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2013 DIGILAW 302 (GUJ)

G. S. R. T. C. v. Munikumar S. Vimawala

2013-06-13

JAYANT PATEL, Z.K.SAIYED

body2013
JUDGMENT : Jayant Patel, J. Both these Appeals arise from the judgment and award passed by the Motor Accident Claims Tribunal (Main) Kheda at Nadiad ("the Tribunal" for short) dated 29.10.1994 whereby the original claimants of MACP Nos.1065 and 1066 of 1987 have been awarded compensation of Rs. 12,20,000/with the interest at the rate of 15% per annum and Rs. 7,20,000/with the interest at the rate of 15% per annum respectively. 2. The short facts of the case appear to be that on 11.10.1987 on National Highway No.8 near Village Dabhan one Shaileshbhai with his wife Sudhaben and his son Munikumar were going to Ahmedabad from Surat and Baroda in Maruti Car No. GTB 9461. As per the claimant the car was being driven by Shaileshbhai and when it reached near the sim of Village Dabhan at about 10:30 a.m. one S.T.Bus from Bhiloda going to Surat bearing No.GRU 8252 came from the opposite direction on the wrong side with the excess speed and dashed with the Maruti Car and such resulted into serious accident and Shaileshbhai, who was driving the Maruti Car, as well as Sudhaben sustained injuries and ultimately they succumbed to the injuries. Munikumar, son of Shaileshbhai who was also in the Maruti Car, sustained injuries. 3. The aforesaid accident gave rise to three claim petitions, one was MACP No.1065 of 1987, the second was MACP No.1066 of 1987, for deaths of Shaileshbhai and Sudhaben respectively and third was MACP No.1067 of 1987 which was filed by Munikumar for compensation for sustaining injuries. The Tribunal ultimately vide impugned judgment and award directed compensation as referred to hereinabove in MACP Nos.1065 and 1066 of 1987. However, so far as MACP No.1067 of 1987 is concerned, the compensation awarded was ofRs.3,500/with the interest at the rate of 15% per annum. No appeal has been preferred by the appellant Corporation against the order passed in MACP No.1067 of 1987 but the appellant Corporation has preferred the appeals against the award passed in MACP Nos.1065 and 1066 of 1987. It may also be recorded that cross-objections have been filed by the original claimants in the respective appeals being Cross-Objection No.2879 of 1996 in First Appeal No.4060 of 1995 and Cross-Objection No.2878 of 1996 in First Appeal No.4061 of 1995. Under these circumstances the present appeals with cross-objections are before this Court. 4. It may also be recorded that cross-objections have been filed by the original claimants in the respective appeals being Cross-Objection No.2879 of 1996 in First Appeal No.4060 of 1995 and Cross-Objection No.2878 of 1996 in First Appeal No.4061 of 1995. Under these circumstances the present appeals with cross-objections are before this Court. 4. We have considered the judgment and reasons recorded by the Tribunal and perused the record and proceedings. We have heard Ms. Maya Desai for Mr. M.D. Pandya, for the appellant Corporation, Mr. Ajay Mehta, for the original claimants and Mr. Sunil Parikh for respondent No.6 - Insurance Company. 5. The learned counsel for the appellant raised the first contention that 100% negligence by the Tribunal for the driver of S.T. Corporation was erroneous inasmuch as, as per the panchnama, road was having width of 22 feet and therefore, 11 feet will be the center of the road. If both the sides are divided, at the most it can be said that bus had crossed 01 feet more than the prescribed center of the road. In the submission of the learned counsel for the appellant, even if the bus had crossed 01 feet on the other side at its right side (whereas left is the correct side) it was the duty of the driver of the Maruti Car also to be careful while driving the vehicle because out of 12 meters width available to the driver of the Maruti Car sufficient space was available to the driver of the Maruti Car to avoid the accident. Since no attempt appears to have been made, it cannot be said that there was no negligence whatsoever of the driver of the Maruti Car. It has been submitted that the Tribunal has committed error on the said aspect and therefore, this Court may consider the same in the present appeals. 6. The contention prima facie may appear to be attractive but upon further scrutiny it cannot be accepted because even if it is treated that the bus had crossed 01 feet on the other side at its right side (wrong side), the negligence of the driver of the bus could be said as proved. It is hardly required to be stated that the negligence is to be considered by applying normal prudence. It is hardly required to be stated that the negligence is to be considered by applying normal prudence. When one is driving the vehicle on highway on the correct side such driver would expect that on the other side vehicle coming from the front would be driven by the driver of the respective vehicle by maintaining the requirement of law or that such vehicle would be driven on their correct side and not on wrong side. No driver of any