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2014 DIGILAW 977 (GUJ)

Dolatsinh Fatehsinh Rathod v. Zarifkhan R. Pathan

2014-09-02

R.R.TRIPATHI

body2014
JUDGMENT R.R. Tripathi, J. 1. This present First Appeal is filed by the appellant-original claimant-mother of the deceased. It may be noted with necessary emphasis that the mother is the only claimant before this Court. The father was earlier impleaded as a claimant but later on was deleted by an order passed below Exh. 17. 2. The present appeal is filed by the appellant-original claimant, being aggrieved by the judgment and award dated 19-9-2006 by the Motor Accident Claims Tribunal (Auxi-II), Presiding Officer, F.T.C. No. (2), Mahesana in M.A.C.P. No. 1621 of 1999. 3. Learned Advocate for the appellant vehemently pressed into service two aspects: (i) the multiplier as applied by the Hon'ble Tribunal "of 12" is erroneous and it ought to have been of 17. Learned Advocate has submitted that the Hon'ble Tribunal in Paragraph No. 8 has recorded as under: "Applicant-Kamlaben Dolatsing has stated in her affidavit Exh. 25 that her son Pravinsing Rathod was aged about 28 years at the time of accident and her version (sic.) as is supported by post-mortem Report Exh. 35. She had further stated in her affidavit that at the time of accident deceased was running his cutlery shop at Ahmedabad and he was earning Rs. 4,000/- per month. But applicant has not produced any reliable and cogent evidence for his monthly income. Hence, I assess Notional monthly income of Pravinsing was alive he had also some personal expenses. Considering that aspect rupees 2/3rd amount from his monthly income i.e. Rs. 1,000/- is required to be deducted. Hence, the complete dependency of the applicant Rs. 500/- per month and that will be just and proper and reasonable amount to meet end of justice. And it should be taken as dependency, and hence, the yearly loss of dependency came to Rs. 6,000/-. And at the time of accident the mother of the deceased-Kamlaben was aged about 50 years. Hence, she is entitled for 12 multiplier. Hence the total dependency of the applicant would come to Rs. 72,000/-. Applicant is also entitled for some amount of mental shock pain suffering and loss of estate etc. and for that applicant is entitled for Rs. 30,000/-. The applicant is also entitled for Rs. 3,000/- under the head of funeral ceremony also. Applicant is entitled to get the compensation of Rs. 1,05,000/-." (Emphasis supplied) 4. 72,000/-. Applicant is also entitled for some amount of mental shock pain suffering and loss of estate etc. and for that applicant is entitled for Rs. 30,000/-. The applicant is also entitled for Rs. 3,000/- under the head of funeral ceremony also. Applicant is entitled to get the compensation of Rs. 1,05,000/-." (Emphasis supplied) 4. Learned Advocate for the appellant relied upon a decision of the Hon'ble Apex Court in the matter of Amrit Bhanu Shali v. National Insurance Co. Ltd., reported in 2012 (11) SCC 738 . Learned Advocate invited the attention of the Court to the Head Note B. which reads as under: "Motor Vehicles Act, 1988 - Secs. 166 and 168, Sch. II - Determination of compensation - Multiplier - To be determined on the basis of age of deceased, not on basis of age of dependants - Deceased aged 26 years at the time of incident - Held, multiplier of 17 proper." Learned Advocate invited attention of the Court to Paragraphs 15 and 16 of the judgment which reads as under: "15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the deceased. There may be a number of dependents of the deceased whose age may be different, and therefore, the age of the dependents has no nexus with the computation of compensation. 16. In Sarla Verma, 2009 (6) SCC 121 , this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with a operative multiplier of 18. As the age of the deceased at the time of death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13." (Emphasis supplied) 5. The matter was argued yesterday also. The learned Advocate was asked to compare the facts of the case which were before the Apex Court and the facts of the case which is before this Court. The learned Advocate did not assist the Court on that count. The matter was argued yesterday also. The learned Advocate was asked to compare the facts of the case which were before the Apex Court and the facts of the case which is before this Court. The learned Advocate did not assist the Court on that count. The Court has perused the judgment and order of the Hon'ble Apex Court and in Paragraph 2, the Court has found the relevant facts which are as under: "2. The deceased, Ritesh Bhanu Shali, son of the 1st and 2nd appellants, was going to Thanod on 20-7-2008 by a Swift Car bearing Registration No. CG-04-HA-6905 from Naharpara, Raipur, Chhatisgarh. While he was coming back at about 4-30 p.m. near Thanod, one Scorpio car bearing Registration No. CG-04-HA-5372 coming rashly and negligently from Abhanpur dashed against the Maruti Swift car. Due to that accident, Ritesh Bhanu Shali and one Sardar Jaspreet died on the spot and another Shivam received injuries. The 1st appellant, Amrit Bhanu Shali is the father; the 2nd appellant, Smt. Sarlaben is the mother and the 3rd appellant, Mamta Bhanu Shali is the sister of the deceased. Claiming to be dependent on the deceased they filed Motor Accident Claim Case No. 80 of 2008 before the Tribunal under Sec. 166 of the Motor Vehicles Act, 1988 (for short, "the Act") for award of compensation to the tune of Rs. 25,50,000/-." 