: All the claim petitions arise out of common vehicular accident which occurred on 9/6/1994 between two vehicles, namely jeep bearing registration No. GUJ 9663 and dumper Truck No. GJ-1-V-3902. It is the case of the claimants that at the time of the accident, the deceased persons including the injured appellants claimants were travelling in a jeep driven by the respondent no. 4 - opponent no. 4 – driver of the jeep and belonged to respondent no. 5 – opponent no. 5 – National Builders, which was insured with the respondent no. 6 – opponent no. 6 National Insurance Company. When the jeep reached near the place of the accident, at that time, it is alleged that the aforementioned dumper Truck driven by the respondent no. 1 – opponent no. 1 and owned by the respondent no. 2 – opponent no.
2 and insured with the respondent no. 3 – opponent no. 3 Insurance Company came with full speed, rashly and negligently and dashed with the jeep and in the result, the deceased persons who were travelling, sustained bodily injuries and succumbed to the injuries, whereas the injured appellant – claimant Maganbhai sustained serious bodily injuries.
2. It was the case of the respective appellants – claimants in connection with First Appeal No. 2535/2008 that deceased victim Raghubhai Bhagvanbhai was at the time of accident, aged about 35 years and he was milk vendor and according to the case of the claimants, he was earning Rs.3,000/- p.m. The claimants examined witnesses and according to the evidence of the witness Bahadurbhai, the deceased used to earn Rs.4,000/- to Rs.5,000/- per month.
3. According to the appellants – claimants, in connection with First Appeal No. 2536/2008, the deceased Balvantsinh was aged about 40 years and he was doing service as mechanic in National Builders and he was earning Rs.3,500/- p.m.
4. According to the appellant – claimant, in connection with First Appeal No. 2537/2008, the deceased Chandubhai was aged about 30 years and he was working as carpenter and used to earn Rs.150/- per day.
5. According to the appellant – claimant, in connection with First Appeal No. 2538/2008, the appellant injured claimant claimed that at the time of accident, he was Supervisor in National Builders and he was earning Rs.3,500/-
p. m., as salary. The injury resulted in the permanent bodily disability affecting his earning capacity. At the time of accident, he was aged about 30 years. The appellants – claimants filed the aforementioned four claim petitions and the Tribunal consolidated all four claim petitions and the Tribunal disposed of all claim petitions by common judgment and award dated 30/5/2001 rendered by the M.A.C. Tribunal [Main], Bharuch.
6. The Tribunal awarded Rs.2,04,000/- by way of compensation to the appellants – claimants in First Appeal No. 2535/2008 [M.A.C.P. No. 300/1995], Rs.2,04,000/- by way of compensation to the appellants – claimants in First Appeal No. 2536/2008 [M.A.C.P. No. 663/1994], Rs.1,65,600/-
by way of compensation to the appellants – claimants in First Appeal No. 2537/2008 [M.A.C.P. No. 978/1994] and Rs.37,196/- by way of compensation to the injured appellant – claimant in connection with First Appeal No. 2538/2008 [M.A.C.P. No. 1024/1994]. The Tribunal further observed that the driver, owner and insurance company of the jeep, namely respondent nos. 4 to 6 [original opponent nos. 4 to 6] were not liable to pay any amount of compensation as the driver of the jeep was not held to be negligent for causing the accident. The Tribunal exonerated these respondents – opponents. However, the Tribunal came to the conclusion that the driver of the dumper truck was 100% negligent for causing the accident and, therefore, the Tribunal directed the respondent nos. 1 to 3 herein [original opponent nos. 1 to 3] were responsible to pay the aforementioned amounts of compensation to each of the appellants – claimants. The appellants – claimants felt that the amount awarded to them by way of compensation was highly inadequate and insufficient and, therefore, filed the above referred appeals for enhancement of amount of compensation.