vehicle on highway would expect that vehicle coming from front side may suddenly come on wrong side and dash the vehicle. Had it been a case of overtaking, it may have different consideration, but there is no such defence raised nor any aspect is pleaded by any party to the proceedings. Therefore, when the driver of the bas has taken up the bus on wrong side and if the accident had resulted with the vehicle which was on correct side, it cannot be said that still however the driver of the vehicle on correct side could be termed as negligent in driving the vehicle. Further, the said contention if examined in light of recital in the panchnama it appears that the damage on the bus is on right side i.e. drivers side whereas damage to the Maruti Car is on the front side. This would show that the bus was driven on wrong side, may be by 01 feet in a manner to the extent of dash with the Maruti Car from different side. Apart from the above, one driving a vehicle of big size needs to be more careful in comparison to driver of the vehicle of smaller size. Under these circumstances we find that the contention that the driver of the bus could not be held 100% negligent for the accident cannot be accepted. 7. The aforesaid is coupled with the circumstances that based on the negligence of the driver the compensation is also awarded in MACP No.1067 of 1987 preferred by the claimant who sustained injuries only, but the appeal has not been preferred by the appellant Corporation on the ground of negligence held of the driver of the bus was erroneous. It is true that the amount involved was small and therefore we leave the matter at this stage without observing further. 8. It is true that the amount involved was small and therefore we leave the matter at this stage without observing further. 8. The learned counsel appearing for the appellant next contended that the quantum of compensation awarded by the Tribunal was erroneous in both the matters inasmuch as higher compensation has been awarded. Whereas the learned counsel appearing for the original claimants submitted that the compensation has been rightly awarded. As per the claimants additional compensation was required to be awarded because in MACP No.1065 of 1987 claimant had demanded compensation ofRs.40 lacs whereas in MACP No.1066 of 1987 the claimant had demanded compensation ofRs.20 lacs, as against, lesser compensations have been awarded. However, the learned counsel appearing for both the sides are unable to show as to why the matter should not be considered in light of the settled legal position by the Apex Court in the case of Sarla Verma (Smt.) And Ors. v. Delhi Transport Corporation And Anr., reported in (2009) 6 SCC 121 : AIR 2009 SC 3104 . 9. In our view, the contention raised on the aspect of quantum of compensation deserves consideration. A perusal of the award and more particularly the observations made by the Tribunal on the question of quantum of compensation at paras 14 to 22, shows that Tribunal has arrived at the figure of assessment of the earlier income of the deceased at Rs. 1,75,000/-based on the income-tax return and the other records in support of the return produced on behalf of the claimant. It is true that if the income of the person concerned is to be traced, the income-tax return may be one of the reliable piece of evidence and therefore, if such is relied upon, the same cannot be said as erroneous. However, further scrutiny shows that together with the return, the profit and loss account as well as bifurcation of the income is provided. As per the records produced on behalf of the claimants, out of the total income shown in the income-tax return there is income of Rs. 40,000/-derived from the investment made which includes interest, dividend etc. All such investment continued even after the death of the claimant and therefore the learned counsel for the appellant is right in submitting that the Tribunal ignored the said aspect while computing the income of the deceased. 40,000/-derived from the investment made which includes interest, dividend etc. All such investment continued even after the death of the claimant and therefore the learned counsel for the appellant is right in submitting that the Tribunal ignored the said aspect while computing the income of the deceased. The same was the position in income-tax return of deceased Sudhaben inasmuch as the income is above Rs. 40,000/-and there also the income approximately of Rs. 40,000/-every year was from the investment made by Sudhaben during her life time. 10. It was submitted on behalf of the appellant that such income derived from the investment deserves to be excluded whereas learned counsel for the claimant submitted that such income cannot be ignored but could be considered while assessing the income of the deceased concerned. It is true that after the death of the deceased such investment may continue and therefore one may at the first glance find that income would also continue after the death and therefore, such income may be excluded from the total income for the purpose of awarding compensation