(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These appeals arise out of the judgment and award dated 1.10.1997 passed by the Motor Accident Claims Tribunal (Aux.) Vadodara in MACP No.1380 of 1991 and connected claim petitions.
2. Brief facts may be noted at this stage:
On 18.6.1991, at about 11.30 p.m., one Rajubhai Ishwarbhai Amin was driving his Maruti Car. In the car, he had along with him, his wife Jyotsanaben, his daughter Sonaben and his sister Sanjuben. When the car was passing from village Gotri in the outskirts of the city of Vadodara, it met with an accident with an on coming luxury bus. Rajubhai, driver of Maruti Car and his daughter Sona both died due to the injuries received. His wife Jyotsanaben received injuries but survived. Claim petition No. 1380 of 1991 was filed by the widow and three children of deceased Rajubhai claiming compensation of Rs.50,00,000.00 from the owner and insurer of the luxury bus involved in the accident. Claim Petition No. 1381 of 1991 was filed by Jyotsanaben claiming compensation of Rs.5,00,000.00 for death of Sona. Claim petition No.1382 of 1991 was filed by Jyotsanaben herself for the injuries received by her claiming compensation of Rs.1,00,000.00.
3. The Claims Tribunal by common impugned judgment, disposed of all the claim petitions. In Claim Petition No. 1380 of 1991, the Claims Tribunal awarded compensation of Rs.21,50,000.00 with interest at the rate of 12% per annum from the date of the claim petition till realization. In Claim Petition No. 1381 of 1991, the Claims Tribunal awarded compensation of Rs.60,000.00 with similar interest. In Claim petition No. 1382 of 1991, the Claims Tribunal awarded compensation of Rs.90,000.00 with similar interest.
4. This common judgment of the Claims Tribunal is challenged by the owner and insurer of the luxury bus in First Appeal No. 501/98, 502/98 and 503/98.
5. From the record, it emerges that the deceased Rajubhai was engaged in the business of fabrication. His widow Jyotsanaben was examined at Exh.
59. She gave details of the source of income of the deceased. She also produced certain documents such as Assessment Orders passed by the Income Tax Department on the Tax Returns filed by the deceased. In her evidence, Jyotsanaben had also narrated the manner in which the accident had taken place.
6. Learned advocate Shri Rajni H. Mehta for the appellant vehemently contended that the Claims Tribunal committed serious error in holding the driver of the luxury bus solely negligent for causing the accident. Drawing our attention to the evidence on record, he submitted that the Maruti Car was being driven at high speed due to which the driver had lost control resulting into the accident. At any rate, the driver of the luxury bus cannot be held 100% negligent and at least, part of the negligence must be attributed to the driver of the Maruti car.
7. The counsel further submitted that the Tribunal committed serious error in taking into account the income of the HUF of the deceased Rajubhai and also the income derived by the wife of the deceased as a partner of a partnership firm. He submitted that the Claims Tribunal thereby awarded compensation which was excessive. In short, his contention was that the quantum of compensation awarded by the Claims Tribunal should be reduced.
8. To contend that the present appeal was maintainable, the counsel relied on the decision of the Apex Court in case of United India Insurance Company Limited versus Shila Datta and others, reported in (2011) 10 SCC 509.
9. On the other hand, learned counsel Shri Hakim for the claimants opposed these appeals. His contention was that the appeals were not maintainable. He pointed out that the appellant no.1 owner of the luxury bus had not defended himself before the Claims Tribunal and the claim petitions were heard ex parte as far as he was concerned. Such owner cannot challenge the award passed by the Claims Tribunal by filing this appeal. In this respect, the learned counsel relied on the Division Bench judgment of this court in case of Manoharsinhji R. Jadeja versus Bhavnaben Ashokbhai Raya reported in 2008 JX (Guj) 197.
The counsel submitted that the Insurance Company cannot contest the claim on merits in absence of any permission under section 170 of the Motor Vehicles Act ('the Act' for short) by the Claims Tribunal to raise all defences. In the present appeal, the defences of the Insurance Company must be confined to those available under section 149(2) of the Act. In this respect, the counsel relied on the decision of the Apex Court in case of Shankarayya and another versus United India Insurance Company Ltd. And another, reported in (1998)3 SCC 140.
The counsel also relied on the decision of the Apex Court in case of National Insurance Co. Ltd. Chandigarh versus Nicolletta Rohtagi and others, reported in (2002) 7 SCC 456
10. Regarding negligence, the counsel submitted that the evidence on record, in particular, the deposition of the widow of the deceased and the panchanama of the scene of accident clearly establish the negligence of the driver of the luxury bus. He pointed out that the opponents had not examined the driver of the luxury bus.
