ICICI Lombard General Insurance Co. Ltd. v. Nagji P. Madhvi
2010-10-04
H.B.ANTANI, JAYANT PATEL
body2010
DigiLaw.ai
JUDGMENT : JAYANT PATEL, J. 1. Leave to delete respondents No.1, 2 and 3 since the challenge in the appeal is limited to the quantum of compensation only. 2. Admit. Mr. Paresh Darji, learned Advocate appears for respondents-original claimants No.4, 5 and 6 and waives service of Notice of admission. By consent of the learned Advocates for the respective parties, this Appeal is taken up for final hearing. 3. The facts of the case in brief is that the deceased Sumitraben Bharatbhai Darji with her family members had gone to Bhaiya Fulpur village of Allahabad in Jeep bearing No.GJ-17-C-6802 to attend religious ceremony. On 30.10.2008, they were returning after completing their religious tour in the same jeep. On 1.11.2008 at about 7 a.m., when the jeep reached near Mangalyavas village bridge situated near Ajmer, the driver of the offending truck bearing No.GJ-12-X-3504 came from wrong side driving the truck in rash and negligent manner without blowing horn and dashed with the front portion of the jeep in which the deceased was travelling. The impact of the accident was such that the jeep turned turtle and fallen into ditch as a result of which severe injury was sustained by the passengers including deceased Sumitraben who ultimately succumbed to the injuries. 4. Claim petition was filed being MACP No. 1250/2008 claiming compensation of Rs. 20 lakhs. The Tribunal ultimately, after hearing both the sides, awarded compensation of Rs. 7,70,000/- with interest @ 7.5% per annum from the date of application till it is realized. It is under this circumstance, the present appeal is preferred before this Court. 5. We have heard Mr Vibhuti Nanavati, learned Advocate for the appellant and Mr Paresh Darji, learned Advocate for the original claimants. 6. The first contention raised by the learned Advocate for the appellant is that the Tribunal has committed error in assessment of the income of the deceased at Rs. 6,000/- per month. It is submitted that the claimants were not residing at Ahmedabad and they were residing in village at Madhvas, Taluka Lunavada, District Panchmahal where it is not possible to believe that she would have income of Rs. 10,000/- per month as per the say of the witness. It is submitted that on the facts and circumstances, the Tribunal could have considered the income of Rs.
10,000/- per month as per the say of the witness. It is submitted that on the facts and circumstances, the Tribunal could have considered the income of Rs. 3,000/- per month as that of a housewife which may be as per the view taken by various High Courts. 7. The examination of the said contention shows that as per the evidence led before the Tribunal, two witnesses were examined being Shankarlal Harchandji Darji at Exh.57 and Atulkumar Nagindas Parmar at Exh.59. They have clearly deposed about the tailoring work undertaken by the deceased and as per them, she was expert in stitching pants. It was stated that they used to assign work to the deceased and they used to pay remuneration also. The registration number of the shop as tailoring shop was also produced before the Tribunal. In the cross-examination of both these witnesses, they have not been contradicted to the extent of engaging the deceased for tailoring work and the payment as was being made. Even if the income is considered as that of Rs. 10,000/- per month, filing of Income Tax return was not mandatory for a woman earning income less than prescribed income under the Income Tax Act. As against the same, the Tribunal has assessed her income at Rs. 6,000/- per month. In any case, it was not a case of a housewife doing no other work but was a case where the deceased lady had a skill of tailoring work and she was engaged in the tailoring work. Even if it is considered that the deceased was engaged for tailoring work, income of Rs. 6,000/- per month in the year 2008 could not be said to be on higher side as assessed by the Tribunal. Therefore, the said contention deserves to be rejected. 8. Mr. Nanavati argued that the Tribunal has attributed full negligence on the part of the truck driver. 9. In view of the findings recorded by the Tribunal in para 17 of the judgment, as the driver of the truck had come from the wrong side in a rash and negligent manner and dashed with the jeep, the said findings and the liability attributed to the driver of the truck to the fullest extent, cannot be said to be erroneous. 10.
10. Learned Advocate next contended that the multiplier of 15 applied by the Tribunal is on higher side and in support of his contention he relied upon a decision of the Hon'ble Apex Court in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Anr. reported in 2009 (6) SCC 121 and more particularly the conclusions recorded in para 42. 10A. There is considerable force in the submission to the extent that the correct multiplier as per the above referred decision of the Apex Court was 14 since the deceased was aged 43 years whereas, the Tribunal has awarded multiplier of 15. Mr Darji, learned Advocate for the original claimant is not in a position to dispute the proposition of applicability on the aspects of multiplier as laid down by the Hon'ble Apex Court in the case of Sarla Verma (supra). We, therefore, find that error has been committed by the Tribunal on the aspect of applying multiplier exceeding 15 which deserves to be interfered with and the Tribunal ought to have granted multiplier of 14 only and not 15 as per the impugned judgment. The compensation awarded on other different heads is not required to be interfered with, considering the facts and circumstances of the case. 11. Hence, in view of the aforesaid, the judgment and award passed by the Tribunal which is impugned in the present appeal deserves to be modified to the extent that the multiplier of 14 shall be applied instead of 15 awarded by the Tribunal. Thus, considering her yearly income at Rs. 72,000/- and deducting ?rd therefrom, the net yearly dependency loss comes to Rs. 48,000/-. Applying thereto a multiplier of 14, the claimants would be entitled to get net dependency loss of Rs. 6,72,000/- plus interest and costs. The judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The Appeal is allowed accordingly. No order as to costs. Order accordingly.