(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Appellants-original claimants have challenged the judgment and award dated 31.12.01 passed by the Motor Accident Claims Tribunal, Ahmedabad in MACP No.186 of 2000. The appeal arises in the following factual background.
2. On 2.4.2000 at about 12.30 p.m., one Alkeshbhai Ramanbhai Patel, aged about 26 years was riding his Hero Honda motorcycle and going from Ghatlodia Patia to Chanakyapuri area of city of Ahmedabad. The road was 18 feet wide and had a bend. When the motorcyclist was negotiating the turn, an AMTS bus came from the opposite side and collided with the motorcycle resulting into his instantaneous death.
3. For such accidental death, the dependents, viz. widow of the deceased aged 23 years at the time of accident, a minor child aged 6 months and parents aged 50 and 47 years respectively filed the above mentioned claim petition claiming compensation of Rs.25 lacs from the Ahmedabad Municipal Corporation.
4. The Claims Tribunal in the impugned award came to the conclusion that the accident occurred due to the negligence of the bus driver as well as motor- cyclist in equal measure. With respect to compensation, the Tribunal noted that the deceased had diploma in computer engineering, was employed in a private company. His income was believed to be Rs.4700 per month. The Tribunal also believed his income from sundry work to be Rs.1300 per month. The Tribunal thus believed that the deceased was earning Rs.6000 per month. The Tribunal granted 50% rise in future income. The Tribunal thereafter took the average of the current and future incomes and arrived at a figure of Rs.7500/- per month towards uniform income of the deceased for the purpose of calculating dependency benefits of the claimants. A third thereof was set apart for the maintenance of the deceased himself leaving two-third for the family by way of dependency benefits. The Tribunal thus adopted a sum of Rs.5,000 per month, that is, Rs.60,000 per annum towards such benefits. The Tribunal adopted a multiplier of 15 and worked out the loss of dependency benefits for the claimants at Rs.9 lacs (Rs.60,000 x 15). The Tribunal further added Rs.10,000/ -towards loss of consortium and computed total sum of Rs.9,10,000/- as loss to the claimants. However, since the Tribunal believed that the deceased himself was negligent to the extent of 50%, in actual terms, the Tribunal awarded a sum of Rs.4,55,000/- to the claimants with interest at the rate of 9% per annum from the date of claim petition till realisation.
5. Counsel for the appellant Shri Shelat submitted that the Tribunal committed a grave error in attributing 50% negligence to the motorcyclist. Taking us through the evidence on record, he submitted that the driver of the AMTS bus was solely negligent for causing the accident. Counsel further submitted that the Tribunal while believing the income of the deceased at Rs.4700/- per month committed an error. He submitted that the Accountant of the private company, in which the deceased was employed, was examined who had also produced documents in support of the salary received by the deceased which showed that in addition to Rs.4700/- by way of monthly salary, the deceased was also receiving incentive bonus and other prequisits. Counsel submitted that the Tribunal also erred in considering the future rise in income and thereby awarded lesser compensation. Counsel submitted that the Tribunal also committed an error in applying the multiplier of 15 which is contrary to the decision of the Apex Court in the case of Sarla Verma v. DTC, (2009) 6 SCC 121. Counsel lastly submitted that the Tribunal granted no amount for loss of estate and for funeral expenses. He relied on a decision of Division Bench of this Court in the case of New India Assurance Co. Ltd. v. Takhuben Raghubhai & ors., 2008 ACJ 989 to contend that for the loss of estate Rs.25,000/- and loss of consortium Rs.15,000/- should be awarded.
6. On the other hand, learned counsel Shri Mirza appearing for the respondents opposed the appeal contending that looking to the evidence on record, the Tribunal correctly held that both sides were equally negligent in causing the accident. He pointed out that driver of AMTS bus was examined before the Claims Tribunal and his evidence was properly appreciated by the Tribunal.
6.1 Counsel submitted that the income believed by the Tribunal permits no further revision. He submitted that no salary slips or other documents were produced to establish the salary of the deceased at the time of his death.
7. Having thus heard the learned counsel for the parties and having considered the evidence on record, principally two questions arise for our consideration. First question is, whether the Tribunal was correct in holding that drivers of both the vehicles were equally negligent in causing the accident. Second question is with respect to the computation of compensation to be paid to the claimants.