6. The very fact that the Hon'ble Apex Court observed in Paragraph 15 that "there may be a number of dependents of the deceased whose age may be different", and therefore, the age of the dependents has no nexus with computation of compensation. (Emphasis supplied) 7. In fact, learned Advocate was granted time to study another decision of the Hon'ble Apex Court in the matter of Kishan Gopal v. Lata, reported in 2014 (1) SCC 244 , wherein the Hon'ble Apex Court had an occasion to consider the question of multiplier and as per Head Note 'D' the Hon'ble Apex Court observed as under: "D. Motor Vehicles Act, 1988 - Secs. 166 and 168 - Compensation - Appropriate multiplier - Determination of - Relevant factors - Where age of the deceased, the deceased boy was 10 years and taking the young age of the parents, namely, the mother who was about 36 years old, at the time of accident, multiplier of 15 can be applied to the multiplicand, and by applying the legal principles laid down in Sarla Verma, 2009 (6) SCC 121 " 8. The relevant discussion is found in Paragraph 35 which reads as under: "35. The relevant portion of Clause 6 states as under: 6. Notional income for compensation for those who had no income prior to accident- * * * (a) Non-earning persons - Rs. 15,000/- p.a." 9. The aforesaid clause of the Second Schedule to Sec. 163-A of the M.V. Act is considered by this Court in Lata Wadhwa v. State of Bihar, 2001 (8) SCC 197 , while examining the tortious liability of the tort-feasor has examined the criteria for awarding compensation for death of children in accidents between the age group of 10 to 15 years and held in the above case that the compensation shall be awarded taking the contribution of the children to the family at Rs. 12,000/- p.a. and multiplier of 11 has been applied taking the age of the father and then, under the conventional heads the compensation of Rs. 25,000/- was awarded. Thus, a total sum of Rs. 1,57,000/- was awarded in that case." 9. The decision of the Hon'ble Apex Court in the matter of Sarla Verma (Smt.) v. Delhi Transport Corporation, reported in 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)] is a land-mark judgment and the Hon'ble Apex Court has laid down in detail the guidelines so as to see that unwarranted discrepancy in the orders passed by either the Hon'ble Tribunal or by the High Court are avoided to possible extent. In case of Sarla Verma (supra), the Hon'ble Apex Court had observed as Step 2 (Ascertaining the multiplier) as under: "Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. In case of Sarla Verma (supra), the Hon'ble Apex Court had observed as Step 2 (Ascertaining the multiplier) as under: "Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased." 10. The Court cannot lose sight of the fact that this particular guideline is provided in a case wherein the Hon'ble Apex Court was not required to decide the question of multiplier where the claimants were the only parents of the deceased. That being so, the Court once has to necessarily take recourse to another judgment of the Hon'ble Apex Court of a Larger Bench in the matter of U.P. State Road Transport Corporation v. Trilok Chandra, reported in 1996 (4) SCC 362 wherein the Hon'ble Apex Court was directly concerned with determination of multiplier where the claimants are the parents of the deceased. The Hon'ble Apex Court observed in Head Note A as under: "A. Motor Vehicles Act, 1939 - Sec. 110-B - Just compensation in fatal accident cases - Multiplier method for determining be applied - Maximum multiplier to be adopted - Correct principle reiterated." The relevant discussion is found in Paragraphs 11 and 12 of the judgment. "11. The Gujarat High Court also pointed out that principles laid down in the case of Davies (supra) and that in the case of Nance (supra) led to the same end results, because although, as per Viscount Simon the dependency amount is required to be multiplied by the figure of the expected useful life of the deceased, the sum has to be discounted before equivalent amount in lump-sum has to be worked out keeping in view the fact that the sum was to be spread over a period of years and secondly, allowance has to be made for uncertainties like the possible premature death of the dependants or of the deceased had he been alive, remarriage of the widow, acceleration over other interests of the estate, etc. The Gujarat High Court expressed the opinion that if proper discount is done after arriving at the lump-sum equivalent to this dependency, spread over for a period of years the end result will be the same as that calculated by using a proper multiplier to the annual loss. This multiplier is the year's purchase factor. Referring to the decision of Lord Diplock in Mallett v. McMongale, All. ER at p. 191, wherein an annuity table was worked out, the High Court observed that 12 to 15 years should be the normal multiplier and for the case before the Court the outer multiplier of 15 years purchase would be proper. The same view in regard to the range for a healthy young man was expressed by this Court in C.K. Subramonia Iyer v. T. Kunhikuttan Nair, 1969 (3) SCC 64 . 