IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1474 of 2002 With CROSS OBJECTION NO. 9 of 2012 In FIRST APPEAL NO. 1474 of 2002 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.R.UDHWANI ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO judgment ?
4 Whether this case involves a substantial question of law as NO to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO ================================================================ SHEELABEN W/O JAYESHBHAI RAMCHANDRA DAVE & 2 Appellants Versus VISHNUBHAI VALJIBHAI RABARI & 2 Defendants ================================================================ Appearance:
MR SANDIP C SHAH, ADVOCATE for the Appellants.
MR DAKSHESH MEHTA, ADVOCATE for the Defendant(s) No. 3 NOTICE SERVED for the Defendant(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE D.H.WAGHELA and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 12/12/2012 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE G.R.UDHWANI)
1. Aggrieved by award dated 28th November, 2001, made by Motor Accident Claims Tribunal (Auxi.), Ahmedabad under Section 166 of the Motor Vehicles Act, 1988, the appellants, who were the original petitioners before the Claims Tribunal are before this Court.
2. The facts of the case may briefly be stated as under:
2.1 The appellants original petitioners are the heirs of one Jayeshbhai Ramchandra Dave, who lost his life in the motor accident which occurred on 25.7.1998 at about 1:00 p.m. at the intersection between two roads i.e. Mukti Medan to Kalishwar Mahadev and Municipal School Maninagar Kankaria road. He was knocked down by a speeding jeep plying on Municipal School Maninagar – Kankaria road and lost his life while he was being treated in L.G.Hospital.
2.2 The deceased was engaged in the business of cotton waste as a proprietor in the name and style of M/s.Dave and Sons, and as a karta of HUF in the name and style of M/s. J.R. Dave. It was claimed before the Tribunal that the income of deceased from both the sources was Rs.3,00,000/ per annum.
2.3 The petitioners instituted a claim petition claiming compensation in the sum of Rs.45.00 lacs under various heads with the contention that, it was on account of rash and negligent driving of the jeep belonging to opponent No.2 by first opponent; that the accident occurred where deceased Jayeshbhai Dave, who was their bread winner lost his life. It was contended that, being the owner the opponent No.2, as also being the insurer – opponent No.3 were liable to pay the compensation to the appellants. None of the first two opponents defended their case, while the third opponent – National Insurance Company Limited resisted their claim by filing reply at Exh.18.
2.4 Taking into consideration the pleadings before it, as also the documents, the Tribunal framed the following issues for its consideration.
(1) Whether the applicants prove that deceased Jayeshbhai R.Dave sustained injuries and died as a result of rash and negligent driving of vehicle No. GJ – 1 – 9723 by the opponent No.1?
(2) Whether the applicants prove that they are entitled to compensation of Rs.45,00,000/ or any part thereof from the opponents or any of them ?
(3) What order?
2.5 Issue No.1 was answered in affirmative, and while answering issue No.2, the Tribunal quantified the compensation in the sum of Rs.17,21,580/.
2.6 Amongst the witnesses, the first appellant was examined at Exh.27. One Gopalbhai Natvarbhai Patel was examined at Exh.47 as a sole eyewitness, who gave brief account of the accident. From his testimony, the Tribunal found that the jeep was coming from the left side and deceased scooterist had almost crossed 3/4th of the intersection when the speeding jeep knocked him down. The Tribunal observed that, in such circumstances, the jeep driver failed in his duty to stop his vehicle. The resultant impact of the accident was that the scooter got entangled beneath front portion of jeep and the jeep dashed against the electric pole on the south east corner of cross road along with the scooter. No further evidence was led by any of the opponents to question this part of the testimony at Exh.47. But an argument came to be advanced before the Tribunal by opponent No.3 that, having regard to the manner in which the accident took place, either the scooterist was fully responsible or he had contributed to the accident.
2.7 This argument was advanced on the premise that the accident has occurred in the midst of the road and, therefore, the scooterist was also responsible for the occurrence. After appreciating the evidence on record on this count, the Tribunal rejected both the contentions of the third opponent and held that the jeep driver was responsible for the occurrence.
2.8 Before the Tribunal, the appellants adduced evidence to establish that deceased was engaged in the business of cotton waste in the name and style of M/s.Dave and Company as its proprietor and also in the name and style of M/s.J.R.Dave (HUF), and produced IncomeTax Returns of last three years of each of the firm as per the details mentioned below.