8. Adverting to the first question first, we notice that before the Claims Tribunal, the claimants had examined one Dharmeshbhai Govindbhai Panchal as claimant's witness No.5 at Ex.58. He claimed to be a by-stander when the accident took place. In his deposition, he stated that on the date of the incident, he was standing near Ghatlodia Patia, at which time a motorcyclist crossed him and traveled for a distance of 250 to 300 meters and reached at a spot where the road was turning. The motorcyclist was riding the same at a slow speed. When the motorcyclist reached the turn, a bus came from the other side and dashed against the motorcyclist after which the bus went on the left hand side of the road and stopped. He stated that the bus was being driven on the wrong side. In the cross-examination, however, he admitted that he never informed anyone earlier about having witnessed the accident. His statement was not recorded by the police. Only about 20 or 25 days before his deposition, father of the deceased had come to Gita Factory where he used to frequent and inquired about any possible eye witness, at which time, he volunteered to give deposition. He further admitted that the accident had taken place after the turn on the road.
9. This witness was not believed by the Claims Tribunal and, in our opinion, rightly so. Significantly, he never disclosed about having witnessed the accident to anyone. Nearly two years later, he surfaced before the Tribunal and claimed to be an eye witness. He explained that father of the deceased was looking for eye witnesses, at which point of time, he volunteered. His presence thus seems to be extremely doubtful. Further, he admitted that the accident took place at a distance of about 250 to 300 meters from where he was standing and the impact took place after the turn. From such a far distance and after the turn in the road, it is impossible for anyone to see exactly what must have happened. In our opinion, therefore, the Tribunal correctly discarded his version from consideration.
10. Despite this, we find that there is sufficient evidence on record to ascertain the negligence of the drivers. The driver of the bus, Mahendrabhai was examined by the opponents at Ex.60. In his deposition, he stated that he was driving the bus at about 12.30 in the afternoon and was going towards Vaishnodevi Temple. After crossing the bus stop of R.C.Technical, he reached near the spot where the road turns. At the turn of the road, from opposite side, a motorcyclist came at full speed. The motorcyclist was holding the steering with one hand, and with his right hand he was setting his hair. On the bend of the road, he took sharp turn and came right in front of the bus, upon which he took the bus on the left side and resultantly, his bus went off the road. The motorcyclist, however, panicked and lost balance of the vehicle and dashed against right hand side of the bus. After the accident, many people gathered there. He got scared and ran away and later on reported to the Highway police. He stated that after the accident, he had not moved the bus and the bus was standing at the same spot where the accident had taken place. In the cross-examination, he stated that he has been operating on the route since two to three months. He was making two trips in a day. He admitted that the accident took place on a turn and on either side of the road, where the accident took place, there were electric poles. At the turn, where the accident took place, there was one electric pole. He stated that because of babool shrubs one could not see the vehicles coming from other side. He denied that he was driving on wrong side of the road.
11. In addition to such deposition, we also have the panchnama of the scene of the accident on record. In the panchnama, Ex.22, it is recorded that the accident took place at a distance of about 300 meters from Ghatlodia Patia on a turn. The spot where the accident took place is situated between two electric poles RM-5 and RM-6. The road has a width of 18 ft. The AMTS bus was lying at a distance of 5 ft. towards east from electric pole RM-6. At a distance of 2 ft. towards west from electric pole RM-5, Hero Honda motorcycle was lying. Motorcycle was damaged. At a distance of 5 ft. towards south, from electric pole RM-5, the road surface had got scraped for about 5 ft. due to the friction of motorcycle, at which spot, blood stains were also found. There were no brake marks on the road.
12. If we peruse such evidence minutely, it emerges that the bus driver's version that the motorcyclist was coming at a high speed holding the steering of the motorcycle with one hand is completely false. He stated that the motorcyclist was setting his hair with his right hand. It is common knowledge that all two wheelers commonly used in India have accelerator attached to right hand side of the steering. If the motorcyclist had freed his right hand, as was suggested by the driver of the bus, because of the spring attached to the accelerator wire, automatically, the acceleration would stop and the vehicle would slow down. Thus, the version of the driver of the AMTS bus that the motorcyclist was riding the vehicle at a fast speed with one hand was only an afterthought and stated before the Tribunal to avoid his own liability of negligence.