11. With respect to the quantum of compensation. the counsel submitted that the Claims Tribunal has based its finding on the material on record. No interference is therefore called for. He submitted that the income assessed by the Claims Tribunal was based on the Income Tax details of the deceased. He contended that the Claims Tribunal having based its conclusions on reliable documentary evidence, no interference is called for.
12. Having heard the learned counsel for the parties, following questions arise for our consideration:
Whether the appeals in the present form are maintainable?
Whether the Tribunal is correct in holding that the driver of the luxury bus was solely negligent in causing the accident?
Whether the compensation awarded by the Claims Tribunal is excessive?
13. With respect to the first question, we find that the learned counsel for the claimant is right in pointing out that the appellant no.1 owner of the luxury bus having not taken any steps to defend himself before the Claims Tribunal cannot maintain the appeal as held by the Division Bench of this Court in case of Manoharsinhji R. Jadeja (supra). In the said case, similar facts were involved. Initially, appeal was filed by the owner of the bus and Insurance Company, jointly. However, during the pendency of the appeal, appellant no.2 i.e. the Insurance Company was transposed as one of the respondents. Sole appellant, owner of the bus had not defended the claim before the Claims Tribunal. Question arose whether at his instance, the appeal would be maintainable. Division Bench of this court held and observed as under:
"9. We, therefore, propose to deal with these contentions first. It is a matter on record that the appeal was originally preferred jointly by the owner of the bus and the insurer of the bus. However, later on, the insurer has been transposed as respondent No.6. The appeal, therefore, remains only by the owner of the bus. It is also a fact not in dispute that the insurer does not have any statutory defence or contention to raise in the appeal envisaged under Section 149(2) of the Motor Vehicles Act and, therefore, could not have preferred the appeal on merits as a solo appellant.
9.1 It is also a matter on record that the appellant, owner of the bus, had chosen not to contest the claim petition before the Tribunal and had not even filed any written statement and he, therefore, is not competent to challenge the award on merits by preferring an appeal. It is a settled proposition of law that an Insurance Company can prefer an appeal only on the grounds available to it under Section 149(2) of the Motor Vehicles Act or can prefer an appeal on merits only if it was granted a permission under Section 170 of the Motor Vehicles Act to contest the claim with wider defence. The Insurance Company got transposed as respondent No.6 and the appeal, therefore, remains only of the owner of the bus. Now, the question, therefore, would be whether the appeal can be heard on merits and whether the owner of the vehicle can challenge the award of the Tribunal on merits in an appeal. The answer has to be in negative for the reason that the appellant, the owner of the bus, chose not to file any written statement before the Tribunal nor to contest the claim petition in any manner. In this regard, we may refer to the decision in the case of United India Insurance Company Ltd. v. Shilpa Jagdishbhai alias Jignesh Patel and Others, 2005(2) GLR 1784, where in a similar situation, the Court held that the owner of the vehicle, having not to filed written statement nor having appeared before the Tribunal, cannot challenge the award on merits.
10. We are, therefore, of a considered view that the appeal is not competent it having been preferred by the owner of the vehicle, who did not contest the claim petition before the Tribunal and was, therefore, not competent to challenge the award in appeal on merits. The appeal, therefore, has to fail."
14. In view of this decision, appeal of the owner is not maintainable. In the present case, the Insurance Company is also a co-appellant. The question, therefore, is whether the Insurance Co. can maintain the appeal, in absence of specific permission under section 170 of the M.V. Act, 1988 to raise all the contentions before the Claims Tribunal. In this respect, we may recall that the contention of the respondents was that unless the Insurance Company was permitted by the Claims Tribunal by passing order under section 170 of the Act to raise all the defences, it would not be open to maintain the appeal on the grounds other than those available under section 149(2) of the Act.
15. In this respect,we may look at the law as it has developed more closely. In case of Shankarayya and another versus United India Insurance Company Ltd. And another, (supra), two Judge Bench of the Apex Court considered the question whether the joining of insurer by claimants themselves in the claim petition with a view to thrust statutory liability on it would amount to impleading the insurer under section 170 of the Act. Claims Tribunal had passed award against the driver, owner and insurer. Neither the driver nor the owner challenged such award but the insurer filed appeal on merits, contending that the amount of compensation was on the higher side. The High Court reduced the award of Rs.1,05,000.00 to Rs.60,000.00. Such decision of the High Court was carried in appeal before the Apex Court. The Apex Court upheld the contention of the claimants that as the Insurance Company did not move under section 170 of the Act, it was not entitled to challenge the award on merits and only the statutory defences were available. The Apex Court noted that the Insurance Company was allowed to contest the claim on merits before the Claims Tribunal though the procedure under section 170 of the Act was not followed and that the Claims Tribunal awarded the compensation of Rs.1,05,000.00 against the claim of Rs.2,60,000.00 made by the claimants. The Apex Court was, however, of the opinion that the appeal of the Insurance Company against such award of the Claims Tribunal was not competent before the High Court. It was held as under:
"4.