M/s. Dave and Sons M/s.J.R.Dave (HUF)
2.9 The deceased expired on 25.7.1998 i.e. in the Financial Year 19981999 and, therefore, IncomeTax Return for the Financial Year 1998 – 1999 were also filed after the death of the deceased. The Tribunal thereafter summed up income from both the sources, and after drawing a mean, arrived at a datum figure of Rs.14,222/ per month for the purpose of compensation. It was, however contended that, had the deceased been alive, he would have prospered in his business and, therefore, in the datum figure, the future prospective income of the deceased should also be added. In support of such contention, reliance was placed upon the cases of Sarla Dixit Vs. Balwant Yadav reported in 1996 ACJ 581 and Ritaben vs. Ahmedabad Municipal Transport Service reported in 1999(1) G.L.R. 388. However, the Tribunal on consideration of the case of U.P.State Road Transport Corporation vs. Trilok Chandra reported in J.T. 1995 (5) (S.C.) 35 : 1996 (2) T.A.C. 286 and Kaushnuma Begum vs. The New India Assurance Company Limited reported in 2001(1) Supreme Today 5, found that the income of the deceased on the date of the accident is required to be taken into consideration, and thus, rejected the contention of the appellants. The Tribunal also applied a multiplier of 15, considering 42 years age of the deceased and awarded compensation in the sum of Rs.17,21,580/ which included Rs.10,000/ towards conventional amount under the head of loss of expectation of life and Rs.5,000/ towards loss of consortium with interest at the rate of 9% per annum from the date of petition till payment. The Tribunal found all the opponents jointly and severally liable to pay the compensation.
3. As the contentions of the third opponent did not find favour with the Tribunal, Cross Objection No.9 of 2012 has been filed raising following contentions:
(1) That the accident occurred in the midst of the road and the scooterist was not driving his scooter on the left side of the road and was not in the moderate speed and therefore he should be held responsible for the accident.
(2) That the multiplier of 12 should have been appropriate multiplier, and considering the age of deceased, the Tribunal was not right in applying the higher multiplier.
(3) That the evidence on record showing the major portion of income of HUF was earned from deposits which remained unaffected by the death of the deceased, has not been considered by the Tribunal.
(4) That the IncomeTax Returns filed after the death of the deceased could not have been taken into consideration for computation of dependency benefits.
NEGLIGENCE:
4. We have noticed from the foregoing paragraphs of this judgment the manner in which the accident had occurred. There is no dispute that the accident occurred at intersection, and from the evidence on record it is crystal clear that, before collision of the two vehicles, the scooterist had almost crossed 3/4th of the inter section. Without noticing this aspect, it appears that, the jeep driver kept on driving his vehicle until it knocked down the scooterist and entangled his scooter beneath it which subsequently dashed against the electric pole on south east corner of crossroad with the scooter. In our opinion, the Tribunal was right in holding that it was the duty of driver of the jeep to stop the vehicle since the scooterist had already crossed 3/4th of the road. If the scooterist had crossed 3/4th of the road, it was obvious that the accident would occur at that intersection if the offending vehicle did not slow down. Therefore just because the accident has occurred in the center of the road or at the intersection, it cannot be said that the deceased had contributed to the accident particularly when no evidence to the contrary was adduced by either of the opponents and, therefore, in our view, the Tribunal was justified in the view it has taken, and there is no material on record to interfere with such finding in appeal. Therefore the contention of the third opponent that deceased was negligent or he contributed to the occurrence must fail.
5. We shall next take up the contentions raised in the Cross Objection by the opponent No.3 questioning quantum of dependency loss to the appellants on account of death of Jayeshbhai. For the purpose of dependency loss, the Tribunal took into consideration the income of the deceased as reflected in the IncomeTax Returns of M/s.Dave and Sons as well as M/s.J.R.Dave (HUF) as tabulated in para 2.8 of this judgment. The contention of the opponent No.3 in the CrossObjection is that income from HUF mainly comprised of the interest, and since the appellants continued to earn interest even after death of Jayeshbhai, the Tribunal ought to have discarded the income from HUF. As against that, the learned advocate for the appellants submits that the deceased was substantially contributing to the income from HUF.