7. Mr. Hakim, Ld. Advocate for the appellants – claimants, at the outset, submitted that the Tribunal erred in not properly considering the evidence regarding actual income adduced by the respective claimants. It is submitted that the claimants examined required witnesses and produced documentary evidence in support of the income of the deceased, so also income of the injured claimant, but the Tribunal discarded such evidence and so far as fatal cases are concerned, the Tribunal considered monthly income of all the deceased persons at Rs.1,500/-, except in First Appeal No. 2537/2008 [M.A.C.P. No. 978/1994]. Even the monthly income was considered to be less than Rs.1,500/-, namely Rs.1,200/-. It is further submitted that so is the case with the injured claimant and despite the fact that he produced his salary certificate, the same was not accepted and his monthly income was assessed at Rs.1,500/-. Mr. Hakim, Ld.
Advocate for the appellants – claimants, therefore, submitted that the Tribunal should have considered the actual income of the deceased persons as well as the injured claimant as per the evidence adduced by them. Mr. Hakim, Ld. Advocate for the appellants – claimants further submitted that the Tribunal did not consider the future prospective income of the deceased persons as well as of the injured claimant and despite the fact that though the deceased as well as the injured were between the age group of 30 to 40 years, the actual income which the Tribunal assessed of the deceased persons as well as of the injured claimant at the time of the accident, was considered to be the future prospective income. Mr. Hakim, Ld. Advocate for the appellants – claimants submitted that even the Tribunal, so far as the fatal cases are concerned, in each case deducted 1/3rd amount towards self expenses of the deceased, despite considering the size of the family. Mr. Hakim, Ld. Advocate for the appellants – claimants submitted that so far as First Appeal No. 2537/2008 is concerned, despite the fact that the Tribunal believed the age of the deceased, at the time of death, to be 30 years, but applied the multiplier of 16 years, which should have been 17 years. Mr. Hakim, Ld. Advocate for the appellants – claimants submitted that in each of the fatal cases, the Tribunal awarded in-all Rs.12,000/- towards loss to the estate, etc., and as per the decision rendered in the case of Sarla Verma v/s. Delhi Transport Corporation Reported in 2009 ACJ 1298, the Tribunal should have awarded Rs.25,000/- under this head. It is, therefore, submitted that all these appeals may be allowed and appropriate amount of compensation may be awarded to the respective appellants – claimants.
8. Mr. Mehul Sharad Shah, Ld. Advocate for the respondents – opponent nos. 3 and 6 insurance company, namely common insurer of truck and jeep, at the outset, vehemently opposed these appeals and submitted that the Tribunal rightly appreciated oral and documentary evidence on record and rightly fixed the monthly income of the deceased as well as injured claimant. It is submitted that the Tribunal rightly did not consider the prospective income of the deceased, so also injured claimant as no cogent evidence was adduced by them even for arriving at their actual monthly income. It is, therefore, submitted that all these appeals may be dismissed.
