(Per : HONOURABLE MR.JUSTICE C.L. SONI) 1. These two appeals arise out of common judgment and award dated 19.11.1998 passed by the Motor Accident Claims Petition (Aux.) Rajkot, camp at Gondal, in Motor Accident Claim Petition Nos.300 of 1990 and 302 of 1990 respectively.
2. On 6.5.1990, claimants and their family members while proceeding from Mehsana to Vanthali to attend marriage ceremony in a car bearing registration No.GAW 6295 met with an accident with stationary truck, bearing registration No. No.GQD 4303. As a result of the said accident, two persons lost their lives and others received severe injuries. Two persons who died are Shri Kantilal Joitaram Patel and Hargovindbhai Maganlal Patel. Heirs of Shri Kantilal Joitaram Patel, therefore, preferred Claim Petition No.300 of 1990, claiming compensation of Rs.11 lakhs. Heirs of deceased Hargovindbhai M. Patel filed Claim Petition No.302 of 1990, claiming compensation of Rs.9 lakhs. Other injured persons filed different claim petitions and, as stated above, all the claim petitions were decided and disposed of by the Tribunal.
3. In Claim Petition No.300 of 1990, it was alleged that deceased Kantilal Joitaram Patel was healthy and doing business of Contractor and he was taking contract of irrigation, dam, canal and his latest project was running at Chhitodgadh taluka in Rajasthan and he was running a company, named 'M/s. Patel Construction Company' and the said company was 'AA' class approved by the Government and he was earning Rs.60,000/- per year out of the said work. It is further alleged that the said car was belonging to deceased Kantilal Patel, which was totally damaged.
4. In support of the said claim, wife of deceased Kantilal Patel, Smt. Savitaben Kantilal Patel, who herself was injured person in the said accident, was examined at Exh.22 and son Alpeshkumar was examined at Exh.24. Claimants also produced copy of the FIR at Exh.15 and panchnama of the scene of occurrence at Exh.16 and other documentary evidence.
5. The Tribunal, on appreciation of the evidence, assessed the income of deceased Kantilal Patel at Rs.70,000/- per year and deducted one third towards personal expenses and arrived at Rs.46,500/- per year for counting the dependency value. To this figure, the Tribunal applied 16 years of multiplier and reached to Rs.7,44,000/-. The car was driven by deceased Kantilal and since the driver of the car is held responsible to the extent of 20%, Rs.1,51,000/- was deducted from the said total amount and by adding Rs.10,000/- under the head of conventional amount, ultimately, the claimants were held entitled to get Rs.6,03,000/- as compensation for death of said Kantilal J. Patel.
6. In Claim Petition No.302 of 1990, for the death of Hargovindbhai Maganlal Patel is concerned, his widow Smt. Chandrikaben was examined at Exh.26. She has deposed that her husband was handling the agriculture work and the agricultural land was joint amongst six brothers and her husband was receiving 50% amount from the agricultural products, that her husband was earning Rs.5,000/- from the agriculture work and Rs.5,000/- from business. On the evidence adduced on record, the Tribunal arrived at monthly income of Rs.5,000/- of deceased Hargovindbhai Maganlal Patel, which comes to Rs.60,000/- as yearly income and deducting one third towards personal expenses of deceased Hargovindbhai Maganlal Patel, the Tribunal arrived at Rs.40,000/- per year to be the dependency of the claimants and applying 16 years multiplier, the Tribunal arrived at Rs.6,40,000/- as total figure. The Tribunal then, added Rs.10,000/- under the head of conventional amount, and Rs.4,000/- for expenses incurred for shifting the dead body. Ultimately, the claimants were held entitled to get Rs.6,54,000/- as compensation.
7. We have heard learned advocate for the appellant as also learned advocate for the respondents. On the question of negligence, we find that the Claims Tribunal came to the conclusion that the truck was lying parked without making any provision to avoid accident by other vehicles, that the truck driver could have taken the truck to a little left side on Katcha road for the purpose of parking the truck, truck driver could have placed some obstacle, like tree branches, stones, to avoid accident, that truck driver having not done so, was negligent to a great extent. However, the Tribunal has also considered that considering the size of the car and looking to the other facts and circumstances of the case, the driver of the truck as also the driver of the car both should be held contributory negligent. Accordingly, the Tribunal held the truck driver negligent to the extent of 80% and the driver of the car to be negligent to the extent of 20%. We do not find that any other view could be taken on the basis of the evidence on record.
8. Learned advocate for the appellant Insurance Company has, however, submitted that the Insurance Company was mainly aggrieved by the datum figure arrived at by the Tribunal for awarding loss of dependency. Learned advocate has stated that both the appeals are restricted to part of the amounts awarded by the Claims Tribunal, mainly because the Insurance Company was aggrieved by the findings arrived at by the learned Tribunal on the question of assessment of income of the deceased persons.
