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2015 DIGILAW 568 (GUJ)

Bai Kesarben v. Abdulgafarm Rahimbhai Panwala

2015-05-07

G.B.SHAH, JAYANT PATEL

body2015
JUDGMENT : Jayant Patel, J. The present appeal is directed against the judgment and the award passed by the Tribunal in Motor Accident Claim Petition No. 3831 of 2004 (old No. 2982 of 2000), whereby, the Tribunal has awarded compensation of Rs.7,19,616/- with interest @ 9% per annum. 2. The short facts of the case appear to be that on 19/10/2000 at about 19:30 hours when deceased Chandrasinh and Jethabhai were returning from Jhalod after attending meeting on the motorcycle being driven by the deceased, when they reached near Sanjeli crossing at that time, one truck bearing registration No. GJ179396 dashed with the motorcycle and Chandrasinh sustained injuries and ultimately, succumbed to the injuries. The aforesaid claim petition was filed by the dependent family members of the deceased for compensation of Rs.26,32,000/-. The Tribunal, at the conclusion of the petition, passed the above referred judgment and the award. Under these circumstances, present appeal before this Court. 3. We have heard Mr. Hakim, learned counsel for the appellants - original claimants and learned counsel Ms. Hingorani for Ms. Bhaya, learned counsel for the respondent No. 3 - insurance company. The other respondents are though served, none appears on their behalf. 4. The only contention raised by the learned counsel for the appellants was on the point of quantum of compensation awarded by the Tribunal. It was submitted that the Tribunal has committed error in assessment of the income and applying the multiplier as well as in making the personal deduction and has also committed error in awarding lessor amount of compensation under the heads of loss of consortium, loss of love and affection and loss of estate. Whereas, Ms. Hingorani, learned counsel for the respondent No. 3 insurance company contended that the Tribunal has properly assessed the income and the deduction toward income tax is not considered, though was required to be considered. She submitted that as the compensation has been properly awarded, no interference may be made by this Court in the present appeal. 5. We have considered the record and proceedings and the reasons recorded by the Tribunal in the judgment and the award. 6. The perusal of the document of salary certificate produced at exh. 35 shows that the salary of the deceased at the time of accident was Rs.7,121/- per month. 5. We have considered the record and proceedings and the reasons recorded by the Tribunal in the judgment and the award. 6. The perusal of the document of salary certificate produced at exh. 35 shows that the salary of the deceased at the time of accident was Rs.7,121/- per month. In the said amount, Rs.75/- was towards the vehicle allowance, which would be unavailable to the deceased since he would not be using vehicle on account of accident. If the aforesaid amount is excluded and rounded off, the income of the deceased could be assessed at Rs.7,000/- per month. The Tribunal has applied correct formula for considering the prospective income and if 50% is added, such amount would come to Rs.10,500/- ( Rs.7,000/- + 50% future rise in income) per month and yearly it would come to Rs.1,26,000/- ( Rs.10,500/- x 12). The date of accident was 19/10/2000 and during the Accounting Year 20002001, the exemption limit for income tax was Rs.50,000/-. Therefore, if the said amount of Rs.50,000/- is excluded, the taxable income would come to Rs.76,000/- for the purpose of deduction towards income tax. We may record that during the said period, the tax slabs were higher but subsequently, the tax slabs have substantially gone down and exemption limit has also gone up. Therefore, considering the facts and circumstances, if 10% deduction is made towards income tax, the same can be said as reasonable. Accordingly, such amount would come to Rs.7,600/- per annum and if the said amount is deducted from the above-referred income assessed of Rs.1,26,000/-, it would come to Rs.1,18,400/-. 6.1 The Tribunal has considered ?rd of the amount towards personal expenses. The learned counsel for the appellants raised contention that as per the decision of the Apex Court in the case of Smt. Sarla Verma and Others v. