(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) As both the appeals arise from the same accident, they are being considered simultaneously.
The short facts are that on 02.08.1990, when deceased Harishbhai Thanawala was going with the deceased Raj Pankaj Shah from Mumbai to Ahmedabad in their Tata Mobile car bearing RTO No.MFH-1111 owned by Mr. Harish Thanawala, after 12.30 PM, when they reached near Amrutpura Patiya beyond Ankleshwar, one truck bearing RTO No.GRT 4363 dashed with the Tata Mobile car and as a result thereof, in the said accident, deceased Harishbhai Thanawala and Raj Pankaj Shah both sustained injuries and ultimately, succumbed to the injuries. Such accident gave rise to two claim petitions being MACP No.32/91 preferred by the dependent members of the family of deceased Harishbhai before the Tribunal for the compensation of Rs.40 lakhs with interest at the rate of 12% p.a.. and MACP No.72/91 preferred by the family members of the deceased Raj for compensation of Rs. 8 lakhs with the interest at the rate of 12% p.a. The Tribunal at the conclusion of the aforesaid proceedings, passed the judgment and the award for Rs.22,75,000 with interest at the rate of 9% p.a. in MACP No.32/91 and awarded Rs.3,13,000 with interest at the rate of 9% p.a. in MACP No.72/91. It may be recorded that thereafter, in the proceedings of MACP No.72/91 review application was preferred for correction of the amount since there was error in calculation and thereafter the award was modified by granting 4,57,000 with interest at the rate of 9% p.a. in MACP No.72/91. Under these circumstances, both the appeals before this Court.
We have heard Mr.Dakshesh Mehta, learned counsel appearing for the appellant and Mr.Sudhir Nanavati, learned Senior Counsel with Mr.Dave for Nanavati and Nanavati for the original claimants. We have considered the record and proceedings.
The first contention raised by the learned counsel for the appellant in First Appeal No.398/04 was to the effect that the Tribunal has committed error in holding driver of the truck 100% negligent when it was a case of head on collision. The learned counsel submitted that the panchnama shows that there is damage on the front side of Tata Mobile, the vehicle which was being driven by the deceased Harishbhai and therefore, when it was a case of head on collision, contributory negligence was required to be considered of the driver of the Tata Mobile, i.e., the deceased but the Tribunal has wrongly not considered the same.
Whereas Mr.Nanavati, learned counsel appearing for the respondent-original claimants submitted that the driver or the owner of the vehicle has not entered the witness box and therefore, the Tribunal was justified in drawing adverse inference. He submitted that the vehicle Tata Mobile was on right side found in damaged condition and even the insured truck with the appellant insurance company was also on the very side which would be wrong side if one is coming from Ahmedabad going towards Mumbai and therefore, it was submitted that the finding recorded by the Tribunal for holding the driver of the truck fully negligent is not erroneous and does not deserve to be interfered with.
It is true that the driver of the truck or the owner of the vehicle have not entered the witness box. But in our view, merely because the driver of the truck or the owner has not entered the witness box per se cannot be said to be a valid ground for accepting the statement made by the claimants in the claim petition. But it would be required for the Tribunal or the Court to examine the evidence available, may be by way of FIR, panchnama or the statement of the persons or any other oral evidence led on behalf of the claimants or otherwise. In the present case, it is true that there is no eye witness available on record since the driver as well as the other minor Raj had expired. The FIR has been given by the driver of the ambulance and in the FIR, there is no description about the incident and the fact that the driver of the ambulance has given FIR would show that there was no eye witness to the incident. The panchnama has come on record at exhibit 36 and as per the said panchnama, it has come on record that there is damage on the front side of Tata Mobile and there is equal damage on the front side of the truck. Therefore, the way in which the accident has occurred shows head on collision between both the vehicles. It is true that when there is a head on collision, the Tribunal or the Court may be required to consider the aspects of contributory negligence, if any, by the driver of each vehicle. As in the present case, there is no direct evidence available of any eye witness, we have to further consider the contents of the panchnama. As per the aforesaid panchnama, vehicle Tata mobile was found on the extreme left side of the road if the direction is considered from Mumbai to Ahmedabad. As the steering was broken as stated in the panchnama, Tata Mobile could not be moved and was in stagnant condition. It also appears that on the very side, towards south, after leaving about 35 ft., the truck was also found. The damage to the truck is also on the front side. Under these circumstances, the evidence is to be considered and appreciated. One possibility could be that the truck came on the wrong side and dashed with the Tata Mobile and the another possibility is that the driver of the truck attempted to overtake and came on the other side of the road, i.e, the direction through which the driver of Tata Mobile was driving the vehicle. In both cases, the situation may be of head on collision and it further shows that the truck must have been driven in fast speed, otherwise it would not have gone 35 ft. further after the accident. Had the vehicle Tata Mobile driven in a moderate speed and the attempt was made to take the vehicle to the extreme left so as to avoid the accident and in spite of that, the truck had dashed with the Tata Mobile, the damage would be towards right side of the vehicle and not fully on the front side. Under