MRUDULABEN WD/O BIPINBHAI RANCHHODBHAI PATEL vs. JASABHAI ALIAS JESABHAI BHIKHABHAI MATA (AHIR)

C/FA/591/2010 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 591 of 2010

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 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 ? ================================================================ MRUDULABEN WD/O BIPINBHAI RANCHHODBHAI PATEL & 1....Appellant(s) Versus JASABHAI ALIAS JESABHAI BHIKHABHAI MATA (AHIR) & 4....Defendant(s) ================================================================ Appearance: MR BK OZA, ADVOCATE for the Appellant(s) No. 1 - 2 MR RITURAJ M MEENA, ADVOCATE for the Defendant(s) No. 5 MR SUNIL B PARIKH, ADVOCATE for the Defendant(s) No. 2 RULE SERVED for the Defendant(s) No. 1 , 3 - 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.J.THAKER Date : 05/05/2014 ORAL JUDGMENT 1. By way of this appeal, the appellants Page 1 of 8

C/FA/591/2010 JUDGMENT have challenged the judgment and award of the M.A.C.T.(Main), Sabarkantha at Himmatnagar (for short, ‘the Tribunal), Dated : 15.04.2009, rendered in M.A.C.P. No.1078 of 2003, whereby, the Tribunal awarded Rs.10,06,900/- towards compensation along with 7.5 per cent interest from the date of filing of the claim petition, till its realization. 2. The brief facts, as set out before the Tribunal, are that on 30.05.2005, while the deceased Bipinbhai and his family members were proceeding towards Gandhidham from Talod in a Tata Sumo Spacio car bearing Registration No. GJ- 9-M-781, which was being driven by present Respondent No.3 and owned by present Respondent No.4, same met with an accident near Purohit Hotel, Sarkhej-Sanand Highway road, with a truck bearing Registration No. GJ-12-T-9232, which was being driven by present Respondent No.1. On account of the alleged accident, Bipinbhai sustained severe injuries and later on expired. Hence, the present appellants being the heirs and legal representative of the deceased Bipinbhai preferred the aforesaid claim petition, wherein, the Tribunal passed the award, as referred to in Para-1, herein above. Hence, the present appeal. 3. Mr. Oza, learned Advocate for the Page 2 of 8

C/FA/591/2010 JUDGMENT appellants, submitted that the Tribunal failed to appreciate the material on record properly and erred in passing the impugned award. The Tribunal erred in calculating the income of the deceased at Rs.14,531/- per month and instead it ought to have taken Rs.16,750/- per month considering Form No.16(Exhibit-57) and Salary Slip (Exhibit 58) of the deceased. The Tribunal also ought to have taken into consideration the agricultural income of the deceased, which comes to Rs.4,000/-. He, further, submitted that in view of the fact that the deceased was an employee of GEB, wherein, the age of retirement is 60 years, the Tribunal erred in applying the multiplier of 5. He, then, submitted that in view of the fact that the deceased had to remain in hospital for 22 days, and hence, the Tribunal ought to have awarded Rs.50,000/- under the head of pain, shock and sufferings. He also submitted that the Tribunal wrongly awarded Rs.97,000/- towards medical expenses and ought to have awarded the full amount. He lastly submitted that the tribunal ought to have awarded the interest at the rate of 15 per cent per annum. 4. As against this, Mr. Parikh, learned Advocate for Respondent No.2 strongly opposed the appeal and submitted that while passing the impugned order, the Tribunal has already taken Page 3 of 8

C/FA/591/2010 JUDGMENT into consideration all the aspects and has awarded just and proper compensation, and hence, no interference is called for at the hands of this Court. 5. Though served, none is present on behalf of Respondent Nos. 1 and 3 to 5. 6. Heard, learned Counsels for the parties and perused the material on record with their assistance. 7. In order to prove that the alleged accident took place on account of sole negligence on the part of Respondent No.1, the appellant No.1 as well as the driver of the Tata Sumo Car, present Respondent No.3, who had filed M.A.C.P. No. 192 of 2005, entered the witness-box. They were thoroughly cross-examined by the learned Counsels for the original opponents, however, their evidence remain un-controverted on material aspects.

