Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 229 (GUJ)

Patel Hasumatiben Mohanlal v. Bitusing Driver

2015-02-25

G.B.SHAH, M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. Feeling aggrieved and dissatisfied with the judgment and award dated 29-10-2007 passed by the Motor Accident Claims Tribunal(Aux.III), Mehsana, (hereinafter referred to as the learned Tribunal for short) in Motor Accident Claims Petition No.17 of 2000 by which the learned Tribunal has partly allowed the said claim petition and has awarded a total sum of Rs.13,29,600/- towards compensation for the death of deceased-Mohanlal Patel, the appellants herein-original claimants have preferred present First Appeal to enhance the amount of compensation awarded by the learned Tribunal. 2. Facts leading to filing of present First Appeal in short are that in a vehicular accident which took place on 20-11-1999, deceased-Mohanlal Patel, who was going on his motor cycle from Mehsana to Unjha, dashed with truck bearing registration No.P.B.04.3.9721 and sustained serious injuries and succumbed to the injuries after a period of two days while taking the treatment in the hospital. Therefore, the original claimants-his widow and minor children filed the claim petition before the learned Tribunal claiming Rs.22,00,000/- towards compensation for the death of the deceased. 2.1 It was the case on behalf of the original claimants that at the time of accident, the deceased was aged approximately 50 years was serving with the ONGC as Technician earning yearly pay of Rs.1,62,997/-. It was also the case on behalf of the claimants that the deceased was also getting income of Rs.40,000/- per annum from the agricultural land. Therefore, the original claimants claimed a total sum of Rs.22,00,000/- towards compensation under different heads towards the death of the deceased. 2.2 The claim petition was opposed by the Insurance Company of the truck involved in the accident denying the averments and allegation made in the claim petition including the age and the income of the deceased. 2.3 The learned Tribunal framed the issues. 2.4 On appreciation of evidence, the learned Tribunal has held that the original opponent No.1-driver of truck involved in the accident was sole negligent. The finding recorded by the learned Tribunal with respect to negligence of the original opponent No.1- driver of truck involved in the accident has not been disputed and/or challenged by the respondent No.3 herein-Insurance Company. Therefore, the present appeal is required to be considered on the quantum of compensation awarded by the learned Tribunal. The finding recorded by the learned Tribunal with respect to negligence of the original opponent No.1- driver of truck involved in the accident has not been disputed and/or challenged by the respondent No.3 herein-Insurance Company. Therefore, the present appeal is required to be considered on the quantum of compensation awarded by the learned Tribunal. 2.5 On appreciation of evidence, the learned Tribunal has considered the income of the deceased at Rs.1,75,000/- per annum and considered the age of the deceased at 50 years and 6 months and after deducting one-third towards personal expenses of the deceased and thereafter applying the multiplier of 11, the learned Tribunal has awarded Rs.12,82,600/- towards loss of dependency/future economic loss. Thereafter, the learned Tribunal has awarded a further sum of Rs.10,000/- towards treatment charges, medicines and transportation; Rs.30,000/- under the head of consortium, loss of love and affection, mental pain and suffering, etc. and Rs.5,000/- for funeral expenses. Thus, by the impugned judgment and award, the learned Tribunal has awarded a total sum of Rs.13,29,600/- with interest @ 8% p.a. from the date of the claim petition till realization. 2.6 Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal, the appellants herein-the original claimants have preferred the present First Appeal to enhance the amount of compensation. 3. Ms.Vashi, learned advocate for Mr.Unwala, the learned advocate appearing on behalf of the appellants-original claimants, has vehemently submitted that the learned Tribunal has materially erred in considering income of the deceased at the time of accident at Rs.1,75,000/- per annum. It is further submitted by learned advocate appearing on behalf of the appellants that while awarding future economic loss, the learned Tribunal has not considered future rise in income and the fact that if the deceased had survived, he would have continued in service upto 60 years. 3.1 It is further submitted by Ms. Vashi, learned advocate appearing on behalf of the appellants-original claimants that the learned Tribunal has materially erred in awarding Rs.10,000/- towards medical charges, transportation etc. 3.2 It is further submitted by Ms.Vashi, learned advocate appearing on behalf of the appellants-original claimants that the learned Tribunal has materially erred in awarding Rs.30,000/- towards loss of consortium, loss of love and affection, loss of estate and pain, shock and suffering. 3.2 It is further submitted by Ms.Vashi, learned advocate appearing on behalf of the appellants-original claimants that the learned Tribunal has materially erred in awarding Rs.30,000/- towards loss of consortium, loss of love and affection, loss of estate and pain, shock and suffering. 