(Per : HONOURABLE MR.JUSTICE C.L. SONI) 1. This appeal is filed by the claimants who are widow and minor daughter of one Shri Jatashankar Pande who died on 22.3.1995 in a vehicular accident.
2. On 22.3.1995 at about 16:30 pm, Shri Jatashankar was going on his Luna moped bearing registration no.GJ6F8707 from Padara to Vadu. When he was between the village Vadu and Karmakuva, his Luna moped met with an accident with one Tempo bearing registration no.GJ6X849 driven by respondent no.1 herein. Shri Jatashankar sustained injuries and ultimately, succumbed to the injuries in S.S.G. Hospital on that very fateful day.
3. The appellants therefore, filed Motor Accident Claims Petition No.368/1995 before the Motor Accident Claims Tribunal at Vadodara claiming compensation of Rs.25,00,000/ from the respondents.
4. The appellants claimants have stated in the claim petition that deceased Jatashankar was working as a commission agent with Sahara India Savings and Investment Corporation ltd. and he was earning Rs.10,000/ per month. It is further stated that deceased Jatashankar would have earned more than Rs.20,000/ in future, had he not died in the accident.
5. This claim petition was resisted by respondent no.3 insurance company by filing written statement exh.41.
6. Before the Claims Tribunal, appellant no.1, widow of the deceased Jatashankar examined herself as claimants' witness no.1. In her deposition at Exh.24, she stated that her husband lost life in the accident because of rash and negligent driving on part of respondent no.1 and because of the death of her husband, she and her daughter had lost the only earning member in the family as they were solely dependent upon the income earned by the deceased Jatashankar. She has stated in the deposition that Jatashankar was earning Rs.10,000/ by working as commission agent with Sahara India Savings and Investment Corporation ltd. and had he not died in the accident, he would have earned more than Rs.20,000/ in future. This witness has also produced on record the documentary evidence like copy of FIR, panchnama to prove the event of accident, as also the copy of certificate of income being drawn by deceased Jatashankar from the company by way of commission. This witness was cross examined on behalf of respondent no.3 insurance company. The appellants claimants also examined one more witness Shivjising Veerjasing at exh.32 to prove that deceased Jatashankar was working as commission agent with Sahara India Savings and Investment Corporation ltd. and was drawing commission of Rs.6000/ per month. Said witness has stated that at the relevant time he was working as a Manager in Sahara India Savings and Investment Corporation ltd. and he also produced on record a copy of certificate at exh.33 to prove income of commission paid to deceased Jatashankar.
7. On the basis of evidence produced before the tribunal, the Tribunal held that the driver of the tempo was negligent in causing the accident. As regards the quantum, the tribunal came to the conclusion that except the certificate produced on record as regards the income of commission being paid by the company, there is no other corroborative evidence and therefore, the tribunal assessed the income of deceased Jatashankar at Rs.2500/. Tribunal adopted the multiplier of 16 and after deducting 1/3rd amount towards personal expenses of the deceased, arrived at a figure of Rs.3,07,200/ towards dependency benefits. To the aforesaid amount, the tribunal added Rs.20,000/ towards loss of estate and consortium and Rs.5,000/ towards funeral expenses. Thus the tribunal ultimately, held the appellants entitled for an amount of Rs.3,32,200/ and ordered the respondents to pay the said amount by way of compensation with interest at the rate of 9% from the date of claim petition upto December 2000 and further interest at the rate of 9% from January 2001 till realisation of the awarded amount. The appellant being dissatisfied with the award passed by the tribunal, has preferred the present first appeal.