9. I have examined the record and proceedings in context with the submissions advanced on behalf of both the sides.
10. So far as the First Appeal No. 2535/2008 [M.A.C.P. No. 300/1995] is concerned, in the impugned judgment and award, the Tribunal considered Rs.1,500/- as the actual monthly income of deceased Raghubhai. It is true that as per the evidence of widow of the deceased, she stated that the deceased was doing business of milk and was earning Rs.3,000/- p.m., and even the claimants examined one witness Bahadurbhai PW 6 at exh. 76 and he stated that the deceased used to earn between Rs.4,000/- to Rs.5,000/- p.m and produced certificate at exh. 77, but the Tribunal appreciated and examined the evidence of widow, so also of the witness and ultimately came to the conclusion that the actual monthly income of the deceased can be assessed at Rs.1,500/-. I have examined the reasonings assigned by the Tribunal while appreciating the oral evidence of both the witnesses. There does not appear any error having been committed by the Tribunal while appreciating the oral evidence adduced by the claimants themselves and through their witnesses. However, it appears that despite the fact that the Tribunal assessed monthly income of deceased at Rs.1,500/- and despite the fact that the Tribunal came to the conclusion that at the time of the accident and death, the deceased was aged about 35 years, the Tribunal did not consider the future prospective income of the deceased, by holding that the actual income was inclusive of prospective income. This Court is of the opinion that the Tribunal appears to have committed error while coming to the conclusion that the actual income should be considered as prospective income. Considering the age of the deceased at the time of death, it can safely be said that had he survived, he would have earned at-least Rs.2,250/- p.m. Thus, the Tribunal should have assessed the monthly prospective income of the deceased at Rs.2,250/-. The Tribunal deducted 1/3rd amount towards self expenses against the fact that admittedly, the deceased left behind him his mother, widow and two minor children. Thus, there were four claimants, who were dependents on his income. The Tribunal erred in deducting 1/3rd amount towards self expenses and this Court is of the opinion that the Tribunal should have deducted 1/4th amount towards self expenses of the deceased. Thus, it can safely be said that the claimants sustained loss of monthly dependency benefits of Rs.1,690/-, which comes to Rs.20,280/- p.a. The Tribunal appears to have rightly applied multiplier of 16 years. Therefore, the appellants – claimants are entitled to recover Rs.3,24,480/- [Rs.20,280 x 16] by way of compensation under the head of loss to future dependency benefits. The Tribunal awarded in-all Rs.12,000/- under the head of loss to estate and miscellaneous expenses. Considering the ratio laid down in Sarla Verma's case [supra], this Court is of the opinion that the Tribunal should have awarded Rs.25,000/- under the said head. Thus, in First Appeal No. 2535/2008 [M.A.C.P. No. 300/1995] the appellants – claimants are entitled to recover in-all Rs.3,49,480/-. The Tribunal awarded Rs.2,04,000/- and thus the appellants are entitled to recover Rs.1,45,480/-, rounded off to Rs.1,45,500/- [Rupees one lac forty five thousand five hundred only] by way of enhanced amount of compensation.
11. In First Appeal No. 2536/2008 [M.A.C.P. No. 663/1994] the Tribunal, in the impugned judgment and award in para. 12, examined the evidence of widow of deceased Balvantsinh as well as evidence of one witness P M Patel. It transpires that according to the case of the claimants, the deceased was working with National Builders and was getting Rs.4,000/- p.m., as salary. It was further case of the claimants that at the time of the accident, the deceased was aged about 40 years. The claimants examined witness P M Patel, who was working as Accountant with National Builders and according to his evidence, the deceased used to get Rs.3,500/- p.m as salary. He produced the salary certificate at exh. 37. It further transpires that the claimants produced another salary certificate at exh. 39 wherein total salary of the deceased is stated to be Rs.3,850/- p.m. The Tribunal examined the oral and documentary evidence produced by the claimants. The Tribunal, examining the evidence on record, came to the conclusion that though the claimants relied upon the certificate, the contemporaneous evidence regarding the income has not been produced through the Accountant of National Builders examined by the claimants, namely Mr. P M Patel. Mr. Patel, in his evidence, admitted that he has not brought any books of account and even he cannot say as to on what basis and how the salary certificate was prepared as at the relevant time, he was not present. The Tribunal on appreciation of the evidence on record and further considering the nature of profession of the deceased, so also his age being 40 years and the accident happened in the year 1994, assessed the monthly income of the deceased at Rs.1,500/-. This Court is of the opinion that the Tribunal cannot be said to have committed any error while determining the actual income of the deceased so that any interference of this Court is required.
12. However, it is pertinent to note that despite the fact that at the time of accident and death, the deceased was aged about 40 years, while determining the amount of compensation under the head of loss to the future dependency benefits, the Tribunal did not consider the future enhanced income of the deceased. In above view of the matter, considering the annual income of the deceased, so also his age, it can safely be said that had the deceased been alive, he would have earned at-least Rs.2,250/- p.m., in future. The Tribunal then deducted 1/3rd amount towards self expenses of the deceased. However, as a matter of fact, as per the cause title of the claim petition, there were 7 applicants i.e.