It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceeding on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined respondent No. 1-Insurance Company in the Claim Petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, respondent No. 1-Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal."
16. In case of Nicolletta Rohtagi and others (supra), once again, similar question came up before the Apex Court. Three Judge Bench of the Apex Court considered the appeal of the Insurance Company in following factual back ground:
Accident took place on 8.8.1995 in which one Anil Kishore Rohtagi died. The dependents of the deceased, therefore, filed claim petition before the Claims Tribunal and the Claims Tribunal awarded compensation of Rs.13,13,150.00. Such award was challenged by the insurer before the High Court. The High Court dismissed the appeal on the ground that no appeal at the instance of insurer was maintainable as regards quantum. Such order was challenged by the Insurance Company before the Apex Court. The Apex Court noticed that two Division Benches of the Apex Court in case of Rita Devi v. New India Assurance Co. Ltd. Reported in (2000) 5 SCC 113 and United India Insurance Co. Ltd. v. Bhusan Sachdeva, reported in (2002)2 SCC 265 had taken contrary views. The matter was therefore referred to Three Judge Bench. The Bench framed following question for its consideration:
"Where an insured has not preferred an appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as '1988 Act') against an award given by the Motor Accidents Claims Tribunal (hereinafter referred to as 'Tribunal'), is it open to the insurer to prefer an appeal against the award by the Tribunal questioning the quantum of the compensation, as well as finding as regards the negligence of the offending vehicle'."
The Apex Court ruled that "For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub-section (2) of Section 149 of 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds."
Interpreting the provisions contained in section 149, 170 and 173 of the Motor Vehicles Act, the Apex Court was of the opinion that even when the Insurance Company can be stated to be the person aggrieved as referred to in section 173 of the Act, its defences must be confined to the statutory defences provided under section 149(2) of the Act in absence of any permission granted under section 170 of the Act. The Apex Court noticed that in case of Rita Devi (supra), it was held that the Insurance Company having not obtained permission under section 170 of the Act, was not entitled to prefer appeal to the high court against the award passed by the Claims Tribunal on merits, whereas in case of Bhushan Sachdeva (supra), it was held that where the insured fails to file an appeal to the High Court against the quantum of compensation awarded by the Tribunal, the insurer is entitled to file an appeal as the insured failed to contest the claim and in that view of the matter,the insurer could be a person aggrieved. The Apex Court approved the ratio laid down in the decision of Rita Devi (supra) and held that the decision in case of Bhushan Sachdeva does not lay down correct law. The Apex Court held as under:
"25.
We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.
26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one Scheme and if we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act."
17. The controversy once again received attention of the Apex Court in case of United India Insurance Company Limited versus Shila Datta and others (supra). Three Judge Bench framed following five points on the basis of the contentions raised by the counsel for the Insurance Company:
"(i) There is a significant difference between insurer as a `noticee' (a person to whom a notice is served as required by section 149(2) of the Act) in a claim proceedings and an insurer as a party-respondent in a claim proceedings. Where an insurer is impleaded by the claimants as a party, it can contest the claim on all grounds, as there are no restrictions or limitations in regard to contest. But where an insurer is not impleaded by the claimant as a party, but is only issued a statutory notice under section 149 (2) of the Act by the Tribunal requiring it to meet the liability, it is entitled to be made a party to deny the liability on the grounds mentioned in section 149(2).
(ii) When the owner of the vehicle (insured) and the insurer are aggrieved by the award of the Tribunal, and jointly file an appeal challenging the quantum, the mere presence of the insurer as a co-appellant will not render the appeal, as not maintainable. When insurer is the person to pay the compensation, any interpretation to say that it is not a `person aggrieved' by the quantum of compensation determined, would be absurd and anomalous.
(iii) When an insurer is aggrieved by the quantum of compensation, it is not seeking to avoid or exclude its liability, but merely wants determination of the extent of its liability. The restrictions imposed upon the insurers to defend the action by the claimant or file an appeal against the judgment and award of the Tribunal will apply, only if it wants to file an appeal to avoid liability and not when it admits its liability to pay the amount awarded, but only seeks proper determination of the quantum of compensation to be paid.