8. Learned advocate for the appellants has submitted that before the Claims Tribunal the claimants had produced sufficient documentary evidence to prove that deceased Jatashankar was earning Rs.10,000/ per month by way of commission from Sahara India Savings and Investment Corporation ltd. He further contended that the fact about the deceased Jatashankar working as commission agent with Sahara India Savings and Investment Corporation ltd. is not in dispute. He has taken us through the evidence of claimants' witness no.1 who is widow of deceased Jatashankar to point out that widow of deceased was the best person to know about the income of the deceased Jatashankar and she has categorically stated in her deposition that deceased Jatashankar was earning Rs.10,000/ as commission agent from Sahara India Savings and Investment Corporation ltd. Learned advocate for the appellants has also taken us through the deposition of second witness of the claimants Shri Shivsing Veerjasing to point out that the said witness was serving as the manager in Sahara India Savings and Investment Corporation ltd. and he was the right person to say that deceased Jatashankar was working as commission agent and was drawing commission of Rs.6000/ per month as stated by the said witness in his deposition by relying on certificate produced at exh.33. He therefore, submitted that there is no reason to doubt the figure of commission stated in the certificate which is proved through evidence of the witness who was already there in Sahara India Savings and Investment Corporation ltd. holding higher position. Learned advocate submitted that the tribunal has committed an error in arriving at the income of deceased Jatashankar only at Rs.2500/ per month. Learned advocate submitted that the income of deceased was required to be taken at Rs.6000/ per month as there was cogent evidence available with the tribunal.
Learned advocate for the claimants further submitted that the tribunal has also committed an error in applying the multiplier of 16 for deciding dependency benefits in the claim petition. He pointed out that deceased Jatashankar was aged 25 years of age at the time of accident and, therefore, looking at the schedule provided in the Motor Vehicles Act, though it is for the compensation under section 163A and considering decision in case of Sarla Verma(Smt) and others v. Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121, learned tribunal ought to have applied the multiplier of 18 instead of 16. He therefore, submitted that not only the income of the deceased Jatashankar is required to be assessed at Rs.6000/ per month but the multiplier of 18 is also required to be applied and, therefore, the claimants are entitled to a much higher compensation.
Learned advocate for the claimants has lastly contended that the tribunal has also erred in awarding only Rs.20,000/ under the conventional heads. He contended that the tribunal ought to have awarded Rs.20,000/ under the head of lost of estate of life and Rs.15,000/ under the head of loss of consortium.
9. As against the abovestated arguments advanced by the learned advocate for the appellant, learned advocate for the insurance company Shri K.K. Nair has submitted that before the Claims Tribunal, no cogent evidence as regards the income of the deceased Jatashankar was produced. He further contended that deceased Jatashankar was never regularly employed with Sahara India Savings and Investment Corporation ltd. He was working just as commission agent and it was not sure whether he would continue to work as commission agent. He also submitted that income of the deceased Jatashankar was totally dependent on fetching cases/business for Sahara India Savings and Investment Corporation ltd. It was not sure whether deceased Jatashankar would continue to earn the same income which he was earning by way of commission. He further argued that in absence of any cogent evidence regarding the income of deceased Jatashankar, tribunal has not committed any error in assessing the income of the deceased at Rs.2500/ per month. He has also stated that the tribunal has rightly not placed reliance on the certificate produced by the claimants through second witness. There was no corroborative evidence to support the income of deceased Jatashankar as projected through both the witnesses. He therefore, submitted that no interference in the findings as regards assessment of income done by the tribunal is required.
Learned advocate for respondent no.3 also contended that tribunal has not committed any error in applying the multiplier of 16 looking to the age of the deceased.
10. Having considered the rival contentions and arguments by both the learned advocates and having gone through the record of the case, we find that the tribunal has committed error not only in assessing the income of the deceased but also in applying multiplier of 16 considering the age of the deceased. As regards the income of the deceased, we have evidence of two witnesses on the side of the claimants. Wife as already noted, has stated in her deposition that her husband deceased Jatashankar was earning Rs.10,000/ by way of income from Sahara India Savings and Investment Corporation ltd. Even if the evidence of wife is discarded as regards the income of deceased Jatashankar, second witness examined by the claimants was in our view very important witness for deciding the income of deceased Jatashankar at the relevant time. Said witness Shri Shivjising Veerjasing was examined at exh.32. Said witness has stated that he was working as Manager with Sahara India Savings and Investment Corporation ltd. He has stated that deceased Jatashankar was working as a commission agent. Therefore, we have no doubt in believing about the factum of deceased Jatashankar being working as a commission agent. Said witness has also produced on record a certificate which is proved at exh.33. As per the said certificate, deceased Jatashankar was earning Rs.6000/ per month as and by way of commission from Sahara India Savings and Investment Corporation ltd. Therefore, it is not that this is a case where no evidence at all is produced before the tribunal as regards the income of the deceased Jatashankar. If the factum of deceased Jatashankar working as agent is to be believed, then certainly we have the evidence of second witness who was serving as a manager in the said company who has produced on record the certificate showing the income of the deceased Jatashankar. However, even if Rs.6000/ may not be taken as conclusive proof of income as per the certificate of deceased Jatashankar, certainly we have the reason to believe that deceased Jatashankar would have been earning more than Rs.2500/ per month by way of commission. We are therefore, of the view that the assessment of income done by the tribunal at Rs.2500/ was certainly on a lower side. Therefore, considering the evidence on record, we are of the opinion that deceased Jatashankar would have earned atleast around Rs.4000/ per month. But we take the income of deceased Jatashankar at Rs.3750/ per month to arrive at a just figure of income per month. From the said sum, we deduct 1/3rd for towards personal expenditure of the deceased which comes to Rs.1250/. Thus the net income per month towards dependency would remain at Rs.2500/ per month(Rs.37501250/) Multiplying said sum by 12, it would come to Rs.30,000/ per year(Rs.2500x12).
