(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeal is directed against the judgement and order passed by the Tribunal dated 14.12.2007 in MACP No.1686 of 1997, whereby the Tribunal has awarded compensation of Rs.25,15,640/- with the interest at the rate of 9% per annum to the original claimants.
The short facts of the case, as per the claimants, are that at 7.45 p.m., on 15.11.1996, when the deceased Maheshbhai was returning to Vadodara from Dabhoi on motorcycle bearing Registration No.GJ-6-R-7916 and he was on the correct side of the road and was driving the motorcycle at the moderate speed, near Village Hetampur Patiya towards Kishannagar, one Truck bearing Registration No.GJ-6-V-5300 being driven by the driver of the truck - respondent No.3 herein, dashed the motorcycle from the backside and as a result thereof, the deceased sustained injuries and ultimately succumbed to the injuries. The Claim Petition was filed by the wife and the son of the deceased being MACP No.1686 of 1997 before the Tribunal. The Tribunal at the conclusion of the proceedings passed the award as referred to herein above. Under these circumstances, the present appeal before this Court.
We have heard Mr.Rajni Mehta, learned Counsel appearing for the appellant, Mr.Hiren Modi, learned Counsel for respondents No.1 and 2
- original claimants, and Mr.Kirtraj Pandya, learned Counsel for respondent No.5, who were the main contesting parties in the claim petition. We have considered the record and proceedings and we have also considered the judgement and reasons recorded by the Tribunal.
The first contention raised by Mr. Mehta, learned Counsel appearing for the appellant is that it is a case where the Tribunal ought to have apportioned contributory negligence to the driver of the motorcycle i.e. the deceased. In his submission, the fact that the motorcycle was broken into pieces shows that the dashing of the motorcycle was by the driver of the motorcycle with the truck and hence, in his submission, it was not a case of 100% negligence of the driver of the truck insured with the appellant - Insurance Company and, therefore, it was submitted that the Tribunal has committed error.
It is true that in every case the Tribunal is required to consider the circumstances under which the accident has taken place and thereafter is also required to consider the contributory negligence by the driver of the vehicle concerned, but such is required to be examined on the basis of the evidence available before the Tribunal. If the evidence on record is taken into consideration, the complaint filed with the police, the statement recorded by the witnesses, and the charge-sheet filed by the police against the driver of the truck for causing death by rash and negligent driving had come on record. As per the complaint, the truck driver had dashed the truck with the motorcycle. Even the statement has been recorded before the police of one Jagdishbhai Devjibhai, who had witnessed the incident and as per him, the truck had dashed the motorcycle from the backside. The confessional statement of the driver of the truck was recorded, wherein he had stated that one motorcycle was going in front of the truck and when he tried to overtake, the truck had dashed with the motorcycle and the motorcyclist had sustained injuries, but as he apprehended that the public might beat him, he ran away from the place. As per the police investigation, the death was caused on account of the rash and negligent driving of the truck driver. The wife of the deceased was examined and as per her statement on affidavit, the truck had dashed from the backside of the motorcycle and with her affidavit the police papers of charge-sheet were produced. It is true that in the cross-examination, she has stated that she had no personal knowledge about the accident. It is in this light of the aforesaid evidence on record, if the panchnama is considered, there is a damage on the backside of the motorcycle also. Merely because the motorcycle is found in broken condition, it cannot be presumed that the motorcycle had dashed with the truck from the front side. No evidence whatsoever has been laid on behalf of the owner of the truck or the Insurance Company showing the manner in which the accident had occurred. Attempt made by Mr.Mehta to contend that no witness whose statements were recorded were examined and, therefore, cannot be considered, cannot be countenanced, because the panchnama upon which the reliance is placed by the appellant is a part of papers of charge-sheet and no attempts were made by appellant to contradict the contents of the statement made before police. Under these circumstances, if the Tribunal has recorded the finding that the truck had dashed with the motorcycle from the backside, such cannot be said to be an erroneous approach on the part of the Tribunal. Further, if the driver of the truck had dashed the motorcycle from the backside resulting into the accident, it would be a case where negligence can only be attributed to the driver of the truck and not to the driver of the motorcycle as sought to be canvassed by the learned Counsel for the appellant. Under these circumstances, the contention cannot be accepted.
It was next contended by the learned Counsel for the appellant that the Tribunal has committed grave error in calculating the quantum of compensation. As per the learned Counsel for the appellant, when the basic salary was Rs.3,240/-, the Tribunal could not have assessed the salary at Rs.12,920/- for the purpose of calculating the amount of compensation. It was, therefore, submitted that the quantum of compensation deserves to be reduced and in the present appeal, the appellant Insurance Company has restricted the appeal for the reduction of compensation of Rs.12,50,000/- only.