12.1 In his deposition, the driver also stated that he had taken the bus on the left hand side due to which the bus went off the road. This is another incorrect statement made by the driver before the Tribunal. The panchnama records that the bus was lying on the road and was stationed at a distance of about 5 ft. from the electric pole.
12.2 The driver admitted that the accident took place on a turn and that due to babool trees, it was not possible to see any vehicle coming from other side. Looking at this evidence in light of the contents of the panchnama, we further find that the road had width of 18 ft. The accident took place on a turn. The point of impact was at a distance of about 5 ft. from the edge of the road on the right hand side compared to the direction of the AMTS bus. The panchnama recorded that the motorcycle was lying only two feet away from the electric pole which was on that side of the road and that the road surface had got damaged because of dragging of the motorcycle for about 5 feet, which place was situated at about 5 ft. away from the electric pole. This was the place where blood stains were found. It thus becomes abundantly clear that the motorcycle was about 5 feet away from the edge of the correct side of the road at which time, the bus dashed against his vehicle. The scraping of the road and blood stains found on the spot clearly establish the exact point of impact on the road. Thus the motorcyclist was on his correct side of the road when the accident took place. In fact, the bus went on the wrong side and collided. It is easily conceivable that even after the impact, the AMTS bus moved for a distance and thereafter stopped. The exact position of the bus after the accident, therefore, would not shake such convincing evidence of the point of impact being only 5 feet away from the wrong side of the road in relation to the bus.
13. These facts need to be seen in light of other salient features. The road was barely 18 feet wide and on a turn the accident took place. The bus driver was operating on the route since two to three months. He was, therefore, aware about the topography. He admitted that it was not possible to see the vehicle coming from other side due to the turn and trees around. He was driving a very heavy vehicle with limited maneuverability. On such a narrow road, therefore, when he was taking a turn, it was his duty to take extreme care to ensure that he would not dash against any oncoming vehicle. In his deposition, he did not say that he either blew horn before entering the turn or slowed down his vehicle. In fact, the panchnama records that there were no brake marks on the road. Thus even at the time of the accident, he had not tried to slow down his vehicle to avoid accident or its impact. His version that he took his vehicle to the left to such an extent that the bus went off the road and despite which the motorcycle collied is totally falsified from the contents of the panchnama. More significantly we find that the bus had gone on the wrong side and dashed against the motorcycle on a narrow road on a turn. Looked from any angle, we cannot attribute any negligence on the rider of the motorcycle in causing the accident. He was driving his vehicle on the correct side. The AMTS bus driver went on the wrong side and hit the motorcyclist. We, therefore, hold that the entire negligence for causing the accident must rest on the shoulders of the bus driver.
14. This brings us to the question of computation of compensation. In this respect, the claimants have examined the widow of deceased Kajalben Alkeshbhai, at Ex.33. She stated that the deceased was aged about 26 years. He was a computer engineer. He had done diploma. He was employed as Head of the Department in one private company, viz. DotCAD Pvt. Ltd. and earning Rs.7500 per month. Besides that, he was also working for one Ascent India Pvt. Ltd. and United India Power Corporation for which companies, he was doing the work of computer repairing on call. From such engagements, he was earning Rs.2500 to Rs.3000 per month.
14.1 The claimants examined one Tushar Tripathi, at Ex.34. He was the Accountant in DotCAD Pvt. Ltd. He stated that the company was located in White House, Panchwati, Ahmedabad. The deceased was employed as Service Engineer in the said Company since April 1995. Initially, his pay was Rs.1440 per month. In the month of April 2000, he was drawing Rs.4750/-by way of salary. In addition to such basic pay, he was also drawing incentive bonus, provident fund contribution by the employer and conveyance allowance. He produced at Ex.35, the salary certificate issued by the Company showing the details of the salary of the deceased. The claimants also relied on the general ledger of the Company produced by the said witness at Ex.37 to 41 which showed the monthly salary credited in the account of the deceased from time to time.
14.2 The claimants also examined one Kirtibhai Parsottambhai at Ex.56 who was running the business of computer hardware in the name of Ascent India Pvt. Ltd. He stated that the deceased was doing part- time work of computer repair for him. He also produced certain vouchers for having made payments to the deceased for such work. The claimants also examined one Dharmesh Ramjibhai who was doing the business of computer hardware in the name of United India Power Corporation. He also similarly stated that the deceased used to work for him part-time.