(iv) Appeal is a continuation of the original claim proceedings. Section 170 provides that if the person against whom the claim is made, fails to contest the claim, the insurer may be permitted to resist the claim on merits. If and when an award is made by the Tribunal which is excessive, arbitrary or erroneous, the owner of the vehicle has to challenge the same by filing an appeal before the High Court. If the insured (owner of the vehicle) fails to challenge an award even when it is erroneous or arbitrary or fanciful, it can be considered that the insured has failed to contest the same and consequently under section 170, the High Court or the tribunal may permit the insurer to file an appeal and contest the award on merits.
(v) The Motor Vehicles Act, 1988 (`Act' for short) creates a liability upon the insurer to satisfy the judgments and awards against the insured. The Act expressly restricts the right of the insurer to avoid the liability as insurer, only to the grounds specified in section 149(2) of the Act. Though it is impermissible to add to the grounds mentioned in the statute, the insurer has a right, if it has reserved such a right in the policy, to defend the action in the name of the insured. If it opts to step into the shoes of the insured, it can defend the action in the name of the insured and all defences open to the insured will be available to it and can be urged by it. Its position contesting a claim under section 149(2) of the Act is distinct and different, when it is contesting the claim in the name of or on behalf of the insured owner of the vehicle. In cases, where it is authorized by the policy to defend any claim in the name of the insured, and the insurer does so, it can not be restricted to the grounds mentioned in section 149(2) of the Act, as the defence is on behalf of the owner of the vehicle."
18. With respect to Point No.1, the Apex Court opined that when the insurer is impleaded as a party respondent to the claim petition, as contrasted from merely being a noticee under section 149(2) of the Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under section 149(2). But if he is a party-respondent, it can raise, not only those grounds which are available under section 149(2), but also all other grounds that are available to a person against whom a claim is made. It was, therefore, concluded that if a claimant impleads the insurer as a party-respondent, for whatever reason, then as such respondent, the insurer will be entitled to urge all contentions and grounds which may be available to it. It was held and observed that, therefore, where the insurer is a party- respondent, either on account of being impleaded as a party by the tribunal under section 170 or being impleaded as a party-respondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under section 149(2) of the Act.
19. With respect to point No.2 that is maintainability of joint appeal of the owner of the vehicle and insurer, it was held as under:
"26.
When a joint appeal is filed, to say that the insurer is not an aggrieved person and the owner of the vehicle is also not an aggrieved person, would lead to an anomalous situation and would border on an absurdity. Without entering upon the question whether an insurer is an aggrieved person (which requires to be considered separately), we make it clear that on account of the insurer being a co-appellant, will not affect the maintainability of the appeal. So long as the owner is an appellant and he is a `person aggrieved' in law, the question whether he is independently filing the appeal, or whether he is filing it at the instance of the insurer becomes irrelevant. When a counsel holds vakalatnama for an insurer and the owner of the vehicle in a joint appeal, the court cannot say his arguments and submissions are only on behalf of the insurer and not on behalf of the owner. There is also no need to examine at the threshold in a joint appeal, whether the insurer should be deleted from the array of appellants."
20. We may record that the earlier decisions of the Apex Court in case of Shankarayya and another versus United India Insurance Company Ltd. And another, (supra) and National Insurance Co. Ltd. Chandigarh versus Nicolletta Rohtagi and others (supra) were noticed by the Apex Court in case of Shila Datta and others (supra). In the present case, as already concluded by us, the appeal at the instance of owner is not maintainable. However, simply on that count, as held by the Apex Court in case of Shila Datta and others(supra), appeal of the insurer would not be rendered incompetent. It was a case where reverse situation had arisen and the observations as noted above were made by the Apex Court in the context of maintainability of the appeal by the insured which was otherwise competent would not be rendered incompetent simply because the appeal carried the Insurance Company as a co-appellant. Nevertheless, the ratio laid down therein, in our opinion, would apply on all fours. Question, therefore, is whether the Insurance Company is entitled to maintain the appeal and raise all the defences or whether its defences would be confined only to those statutorily available under section 149(2) of the Act. Such issue, in our opinion, is squarely covered by the decision of the Apex Court in case of Shila Datta and others (supra). Admittedly, in the present case, the Insurance Company was joined as one of the respondents by the claimants in their claim petitions. In that view of the matter, as held by the Apex Court in the said case, the Insurance Company was entitled to raise all the defences before the Claims Tribunal and its defences could not be confined to only those statutorily available under sec. 149(2) of the Act. The counsel for the claimant, however, tried to draw a distinction at this stage. It was submitted that even if the Insurance Company was entitled to raise all defences before the Claims Tribunal, in case of an appeal by the Insurance Company, its challenge must be confined to statutory defences.