where there is tortuous liability but upon further consideration it appears that the income based on investment is not always automatic but one has to apply mind for deriving the income by change of investment or by realisation of the investment and reinvestment etc. It would essentially require some skill to be applied by the holder of the investment. Therefore, even if investment have continued it cannot be said that the full income would continue, but there will be loss of the skill of the deceased in realising the best return of the investment. If considered reasonably one may say that there will be loss of 25 to 33 per cent to the total income derived from the investment on account of the death of deceased. It is true that the application of skill may vary from person to person but we find it proper to generalise the same in the range of 25 to 33 per cent inasmuch as minimum will be 25% whereas maximum could be 33%. As in the present case the income from the investment was Rs. 40,000/-we find it proper to observe that the loss of skill could be about Rs. 15,000/-of the deceased concerned and therefore, it can be said that the income of Rs. As in the present case the income from the investment was Rs. 40,000/-we find it proper to observe that the loss of skill could be about Rs. 15,000/-of the deceased concerned and therefore, it can be said that the income of Rs. 25,000/-would continue on investment even after the death of the deceased. As such income of Rs. 25,000/-which otherwise has been considered by the Tribunal deserves to be excluded. 11. It appears that the Tribunal has committed error in not considering the deduction towards the personal expenses of the deceased concerned, while computing dependency benefit of the deceased concerned. In case of deceased Shaileshbhai based on the income-tax return the income is assessed at Rs. 1,75,000/. Out of Rs.1,75,000/one third amount would be Rs.58,000/which will be required to be excluded. Consequently the net amount would come to Rs.1,17,000/and if rounded it would be Rs.1,20,000/. Out of the amount of Rs.1,17,000/if Rs.25,000/is excluded which is an income on investment to be continued even after the death of the deceased as per discussion made hereinabove the net income of the deceased for the purpose of dependency benefit can be considered asRs.95,000/. As per the settled legal position laid down by the Apex Court in Sarla Verma, AIR 2009 SC 3104 (Supra) the prospective income would be required to be considered. The Tribunal has not at all taken into consideration the prospective income of the deceased. It is by now well settled that if there is regular income of any person and material is produced to that effect before the Court, normal prospective income would be 50% more the existing income. Accordingly, the prospective income of the deceased Shaileshbhai would come to Rs.1,42,500/per year for the purpose of computing the dependency benefit. 12. As per the decision of the Apex Court in the case of Sarla Varma, AIR 2009 SC 3104 (Supra) since the age of the deceased was 52 years, multiplier of 11 would be available as against the multiplier of 8 awarded by the Tribunal. Accordingly if the multiplier of 11 is applied the figure for compensation would come to Rs.15,67,500/-. Additionally, the Tribunal has awarded Rs.20,000/-towards loss of expectancy of life to which we find it proper not to disturb the same and consequently the amount of compensation would come to Rs.15,87,500/-as against the amount of Rs.12,20,000/-awarded by the Tribunal. 13. Accordingly if the multiplier of 11 is applied the figure for compensation would come to Rs.15,67,500/-. Additionally, the Tribunal has awarded Rs.20,000/-towards loss of expectancy of life to which we find it proper not to disturb the same and consequently the amount of compensation would come to Rs.15,87,500/-as against the amount of Rs.12,20,000/-awarded by the Tribunal. 13. The aforesaid would lead us to further consider the case of compensation for the death of deceased Sudhaben in MCA No.1066 of 1987. 14. In our view the same principle would apply for excluding income on investment and for considering prospective income and for applying multiplier. The Tribunal has assessed the income of the deceased Sudhaben at Rs.70,000/per year whereas if the income-tax returns are considered and the income is averaged out it would come toRs.58,000/as againstRs.70,000/. Therefore, it appears to us that the income based on the income-tax returns could be said asRs.58,000/and if rounded it would beRs.60,000/. Out of the said amount since in the income-tax returns of the deceased Sudhaben the income based on investment is aboutRs.40,000/applying the same principle as considered in the case of death of deceased ShaileshbhaiRs.25,000/will be required to be excluded from the said income, since such portion could be termed as the income on investment which would continue even after death of the deceased. Consequently the net amount would come toRs.35,000/per year as per the income of the deceased Sudhaben. Out of the aforesaid amount as