(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These appeals arise out of common judgment and award rendered by the Motor Accident Claims Tribunal Nadiad in M.A.C.P. No. 928 and 929 of 1987. At the outset, we may record relevant facts in brief :
2. On 26.4.1987, Sudhir Dharam Radhi was travelling in Maruti Car with his wife Hemakshi Sudhir Rathi and minor daughter Shagun aged about 3 years. They were travelling on National Highway No.8. Car was driven by driver. Opponent No.1 herein was owner of the car. Opponent No.2 herein New India Assurance Co. Ltd. was its insurer. At about 3.00 a.m., when the car was passing near Matar in Kheda District, , the driver of the vehicle lost control. As a result, the car dashed against the pillar of a bridge. Vehicle was completely smashed. Driver died on the spot. Sudhir Rathi and Hemakshi Sudhir Rathi both also died in the accident. Miraculously and mercifully, Minor Shagun survived and got away with minor injuries.
3. Heirs and legal representatives of deceased Hemakshi filed MACP No. 928 of 1987 seeking compensation of Rs.15,00,000.00from the owner and insurer of the vehicle involved in the accident. The claimants were aged father in law and mother in law of the deceased, minor daughter of the deceased, brother in law of the deceased and Chandravalidevi aged about 80 years, mother of the father in law of the deceased.
4. For the death Sudhir Rathi, same claimants also filed MACP No. 929 of 1987 and claimed compensation of Rs.15,00,000.00 from the owner and insurer of the vehicle. We may note that Chandravaliben has since died and she is deleted from the cause list.
5. The case of the claimants before the claims tribunal was that the deceased Hemakshiben was aged about 27 years on the date of accident. She was Graduate in Arts and she was partner in a partnership firm called Hind Batteries. She had 55 per cent share of profit from such partnership business. She was an active partner. The claimants contended that she was earning regular income from such business.
6. According to claimants, deceased Sudhir Rathi was aged about 28 years. He was drawing income from salary of Rs.3,000.00 per month from the employer Hind Motors at Jodhpur and was also earning commission income of Rs.20,000.00 per year from Bafna Automobiles.
7. According to the claimants, accident occurred due to rash and negligent driving of driver of the vehicle and therefore owner and insurer of the vehicle were liable to compensate the claimants for death of said two persons.
8. Before the Claims Tribunal, the claimants produced evidence in the form of oral deposition as well as documents to establish factum of accident, death of the deceased during such accident, insurance policy etc.
9. With respect to the income of the deceased Hemakshiben, the claimants produced income tax return as well as partnership deed. With respect to income of deceased Sudhir Rathi also, his income tax returns were produced before the Claims Tribunal.
10. The Claims Tribunal, came to the conclusion that the accident occurred due to sole negligence of the driver. With respect to the age of the deceased persons, there was no serious dispute. With respect to MACP No. 928 of 1987, relating to death of deceased Hemakshiben, the Claims Tribunal believed her income at the time of accident at Rs.46,000.00 per annum. Giving benefit for future rise in income, the Claims Tribunal believed her income to be Rs.5000.00 per month that is Rs.60,000.00 per annum for the purpose of calculating future loss of income. The Claims Tribunal set apart a sum of Rs.2000.00 towards personal expenditure of the deceased leaving behind the sum of Rs.3,000.00 per month or Rs.36,000.00 per annum by way of dependency benefits of the claimants. The Claims Tribunal adopted multiplier of 15 and thus worked out a sum of Rs.5,40,000.00 [Rs.36,000x15]. The Tribunal added Rs.10,000.00 towards loss of expectation of life; Rs.7,000.00 towards funeral expenses and Rs.3,000.00 towards transportation charges. The Tribunal thus awarded total sum of Rs.5,60,000.00 to the claimants.
11. With respect to death of deceased Sudhir Rathi, the Tribunal believed his income to be Rs. 31,750.00 per year. The Tribunal discarded any income from commission since there was no evidence to prove such income. After having believed the income of the deceased at Rs.31,750.00 per annum, on the basis of the Income Tax Clearance Certificate, the Tribunal adopted a sum of Rs.3000.00 per month as the income of deceased for the purpose of computing future loss. Sum of Rs.1000.00 was set apart towards the personal expenditure leaving behind Rs.2000.00 per month that is Rs.24000.00 per year for the claimants. The Tribunal adopted multiplier of 20 and worked out dependency benefits at Rs.4,80,000.00[Rs.24000x20]. To this, the Claims Tribunal added a sum of Rs.10,000.00 for loss of expectation of life, Rs.5,000.00 for funeral expenses and awarded total sum of Rs.4.95,000.00 in all.