3.3 It is further submitted that the learned Tribunal ought to have awarded at least Rs.1,00,000/- towards loss of consortium, loss of love and affection and loss of estate. 3.4 It is further submitted that as the deceased survived for two days and died in the hospital while taking the treatment, the learned Tribunal ought to have awarded atleast Rs.25,000/- towards pain, shock and suffering. 3.5 Ms.Vashi, learned advocate appearing on behalf of the appellants-original claimants has vehemently submitted that despite the fact that the deceased was having agricultural land, the learned Tribunal has materially erred in not awarding any amount towards the loss of agricultural income. It is submitted that even if it is considered that even after the death of the deceased, the agricultural land would have been inherited by his heirs, in that case also, as per the decision in the case of Helen C. Rebello v. Maharashtra State Road Transport Corpn. reported in AIR 1998 Supreme Court 3191, the claimants shall be entitled to atleast Rs.1,000/- per month towards supervision charges as, after the death of the deceased, the claimants are required to engage somebody to look after the agricultural land. 3.6 It is further submitted by Ms.Vashi, learned advocate appearing on behalf of the appellants-original claimants, that the learned Tribunal has materially erred in awarding interest @ 8% p.a. It is submitted that considering the rate of interest prevailing at the relevant time of the accident i.e. in 1999 and as per the decision of this Court rendered on 6-1-2015 in a group of First Appeals namely, First Appeal No.7910 of 1999 with First Appeal No.7911 of 1999 with First Appeal No.7912 of 1999 awarding interest @ 9% p.a. with respect to accident which took place in the year 1990, the learned Tribunal ought to have awarded interest @ 9% per annum. Making the above submissions, it is requested to allow the present appeal and modify the impugned judgment and award passed by the learned Tribunal to the aforesaid extent. 4. Making the above submissions, it is requested to allow the present appeal and modify the impugned judgment and award passed by the learned Tribunal to the aforesaid extent. 4. Mr.R.D.Mehta, learned advocate has appeared for Mr.Dakshesh Mehta, learned advocate appearing on behalf of the respondent-Insurance Company-insurer of the truck involved in the accident. 4.1 It is submitted that in the facts and circumstances of the case and considering the evidence on record, the learned Tribunal has rightly assessed the income of the deceased at Rs.1,75,000/- per annum, which is not required to be interfered with. It is submitted that as the deceased was above 50 years of age, as per the decision of the Honble Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation reported in (2009)6 Supreme Court Cases page 121, nothing was required to be added towards future rise in income. 4.2 It is submitted by Mr.Mehta, the learned advocate appearing for the respondent-Insurance Company that as the deceased was above 50 years of age, the learned Tribunal has rightly applied the multiplier of 11. 4.3 It is submitted that as, even in the cross-examination, the widow of the deceased has specifically admitted that she has no evidence to prove the agricultural income, the learned Tribunal has rightly not awarded any amount towards loss of agricultural income. 4.4 It is further submitted by Mr.Mehta, the learned advocate appearing for the respondent-Insurance Company, that despite the fact that the claimants produced medical bills of Rs.2,000/- only, the learned Tribunal has still awarded Rs.10,000/- towards medical expenses, transportation, etc. 4.5 It is further submitted that even the learned Tribunal has awarded the amount under the head of pain, shock and suffering while awarding Rs.30,000/- in all towards loss of consortium, loss of estate and pain, shock and suffering etc. It is further submitted that therefore it cannot be said that the learned Tribunal has not awarded any amount towards pain, shock and suffering. 4.6 It is further submitted by the learned advocate appearing for the respondent-Insurance Company that in the facts and circumstances of the case, when the learned Tribunal has exercised the discretion while awarding interest @ 8% p.a., the same is not required to be interfered with by this Court. It is submitted that as such, awarding rate of interest is within the domain of the learned Tribunal. It is submitted that as such, awarding rate of interest is within the domain of the learned Tribunal. It is further submitted that when the learned Tribunal has exercised the discretion judiciously while awarding interest @ 8% p.a., the same is not required to be interfered with by this Court. 5. We have heard learned advocates appearing for the respective parties at length. We have perused the impugned judgment and award passed by the learned Tribunal and have scanned and/or re-appreciated the entire evidences on record. 6. As observed hereinabove, the present appeal has been preferred by the appellants herein-original claimants to enhance the amount of compensation awarded by the learned Tribunal. 