7 dependents upon the income of the deceased. In that view of the matter, the Tribunal should have deducted 1/5th amount towards self expenses of the deceased. However, on behalf of the appellants – claimants, reliance was placed on the decision rendered in the case of Santosh Devi v/s. National Insurance Co. Ltd. Reported in 2012 [4] SCALE 559, wherein considering the peculiar facts and evidence in said case, 1/10th amount towards self expenses of the deceased was deducted. However, in the aforementioned case, 1/10th amount towards personal expenses came to be deducted considering peculiar facts and circumstances and evidence on record in the said case. In the facts and circumstances of the instant case, the deduction of 1/5th amount towards self expenses of the deceased would meet with the ends of justice. Thus, considering the monthly enhanced future income of the deceased at Rs.2,250/- and deducting 1/5th amount towards personal expenses of the deceased, the monthly loss to the dependency benefits sustained by the appellants – claimants comes to Rs.1,800/- and annual loss comes to Rs.21,600/-. In the instant matter, considering the age of the deceased, the Tribunal applied multiplier of 16 years. As per Sarla Verma's case [supra], it is true that the appropriate multiplier is 15 years, but considering the over-all facts and circumstances of the case and further considering the fact that the Tribunal assessed the actual income of the deceased on the basis of appreciation of evidence though the claimants claimed that the actual income was Rs.3,500/- and further the fact that there is no cross appeal or any cross objections filed by any of the respondents, there does not appear any reason to reduce the multiplier from 16 to 15. Therefore, applying the multiplier of 16, the appellants – claimants are entitled to recover Rs.3,45,600/- [Rs.21,600 x 16]. The Tribunal awarded in-all Rs.12,000/- under the head of loss to the estate as well as conventional amount and other miscellaneous expenses. This Court is of the opinion that the Tribunal should have awarded in-all Rs.25,000/-
under these heads. Thus, the appellants – claimants are otherwise entitled to recover Rs.3,70,600/- by way of compensation. The Tribunal awarded Rs.2,04,000/- by way of compensation and deducting said amount, it can safely be said that the appellants – claimants are entitled to recover Rs.1,66,600/- by way of additional amount of compensation.
13. In connection with First Appeal No. 2537/2008 which is arising from M.A.C.P. No. 978/1994, it was the case of the claimants that deceased Chandubhai was doing work as carpenter and according to the evidence of his widow claimant no. 1 – Gangaben, the deceased used to earn Rs.150/- per day. She, therefore, submitted that her deceased husband was earning at-least Rs.3,000/- to Rs.4,000/- p.m. The Tribunal appreciated the oral evidence on record for the purpose of determining the actual income of the deceased, who was at the time of accident and death, aged about 30 years. The Tribunal, appreciating the evidence on record, observed that since the accident occurred in the year 1994 and further the fact that at the time of the accident the deceased was aged about 30 years and considering the uncertainty prevailing in the regular income of the deceased, considering his nature of profession, Rs.3,000/- to Rs.4,000/-
p.m., as income of the deceased cannot be said to have been duly established. The Tribunal came to the conclusion that the deceased must be earning at-least Rs.1,200/- p.m. However, considering the facts and circumstances of the case and nature of profession of the deceased, considering the over-all evidence on record in this case and considering further the fact that there were eight dependents upon his income, it can safely be said that the deceased must be earning Rs.1,500/- p.m. However, the Tribunal did not consider future prospective income while awarding the amount of compensation under the head of loss to the future dependency benefits. Thus, the prospective future income can be assessed at least at Rs.2,250/- p.m. The Tribunal deducted 1/3rd amount towards his personal expenses and as stated above, as per the cause title of the claim petition, there were eight applicants i.e. eight dependents. Thus, the Tribunal should have deducted 1/5th amount towards self expenses of the deceased. Thus, the monthly loss to the dependency benefits comes to Rs.1,800/- and annual loss comes to Rs.21,600/-. The Tribunal applied multiplier of 16 years though the deceased was aged about 30 years. Considering ratio laid down by the Hon'ble Apex Court in Sarla Verma's case [supra], the Tribunal should have applied the multiplier of 17 years.