21. To our mind, such contention cannot be accepted. It is well settled that an appeal is continuation of the original proceedings. If, as held by us, by virtue of the decision of the Apex Court in case of Shila Datta (supra), the Insurance Company was entitled to raise all defences before the Claims Tribunal,it goes as a matter of natural corollary that the Insurance Company would be entitled to file appeal under sec.173 of the Act and such appeal could contain all the defences of the Insurance Company. To suggest that the Insurance Company may be entitled to defend the claim before the Claims Tribunal on all grounds but its appeal must be confined only to the statutory defences is incorrect.
22. Section 173 of the M.V.Act provides for an appeal against the award of the Claims Tribunal at the instance of any person aggrieved by such an award. Insurance Company which is permitted to raise all defences before the Claims Tribunal either by virtue of the application made and granted by the Claims Tribunal under section 170 of the Act or by being impleaded as respondent and thereby by virtue of the decision of the Apex Court in case of Shila Datta and others (supra), would certainly be a person aggrieved by the award of the Claims Tribunal, if in view of the Insurance Company, the Claims Tribunal erred in either attaching negligence on driver of the vehicle insured by it or in awarding compensation which was excessive. Once, the Insurance Company is legally and legitimately allowed to raise all the defences before the Claims Tribunal, its challenge to the award before the High Court cannot be confined to statutory defences alone. Insurance Company in such a case must be permitted to challenge the award of the Claims Tribunal on all grounds including on the question of negligence and compensation.
23. Much was sought to be made by the counsel for the claimants on the fact that in case of Shila Datta and others (supra), Apex Court referred certain issues to the larger bench. It was therefore contended that such issues not having attained finality, this court should continue to follow the ratio laid down by the Apex Court in case of Nicolletta Rohtagi and others (supra).
We are unable to upheld such contention. Our case squarely falls within the points No.1 and 2 drawn by the Apex Court in case of Shila Datta and others (supra) with respect to which the Apex Court has already given its conclusive opinion and held the same in favour of the insurer. The questions referred to by the Apex Court in the said case for consideration of the larger bench do not fall for consideration in these appeals and therefore need not detain us in the present group of appeals. We, therefore, while upholding the contention of the counsel for the claimants that the owner of the luxury bus cannot pursue these appeals, still, hold and declare that the appeals at the instance of the Insurance Company are maintainable.
24. This brings us to the question of negligence. In this respect, we may notice briefly the evidence on record. The FIR with respect to the accident was lodged by Jyotsanaben, widow of the deceased on 19.6.1991. Such FIR was produced at Exh. 24. Such complaint was lodged at 2.00 a.m. on 19.6.1991 i.e. after two and half hours of the accident. In that FIR, she stated that at around 11.30 at night on 18.6.1991, when her husband was driving the Maruti car along with the passengers seated in the car, near Gotri village, a luxury bus came from opposite direction in full speed and dashed against their Car.
25. Panchanama of the scene of accident was produced at Exh. 25. In the panchanama, it was recorded that the luxury bus was lying on the road facing western direction. Front side of the bus was damaged. Front glass was broken and right side head light had broken. Pieces of glasses were lying on the road. Northern edge of the road was at the distance of 8 ft. from the front rear wheel of the luxury bus. At the distance of about 25 ft. from the rear wheel of the luxury bus, a Maruti car was lying also facing west. Right hand side of the car was badly damaged. Both right hand doors were broken. Left rear wheel of the car had got separated. In the southern direction at a distance of 5 ft. from where maruti car was lying, brake marks of luxury bus were visible. Such marks continued till the place where the bus had stopped. Width of the road was 20 ft.
26. Claimant Jyotsanaben widow of the deceased was examined at Exh. 59. In her deposition before the Claims Tribunal, she stated that at around 11.30 at night, when they were passing from village Gotri, a luxury bus came from opposite direction. It was driven at an excessive speed and recklessly on the wrong side upon which her husband had stopped the maruti car. The bus had dashed against the car and entire right hand side of the car was smashed. Her husband who was driving the car and her daughter who was sitting behind him received serious injuries. Both of them died during the treatment. She stated that the accident was caused because of the negligent driving by the driver of the bus.