the circumstances, we find that it is not a case where 100% negligence can be held for the driver of the truck. But at the same time, we need to keep in mind two aspects; one is that the truck is found to be on its wrong side and the another is that the driver of the truck or the owner has not entered the witness box. Therefore, keeping in view the aforesaid facts and circumstances, we find that that 10% contributory negligence can be attributed to the driver of Tata Mobile whereas the driver of the truck can be attributed 90% negligence for the accident. It appears that the Tribunal has not considered the aforesaid aspect, but has only proceeded on the basis that as the driver and the owner of the truck have not entered the witness box, adverse inference could be drawn and therefore, the driver of the truck is held negligent to the accident of 100%. As observed by us hereinabove, since the damage to the vehicle Tata Mobile is on the front side to the fullest extent, such an approach of the Tribunal was not so warranted to the extent of holding the driver of the truck negligent for 100%. Therefore, the judgment and the award of the Tribunal to that extent deserves to be modified.
Mr.Nanavati, learned counsel did rely upon the decision of the Apex Court in the case of Basthi Kasim Saheb Vs. Mysore State Road Transport Corporation and others reported in AIR 1991 SC 487 as well as in the case of Usha Rajkhowa and others Vs. Paramount Industries and others reported in (2009) 14 SCC 71 for supporting the view taken by the Tribunal.
In the case of Basthi Kasim Saheb (supra), the observations are made by Apex Court for applicability of the principles of res ipsa loquitur. In the case of Usha Rajkhowa (supra), the Apex Court observed that if there was no evidence to suggest that there was any failure on the part of the driver of the car and the insurance company did not discharge the burden, the claimant would be entitled to compensation. The distinguishing feature in the present case is the nature of accident which is head on collision. Such facts and circumstances were not before the Apex Court. Therefore, we find that even if the principles of attribution of contributory negligence and the evidence on record, viz., the panchnama is considered, the said decisions are of no help to the claimants.
The next contention raised by the learned counsel for the appellant is assessment of the income of the deceased. It was submitted by the learned counsel for the appellant that the Tribunal has committed error in assessing the income of the deceased Harishbhai at Rs.12500 per month and thereafter, committed error in considering the prospective income at Rs.18225 per month based on the income tax return for last three years out of which two were filed after the death of the deceased. It was therefore submitted that the Tribunal has committed error and the income has not been properly assessed by the Tribunal.
Whereas Mr.Nanavati, learned counsel appearing for the respondent-original claimants submitted that as per the income tax return, the assessment made of the income could not be said to be erroneous.
We have considered the contents of the income tax return and also the advance tax paid by the deceased during his lifetime for the respective year. The IT return for the accounting year of 1986-1987 (assessment year of 1987-1988) was filed much prior to the accident and as per the said IT return, Rs.41000 was paid towards income tax as against income of approximately Rs.1,51,000. Therefore, if the tax payment is excluded, it could be about Rs.1,10,000 for the year 1986-1987. However, for the subsequent period, the accounting year of 1988-1989 (assessment year of 1989-1990), the advance tax paid by the deceased during his lifetime was Rs.30000, comparatively less than the earlier accounting year of 1986-87. In the same manner for the accounting year of 1989-1990 (the assessment year 1990-1991), the deceased during his lifetime paid the advance tax of Rs.25000 which was also less in comparison to the income tax paid during the accounting year 1986-1987. It is true that when the income tax return is filed after the accident, the same is required to be considered with more scrutiny and the reliability of such return may also be required to be tested. But at the same time, merely because return is filed at the later stage, such cannot be per se ground for discarding the evidence in toto. It further appears that the income is considered as per the income tax return filed in the year 1992, i.e. after the accident, for the accounting year 1988-1989, income shown is of Rs.1,99,000 against which the income tax paid is of Rs.67,000 and therefore, it can be said that the net income was Rs.1,32,000. Similarly, for the accounting year 1989-1990, the returned income is Rs.1,10,000 and the tax paid is of Rs.37,000 and therefore, the net income would come to Rs.73,000. If the average income is considered of last three years, i.e., for 1986-1987 of Rs.1,10,000/-, for 1988-1989 of Rs.1,32,000 and for 1989-1990 at Rs.73,000, it would come to about Rs.1,04,000 per year. Since the returns have been filed at the later stage, for two accounting years of 1988-1989 and 1989-1990 and keeping in view the aspects of less advance tax paid by the deceased than the year 1986-1987 which was during the lifetime of the deceased, the income tax return was showing the income of Rs.1,10,000 as net income, we find that the assessment of the income of the deceased could be averaged out at Rs.1,00,000 per year and accordingly, it would be Rs.8,333 per month. Since the calculation is based on the yearly income, it can be treated as Rs.1,00,000 per year for the sake of convenience. Thereafter further prospective income is required to be considered. Accordingly, the prospective income would be taken at Rs.1,50,000 per year of the deceased out of which 1/3rd deduction is required to be made towards personal expenses and the net income for economic loss or dependency benefit would come to Rs.1,00,000 per year.