The

appellants

also

produced FIR(Exhibit-44) and Panchnama (Exhibit-45) of the place of accident to substantiate their case. The driver of the offending truck, i.e. present Respondent No.1, did not enter the witness-box. The Tribunal, hence, rightly come to the conclusion that the alleged accident took place on account of sole negligence on the part of Page 4 of 8

C/FA/591/2010 JUDGMENT Respondent No.1 and hold that Respondent Nos. 1 and 2 were liable to satisfy the claim of the appellants. 8. Insofar as the quantum of compensation is concerned, the case of the appellants before the Tribunal was that the deceased was serving as Dy. Superintendent in GEB and was getting monthly salary of Rs.16,750/-. In order to substantiate their say, the claimants produced Salary Slip at Exhibit-58 and Income Tax form No.16 at Exhibit- 57. It was, further, the case of the appellants that the deceased used to earn Rs.4,000/- per month from agriculture and that at the time of accident, the age of the deceased was 54 years. However, they did not produce any evidence to prove the income of the deceased from agriculture. The Tribunal, hence, taking into consideration the income of the deceased from salary awarded Rs.8,71,860/- towards loss of dependency by adopting the multiplier of 5 years. However, while doing so the Tribunal has committed an apparent error in assessing the monthly income of the deceased. As per the Salary Certificate(Exhibit-58), the monthly income of the deceased was Rs.16,750/-, which included basic pay, D.A. and other allowances, whereas, the Tribunal, while assessing the monthly income of the deceased, took into consideration only Page 5 of 8

C/FA/591/2010 JUDGMENT Basic Pay and D.A. and assessed monthly income at Rs.14,531/- only, and thereby, ignored the other amounts being paid to the deceased as perks and which constituted a part of salary. Thus, income of the deceased requires to be taken at Rs.16,750/- per month. Further, while applying the multiplier, the Tribunal adopted the multiplier of 5 on the basis that the deceased was 54 years of age, at the time of accident, and thus, he would have served for five years only had the fateful accident not taken place. In the case of “G. RAVINDRANATH @ R. CHOWDARY VS. E. SRINIVAS AND ANR.”, (2013) 12 SCC 455, the Apex Court held that adequate compensation has to be awarded not only for physical injury and treatment but also for loss of earning and inability to lead normal life. In the instant case, the deceased remained in hospital for about nearly a month, before he succumbed to the injuries sustained by him. Thus, the view taken by the Tribunal is apparently erroneous and it wrongly applied the multiplier of 5. In the instant case, the accident is of the year 2003, and hence, it would be relevant to refer to the judgment of the Apex Court in the case of “SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANR.”, (2009) 6 SCC 121, wherein, the Apex Court has laid down the method of calculating prospective

income,

applying

the

proper Page 6 of 8

C/FA/591/2010 JUDGMENT multiplier, deducting of the amount towards personal expenses etc.. Thus, applying the ratio laid down by the Apex Court in the aforesaid decision, if, the multiplier of 11 is applied, same would met the ends of justice. The deceased is survived by his wife and a son, thus, after deducting the 1/3 amount from the monthly income of the deceased towards his personal expenses, the future monthly loss of dependency would come to [(Rs.16,750 X 1/3)=5,583.33/-; Rs.(16,750 – 5,583.33)]=Rs.11,166.67/- and on rounding it off, it would come to Rs.11,170/-. Resultantly, the annual loss of dependency would come to (Rs.11,170 X 12)=1,34,040/- and the future loss of dependency would come to Rs.(1,34,040/ X 11)=14,74,440/-. The Tribunal has already awarded Rs.8,71,860/- under the head of future loss of dependency, and hence, the appellants will be entitled to an additional amount of Rs.( 14,74,440 - 8,71,860)=6,02,580/- under the aforesaid head. 9. As regards the amounts awarded under the heads of loss of estate, loss of consortium, funeral expenses etc. by the Tribunal are concerned, this Court is of the opinion that the Tribunal, taking into consideration the facts and circumstances of the case as well as the material on record, has already awarded the just and proper amounts under the said heads, and hence, same require no interference at the hands of this Page 7 of 8

C/FA/591/2010 JUDGMENT Court. 10. No other contention was raised before this Court. 11. In the result, the appeal stands PARTLY ALLOWED. The appellants-claimants will be given an additional amount of Rs.6,02,580/- towards the loss of future dependency, over and above the amount awarded by the Tribunal under the aforesaid head along with interest at the rate of 7.5 per cent per annum from the date of filing of the claim petition, till its realization. The judgment and award of the Tribunal stands MODIFIED to the aforesaid extent. No order as to costs. (K.J.THAKER, J) UMESH Page 8 of 8