6. It appears that no argument that income from HUF was mainly from deposits or that the returns were not showing the income of the deceased but that of the appellants: and that the returns came to be filed after the death of Jayeshbhai were ever raised before the Tribunal; neither any question was put to witness Exh.27 questioning the income of the deceased nor any evidence controverting what the appellants proved before the Tribunal, was led by opponent No.3. Therefore, in our opinion, the Tribunal has not committed any error in arriving at the datum figure of Rs.14,222/ per month for the purpose of compensation to the appellants.
FUTURE PROSPECTIVE INCOME:
7. The next question is as to whether the appellants are entitled to get compensation or dependency loss on the basis of future prospective income of the deceased. We may note that the deceased was a businessman, having no fixed income or assured business prospects like a salaried employee or professional or a skilled or unskilled labourer. In support of the contention that the dependency loss should be calculated on the basis of future prospective income of the deceased, learned advocate for the appellants has relied upon the following cases.
(1) Smt.Sarla Dixit and another Vs. Balwant Yadav and others reported in AIR 1996 SC 1274.
(2) Nipurnaben and others Vs. Jesingbhai Maganji Thakore and Another reported in (1996) 2 ACJ 845.
(3) Smt.Rafia Sultan Widow of Mirza Sultan Ali Baig and others Vs. Oil & Natural Gas Commission reported in 26(2) GLR 1315.
(4) Ritaben @ Vanitaben Wd/o. Dipakbhai Haribhai and another Vs. Ahmedabad Municipal Transport Service and another reported in (1999) 1 GLR 388.
(5) Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121.
(6) K.R.Madhusudhan and others Vs. Administrative Officer and another reported in (2011) 4 SCC 689.
(7) Santosh Devi Vs. National Insurance Company Limited and others reported in (2012) 6 SCC 421 : 2012 ACJ 1428.
(8) Tasvinaben Pratapbhai Chokshi Vs. Ismail Ibrahim and others reported in 21 GLR 675.
(9) Gujarat State Road Transport Corporation Vs. Thacker Narottam Kalyanji and others reported in (2001) 1 ACJ 391.
(10) Kaushnuma Begum and others vs. New India Assurance Co. Ltd. and others reported in (2001) 1 ACJ 428.
(11) United India Insurance Co. Ltd. Vs. Chandulal Gokaldas Mehta (Decd) Through Sunilbhai C.Mehta and others reported in (2003) 3 GLR 2386.
(12) Maniben Tansukhbhai and others Vs. Patel Ranchhodbhai Valjibhai and another reported in 2004 ACJ 994.
8. As against that, learned advocate for the opponent No.3 – Insurance Company, while relying upon the belowmentioned authorities, contended before us that, the Tribunal has rightly rejected the claim of the appellants on this count in view of the settled legal position that income of the deceased on the date of accident only should be taken into consideration for award of just compensation.
(1) U.P.State Road Transport Corporation and others Vs. Trilok Chandra and others reported in (1996) 4 SCC 362.
(2) Smt.Kaushnuma Begum and others Vs. The New India Assurance Co. Ltd and others reported in 2001(1) Supreme 5.
(3) Sarla Verma and others Vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121.
(4) Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and others reported in (2006) 3 SCC 242.
(5) V.Subbulakshmi and others Vs. S.Lakshmi and another reported in AIR 2008 SC 1256.
9. In the case of Santosh Devi (supra), it was argued by the claimant while relying upon the case of Sarla Verma (supra) that the benefit of 30% rise ought to have been given in the income of the deceased to arrive at just compensation. On the part of the respondent, it was contended that rule of 30% addition in the income of the deceased as laid down in Sarla Verma’s case (supra) cannot be applied to a case like the present one because the deceased was neither in Government service nor he was a permanent employee of a Corporation or Company which may have ensured increase in his income from time to time. It was also argued that those employed in unorganised sectors cannot be placed at par with Government employees and those employed in agencies/instrumentalities of the State or private Corporations/Companies. The Apex Court answered the arguments in paras 11, 12, 13 and 14 which we may quote:
“11. We have considered the respective arguments. Although, the legal jurisprudence developed in the country in last five decades is somewhat precedent-centric, the judgments which have bearing on socio-economic conditions of the citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast changing societal values, the effect of globalisation on the economy of the nation and their impact on the life of the people.
