) No. 1 - 2 DELETED for the Defendant(s) No. 1 MS AMEE YAJNIK, ADVOCATE for the Defendant(s) No. 3 RULE UNSERVED for the Defendant(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI

Date : 02/09/2014

ORAL JUDGMENT Page 1 of 15

C/FA/5395/2006 JUDGMENT 1.The present First Appeal is filed by the appellant – original claimant – mother of the deceased. 2.It may be noted with necessary emphasis that the mother is the only claimant before this Court. The father was earlier impleaded as a claimant but later on was deleted by an order passed below Exhibit 17. 3.The present appeal is filed by the appellant – original claimant, being aggrieved by the judgment and award dated 19.09.2006 by the Motors Accident Claim Tribunal (Auxi-II), Presiding Officer, F.T.C. No.(2), Mahesana in M.A.C.P. No.1621/1999. 4.Learned Advocate for the appellant vehemently pressed into service two aspects - (i) the multiplier as applied by the Hon'ble Tribunal “of 12” is erroneous and it ought to have been of 17. Learned Advocate has submitted that the Hon'ble Tribunal in Paragraph No.8 as recorded as under :- “Applicant-Kamlaben Dolatsing has stated in her affidavit Exh.25 that her son Pravinsing Rathod was aged about 28 years at the time of accident and her version (sic) as is Page 2 of 15

C/FA/5395/2006 JUDGMENT supported by P.M. Report Exh.35. She had further stated in her affidavit that at the time of accident deceased was running his cutlery shop at Ahmedabad and he was earning Rs.4,000=00 per month. But applicant has not produced any reliable and cogent evidence for his monthly income. Hence, I assess Notional

monthly

income

of Pravinsing was alive he had also some personal expenses. Considering that aspect rupees 2/3

rd amount from

his monthly income i.e.Rs.1000=00 is required to be deducted. Hence the complete dependency of the applicant Rs.500=00 per month and that will be just and proper and reasonable amount to meet end of justice. And it should be taken as dependency and hence the yearly loss of dependency came to Rs.6,000/=. And at the time of accident the mother of the deceased – Kamlaben was aged about 50 years. Hence she is entitled for 12 multiplier. Hence the total dependency of the applicant would come to Rs.72,000/-. Applicant is also entitled for some amount of mental shock pain suffering and loss of estate etc. and for that applicant

entitled

for Rs.30,000=00. The applicant is also entitled for Rs.3,000/- under the head of funeral ceremony also. Applicant is entitled to get the compensation

Rs.1,05,000=00. (Emphasis supplied) 5.Learned Advocate for the appellant relied upon a decision of the Hon’ble Apex Court in the matter of Amrit Bhanu Shali and Others v. Page 3 of 15

C/FA/5395/2006 JUDGMENT National Insurance Company Limited and Others reported in (2012) 11 SCC 738. Learned Advocate invited the attention of the Court to the head note B. which reads as under :- “Motors Vehicles Act, 1988 – Ss. 166 and 168, Sch. II – Determination of compensation – Multiplier – To be determined on the basis of age of deceased, not on basis of age of dependants – Deceased aged 26 years at the time of incident – Held, multiplier of 17 proper.” Learned Advocate invited attention of the Court to paragraphs 15 and 16 of the judgment which reads as under :- “15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the deceased. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation. 16. In Sarla Verma1, this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with a operative multiplier of 18. As the age of the deceased at the time of death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the Page 4 of 15

C/FA/5395/2006 JUDGMENT benefit of multiplier of 17 and bringing it down to the multiplier of 13.” (Emphasis supplied) 6.The matter was argued yesterday also. The learned Advocate was asked to compare the facts of the case which were before the Apex Court and the facts of the case which is before this Court. The learned Advocate did not assist the Court on that count. The Court has perused the judgment and order of the Hon’ble Apex Court and in paragraph 2, the Court has found the relevant facts which are as under :- “2. The deceased, Ritesh Bhanu Shali, son of the 1st and 2nd appellants, was going to Thanod on 20-7-2008 by a Swift Car bearing Registration No.CG 04 HA 6905 from Naharpara, Raipur, Chhatisgarh. While he was coming back at about 4.30 p.m. near Thanod, one Scorpio car bearing Registration No.CG 04 HA 5372 coming rashly and negligently from Abhanpur dashed against the Maruti Swift car. Due to that accident, Ritesh Bhanu Shali and one Sardar Jaspreet died on the spot and another Shivam received injuries. The 1st appellant, Amrit Bhanu Shali is the father; the 2nd appellant, Smt Sarlaben is the mother and the 3rd appellant, Mamta Bhanu Shali is the sister of the deceased. Claiming to be dependent on the deceased they filed Motor Accident Claim Case No. 80 of 2008 before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short, “the Act”) for Page 5 of 15