Whereas, Mr.Modi, learned Counsel appearing for the original claimants, submitted that though the basic salary of the deceased is stated in the pay-slip of October 1996, it is only for the purpose of narrating the basic pay, but the other payment and income derived from the employer by the deceased is also required to be considered. In his submission, as per the monthly pay summary, the amount is Rs.15,174/-. The learned Counsel further submitted that the said aspect is to be considered in light of the statement produced by the witness of IPCL, Nandkishore N. Thakor - Exh. 36 and, therefore, if the said figure is considered and compared with the statement produced by the deposition of the said witness, the Tribunal has not committed any error in assessing the gross income of the deceased at Rs.15,174.85. He submitted that, in any case, the Tribunal has taken into consideration the deduction from the salary of Rs.2,254/- and net salary of Rs.12,920/- is taken into consideration and, therefore, no error is committed by the Tribunal.
The salary slip of the deceased of the month of October 1996 does show that in the description of the employee and the pay-scale, it is stated that the basic salary is Rs.3,240/-. However, in the very pay-slip, under the heading of monthly pay-summary, the amount is mentioned as Rs.15,174.80 and the deduction is shown of Rs.2,254.80 and the net salary is shown of Rs.12,920/-. Prima facie, one may get an impression that if the basic salary was Rs.3,240/-, the deceased could not have received the amount of Rs.15,174.80 as the monthly salary. However, the annual salary statement of the deceased for the accounting year of 1995-96 as well as the annual salary statement of the deceased for the period from April 1996 onward have come on record in the evidence of the Officer of IPCL, Nandkishore, whose deposition was recorded at Exh. 36. As per the said statement, the total earning of the deceased for the period from April 1995 to March 1996 is Rs.1,41,259.28, whereas, for the period from April 1996 to October 1996, the total earning of the deceased was Rs.1,06,946.14 and if divided by seven months, the average salary would come to Rs.15,277/- per month. Under these circumstances, since in addition to the basic salary the other bonus, commission and other amounts, etc., were being paid to the deceased, which is treated by the employer as salary and so reflected in the salary slip, wherein the amount mentioned is of Rs.15,174.80 being the salary of the said month, it is not possible for us to accept the contention of Mr.Mehta that as the basic salary mentioned in the description of the salary slip of Rs.3,240/-, the deceased was not earning the amount of Rs.15,174.80 as gross salary. In any case, the Tribunal has considered the deduction and arrived at the net salary of Rs.12,920/- for the month of October 1996. After taking the basis of the amount of Rs.12,920/-, the Tribunal has considered the prospective income and has arrived at the amount of Rs.19,380/- for the purpose of awarding compensation and thereafter, 1/3rd amount has been deducted and net amount of Rs.12,920/- is considered. Thereafter, as the deceased was aged 32 years, the multiplier of 16 has been applied and the compensation has been awarded of Rs.24,80,640/- towards future economic loss. It will not be out of place to mention that in the evidence of the officer of the IPCL, Mr.Nandkishore - Exh. 36, the certificate of IPCL dated 17.2.2007 has been produced showing that if the deceased would have survived until the retirement in the year 2024, he would have earned the total amount of Rs.1,16,75,077/-. In any case, the Tribunal has not assessed the income based on the aforesaid amount and, therefore, the said aspect would not be of much relevance. Under these circumstances, it cannot be said that the amount of compensation awarded by the Tribunal of Rs.24,80,640/- towards future economic loss could not be said to be on higher side, which may call for interference in the present appeal.
Mr.Mehta, learned Counsel appearing for the appellant, did contend that the widow of the deceased, one of the claimants - respondent No.1 herein was in service and her salary was Rs.10,000/- and, therefore, the contention was raised by the learned Counsel for the appellant that she could not be termed as dependent of the deceased and, therefore, could not be entitled to the compensation.
We find that the said contention is absolutely misconceived and hence, cannot be accepted for the simple reason that in a family, for the purpose of awarding compensation, the income of the family is to be considered. Further, the economic loss is to be assessed, keeping in view the income of the deceased and the liability of the tortfeaser to compensate the family. The family, in any case, would include husband and wife. If such a contention is accepted, no husband would be entitled to the compensation, if he is earning and his wife has expired in the accident.
At this stage, we may refer to the observations made by the Apex Court in the case of Malay Kumar Ganguly v. Sukumar Mukherjee & Ors., reported in AIR 2010 SC 1162, at paragraph 182, which reads as under:-
"182. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife's contribution to the family in terms of money can always be worked out. Every housewife makes contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband's income, etc."
We may record that it is not a matter where the family was only of husband and wife, but was of a minor son, who is claimant no.2. Under these circumstances, when the wife of the deceased has sustained economic loss on account of the death of her husband, for which there is liability on the part of the tortfeaser to compensate and when the Insurance Company has to indemnify, it cannot be heard to say that if the wife was in service and earning salary, she would not be entitled for compensation or the compensation deserves to be reduced as she could not be termed as dependent on the income of the deceased.
In view of the aforesaid observations and discussion, we find that the appeal is meritless. Hence, dismissed. Considering the facts and circumstances, there shall be no order as to costs.
(Jayant Patel, J.) (C. L. Soni, J.) vinod Top