12. For concluding the analysis it is necessary now to refer to the judgment of this Court in the case of G.M., Kerala S.R.T.C. v. Susamma Thomas (supra). In that case, this Court culled out the basic principles governing the assessment of compensation emerging from the legal authorities cited above and reiterated that the multiplier method is the sound method of assessing compensation. The Court observed: "The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up aver the period for which dependency is expected to last." (Emphasis supplied) The principle was explained and illustrated by a mathematical example: (SCC pages 185-186 Para 17): "the multiplier represents the number of years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000/-. If a sum of Rs. 1,00,000/- is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. Take for instance a case where annual loss of dependency is Rs. 10,000/-. If a sum of Rs. 1,00,000/- is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs. 10,000/- would be 20. Then, the multiplier, i.e. the number of years' purchase of 20 will yield the annual dependency perpetually. Then, allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowance for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts, the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up." 11. Could there be any more clearer discussion and guiding material in the matter of determination of multiplier? This Court is of the view that this decision being of the Larger Bench and directly on the point wherein the explanation of deciding the multiplier is considered from both the angles, i.e. from the angle of the age of the deceased as well as the angle of the age of the dependents is applicable to the facts of the present case. 12. In furtherance to the decision cited and relied on in the matter of Amrit Bhanu Shali, [ 2012 (11) SCC 738 ], learned Advocate for the appellant also relied on a judgment of the Division Bench of this Court in First Appeal No. 3264 of 2010 (Coram: M.R. Shah, J. and R.P. Dholaria, J.) dated 17-6-2014. Learned Advocate for the appellant submitted that the Hon'ble Division Bench had considered the case of Kishan Gopal v. Lola, reported in 2014 (1) SCC 244 . Learned Advocate for the appellant submitted that the Hon'ble Division Bench had considered the case of Kishan Gopal v. Lola, reported in 2014 (1) SCC 244 . It also considered the decision of the Hon'ble Apex Court in the matter of Amrit Bhanu Shali v. National Insurance Company Ltd., reported in 2012 (11) SCC 738 and also considering the land-mark judgment of the Hon'ble Apex Court in the matter of Sarla Verma (Smt.) v. Delhi Transport Corporation, reported in 2009 (6) SCC 121 : [2010 (1) GLR 17 (SC)], wherein the Division Bench in Paragraph 10 held as under: "In view of the above binding decision of the Hon'ble Supreme Court in which the Hon'ble Supreme Court has laid down the law which if applied as a rule of thumb as observed by the Hon'ble Supreme Court in catena of decisions, the contention on behalf of the appellant-Insurance Company that while applying the multiplier for the purpose of awarding compensation under the head of future economical loss, the age of the parents/dependants is required to be considered and not the age of the deceased, cannot be accepted. The learned Tribunal has rightly applied the multiplier of 16 considering the age of the deceased (32 years) and accordingly, has rightly awarded Rs. 26,16,576/- under the head of future economical loss. The impugned judgment and award passed by the learned Tribunal is absolutely in consonance with the decision of the Hon'ble Supreme Court in the case of Sarla Verma, 2009 (6) SCC 121 as well as in the case of Amrit Bhanu Shali, 2012 (11) SCC 738 , which is not required to be interfered by this Court. In the facts and circumstances of the case, we are of the opinion that an amount of Rs. 26,28,576/- awarded by the learned Tribunal towards the compensation for the death of the deceased is just compensation which is neither excessive nor on higher side. Under the circumstances, the above appeal deserves to be dismissed." 13. In view of the discussion hereinabove, this Court is of the opinion that the judgment of the Hon'ble Apex Court (Larger Bench) in the matter of U.P. State Road Transport Corporation, [ 1996 (4) SCC 362 ] helps the case and the same is applicable to the facts of the present case. In view of the discussion hereinabove, this Court is of the opinion that the judgment of the Hon'ble Apex Court (Larger Bench) in the matter of U.P. State Road Transport Corporation, [ 1996 (4) SCC 362 ] helps the case and the same is applicable to the facts of the present case. Therefore, the contention of multiplier being on the lower side being 12, the determination on the basis of the age of the mother being 50 years at the time of accident is not acceptable. The request that the multiplier should be enhanced from 12 to 17 cannot be acceded to. 14. On the second submission of the learned Advocate about prospective income also, learned Advocate could not convince this Court that the Hon'ble Tribunal has committed any error. 15. Let there be a clear message to the people at large that they cannot take benefit of their own wrong namely, not paying the income tax and then claiming compensation on the basis of the claimed income of the deceased. Even otherwise, the law is very clear that in absence of a reliable and cogent evidence, the Tribunal has to assess the income after taking into consideration all relevant aspects of the matter which are led before the Tribunal. In the present case, the Tribunal has assessed the monthly income of Pravinsing Rathod @ Rs. 1,500/- per month. In absence of any evidence on record, this Court finds that the Tribunal has not committed any error in assessing the income at Rs. 1,500/- per month and not taking into consideration the prospective income. Learned Advocate for the appellant has not pointed that a specific contention was raised by his counter-part before the Hon'ble Tribunal to look into the matter from that angle. In the result, this First Appeal fails and the same is dismissed.