(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Brief facts are as follows:
On 13.10.1983, one Shri Sureshchandra Shah was traveling in a truck belonging to the Gujarat Water Supply and Sewerage Board (“Board” for short). He was going to Valsad. During the course of journey, tyre of the truck burst, driver lost control of the vehicle and collided with another vehicle coming from the opposite direction. In the process, Sureshchandra Shah died on account of injuries resulting from the accident. His dependents that is wife, two minor children and parents therefore filed the claim petition claiming compensation of Rs.9,35,000.00 from the driver, owner and insurance company of the vehicle in question.
2. Before the Claims Tribunal, on behalf of the claimants, evidence was produced to show that the driver of the vehicle was negligent in not taking care that the vehicle was road worthy before driving it. The Claims Tribunal held that the accident occurred due to negligence of the driver.
3. With respect to quantum of compensation, before the Claims Tribunal, the claimants produced evidence to show that the deceased was engaged in the grocery business, earning regular income. Besides, he had other sources of income such as agricultural operations etc. The Claims Tribunal assessed his yearly income at Rs.50,000.00. Opining that in due course, such income would increase with the passage of time, the Claims Tribunal adopted a sum of Rs.80,000.00 as yearly income of the deceased on the basis of which, the compensation should be awarded. The Claims Tribunal set apart a sum of Rs.20,000.00 for personal expenditure of the deceased. The claims tribunal took the sum of Rs.60,000.00 as dependency benefit of the claimants. The deceased was aged 31 years. The claims tribunal adopted multiplier of 20 and was, therefore, of the opinion that the claimants should receive Rs.12 lacs by way of dependency benefits. The Claims Tribunal added further a sum of Rs.15,000.00 towards the loss of expectation of life, Rs.3000.00 for after death ceremony and Rs.600.00 for transportation. The claims tribunal also granted Rs.10,000.00 to the wife of the deceased towards loss of consortium. In all, the claims tribunal awarded a sum of Rs.12,28,600.00. The Claims Tribunal was of the opinion that the amount of just compensation that needs to be awarded need not be limited to the claim made in the claim petition.
4. This award of the tribunal gave rise to the two separate appeals. First Appeal No. 710 of 1991 filed by the Insurance Company not only disputed the quantum of compensation, but also quantified the liability of the insurance company contending, there was clear breach of terms of insurance policy.
5. The Board preferred separate appeal calling in question the compensation awarded by the claims tribunal as also the negligence of the driver.
These two appeals have been heard together and are being disposed of by this common judgment.
6. In so far as the appeal of the insurance company is concerned, we may notice that admittedly the deceased was traveling in a truck belonging to the Board as gratuitous passenger. Though the driver of the vehicle made attempt to suggest that the deceased sat in vehicle without his permission and refused to get down even though told to do so, we are not prepared to accept this version of the driver. From the record, it does emerge that the deceased was allowed to travel in the vehicle by the driver himself. It is, however, undisputed that the deceased was not an employee of the Board nor was being carried as laborer or for any other purpose, authorized by the Board. The deceased was, thus, merely a gratuitous passenger. In that view of the matter, the Claims Tribunal, in our opinion,ought to have perused the terms of policy which do not cover the risk of any passenger, if allowed to travel in such vehicle. On behalf of the claimants also, no dispute was raised with respect to such terms of the policy. In the result,we are clearly of the opinion that the Claims Tribunal committed error in fastening the liability on the insurance company. The insurance company ought to have been absolved of its responsibility to satisfy the award.
7. Coming to the appeal of the Board, we are of the opinion that the Board at least cannot avoid the liability to pay compensation to the claimants. The deceased was traveling in truck owned by the Board. Such truck was being driven by the driver employed by the Board. The deceased was allowed to travel in the truck by the driver of the Board. The vehicle met with accident when the tyre burst and the driver lost control of the vehicle. The claims tribunal has come to the conclusion that the driver failed to check the condition of tyre and to ensure that the vehicle was road worthy before driving it. In so far as the negligence of the driver is concerned, we are perfectly in agreement with the view expressed by the Claims Tribunal. The Board, as an employer of the driver and owner of the vehicle in question, cannot avoid the liability arising out of such tortuous act of employee.