In the cross examination, opponents have not been able to extract any contradictions. She, of course, stated that there were street lights where the incident took place and that the road was straight and it was, therefore, possible to see the vehicles coming from the other side. She, in fact, upon being asked, clarified that her daughter was sitting behind the driver's seat. She was sitting in the center. Because of her position, she could clearly see the vehicles coming from the other side, When her husband slowed down the vehicle and stopped on the left hand side. She saw a bus coming at full speed from the other side. She denied that at the time of accident, her husband was driving the car at a speed of 60 to 70 km.
27. From such evidence on record, we find that the widow of the deceased who had reported the accident to the police, in the FIR Exh.24 had briefly stated the manner in which the accident took place and further stated that the bus was being driven rashly. In the deposition before the Claims Tribunal, she gave full account of the manner in which the accident took place. She stated that the bus was coming from the opposite direction and was being driven rashly and at high speed. The bus was on wrong side of the road upon which her husband slowed down and almost stopped his car despite which the luxury bus dashed against the car. In addition to such eye witness account, we also have the panchanama of the scene of accident.
28. We have no reason to disregard such account of the eye witness. As noted in the FIR itself, widow had, shortly after the accident, stated that the luxury bus was being driven rashly and at high speed. Contrary to what was contended by the counsel for the Insurance Company, she was not expected to give all minute details of accident in the FIR. Even otherwise, when barely two and half hours after such accident in which the lady lost her husband and a daughter, she was not expected to give all minute details to the police. In her deposition before the Tribunal, she gave details of accident. She pointed out that her husband had slowed down the vehicle and almost stopped on the left hand side of the road seeing the luxury bus coming from the opposite side at high speed and on the wrong side, despite which the bus dashed against the car. The panchanama also reveals quite a few details which are important for our purpose. Road had a width of 20 ft. Luxury bus was lying with right hand side of the bus at a distance of 8 ft. from the northern edge of the road. Even after the accident, luxury bus was occupying at least 2 ft. on the other half of the road. Brake marks started from where the maruti car was found, continued for a distance of 25 ft. clearly indicating that the bus was being driven at a very high speed. Impact on the maruti car itself suggests that the luxury bus must have been driven at a considerable speed. Despite the car being on its correct side of the road, the bus dashed with such force that not only the entire right side of the car was completely smashed, the car spun 180 degrees and its left rear wheel got separated from the car.
29. Under the circumstances, we have no hesitation in confirming the view of the Claims Tribunal that it was the driver of the luxury bus alone who was responsible for causing the accident. Significantly, opponents of the claim petitions did not examine the driver of the luxury bus to rebut the evidence of the claimants on the question of negligence.
30. The third question pertains to the computation of compensation. We would take up the claim petition pertaining to the death of Rajubhai, for which claim petition no. 1380 of 1991 was filed.
31. Jyotsanaben in her deposition pointed out that the deceased was aged 43 years. She produced his birth certificate at Exh. 27 which showed his birth of 8th December, 1947. She stated that her husband was engaged in the fabrication work. He was manufacturing doors, windows etc. of iron and aluminium. He was doing such business since 1972. The workshop was situated at Bahucharaji Road. He was doing such business in the name of Mona Fabricators which was a proprietary concern. From such business, he was earning net profit of Rs.55,000.00 to Rs.60,000.00 per annum. He was filing income tax returns and also paying income tax. She produced such assessment orders for the years 1986-87 to 1991-92 at Exh. 33 to 38. She further stated that the deceased was also doing the business in the name of M/s. Alumona Industries which was a partnership firm. Besides, her husband, she herself and her brother in law were partners from which her husband was earning sizable income. Additionally, her husband was a partner in yet another partnership firm by the name Metal Corporation which was also engaged in the same work of fabrication. Her husband had a share of 40 per cent in such partnership business from which he had earned Rs.50,000.00 in the year prior to the accident. He had filed return in the name of HUF for such income. She produced such assessment orders at Exh. 39 to 43.
32. She further stated that after the death of her husband, his proprietary concern had to be closed down and in M/s. Alumona Industries where she was a sleeping partner, she stopped receiving any income. In Metal Corporation in which her husband had 40 per cent share, such share was distributed by the partners between themselves and thus income from such partnership had also stopped.
33. In cross examination, she admitted that in M/s. Alumona Industries, her husband was not a partners but she was a partner for which Income Tax Return was filed in her name for such income. H.U.F. comprised of her husband, herself and two daughters.
33. In addition to the above oral evidence, we also have assessment orders pertaining to all the three firms in which the deceased had interest. Such orders pertain to 4 to 5 assessment years immediately preceding the date of accident.