9. Learned advocate for the Insurance Company has submitted that the Tribunal has committed grave error in arriving at Rs.70,000/- to be the income of the deceased Kantilal in MACP No.300 of 1990. Learned advocate has pointed out that there was no enough material to take Rs.70,000/- as average yearly income of the deceased. He urged that the yearly income of the deceased ought to have been taken at Rs.35,000/- and 15 years multiplier ought to have been applied. Learned advocate has pointed out that if the income of deceased Kantilal Patel was taken at Rs.35,000/- per year and multiplier of 15 is applied, then total loss of income would have been at Rs.5,25,000/- and after adding conventional amount, it would come to Rs.5,35,000/- and 20% on account of contributory negligence, total dependency of the heirs of deceased Kantilal Patel would have arrived at Rs.4,28,000/-. He, therefore, urged that the Tribunal has awarded excess amount of Rs.3,10,000/-.
10. As against this, learned advocate for the claimants has submitted that there was sufficient documentary evidence available with the Tribunal to arrive at Rs.70,000/- to be the income of the deceased per year. He had pointed out that the deceased had already opened a partnership firm and he was actively involved in the business of contractor. It is stated that the income tax returns were also produced on record in support of the income of deceased Kantilal. He has, therefore, urged that the Tribunal has not committed any error for arriving at Rs.70,000/- to be the yearly income of the deceased. In fact, he has submitted that looking to the engagement of deceased Kantilal Patel, in business as a Contractor and dealing in various projects, proportionate income of deceased Kantilal Patel would have been much more higher. There are all chances and prospects to earn more income by deceased Kantilal Patel.
11. Having considered the arguments of both the sides and looking at the documentary evidence produced on record, we find that there is ample evidence on record to establish that deceased Kantilal Patel was actively engaged in the business of Contractor and was also running a company, named M/s. Patel Construction Company. We also find from the income tax returns produced on record that deceased Kantilal was drawing income from his business as stated above. Not only this but he was also owner of the car which met with the accident. As in the year 1990, when deceased Kantilal was owing the car, there is no reason not to believe the active engagement of deceased Kantilal in the business of contractor. In fact, there were all future prospects for earning more income by deceased Kantilal from the business of Contractor. We have, therefore, no hesitation in affirming the assessment of income arrived at by the Tribunal and compensation for the claimants in respect of death of deceased Kantilal Patel.
12. As regards the assessment of income of deceased Hargovindbhai in MACP No.302 of 1990, learned advocate for the appellant Insurance Company has made grievance about arriving at such datum figure by the Tribunal. He submitted that there was no satisfactory evidence available with the Tribunal to arrive at above- said income of deceased Hargovindbhai M. Patel. He has also submitted that the Tribunal has committed error in applying multiplier of 16. As per his submission, the Tribunal ought to have arrived at datum figure of Rs.35,000/- per year instead of Rs.60,000/-. He has submitted that there was no evidence as regards the agricultural income of deceased Hargovindbhai M. Patel. As against this, learned advocate for the claimants has submitted that in fact, looking to the evidence adduced by the wife of deceased Hargovindbhai M. Patel, learned Tribunal ought to have assessed higher income of deceased per month. He stated that deceased Hargovindbhai M. Patel was involved not only in agricultural activities but was also earning income from other sources. The income arrived by the Tribunal is without considering the future prospects of earning capacity of deceased Hargovindbhai M. Patel. He, therefore, urged that no interference in the findings recorded by the Tribunal is required as regards the income of deceased Hargovindbhai M. Patel.
13. Having considered the submissions of both the sides and having gone through the evidence on record, we find that the Tribunal has not committed any error in arriving at Rs.5,000/-, to be the monthly income of deceased Hargovindbhai M. Patel. The Tribunal has considered the income of deceased from agricultural activities and business on the basis of evidence on record. We find that the income arrived at by the Tribunal of deceased Hargovindbhai M. Patel of Rs.5,000/- per month appears to be in consonance with the evidence produced by the claimants. We are, therefore, of the opinion that the assessment of income done by the Tribunal is just and reasonable and is not required to be interfered with at all. In both the cases, we find that looking to age of deceased persons, the Tribunal has also not committed any error in applying multiplier of 16.
14. Considering the overall facts and circumstances of the case, we are of the opinion that the Tribunal has not committed any error in awarding ultimate compensation on the basis of the income assessed by the Tribunal. Under these circumstances, both the appeals are required to be dismissed. Accordingly, both the appeals are hereby dismissed.
Record and Proceedings be sent back forthwith.
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(AKIL KURESHI, J.) omkar Sd/-
(C.L. SONI, J.)