C/FA/5395/2006 JUDGMENT award of compensation to the tune of Rs.25,50,000.” 7.The very fact that the Hon’ble Apex Court observed in Paragraph 15 that “there may be a number of dependents of the deceased who age may be different” and therefore, the age of the dependents has no nexus with computation of compensation. (Emphasis supplied) 8.Infact, learned Advocate was granted time to study another decision of the Hon’ble Apex Court in the matter of Kishan Gopal and Another v. Lala and Others reported in (2014) 1 SCC 244, wherein the Hon’ble Apex Court had an occasion to consider the question of multiplier and as per head note ‘D.’ the Hon’ble Apex Court observed as under :- “D. Motor Vehicles Act, 1988 – Ss 166 and 168 – Compensation – Appropriate multiplier – Determination of – Relevant factors – Where age of the deceased, the deceased boy was 10 years and taking the young age of the parents, namely, the mother who was about 36 years old, at the time of accident, multiplier of 15 can be applied to the multiplicand, and by applying the legal principles laid down in Sarla Verma, (2009) 6 SCC 121” The relevant discussion is found in Paragraph Page 6 of 15

C/FA/5395/2006 JUDGMENT 35 which reads as under :- “35. The relevant portion of Clause 6 states as under : 6. Notional income for compensation for those who had no income prior to accident - * * * (a) Non-earning persons – Rs.15,000 p.a.” 9. The aforesaid clause of the Second Schedule to Section 163-A of the MV Act is considered by this Court in Lata Wadhwa v. State of Bihar6 while examining the tortious liability of the tortfeasor has examined the criteria for awarding compensation for death of children in accidents between the age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs.12,000 p.a. and multiplier of 11 has been applied taking the age of the father and then, under the conventional heads the compensation of Rs.25,000/= was awarded. Thus, a total sum of Rs.1,57,000/= was awarded in that case.” 10. The decision of the Hon'ble Apex Court in the matter of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 is a land mark judgment and the Hon'ble Apex Court has laid down in detail the guidelines so as to see that unwarranted discrepancy in the orders Page 7 of 15

C/FA/5395/2006 JUDGMENT passed by either the Hon'ble Tribunal or by the High Court are avoided to possible extent. In case of Sarla Verma (supra), the Hon'ble Apex Court had observed as Step 2 (Ascertaining the multiplier) as under :- “Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.” 11. The Court cannot lose sight of the fact that this particular guideline is provided in a case wherein the Hon'ble Apex Court was not required to decide the question of multiplier where the claimants were the only parents of the deceased. That being so, the Court once has to necessarily take recourse to another judgment of the Hon'ble Apex Court of a larger Bench in the matter of U.P. State Road Transport Corporation and Others vs. Trilok Chandra and Others reported in (1996) 4 SCC 362 wherein the Hon'ble Apex Court was directly concerned with determination of Page 8 of 15

C/FA/5395/2006 JUDGMENT multiplier where the claimants are the parents of the deceased. The Hon'ble Apex Court observed in Head Note A. as under :- “A. Motor Vehicles Act, 1939 – S. 110-B- Just compensation in fatal accident cases – Multiplier method for determining be applied – Maximum multiplier to be adopted – Correct principle reiterated.” The relevant discussion is found in Paragraphs 11 and 12 of the judgment. “11. The Gujarat High Court also pointed out that principles laid down in the case of Davies2 and that in the case of Nance3 led to the same end results because, although, as per Viscount Simon the dependency amount is required to be multiplied by the figure of the expected useful life of the deceased, the sum has to be discounted before equivalent amount in lump sum has to be worked out keeping in view the fact that the sum was to be spread over a period of years and secondly, allowance has to be made for uncertainties like the possible premature death of the dependants or of the deceased had he been alive, remarriage of the widown, acceleration over other interests of the estate, etc. The Gujarat High Court expressed the opinion that if proper discount is done after arriving at the lump sum equivalent to this dependency, spread over for a period of years the end result will be the same as that calculated by using a proper multiplier to the Page 9 of 15