34. On the basis of such evidence, the Claims Tribunal believed the income of the deceased at Rs.1,50,000.00 at the time of accident. It took into account the income flowing from all the three firms and thereafter, granting reasonable increase in future believed that the deceased would have earned upto Rs.2,00,000.00 per year from such business. Out of such sum of Rs.2,00,000.00, the Claims Tribunal deducted Rs.60,000.00 for personal expenditure of the deceased. The Claims Tribunal calculated sum of Rs.1,40,000.00 towards the dependency benefits of the claimants. Adopting the multiplier of 15, the Claims Tribunal granted dependency benefit of Rs.21,00,000.00 to the claimants (Rs.1,40,000.00 x15). The Claims Tribunal thereafter added a sum of Rs.50,000.00 towards the loss of expectation of life, consortium etc. and awarded total compensation of Rs.21,50,000.00.
35. Firstly, we are of the opinion that the Claims Tribunal has committed error in taking into account the income generated from the partnership firm in the name of Alumona Industries. Deceased was not a partner of the said firm. It was his wife along with other relatives which constituted the partnership firm. Partnership deed was produced at Exh. 51 which nowhere recorded that the deceased himself would be actually doing the business and that his wife would be a sleeping or a dummy partner. The deponent Jyotsanaben stated before the Claims Tribunal that the other partner, her father in law, was also in the same business since long. Oral testimony before the Claims Tribunal that she was a sleeping partner and entire work was looked after by her husband cannot be accepted. There is yet another significant aspect why we cannot include such income for the purpose of awarding compensation to the claimants. At Exh. 52, the claimants had produced dissolution deed of such partnership Alumona Industries. Such deed though was dated 18.9.1991 that is after the date of accident, in clear terms, it is recorded that the party of the second part that is Smt. Jyotsanaben R. Amin had voluntarily decided to leave the partnership on 31.3.1991. It was, therefore, necessary to draw the deed to this effect. It, thus, clearly emerges that not the deceased but Jyotsanaben was a partner in M/s. Alumona Industries. In any case, Jyotsanaben also had retired from the partnership long before the accident. Therefore, on the date of accident, no income from such partnership can be included in the share of the deceased.
36. With respect to other two firms, it is an undisputed position that M/s.Mona Fabricators was a proprietary concern, deceased being the sole proprietor. The assessment orders on the income tax return for the deceased filed in his name showed the income from such business. For the AY year 1989-90, his income was assessed at Rs.43710.00. For the AY 1990-91, income come to Rs.40390.00. For the AY 1991-92, the income was assessed at Rs.56,370.00. It can thus be seen that the deceased was earning sizable income from such proprietary concern for which not only in the Assessment Year preceding the date of accident long number of years before that, he was regularly paying the income tax and filing the returns with the income tax department.
37. In case of M/s. Metal Corporation, Rajendrabhai Amin HUF had 40 per cent share. Partnership deed was produced on record to establish this. This had remained uncontroverted. For such income received by the HUF, regular Income Tax Returns were filed and the assessment orders were produced on record. For such HUF, following situation emerges :
Income Tax Returns Assessment Year Income Rs.
1.1985-86 17,050.00 2.1986-87 13,960.00 3.1987-88 Not on record 4.1988-89 41925.00 5.1989-90 52,720.00 6.1990-91 51,178.00 7.1991-92 54,738.00
38. It can thus be seen that in the year immediately preceding the date of accident, the deceased had received total income of Rs.1,11,108.00(Rs.56370.00 from Mona Fabricators and Rs.54,738.00 from Metal Corporation). Said income were closely comparable to the income earned by such respective concerns in the past few years. Thus, on the date of accident, the deceased had earned at least a sum of Rs.1,10,000.00.
39. Before giving the benefit of future rise in income, two issues need to be dealt with. First is the question whether the income earned by the HUF can be given benefit of to the deceased. Individual and HUF are two separate independent entities. Ordinarily, therefore, income of HUF cannot be considered entirely of that of an individual. In the present case, however, there are peculiar circumstances. Firstly, the HUF consisted of the deceased, his wife and two minor children. Secondly, he was the only one who was well verse in the business of fabrication. Thirdly, no other member of HUF could have been active in such business. Fourthly, widow of the deceased clearly deposed before the Claims Tribunal that after the death of her husband, such HUF was no longer kept in the fold of the partnership and income flowing from such partnership business in favour of HUF had stopped. In that view of the matter, we find that the entire generation of income from Metal Corporation which came in the hands of Rajendrabhai Amin HUF was due to active efforts and contribution of the deceased. It was proved that upon his death, such income stopped. We therefore have no hesitation in accepting such income for the purpose of awarding compensation to the claimants.