7. From the impugned judgment and award passed by the learned Tribunal, it appears that the learned Tribunal has awarded a total sum of Rs.13,29,600/- under different heads to the original claimants for the death of the deceased-Mohanlal Patel with interest @ 8% p.a. from the date of the application till realisation as under: Rs. Particulars 12,82,600/- Future economic loss/loss of dependency 10,000/- Medical treatment charges, medicines and transportation 30,000/- Loss of consortium, loss of affection and mental pain and suffering 5,000/- Funeral expenses 13,29,600/- Total 7.1 While awarding future economic loss, the learned Tribunal has considered the income of the deceased at the time accident at Rs.1,75,000/- p.a. Considering the documentary evidence, more particularly, the salary certificate produced on record, it cannot be said that the learned Tribunal has committed any error in assessing the income of the deceased at the time of accident at Rs.1,75,000/- p.a. Learned advocate appearing on behalf of appellants herein-original claimants is not in a position to point out how the finding recorded by the learned Tribunal in assessing the income of the deceased at Rs.1,75,000/- can be said to be erroneous. As observed hereinabove, and considering the documentary evidences on record, more particularly, pay slip of the deceased produced at Exh.92, we confirm the finding recorded by the learned Tribunal in assessing the income of the deceased at the time of accident at Rs.1,75,000/- p.a. As the deceased was above 50 years of age (50 years and 6 months), as per the decision of the Hon’ble Supreme Court in the case of Sarla Verma(supra), no further amount was required to be added towards future rise in income. Considering the decision in the case of Sarla Verma(supra), even multiplier of 11 as applied by the learned Tribunal is proper and as such, the learned Tribunal has not committed any error with respect to the same. After deducting one-third towards personal expenses of the deceased, as such, the learned Tribunal has rightly awarded Rs.12,82,600/- towards loss of dependency. However, at the same time, the learned Tribunal has committed an error in not awarding any amount towards loss of agricultural income. It is true that in the cross-examination, the widow of the deceased has specifically admitted that she has no documentary evidence to prove the income from agricultural land. However, at the same time, it cannot be disputed that after the death of the deceased, who was owning the agricultural land, the claimants are required to engage some person to look after the agricultural land. As the accident occurred in the year 1999 and even considering the extent of the land i.e. only 33 gunthas, if an amount of Rs.1,000/- per month is awarded towards loss of supervisory charge and/or expenses to be incurred for engaging the person to look after the agricultural land, it will meet the ends of justice. Thus, while considering the loss of dependency, Rs.12,000/- per annum is required to be added. Thus, the loss of dependency would come to Rs.1,87,000/- per annum and after deducting one-third towards personal expenses of the deceased and thereafter applying multiplier of 11, the original claimants shall be entitled to Rs.13,71,337/- under the head of loss of dependency instead of Rs.12,82,600/- as awarded by the learned Tribunal. 7.2 Now so far as the amount awarded under the conventional heads i.e. loss of consortium, loss of estate and loss of love and affection is concerned, it appears that the learned Tribunal has awarded a sum of Rs.30,000/- only towards the compensation under the conventional heads. As per the decisions of the Honble Supreme Court in the case of Sarla Verma (supra) as well as the decision of the Division Bench of this Court in First Appeal 3894 of 2006 rendered on 14-10-2014, the claimants shall be entitled to Rs.1,00,000/- in all towards the loss of consortium, loss of estate and loss of love and affection instead of Rs.30,000/- as awarded by the learned Tribunal. 7.3 It is required to be noted that the deceased sustained serious injuries, he was hospitalised and he died after a period of two days in the hospital while taking the treatment. Therefore, the claimants shall be entitled to Rs.25,000/- towards pain, shock and suffering also. 7.4 The learned Tribunal has awarded interest @ 8% p.a. from the date of claim petition till realization. Considering the decision of this Court rendered on 6-1-2015 in a group of First Appeals namely, First Appeal No.7910 of 1999 with First Appeal No.7911 of 1999 with First Appeal No.7912 of 1999 awarding interest @ 9% p.a. with respect to accident which took place in the year 1990, in the present case, the claimants shall be entitled to interest @ 9% p.a. from the date of application till realization. 8. In view of the above and for the reasons stated above, present First Appeal succeeds in part. The impugned judgment and award passed by the learned Tribunal is hereby modified to the aforesaid extent and it is held that the appellants shall be entitled to a total sum of Rs.15,11,337/- as compensation from all the original opponents with interest @ 9% p.a. thereon from the date of application till realisation. The balance/enhanced amount of compensation as per the present order to be deposited by the respondent No.3 herein-Insurance Company in the learned Tribunal within a period of eight weeks from today and thereafter, the learned Tribunal to pay the said amount to the original claimants by Account Payee Cheque on proper identification and verification. In the facts and circumstances of the case, no order as to costs. Order accordingly.