The Tribunal has applied the multiplier of 15 towards economic loss whereas as per the decision of the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corp., reported in 2009(6) SCC page 121 and more particularly the observations made at paragraph 42, since the deceased was of the age group of 35 years, the multiplier of 16 would be available and accordingly, the total amount towards economic loss would come to Rs.16 lakhs. Out of the said amount, 10% towards contributory negligence would be required to be deducted and therefore, the net amount would come to Rs.14,40,000/-. As against the same, the Tribunal has assessed the economic loss at Rs.22,50,000. Therefore, that part of the award of the Tribunal deserves to be modified. The Tribunal has additional awarded the amount of Rs.10,000 towards loss of income, Rs.10,000 towards loss of consortium, and Rs.5000/- towards funeral expenses, total Rs.25,000/-, which we do not find it to be interfered. Therefore accordingly, the claimant of MACP No.32/91 would be entitled to the compensation of Rs.14,65,000 as against Rs.22,75,000 awarded by the Tribunal with interest at the rate of 9% p.a. from the date of the application until the amount is paid or deposited with the Tribunal whichever is earlier.
The aforesaid takes us to examine the claim petition preferred for the death of the deceased Raj being subject matter of First Appeal No.397/04. There is no question of attribution of contributory negligence so far as the deceased Raj is concerned since in any case he was third party.
The learned counsel appearing for the appellant in the said matter raised the only contention that the amount considered towards the economic loss is erroneous on the part of the Tribunal inasmuch the Tribunal has assessed the income of Rs.4,000 and thereafter considered the prospective income and has awarded compensation by considering the multiplier of 19. He submitted that as per the decision of the Apex Court in the case of Sarla Verma (supra), while considering the multiplier, for the age group of the parents, who are dependent was required to be considered. He also submitted that the income assessed is on much higher side of a minor who was not employed and was studying in 10th standard and therefore, this Court may interfere.
Whereas, Mr. Nanavati, learned counsel appearing for the respondent while supporting the judgment and the order of the Tribunal contended that the assessment of income could not be said to be erroneous. He also submitted that since the deceased minor had bright prospects, consideration of prospective income by the Tribunal also could not be said to be erroneous.
It is an admitted position that the deceased Raj was minor and studying in 10th standard. The wealth tax returns were produced on record, but such at the most could be said as of the wealth of the deceased and those wealth would have remained with the family even after the death. There was no independent source of income of the deceased and the income was through the property which has continued after the death. Therefore, towards economic loss, the matter could be considered on the basis of the notional income of the minor studying in 10th standard. At this stage, we may refer to the decision of this Court in the case of Shriram Education Trust Vs. Mitaben Anilbhai Patel reported at 2011(1) GLR 741, wherein this Court had an occasion to consider the aspect of compensation to be awarded to the parents of the minor studying in science stream on account of the collapse of the building in earthquake. It was observed by this Court in the said decision at paras 35 to 39 as under:
"35. In Lata Wadhva v. State of Bihar (Supra), the Supreme Court has awarded compensation of Rs.4.10 lacs per children between the age group of 10 to 15 years, but it appears from a reading of the said judgment that the age of the parents of the children has not been taken into consideration. In Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, (a later judgment of the Supreme Court) after meticulously examining different provisions of the Motor Vehicles Act, the Supreme Court has held, as below:
"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 M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." (emphasis supplied)
36. In the present case the parents of the deceased students were approximately between 41 to 45 years of age. Therefore, as per the dictum of the Supreme Court it would be proper to apply the multiplier of 14. The Trial Court has applied the multiplier of 15, which does not appear to be in consonance with the principle laid down in Sarla Verma v. Delhi Transport Corporation (Supra). Keeping in mind the age group of the parents, we find that the correct multiplier to be applied would be 14, instead of 15.