12. The claimants have filed two appeals against the said award of the Tribunal. The Insurance Co. has neither filed independent appeal nor filed cross objection.
13. Counsel for the appellants submitted that the claims Tribunal did not take into consideration possible future rise in income of both the deceased persons. In particular,with respect to the death of Sudhir Rathi, the counsel submitted that the Tribunal erred in disbelieving the commission income and in any case, in not granting reasonable increase in future income. The Counsel further submitted that the multiplier of 15 for death of Hemakshiben was also on lower side.
14. On the other hand, learned Counsel Shri SB Parikh for the Insurance Co. submitted that the compensation awarded by the Tribunal calls for no further enhancement. He submitted that the claimants were aged parents and minor daughter of the deceased; husband and wife both have expired. Question of dependency of claimants should be assessed in peculiar facts of the case.
15. The Counsel relied on the decision of the Apex Court in case of Gobald Motor Service Ltd. And another V. R.M.K.Veluswami and others, reported in 1958-65 A.C.J. 179 wherein the aspects of claimants seeking damages as legal heirs and dependents' claim came to be discussed. The Counsel further submitted that the multiplier of 20 adopted in case of deceased Sudhir is on higher side. He submitted that both the deceased left behind sizable amount in the form of bank deposit which factors have not been taken into account by the Claims Tribunal. The Counsel also relied on the decision of the Apex Court in case of V. Subbulakshmi and others versus S.Hakshmi reported in 2008 A.C.J. 936 and submitted that the subsequent Income Tax return cannot be considered.
16. Having heard the learned advocates for the parties and having perused the documents on record, with respect to the factum of accident and that during such accident, Sudhir Rathi and his wife both died on the spot, there is no serious dispute. The question of negligence of driver also is not at large before us. In any case, the Tribunal has discussed evidence at length by coming to the conclusion that the accident took place solely due to negligence on the part of the driver. Further fact that the vehicle collided with the pillar of the bridge would demonstrate that the vehicle must have been driven at high speed and rashly. Principles of Res Ipsa Loquitor can certainly be applied. What is disputed between the parties is the amount of compensation that the claimants should receive from opponents.
17. We may first deal with the claim petition arising out of death of the deceased Hemakshiben.
18. It is not in serious dispute that Hemakshiben was aged 27 about years on the date of death. She was Graduate in Arts. Claimants examined Shri Dharamrai Ranchhoddas at Exh. 19. He stated that Hemakshi had passed B.A. in the year 1979and in the year 1981, she started business in the name of Hind Batteries. He produced at Exh. 20 partnership deed dated 26thDecember, 1980. Deceased Hemakshi had 55 per cent share in the business. Remaining 45 per cent share was of the co-partner.
19. In addition to such evidence, the claimants also produced Income Tax return of deceased Hemakshiben for the AY 1986-87 at Exh. 17/3. In the said return, income from Hind Batteries was shown Rs.42,156.00. The deceased had also additional interest income of Rs.9566.00 and thus, total income of Rs.51,722.00.
20. From the oral as well as documentary evidence, it emerges the deceased was aged 27 years on the date of accident. Though there is no documentary proof of age, deposition of father in law on this aspect was not seriously questioned by the opponents. In any case, such evidence gets corroboration from the fact that the deceased passed Graduation some time in the year 1981.
21. Further, the Income Tax return of the deceased showed her business income from the partnership business for the AY 1986-87 at Rs.42156.00. It is not clear when exactly such return was filed. However, it does not appear to be the stand of the Insurance Company that it was filed after the accident. In any case, the partnership deed which was executed long before the date of accident was produced and proved before the Tribunal. We, therefore, proceed to accept the income at Rs.42,000.00 at the time of accident. The Tribunal thereafter granting very reasonable increase in such income for future, adopted the annual income of the deceased at Rs.60,000.00. In our view, the Tribunal has committed no error. Out of such sum of Rs.5000.00 per month, the tribunal set apart Rs.2000.00 towards the personal expenditure of the deceased. Even if we keep such apportionment unchanged, the claimants would receive Rs.3000.00 per month by way of dependency benefits. We may recall that the claimants included minor daughter of the deceased aged 3 years who lost not only her mother but also father in the same accident, aged parents of the husband of the deceased and 80 year old mother of the father in law of the deceased.