Under such circumstances, it can safely be said that the appellants – claimants are entitled to recover Rs.3,67,200/- [Rs.21,600/- x 17] by way of compensation under the head of loss to the future dependency benefits. The Tribunal awarded in-all Rs.12,000/- under the head of loss to the estate, consortium and other miscellaneous expenses. This Court is of the opinion that the Tribunal should have awarded in-all Rs.25,000/- under these heads. The appellants – claimants are, therefore, entitled to recover Rs.3,92,200/- by way of compensation. Since the Tribunal has already awarded Rs.1,65,600/- by way of compensation, deducting said amount, the appellants – claimants are thus entitled to recover Rs.2,26,600/- by way of additional amount of compensation.
14. In connection with First Appeal No. 2538/2008, which is arising out of M.A.C.P. No. 1024/1994, as per the case of the appellant – claimant in the aforementioned vehicular accident, the appellant – claimant sustained serious injuries which resulted into permanent bodily disability affecting his earning capacity. As per the case of the appellant – claimant, at the time of the accident, he was aged about 30 years and was doing job as Supervisor in National Builders and was getting R.3,500/- p.m., by way of salary. According to him, he was required to remain as indoor patient in the hospital for one month and even after his discharge from the hospital, he had to take rest for six months. Though he produced income certificate before the Tribunal, the same was not accepted as it was not proved. He produced necessary medical evidence including his disability certificate. The Tribunal, considering the over-all evidence on record, came to the conclusion that the injured claimant must be earning at-least Rs.1,500/- p.m. Considering the over-all evidence on record, it cannot be said that the Tribunal committed error while determining the actual income of the injured claimant considering his age as well as the fact that the accident occurred in 1994. As per the discussion made by the Tribunal in the impugned judgment and award, it transpires that though as per the disability certificate exh. 79, the bodily disability was assessed by the Medical Officer at 15%, but with the consent of both the parties, the same was assessed at 7.5%. The Tribunal, while awarding compensation under the head of future loss of income, did not take into consideration the future prospective income of the injured. The injured claimant was aged about 30 years and, therefore, there are all the chances of future increase in his income. Considering the facts and circumstances of the case, for the purpose of awarding just and reasonable amount of compensation under the head of future loss of income, the Tribunal should have considered Rs.2,250/- p.m., as future prospective income of the injured claimant. As stated above, with the consent of both the parties, disability affecting the earning capacity of the claimant came to be assessed by the Tribunal at 7.5%. Thus, considering the monthly future prospective income of the injured at Rs.2,250/-, it can safely be said that the future monthly loss of the income comes to Rs.168-75 paise, rounded off to Rs.170/- and the annual loss comes to Rs.2,040/-. The Tribunal applied the multiplier of 16 years considering the age of the appellant injured claimant to be 30 years, but considering the ratio laid down by the Hon'ble Apex Court in Sarla Verma's case [supra], the Tribunal should have adopted multiplier of 17 years. Thus, the appellant injured claimant is entitled to recover Rs.34,680/- [Rs.2,040/- x 17] by way of compensation under the head of future loss of income. The Tribunal awarded Rs.3,000/- p.m., as actual loss of income and considering the nature of injuries and over-all facts and circumstances of the case, it cannot be said that the same was on lesser side considering the monthly income of the claimant at Rs.1,500/- p.m. However, the Tribunal awarded Rs.7,500/- under the head of pain, shock and suffering. Considering the facts and circumstances of the case, this Court is of the opinion that the Tribunal should have awarded Rs.10,000/- under the said head. The Tribunal awarded Rs.5,000/- under the head of medical expenses, attendant charges, transportation charges, etc., and there does not appear any reason to interfere with the said finding. Thus, the appellant injured claimant is entitled to recover Rs.52,680/- by way of compensation. The Tribunal awarded Rs.37,196/- by way of compensation. Deducting the said amount from the total amount of compensation, as considered above, the appellant injured claimant is entitled to recover Rs.15,484/-, rounded off to Rs.15,485/- by way of additional amount of compensation.