37. We cannot lose sight of the evidence on record to the effect that all the deceased children were students of Science and used to secure marks above 70%. Apart from the expectations of their parents, the potentiality of the children to earn in future, deserves to be considered. It is by now settled law that the notional income of any educated person would not be less than Rs.3000/- per month or Rs.36,000/- per year.
38. A contention was raised that in Motor Vehicle Accident cases, the notional income is considered as Rs.15,000/- per annum and hence it cannot be considered as Rs.36,000/- per annum. It is true that the same can be a guiding factor but the pertinent aspect is that tortious liability is based on common law, which is based on principles of equity that envisage the requirement of awarding just compensation. If the principles of equity are controlled by any codified law, the jurisdiction of the Court may not exceed beyond such law, like in Motor Accident Cases; but, in absence thereof, the Court would continue to hold the power to award just and reasonable compensation, considering the facts and circumstances of the case. Hence, we find it proper to assess the compensation, keeping in mind the talent, potentiality and bright future of the deceased children who have lost their lives. The parents of the unfortunate children have lost their children on account of the careless and negligent manner in which the School building has been constructed by the appellants, without taking proper care and caution and by committing breach of statutory requirements for construction and use of the said School building.
39. Calculating the notional income of each of the students as Rs.3000/- per month, (which is the minimum) and deducting 1/3rd for personal expenses, the remaining amount for dependency benefit comes to approximately Rs.2000/- per month. This amount, multiplied by 12, would come to Rs.24,000/- per annum. Rs.24,000/- multiplied by 14 would come to Rs.3,36,000/-. In addition thereto, we find that the claimants would be entitled to Rs.5000/- towards funeral expenses, Rs. 15,000/- towards pain,shock and suffering and Rs.15,000/- for loss of expectancy, totalling to Rs.3,71,000/-. Further, the interest awarded by the Trial Court at 5% per annum is too low and in our view it should be enhanced to 8% per annum, from the date of filing of the Suits, till realisation."
In our view, the same principles can be applied for the purpose of consideration of the compensation at the rate of 3000 per month and after deducting personal expenses, such amount would come to Rs.2000 per month and yearly, it would come to Rs.24,000. As per the decision of the Apex Court in the case of Sarla Verma (supra), if the age of the dependent claimant is considered, the mother being the youngest was having the age of 41 years as stated in the main application before the Tribunal and therefore, the appropriate multiplier would be of 14 as per the decision in the case of Sarla Verma (supra). Therefore, the amount towards compensation would come to Rs.3,36,000/-. Additionally, the Tribunal has awarded Rs.25,000/- towards loss of estate, love and affection and towards funeral expenses. As against the same, in the above referred decision, this Court had found it proper to award Rs.35000 for the aforesaid head, viz., Rs.5000/-
towards funeral expenses, Rs. 15,000/-
towards pain,shock and suffering and Rs.15,000/- for loss of expectancy.
Therefore, that part of the award passed by the Tribunal deserves to be modified.
In view of the aforesaid observations and discussion, the appropriate compensation would be Rs.3,71,000 as against the amount of Rs.4,57,000 awarded by the Tribunal with the interest at the rate of 9% p.a. as already awarded by the Tribunal.
In view of the aforesaid observations and discussions, it is held that the original claimants of MACP No.32/91 shall be entitled to the compensation of Rs.14,65,000 with the interest at the rate of 9% p.a. from the date of the claim petition until the amount is paid or deposited with the Court. The original claimant of MACP No.72/91 would be entitled to compensation of Rs.3,71,000 with interest at the rate of 9% p.a. from the date of the claim petition made before the Tribunal till the amount is paid or deposited with the Tribunal. The other part of the internal apportionment made by the Tribunal in MACP No.32/91 amongst the claimants and parents, respondents 5 and 6, shall get proportionately reduced.
The judgment and the award passed by the Tribunal shall stand modified to the aforesaid extent. The appeals are partly allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs. It is further observed and directed that the Tribunal shall give the effect to the present Judgment and the order within 8 weeks from today and the amount if any to be refunded shall also be refunded within two weeks thereafter.
(JAYANT PATEL, J.) (C.L.
SONI, J.) *bjoy