11. This brings us to the question of application of multiplier. We have recorded the contention of the learned advocate for the claimants that considering the age of the deceased Jatashankar, the tribunal ought to have applied the multiplier of 18. We find that under the schedule of Motor Vehicles Act for compensation under Section 163A, considering the age of 25 years, the multiplier prescribed is 18 years. In decision in case of Sarla Verma(Smt) and others (supra) wherein also the Hon'ble Supreme Court has held that for the age of 25 years, multiplier to be adopted is of 18. Therefore, on both the counts i.e to say if we take multiplier as prescribed in schedule as also considering the judgement of Hon'ble Supreme Court in case of Sarla Verma(Smt) and others (supra), in our view the proper multiplier should have been 18 years instead of 16 years. At this stage, we may reproduce para.42 of the said decision which reads as under :
“42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Tableabove (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, M16 for 31 to 35 years, M15 for 36 to 40 years, M14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M11 for 51 to 55 years, M9 for 56 to 60 years, M7 for 61 to 65 years and M5 for 66 to 70 years.”
12. The Hon'ble Supreme Court in the abovereferred paragraph has decided to award different multipliers considering the age groups. As per the said decision, for the age group of 15 to 20 and 21 to 25, Hon'ble Supreme Court has held the multiplier of 18 as the proper multiplier. Accordingly, in our view, multiplier of 18 is required to be applied. Applying said multiplier, dependency would come to Rs.5,40,000/(Rs.30,000/x18). To this figure we would like to add Rs.25,000/ towards loss of estate of life and Rs.15,000/towards loss of consortium in view of decision of the Division Bench in case of New India Assurance Co. Ltd. v. Takhuben Raghabhai and others reported in 2008 ACJ 989. The tribunal also awarded Rs.5000/ towards funeral expenses. Therefore, Rs.5,000/ is also added to the aforesaid sum. Thus in all, total compensation under different heads would be as follows :
Rs.5,40,000/ towards dependency benefits Rs.25,000/ towards loss of estate of life Rs.15,000/ towards loss of consortium Rs.5000/ towards funeral expenses.
Rs.5,85,000/ total compensation
13. We therefore, hold that the appellants are entitled to an amount of Rs.5,85,000/ towards compensation.
14. Since we have held that the appellants claimants are entitled to total amount of compensation of Rs.5,85,000/, deducting Rs.3,32,200/ as awarded by the tribunal, appellants will be entitled to additional amount of compensation of Rs.2,52,800/. The appellants claimants will be entitled to additional compensation at the rate of 9% per annum from the date of claim petition till the said sum is finally paid over by the respondent. Respondents are directed to pay the abovestated additional compensation with 9% interest from the claim petition till the date of payment within 8 weeks.
15. After the respondents deposit the additional amount with proportionate costs and interest with the tribunal, the tribunal shall release 30% of the said amount in favour of the claimants and shall invest remaining 70% in fixed deposit in any nationalized bank for a period of three years only. Periodical interest which might accrue on such investment, shall be released in favour of the claimants.
16. The appeal is thus partly allowed in terms of above. Award shall be modified accordingly.
R & P be transmitted back to the concerned Court.
(Akil Kureshi,J.) (C.L. Soni,J.) (raghu)