15. It is pertinent to note that in the claim petitions, the respective claimants joined the driver, owner and insurance company of the jeep as opponent nos. 4, 5 and 6, but as stated above, while deciding the issue no. 1, the Tribunal came to the conclusion that the accident occurred because of sole rash and negligent driving of the driver of the dumper truck, namely the respondent no. 1 – opponent no. 1. The respondent no. 2 – opponent no. 2 was owner of the vehicle and the dumper truck was insured with respondent no. 3 - opponent no. 3 – insurance company. The Tribunal, therefore, directed the respondent nos. 1, 2 and 3 [opponent nos. 1, 2 and 3 before the Tribunal] to pay the amount of compensation to the respective appellants – claimants. Even during the course of arguments, in connection with these appeals, nothing transpires that the Tribunal committed any error while deciding the issue no.
1 regarding the negligence and holding the driver, owner and insurance company of the dumper truck to pay the amount of compensation and exonerating the driver, owner and insurance company of the jeep, namely respondent nos. 4, 5 and 6 herein [opponent nos. 4, 5 and 6 before the Tribunal]. Thus, about the liability to pay the amount of compensation of the respondent nos. 1,
2 and 3 herein, no interference is warranted in the impugned judgment and award rendered by the Tribunal. About the running interest, the Tribunal held that the appellants – claimants were entitled to recover running interest at the rate of 12% p.a., from the date of the filing of the respective claim petitions till 31/12/1997 and from 1/1/1998, the claimants were entitled to recover running interest at the rate of 9% p.a., till the realization of the amount. Considering the facts and circumstances of the case, this Court is of the opinion that the appellants – claimants should be awarded running interest on the enhanced amount of compensation at the rate of 7.5% p.a., from the date of respective claim petitions till the realization of the enhanced amount of compensation. This Court is further of the opinion that the formula of disbursement of amount of compensation adopted by the concerned Tribunal in the impugned judgment and award is required to be maintained and, therefore, the enhanced amount of compensation shall be disbursed by the concerned Tribunal accordingly.
16. In the result, these appeals are required to be partly allowed.
17. For the foregoing reasons, these appeals are partly allowed and impugned common judgment and award rendered by the Ld. M.A.C. Tribunal [Main] Bharuch, on 30/5/2001 in M.A.C.P. No. 300/1995 and other allied claim petitions is hereby ordered to be modified as under.
I. In connection with First Appeal No. 2535/2008 [M.A.C.P. No. 300/1995] the respective appellants – claimants are held to be entitled to recover Rs.1,45,500/- [Rupees one lac forty five thousand five hundred only] by way of enhanced amount of compensation.
II. In connection with First Appeal No. 2536/2008 [M.A.C.P. No. 663/1994] the respective appellants – claimants are held of compensation.
III. In connection with First Appeal No. 2537/2008 [M.A.C.P. No. 978/1994] the respective appellants – claimants are held to be entitled to recover Rs.2,26,600/- [Rupees two lac twenty six thousand six hundred only] by way of enhanced amount of compensation.
IV. In connection with First Appeal No. 2538/2008 [M.A.C.P. No. 1024/1994] the respective appellant – claimant is held to be entitled to recover Rs.15,485/- [Rupees fifteen thousand four hundred eighty five only] by way of enhanced amount of compensation.
V. The respondent nos. 1, 2 and 3 [original opponent nos. 1, 2 and 3] shall pay the above additional amount of compensation to the respective appellants – claimants with running interest at the rate of 7.5% p.a., from the date of the filing of the respective claim petitions till the realization, on additional amount of compensation with proportionate costs thereon.
VI. The order regarding disbursement of the compensation passed by the concerned Tribunal in the impugned common judgment and award is not interfered with and the same order shall apply even for the disbursement of enhanced amount of compensation to the appellants – claimants. No costs.
(J.C.UPADHYAYA, J.) * Pansala.