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121 if the number of claimants were up to three, the deduction is to be made of ?rd of the amount whereas, exceeding three and up to six, the deduction is to be made of ¼th of the amount. In our view, this contention may, prima facie, appears to be with substance, but after considering the reasons recorded by the Tribunal, it further appears that the wife of the deceased who is original claimant No. 1, was also serving. In our view, this contention may, prima facie, appears to be with substance, but after considering the reasons recorded by the Tribunal, it further appears that the wife of the deceased who is original claimant No. 1, was also serving. In the claim petition, the occupation is mentioned as service. Therefore, the said aspect was an important aspect but has not been properly disclosed by showing the income of the original claimant No. 1. The Tribunal, taking into consideration that the wife of the deceased was also earning, has made deduction of ?rd of the amount towards the personal expenses of the deceased. We find that if the wife of the deceased was an earning member, the contribution of the deceased to the family would be lesser and the personal expenses would be higher and such being peculiar circumstances, if the Tribunal has considered ?rd of the amount towards personal expenses of the deceased, such a view cannot be said to unreasonable or arbitrary. Under the circumstances, out of the aforesaid amount of Rs.1,18,400/-, ?rd amount would be Rs.39,467/- and ?rd would be Rs.78,933/- and it can be rounded off to Rs.79,000/- for the purpose of economic loss. 6.2 There is substance in the contention of the learned counsel for the appellants that the multiplier applied by the Tribunal is on a lower side keeping in view the age of the deceased. The learned counsel for the appellants submitted that the age of the deceased was 39 years whereas, the learned counsel for the respondent No. 3 insurance company contended that in the Post Mortem Report, the age of the deceased was mentioned as 43 years and therefore, the Tribunal has rightly applied the multiplier of 10. 6.3 In our view, the authenticated Birth Certificate was produced on record at exhs. 33 & 34 and as per the said certificates, the birth date in the service record was 01/06/1961 and accordingly, the age of the deceased would be 39 years and 04 months, which was, in any case, less than 40 years. Under the circumstance, the appropriate multiplier would be 15 and not 10 as applied by the Tribunal. If the multiplier of 15 is considered with the aforesaid yearly economic loss of Rs.79,000/-, the total amount would be Rs.11,85,000/- towards the economic loss. 6.4 Mr. Under the circumstance, the appropriate multiplier would be 15 and not 10 as applied by the Tribunal. If the multiplier of 15 is considered with the aforesaid yearly economic loss of Rs.79,000/-, the total amount would be Rs.11,85,000/- towards the economic loss. 6.4 Mr. Hakim, learned counsel for the appellants contended that the Tribunal has awarded less amount towards the loss of estate and loss of consortium and therefore, this Court may enhance the said amount. 6.5 If the aforesaid contention is examined with the pleadings made in the petition, the appellants had claimed Rs.20,000/- towards loss of expectation of life and Rs.10,000/- towards the loss of consortium as against the same, the Tribunal has awarded Rs.25,000/- towards the loss of estate and Rs.15,000/- towards the loss of consortium. Under the circumstances, we do not find that the Tribunal has committed any error in awarding the amount towards loss of estate and the loss of consortium. The other expense awarded by the Tribunal is Rs.5,000/- towards funeral charges and transportation charges of the dead body, to which, we are not inclined to interfere. Accordingly, the appellants original claimants would be entitled to a total sum of Rs.12,30,000/- towards compensation. The Tribunal has considered the negligence of both the drivers at 80:20 i.e. the driver of the truck was held negligent to extent of 80%, whereas, the deceased driver of the motorcycle was held negligent to the extent of 20%. Accordingly, out of the total amount of compensation of Rs.12,30,000/-, 20% is required to be deducted and accordingly, the appellants - original claimants shall be entitled to a sum of Rs.9,84,000/- towards compensation. 7. In view of the aforesaid observations and discussion, it is held that the appellants - original claimants would be entitled to compensation of Rs.9,84,000/- with interest @ 9% per annum as against Rs.7,19,616/- awarded by the Tribunal. from the date of application until the amount is paid or if deposited, with accrued interest thereon. The judgment and the award passed by the Tribunal shall stand modified accordingly. The appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs. Registry to return the Record and proceedings. Appeal allowed.