22. In our view, such computation of dependency benefits at Rs.3000.00 per month on the basis of assessment of income of the deceased was perfectly just and reasonable. The question however is with respect to correct choice of multiplier for the deceased lady aged 27 years. The Tribunal applied the multiplier of 15.However, going by the ratio laid down in Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, we apply the multiplier of 17. We also increase the conventional amount for loss of expectation of life to Rs.25000.00. In the result, the claimants would receive the following amounts:
Towards dependency benefits Rs.6,12,000.00 [36000x17] Towards loss of expectation of life Rs.0,25,000.00 For funeral expenses Rs.0,07,000.00 For transportation expenses Rs.0,03,000.00 Total Rs.6,47,000.00 Deducting the amount of Rs.5,60,000.00 awarded by the Tribunal, the claimants would receive an additional compensation of Rs.87,000.00.
22. Coming to the computation of compensation in years on the date of accident. He had passed B. Com. In the year 1979. He was bright student. He had passed the B. Com. with First Class. After graduation, he had taken job in Hind Motors. He was holding the post of manager. Hind Motors was engaged in the business of motor spare parts. In the year 1986-87, he was earning salary of Rs.3,000.00 per month. He was also receiving commission of Rs.2000.00 from Bafna Automobiles. The claimants produced IT Returns of deceased Sudhir Rathi for the AY 1986-87 and also for the AY 1987-88. In the returns filed for the AY 1986-87, which appears to have been filed prior to the date of accident, salary income of the deceased was shown at Rs.28800.00 per annum from Hind Motors. Deceased was shown to have interest income of Rs.15152.00. His total income was therefore shown Rs.37952.00. In the later IT Return for the AY 1987- 88, which was filed after the accident, his salary from Hind Motors shown Rs.36,000.00 and interest income was shown at Rs.17965.00.
23. From the above evidence, it emerges that the deceased was drawing salary from Hind Motors. In the earlier year, he received salary of Rs.28800.00. In the year after that, he was shown to have earned 36000.00 towards salary and Rs.20000.00 towards commission received from Bafna Automobiles. The Tribunal discarded any income from commission on the ground that there was no evidence to prove such income. The Tribunal however believed annual income of the deceased at Rs.31,000.00 which is possibly on the basis of his Income Tax return for the AY 1986-
87. If we peruse the return very closely, Rs.37566.00 is the taxable income. However, this is not the income of the deceased and it was the figure adopted for the purpose of paying tax. Deceased was granted standard deduction of Rs.6000.00. He also earned interest of Rs.15152.,00. However, one thing is clear that in the year 1986-87 also, deceased earned salary income of Rs.28800.00.
24. Keeping this in mind, if we peruse the subsequent return of the deceased, it showed salary income of Rs.36,000.00 which was reasonable increase compared to previous year. Therefore, even if we discard the claim of the deceased having earned Rs.20,000.00 towards commission, his salary income at Rs.36,000.00 cannot be disbelieved. It may be that such return for the AY 1987-88 was filed after the date of accident. It is true that the Court would inspect such returns cautiously and in a given set of circumstances, can even discard the disclosures made therein. However, In the present case, the Insurance Co. did not seriously dispute that the deceased was drawing salary from Hind Motors. In fact, such claim was fully corroborated by the earlier income tax return filed before the date of accident in which the deceased had shown salary income of Rs.28800.00. Therefore, subsequent return showing moderate increase in the salary would not alarm us. It was this income of Rs.36000.00 which the Tribunal should have taken into account while paying dependency benefits.
25. Adopting this figure of Rs.36,000.00 per annum as current income of the deceased and thereafter granting reasonable increase for future and accepting sum of Rs.54,000.00 per annum and thereafter setting apart 1/3rd thereof for personal expenditure of the deceased, Rs.36,000.00 per annum would be allowed by way of dependency benefits. Multiplier of 20 being on higher side, we appliy the multiplier of 17 . Resultantly, the claimants would receive the following amounts:
Towards dependency benefits Rs.6,12,000.00 [36000x17] Towards loss of expectation of life Rs.0,25,000.00 For funeral expenses Rs.0,05,000.00 Total Rs.6,42,000.00 The Claims Tribunal having awarded an amount of Rs.4,95,000.00, the claimants would receive an additional compensation of Rs.1,47,000.00 from the opponents. Such additional compensation in both cases shall be paid with simple interest at the rate of 7.5 % per annum from the date of the claim petition till actual payment. With above directions, both the appeals are allowed in part and disposed of accordingly. The awards passed by the Claims Tribunal in respective Claim Petitions stand modified accordingly.
R&P be transmitted to the trial Court.
(Akil Kureshi,J.) (C.L.Soni,J.) an vyas