8. This bring us to the quantum of compensation. As already noted, the claimants had claimed Rs.9,35,000.00 by way of compensation. The claims tribunal awarded Rs.12,28,600.00. From the evidence on record, we find that the claimants had produced assessment order of the Income Tax Department accepting the Return filed by the deceased declaring his income at Rs.31,280.00 for the AY 1982-83. Such return was filed on 1.1.1983 that is long before the accident. We, therefore, have no hesitation in accepting such income declared by the deceased from his grocery business.
9. Additionally, it has also come on record that the deceased owned 7 Bighas of agricultural land which was irrigated land. On behalf of the claimants, it was stated that the crops such as paddy and sugarcane were being grown. The claims tribunal had taken into account such income from agricultural source also. The claims tribunal noticed that even after death, it would be possible to carry out the agricultural operations through hired labour, however, income would diminish. Under the circumstances, even if we ignore the suggestion of other source of income such as the desire of the deceased to set up factory since such business had admittedly not commenced, computation at Rs.50,000.00 per year by way of base figure of earning of the deceased computed by the claims tribunal cannot be found fault with. Deceased had declared yearly income of Rs.31,250/- from his grocery business in his return filed before the Income Tax Department. Considering the drop in agriculture income due to loss of personal supervision, total loss of income of Rs.50,000/- per year is quite reasonable.
10. With respect to the future possibility of rise in income, adopting the ratio of Hon'ble the Apex Court in Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, we may adopt a sum of Rs.75,000.00 as yearly income of the deceased for the purpose of awarding compensation to the claimants. Setting aside a sum of Rs.20,000.00 out of the said figure towards the personal expenditure of the deceased himself, it would be just and reasonable to assess Rs.55,000.00 per annum by way of dependency benefits to the claimants.
11. Coming to the question of multiplier, the claims tribunal had adopted the multiplier of 20, which is, in our view, certainly on higher side, looking to the age of the deceased and other attending factors, we would take the multiplier of 15 for the purpose of awarding compensation to the claimants. Dependency benefits would, therefore, come to Rs.8,25,000.00. Remaining amounts being unchanged, the claimants would receive a sum of Rs.8,25,000.00+ Rs. 28,000.00 = Rs.8,53,000.00.
This would be in substitution of Rs.12,28,600.00 awarded by the claims tribunal by impugned award. Entire amount as revised by this order will be payable to the claimants.
12. We may notice that during the pendency of these appeals, the Board as well as the insurance company had deposited Rs.4,00,000.00 each with proportionate costs. We may further notice that previously,appeal of the insurance company was disposed of by the learned Single Judge by
amount with interest accruing thereon. We are not sure whether the insurance company has withdrawn such amount as permitted by the learned Single Judge or not. We have, however, by order separately passed today in the review application filed by the Board, recalled such order and heard the first appeal of the insurance company once again.
13. Under the circumstances, First Appeal No. 710 of 1991 is allowed. Appellant Insurance Company is held not liable to satisfy the award. First Appeal No. 567 of 1993 is partly allowed to the extend stated above. It is directed that the Board shall pay to the claimants a sum of Rs.8,53,000.00 with proportionate costs and interest. The Board has already deposited a sum of Rs.4,00,000.00 during the pendency of appeal. The Board shall, therefore,deposit before the claims tribunal a further sum of Rs.4,53,000.00 with proportionate costs and simple interest at the rate of 12 per cent per annum from the date of claim petition till the date of actual deposit before the claims tribunal which may be done within the period of two months from the date of receipt of copy of this judgment. Both appeals stand disposed of accordingly with no order as to costs. R. & P. may be transmitted to the claims tribunal.
(Akil Kureshi,J.) (C.L. Soni,J.) an vyas