12. In R.K. Malik v. Kiran Pal (2009) 14 SCC 1, the two Judge Bench while dealing with the case involving claim of compensation under Section 163-A of the Act, noticed the judgments in M.S. Grewal v. Deep Chand Sood (2001) 8 SCC 151, Lata Wadhwa v. State of Bihar (2001) 8 SCC 197, Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176, Sarla Dixit v. Balwant Yadav (1996) 3 SCC 179 and made some of the following observations, which are largely reflective of the philosophy that victims of the road accidents and/or their family members should be awarded just compensation:
" In cases of motor accidents the endeavour is to put the dependants/claimants in the pre- accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e.future loss of income/dependency suffered on account of the wrongful act. However, no amount of compensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely.
To put it simply--pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non-pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life, etc. The Act provides for payment of "just compensation" vide Sections 166 and 168. It is left to the courts to decide what would be "just compensation" in the facts of a case."
13. In Sarla Verma's case (supra), another two Judge Bench considered various factors relevant for determining the compensation payable in cases involving motor accidents, noticed apparent divergence in the views expressed by this Court in different cases, referred to large number of precedents including the judgments in U.P. SRTC v. Trilok Chandra (1996) 4 SCC 362, Nance v. British Columbia Electric Railway Co. Ltd. 1951 AC 601, Davies v. Powell Duffryn Associated Collieries Ltd. 1942 AC 601 and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down straight- jacket formula under different headings, some of which are enumerated below:
(i) Addition to income for future prospects “In Susamma Thomas this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years.
Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
(ii) - Deduction for personal and living expenses:
(Not relevant in facts of this case hence omitted by us).
(iii) Selection of multiplier 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."
14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self- employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be have to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma’s judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.”
10.1 From the case of Santosh Devi’s case (supra), what can be deduced is; (a) that the Apex Court was considering the case as regards future prospective income in the context of selfemployed persons or the persons having fixed income (b) as a rule of thumb, the Apex Court held that the presumption of 30% towards prospective income of the deceased falling in the classes mentioned in (a) must be raised, and (c) that the Apex Court explained the observations made in para 24 of the case of Sarla Verma (supra) thus, “... Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma’s judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.”
Thus, nowhere the Apex Court deals with the issue of prospective income of a businessman. Hence the case is not helpful to the appellants.
10.2 Sarla Dixit case (supra) : In this case the deceased was aged 27 years, more or less having a stable job; having 7 years military service as lieutenant; was promoted to the rank of Captain and was qualifying for further promotion to the rank of Major. At the time of his death he had various medals to his credit and passed M.A. Thus, the case of Sarla Dixit was decided on a totally different facts than the one on hand.
10.3 Nipurnaben and others (supra) : In this case the deceased was employed in a Mill Company with a monthly salary of Rs.2,771/ and was not a businessman, and thus the said case was also decided in totally different context.
10.4 Sarla Verma case (supra) : Again we find that the deceased was working as Scientist in the Indian Council of Agriculture Research on a monthly salary of Rs.3,402/, and other benefits, and was aged 22 years. Thus, this case was also decided on a different set of facts and has already been explained in the case of Santosh Devi (supra) which we have extensively dealt with in the foregoing paragraphs of this judgment.
10.5 Madhusudan case (supra) : In this case the deceased was working as Senior Assistant in Karnataka Electricity Board getting a salary of Rs.15,642/. Thus this case was also on totally different facts.
10.6 Gujarat State Road Transport Corporation Vs. Thacker Narottam Kalyanji and others (supra) :
In this case it is worthwhile to refer to para 20, we may quote:
“No hard and fast rule can be uniformly applied to all the cases of compensation arising out of the death of the deceased. The cases in which the men are engaged in service or professional skill are far easier to be dealt with because total average earning can be determined and also the dependency benefits. In the case of business flourishing and going on substantially if not wholly because of the business skill of the deceased do not present any difficulty. In a case like this whatever is earned by the deceased can be legitimately thought to be the outcome of the acumen of the businessman concerned but where the business was not commenced and it was proposed to be started it cannot be said in what manner the skill of the deceased was going to play part in successful running of such business. In ordinary business many factors contribute to make the business a successful going concern, for example capital, goodwill earned in the past, place of business and also the past factors of the business had to be taken into account. Business calibre of the deceased and proper supervision and control by the entrepreneur are very important factors in determining the income of the deceased. Consequently, those who put forth claims arising out of the death of such businessman should produce reasonable evidence on the record to show the nature of business, its dimensions, its potentialities and latent dangers and also the contribution of the personal skill of the businessman in mending and manning the business.”