per settled legal position one third amount is required to be excluded for the personal expenses which would come to aboutRs.11,000/and consequently the net income for the purpose of dependency benefit would come toRs.22,000/per year. The Tribunal has not considered the prospective income which is by now well settled to be considered as per the legal settled position in a case where the income is by way of systematic method on regular basis. In our view sufficient proof was available that deceased Sudhaben was a qualified woman working with the firm of a near relative. The same is supported with the income-tax returns of last three years. Therefore, there is no reason not to apply the principle of prospective income and if it is counted at one point five times it would come toRs.33,000/per year. The same is supported with the income-tax returns of last three years. Therefore, there is no reason not to apply the principle of prospective income and if it is counted at one point five times it would come toRs.33,000/per year. The multiplier available as per the decision of Sarla Verma, AIR 2009 SC 3104 (Supra) could be 13 as against the multiplier of 10 applied by the Tribunal. Consequently if the multiplier of 13 is applied the amount would come toRs.4,29,000/as against the total amount awarded by the Tribunal ofRs.7,00,000/as compensation by considering the dependency benefit. The Tribunal has awardedRs.20,000/towards expectancy of life to which we are not inclined to disturb and accordingly the total compensation for death of the deceased in our view would come toRs.4,49,000/and if rounded it would come toRs.4,50,000/as against the amount ofRs.7,20,000/awarded by the Tribunal. 15. In view of the aforesaid observations and discussion the compensation awarded by the Tribunal for the death of the deceased Shaileshbhai as well as deceased Sudhaben are required to be modified accordingly. We may record that we have applied slightly modified criteria for dependency benefits taking into consideration that both the deceased were husband and wife and also dependent upon one another. 16. The learned counsel for the appellant did raised the contention that the interest awarded is on much higher side inasmuch as interest at the rate of 15% per annum has been awarded by the Tribunal as against the normal rate of interest of 7 to 9 per cent per annum. Whereas the learned counsel for the original claimant submitted that the Tribunal has taken into consideration the interest rate prevailing during the period of 19851986 onwards and therefore, such an approach on the part of the Tribunal cannot be said as erroneous. 17. It is true that during the period of 1985-1986 to 1988-1989 the interest rates were much on higher side and therefore, the discretion exercised by the Tribunal for awarding interest at that time could not be said as erroneous. However, pending the appeal the interest rate have gone down and therefore, we find that if the matter is to be considered for awarding additional compensation, the interest awarded by the Tribunal could be modified on the aspect of additional compensation. However, pending the appeal the interest rate have gone down and therefore, we find that if the matter is to be considered for awarding additional compensation, the interest awarded by the Tribunal could be modified on the aspect of additional compensation. If the interest is already paid pending the appeal and the compensation is reduced, it may not call for recovery on the part of the interest. 18. In view of the aforesaid observations and discussion the judgments and award passed by the Tribunal are modified to the extent that in MACP No.1065 of 1987 the original claimant shall be entitled to compensation ofRs.15,87,500/with the interest at the rate of 15% per annum from the date of claim petition until the award is passed by the Tribunal. Since the appeal is preferred in the year 1995, the original claimants will be entitled to interest at the rate of 9% per annum from the date of filing the appeal until the additional amount of compensation is paid and/or deposited with the Tribunal. 19. In MACP No.1066 of 1987 the original claimant would be entitled to principal amount of compensation atRs.4,50,000/with the interest at the rate of 15% until 1995 i.e. the year in which the present appeal is preferred. After 1995 the claimant would be entitled to the interest at the rate of 9% per annum, but with the observation that no recovery shall be made if the interest is already paid pursuant to the order of the Tribunal. 20. First Appeal No.4060 of 1995 shall stand dismissed whereas cross objection filed in First Appeal being No.2879 of 1996 shall stand allowed to the aforesaid extent and First Appeal No.4061 of 1995 shall stand allowed to the aforesaid extent and cross objection filed in the same First Appeal being No.2878 of 1996 shall stand dismissed. It is observed that if any of the claimant have expired then the remaining claimant would be entitled to compensation. 21. Considering the facts and circumstances no order as to costs. Order accordingly.