15. From the record it clearly emerges that the deceased was a qualified person. He was well versed with computer engineering. He was employed by a private company engaged in such field. He had already five years of experience at the young age of 26 years when he died in the accident. By that time, his basic monthly salary had increased from Rs.1440 to Rs.4750 per month. The salary certificate Ex.35 showed that for the year 1999-2000, he was paid gross salary of Rs.57,000/-, bonus of Rs.3,325, incentive of Rs.13,258/- and conveyance of Rs.10,800/-. Evidence on the income of the deceased was totally reliable. Accountant of the employer company was examined. In addition to his oral evidence, he also produced documentary evidence of salary of the deceased. In our opinion, the Tribunal erred in believing the income of the deceased from such employment at Rs.4700 per month. Even if we discard the conveyance allowance of Rs.10,800/- which is meant to cover the expected travel expenditure which the deceased may have to incur and also deduct the professional tax, his early emoluments for the year 1999-2000 from his employer would come to approximately Rs.73,345/-. Considering the total emoluments paid by the employer, we would approximate the monthly salary of the deceased at Rs.6,000/- on this basis. Additionally, as believed by the Tribunal, the deceased was also engaged in other freelance work. It is not difficult to perceive that a young computer engineer with reasonable expertise would get sufficient other requests for repair and maintenance work. Accepting an additional sum of Rs.1,000/- from such other source of income would not be unreasonable. In fact, the claimants had examined two witnesses who were engaged in similar business and who had in the past on regular basis called the deceased for such work and also made payments in turn.
16. In the result, total monthly income of the deceased at the time of accident worked out to Rs.7000 per month. The Tribunal committed an error by accepting 50% rise in future income and taking average of the current and future incomes. This is contrary to the decision of the Apex Court in the case of Sarla Verma (supra) as well as various decisions of this Court. Judicial trend suggests that in case of any young person with good potential for rise in income, the future income should be believed as double the current income and thereafter the average of the two can be adopted as a uniform income for calculating dependency benefits after deducting possible personal expenditure of the deceased himself.
17. In the present case, having accepted the income of the deceased at the time of death at Rs.7000/- and applying equal amount for increase in future, and taking the average of the two, his uniform income would be assessed at Rs.10,500/- (50% increase over the current income). A third thereof or Rs.3,500/- should be set apart for the expenses of the deceased himself leaving a net sum of Rs.7000 towards the dependency benefits of the family. Adopting multiplier of 17 as suggested in the case of Sarla Verma (supra), the dependency benefit would be worked out to Rs.14,28,000/- (Rs.7000 x 12 x 17). As held by a Division Bench of this Court in the case of New India Assurance Co. Ltd. v. Takhuben Raghubhai (supra), after a detailed discussion, we hold that the claimants should receive Rs.25,000 towards loss of estate, Rs.15,000 towards loss of consortium and another Rs.5,000/- towards funeral expenses.
18. In the result, the claimants would be entitled to receive total sum of Rs.14,73,000/- by way of compensation from the respondents. The claimants should therefore receive additional compensation of Rs.10,18,000/-. However, the appeal is limited to additional compensation of Rs.10 lacs and that is how the court fees are also paid. No prayer is made before us for enhancing such claim. We, therefore, limit the additional compensation payable to the claimants at Rs.10 lacs. Such additional compensation shall carry interest at the rate of 9 per cent from the date of claim petition till actual realization.
19. The amount of compensation shall be deposited by the respondents before the Claims Tribunal. Upon such deposit, the Claims Tribunal shall proceed to invest 70% thereof in any nationalized bank in fixed deposit for a period of five years. The fixed deposit receipt shall be retained by the Nazir in his custody. No loan shall be permitted on such fixed deposit. Remaining 30% shall be released in favour of the claimants in proportion of 50% in favour of the widow, appellant No.1, 25% in favour of minor son, appellant No.2 to be received by the widow on his behalf and rest 25% to be shared equally in favour of appellant Nos.3 and 4, i.e. parents of the deceased. The claimants shall receive periodical interest on the fixed deposit in the same proportion.
20. The appeal is allowed and disposed of accordingly. The impugned judgment and award of the Tribunal stands modified to the above extent. R & P to be transmitted to the Trial Court forthwith.
(Akil Kureshi J.) (C.L.Soni, J.) (vjn)