C/FA/5395/2006 JUDGMENT annual loss. This multiplier is the year's purchase factor. Referring to the decision of Lord Diplock in Mallett v. McMongale7, ALL ER at p. 191, wherein an annuity table was worked out, the High Court observed that 12 to 15 years should be the normal multiplier and for the case before the Court the outer multiplier of 15 years purchase would be proper. The same view in regard to the range for a healthy young man was expressed by this Court in C.K. Subramonia Iyer v. T. Kunhikuttan Nair8. 12. For concluding the analysis it is necessary now to refer to the judgment of this Court in the case of G.M., Kerala SRTC v. Susamma Thomas9. In that case this Court culled out the basic principles governing the assessment of compensation emerging from the legal authorities cited above and reiterated that the multiplier method is the sound method of assessing compensation. The Court observed : (SCC p.183, para 13) “The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having

regard

the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the Page 10 of 15

C/FA/5395/2006 JUDGMENT multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which dependency is expected to last.” (Emphasis supplied) The principle was explained and illustrated by a mathematical example : (SCC pp. 185-186, para 17) :- “the multiplier represents the number of years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs.10,000. If a sum of Rs.1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs.10,000 would be 20. Then the multiplier, i.e. the number of years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowance for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the Page 11 of 15

C/FA/5395/2006 JUDGMENT deceased person (or that of the dependants, whichever is higher) goes up.” 12. Could there be any more clearer discussion and guiding material in the matter of determination of multiplier? This Court is of the view that this decision being of the larger Bench and directly on the point wherein the explanation of deciding the multiplier is considered from both the angles, i.e. from the angle of the age of the deceased as well as the angle of the age of the dependents is applicable to the facts of the present case. 13. In furtherance to the decision cited and relied on in the matter of Amrit Bhanu Shali and Others (supra), learned Advocate for the appellant also relied on a judgment of the Division Bench of this Court in First Appeal No.3264/2010 (Coram : M.R. Shah, J. and R.P. Dholaria, J.) dated 17.06.2014. Learned Advocate for the appellant submitted that the Hon'ble Division Bench had considered the case of Kishan Gopal & Anr. v. Lala & Ors. reported in (2014) 1 SCC 244. It also considered the decision of the Hon'ble Apex Court in the matter of Amrit Bhanu Shali & Ors. v. National Insurance Company Ltd. & Ors. reported in (2012) 11 SCC 738 and also Page 12 of 15

C/FA/5395/2006 JUDGMENT considering the land mark judgment of the Hon'ble Apex Court in the matter of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 wherein the Division Bench in Paragraph 10 held as under :- “In view of the above binding decision of the Hon'ble Supreme Court in which the Hon'ble Supreme Court has laid down the law which if applied as a rule of thumb as observed by the Hon'ble Supreme Court in

catena

decisions,

the contention on behalf of the appellant – insurance company that while applying the multiplier for the purpose of awarding compensation under the head of future economical loss,

the

age

the parents/dependants is required to be considered and not the age of the deceased, cannot be accepted. The learned Tribunal has rightly applied the multiplier of 16 considering the age of the deceased (32 years) and accordingly, has rightly awarded Rs.26,16,576/= under the head of future economical loss. The impugned judgment and award passed by the learned Tribunal is absolutely in consonance with the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) as well as in the case of Amrit Bhanu Shali (Supra), which is not required to be interfered by this Court. In the facts and circumstances of the case, we are of the opinion that an amount of Rs.26,28,576/- awarded by the learned

Tribunal

towards

the Page 13 of 15

C/FA/5395/2006 JUDGMENT compensation for the death of the deceased is just compensation which is neither excessive nor on higher side. Under the circumstances, the above

appeal

deserves

be dismissed.” 14. In view of the discussion hereinabove, this Court is of the opinion that the judgment of the Hon'ble Apex Court (larger bench) in the matter of U.P. State Road Transport Corporation and Others (supra) helps the case and the same is applicable to the facts of the present case. Therefore, the contention of multiplier being on the lower side being 12, the determination on the basis of the age of the mother being 50 years at the time of accident is not acceptable. The request that the multiplier should be enhanced from 12 to 17 cannot be acceded to. 15. On the second submission of the learned Advocate about prospective income also, learned Advocate could not convince this Court that the Hon'ble Tribunal has committed any error. 16. Let there be a clear message to the people at large that they cannot take benefit of their own wrong namely, not paying the income tax and then claiming compensation on Page 14 of 15

C/FA/5395/2006 JUDGMENT the basis of the claimed income of the deceased. Even otherwise, the law is very clear that in absence of a reliable and cogent evidence, the Tribunal has to assess the income after taking into consideration all relevant aspects of the matter which are led before the Tribunal. In the present case, the Tribunal has assessed the monthly income of Pravinsing Rathod @ Rs.1,500/= per month. In absence of any evidence on record, this Court finds that the Tribunal has not committed any error in assessing the income at Rs.1,500/= per month and not taking into consideration the prospective income. Learned Advocate for the appellant has not pointed that a specific contention was raised by his counter part before the Hon'ble Tribunal to look into the matter from that angle. 17. In the result, this First Appeal fails and the same is dismissed. Sd/- (RAVI R. TRIPATHI, J.) CAROLINE Page 15 of 15