40. Second issue is with respect to the assessment orders on the returns for AY 1991-92, both for M/s.Mona Fabricators and Metal Corporation which were admittedly filed after the date of accident. It is undoubtedly true that the Income Tax Returns which are filed after date of accident must be viewed with caution and circumspection. Some times, the tendency to inflate the income of the deceased for getting higher compensation cannot be ruled out. In ordinary cases, therefore, it would be unsafe to base reliance solely on such evidence. In the present case, however, there are reasons why we have no hesitation in accepting such income as genuine.
Such reasons are as follows:
41. The accident took place on 18.6.1991. Last date for filing of tax return in case of individual and HUF was 31st August, 1991. In ordinary course also, therefore, it was open for the assessee to file returns after the date of accident. It is not the case where the returns were filed long after the last date of filing the returns had lapsed or by filing revised returns, income previously disclosed was inflated. This was also not the first year in which assessee had filed income tax returns. He had been filing regular returns several years before the accident.
42. In both the cases, the assessee had paid advance tax on due dates. In case of Mona Fabricators, the deceased had paid advance tax of Rs.4500.00 on 11.9.90 and another amount of Rs.4500.00 on 11.12.90. Thus long before the accident, he had paid total advance tax of Rs.9000.00 on the basis of his projected income for the entire year. Upon final assessment, in fact, part of such tax was refunded by the income tax department. This showed that in the final return that was filed of course after the death of the deceased, income was less than what the deceased had projected while he was alive. Similarly in case of Rajendra Amin HUF, the assessee had paid advance tax of Rs.4500.00 on 11.9.1990 and another installment of advance tax of Rs.4500.00 on 11.12.1990. Upon final assessment, the assessee had to pay deficit tax of Rs.1584. Thus, the advance tax already paid when the deceased was alive matched very closely with the finally disclosed income in the return that came to be filed.
43. From all accounts income disclosed in the return which came to be filed after the death closely matched the income earned in preceding years and also closely corresponded to the advance tax paid well before the date of accident. We have, therefore, no hesitation in accepting such income. Out of the gross income of Rs.1,10,000.00, Rs.10,000.00 be deducted towards income tax.
44. Thus, taking yearly income of the deceased at Rs.1,00,000.00 on the date of accident and also looking to his age and potential in the business and also decreasing in purchasing power of money over the years, fair increase of 30 per cent in the income cannot be ruled out. Income of the deceased for the purpose of compensation, therefore, should be taken at Rs.1,30,000.00(Rs.1,00,000.00 + 30 per cent increase in income i.e. Rs.30,000.00). Looking to larger number of dependents, we apply a deduction of 1/4th for the personal expenditure of the deceased which comes to Rs.32,500.00 and round of the dependency benefits for the claimants at Rs.1,00,000 per year. As per the decision of the Apex Court in case of Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, we adopt the multiplier of 14 in this case looking to the established age of the deceased at the time of accident. We would also grant conventional amount of Rs.25000.00 towards the loss of expectation of life and Rs.20,000.00 towards the consortium as provided by the decision of the Division Bench of this Court in case of New India Assurance Co. Ltd. Versus Takhuben Raghubhai & Ors., 2008 ACJ 989.
We would also allow Rs.5000.00 towards the funeral expenses. In the result, claimants will receive the compensation in the following manner :
Rs.14,00,000.00 dependency benefits (1,00,000.00 x 14) Rs.00,25,000.00 Loss of expectation of life.
Rs.00,15,000.00 Consortium.
Rs.00,05,000.00 Funeral expenses.
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Rs.14,45,000.00 Rs.fourteen lakh forty five ================= thousand only.
We may recall that the Claims Tribunal had awarded compensation of Rs.21,50,000.00. Compensation awarded by the Claims Tribunal is, thus, reduced. Award of the Tribunal is modified.
With respect to the other two claim petitions, since we held that the driver of the luxury bus was solely negligent in causing the accident and we find that when the computation of compensation is quite reasonable and total compensation awarded is quite small, without any further discussion, we upheld those awards.
In result, First Appeal No. 501 of 1998 is partly allowed. Impugned award of the Claims Tribunal in Claim Petition No.1380 of 1991 is modified accordingly. First Appeal No. 502 and 503 of 1991 are dismissed. R&P to be transmitted to the Claims Tribunal forthwith.
(Akil Kureshi,J.) (C.L.Soni,J.) an vyas Top