Thus the Division Bench of this Court expressed the view that, in support of a business income, there has to be reasonable evidence on the record to show the nature of business, its dimensions, its potentialities and latent dangers and also the contribution of the personal skill of the businessman in mending and manning the business. Thus, this case squarely covers the case against the appellants as they have not adduced any evidence as to the skills of business of the deceased justifying the future prospective income.
10.7 United India Insurance Co. Ltd. Vs. Chandulal Gokaldas Mehta (Decd.) Through Sunilbhai C.Mehta and others (supra) and Ritaben @ Vanitaben wd/o. Dipakbhai Haribhai and another (supra).
We have perused both these cases and find that the Court has awarded compensation on the basis of future prospective income of the businessman. However, no issue as to whether the heirs of the deceased businessman are entitled to compensation on the basis of future prospective income was raised and decided by the Court. The Court on the facts of the case awarded such compensation. Therefore, in our opinion, no ratio as is propounded by the learned counsel for the appellants that, in case of the businessman, 30% of the income should be added towards future prospective income has been laid down by the Court.
11. Contending that the income of the deceased as on his death should be taken into account, the learned advocate for the opponent No.3 – Insurance Company has relied upon the various authorities mentioned in para 6 of this judgment. Having gone through the said cases, we do not find any discussion by the court on the point as to what should be the income that may be taken into consideration for the purpose of ascertaining dependency loss.
12. Having considered the facts and circumstances mentioned above and the authorities cited before us, we are of the opinion that, as in the case on hand, the deceased was not a selfemployed person or a person drawing fixed wages etc., but he was a businessman, the judicial note of various aspects like rise in salary with the rise in cost of living etc., taken by the Apex Court in the case of Santosh Devi (supra) for awarding of 30% prospective income in absence of the evidence cannot be applied in the facts and circumstances of the case. The case of a businessman stands totally on different footing as there would not be automatic rise in the profit of the businessman with the rise in the cost of living. A businessman would be required to put strenuous efforts before his profit rise, and such strenuous efforts can be inferred only if the evidence to the effect that the businessman who died in the accident had such business skill as would have allowed him to prosper in future. Therefore, on the facts of the case, we do not find any error in the judgment of the Tribunal on this count.
MULTIPLIER:
13. It is further contended by the learned advocate for the third opponent that, since the deceased was aged 42 years, appropriate multiplier available to the appellants was 12 and not 15. In his submission, the award of 15 multiplier is not in conformity with Section 166 of the Motor Vehicles Act, as it ceases to be a “just compensation”.
So far as this issue is concerned, we may notice that there was no dispute that the deceased was aged 42 years at the time of accident and the Tribunal rejected the contention that 12 is the appropriate multiplier for age of 42 and ultimately awarded 15 multiplier. In the case of Sarla Verma (supra), the Apex Court after finding that there has been inconsistency in adopting multiplier in different cases by different Tribunals/Courts made following observations in para 42 which reads as under:
“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 M17 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, M11 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.”
14. Thus, according to Apex Court, against the age group of 41 45 years, appropriate multiplier is 14, and in the case on hand, 15 multiplier has been applied. However, considering the fact that the award was made way back in the year 2001 and no addition is considered on account of future prospects due to lack of evidence in that regard, we are of the opinion that, it will not be appropriate to reduce the multiplier by 1(one) after a period of almost 11 years of award.
15. In view of the aforesaid discussions, we do no find any substance in the First Appeal as well as in the Cross Objections. Hence, the First Appeal as well as Cross Objections are dismissed with no order as to costs. Record & Proceedings be sent to the trial court forthwith.
(D.H.WAGHELA, J.) (G.R.UDHWANI, J.) syed/