IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 986 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE Z.K.SAIYED =========================================================
========================================================= JYOTSANABEN WD/O MANUBHAI TRIBHOVANDAS PATEL & 1 -
Appellant(s) Versus PAPPURAM @ BHUPSING BESIRAM YADAV & 2 - Defendant(s) ========================================================= Appearance :
MR MTM HAKIM for Appellant(s) : 1 - 2. None for Defendant(s) : 1 - 2.
MR ANAL S SHAH for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 16/10/2012 C.A.V. JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. By way of this appeal, the appellants have challenged award dated 1.9.2008 passed by Motor Accident Claims Tribunal (Aux.) Fast Track Court No.1 at Vadodara in Motor Accident Claims Petition No.95 of 2001. By consent, the appeal was heard for final disposal at the admission stage, after affording to the parties time and opportunity to collect and rely upon the relevant evidence on record.
2. Learned counsel Mr.M.T.M.Hakim, appearing for the appellants, submitted that learned Judge has erred in awarding Rs.3,80,000/ only against the claim of Rs.5,00,000/. He has submitted that at the time of accident, the deceased was a practicing doctor and learned Judge has committed an error while considering income of the deceased at Rs.4060/ p.m. Mr.Hakim also submitted that learned Judge has erred in not considering agricultural income of the deceased, though 7 x 12 extract of land revenue records were produced on record along with income tax returns to show that deceased had earned Rs.2,40,000/ in the year 19981999 and Rs.2,28,800/ in 20002001. It is also submitted that since the deceased was aged 54 years at the time of the accident, learned
Judge ought to have applied multiplier of 11 in place of multiplier of 5 while computing compensation under the head of future loss of income. In support of his submission, learned counsel Mr.Hakim has relied upon judgment of the Apex Court in New India Assurance Co. Ltd., Vs. Gopali and ors., [2012 ACJ 2131] wherein it is held that, “it is not in dispute that at the time of accident, the age of the deceased was 36 years. Therefore, the Tribunal and the High Court were not right in applying the multiplier of 10. They should have adopted the multiplier of 15 for the purpose of determining the amount of compensation.” Learned counsel further submitted that learned Judge has also erred in awarding Rs.25000/ towards loss of consortium and Rs.20,000/ towards loss of estate.
3. Learned counsel, Mr.Anal S. Shah, appearing for the Insurance Company submitted that from the evidence of the applicants, it appears that so far as the issue regarding contributory negligence is concerned, it is not considered by the Tribunal. The Tribunal has not considered contents of panchnama of the scene of offence and deposition of the witnesses in its true perspective. He submitted that learned Judge has wrongly considered income of the deceased. Lastly, he submitted that learned Judge has wrongly awarded the said claim amount to the applicants. However, having regard to the facts emerging from the evidence on record, the contention in respect of negligence and liability of the respondents could not be substantiated.
4. In view of the facts narrated hereinabove, it is clear that the deceased, aged 54, was an M.B.B.S. Doctor at the time of accident. The yearly income of the deceased as per the last return for the year 20002001 was Rs.48,700/. Considering said income and adopting multiplier of 5, the tribunal has awarded in all Rs.3,80,000/ towards compensation. However, the Apex Court has in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] wherein in paragraph 42 held that, “42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (Prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M17 for 26 to 30 years, M16 for 31 to 35 years, M15 for 36 to 40 years, M14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M11 for 51 to 55 years, M9 for 56 to 60 years, M7 for 61 to 65 years and M5 for 66 to 70 years.”
5. In view of the aforesaid observations, it is clear that the tribunal has committed an error while applying multiplier of 5 instead of multiplier of 11. Therefore, even adopting the nett monthly dependency benefit to the claimant as per the impugned award at Rs.5,500/ (Rs.5,500 X 12 = Rs.66,000/ per year) and applying the multiplier of 11, the claimants would be entitled to compensation of Rs.7,26,000/ towards loss of dependency. Adding to that the undisputed amounts under other heads of Rs.50,000/ the total amount of compensation shall be Rs.7,76,000/ to be paid by the respondent. Following the recent decision of the Apex Court in New India Assurance Co. v. Gopali and others [2012 ACJ 2131], the total amount of compensation shall be paid with cost throughout and interest at the rate of 10% p.a. from the date of original application till realization. The appeal is allowed accordingly with cost, with the direction that the respondent shall deposit with the Motor Accidents Claims Tribunal, Vadodara the total amount due under this order, after deducting the amount already paid or deposited, if any, within one month.
(D.H.WAGHELA, J.) (Z.K.SAIYED, J.) kks