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2017 DIGILAW 382 (GUJ)

Jikuba v. Cama Hotels

2017-02-15

ABDULLAH GULAMAHMED URAIZEE

body2017
JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The appellant, who is the mother of the deceased victim of the motor vehicle accident, which happened on 19.06.1990 is not happy with the judgment and award dated 9th September 2009 passed by the Motor Accidents Claims Tribunal (Aux.), Court No. 15, Ahmedabad in Motor Accident Claim Petition No. 163 of 1993 whereby a sum of Rs. 2,93,800/- along with interest at the rate of 7.5% is awarded as compensation, has filed the present first appeal under section 173 of the Motor Vehicles Act, 1988 ("the MV Act", for short) against the same. 2. The facts, in brief, necessary for the present appeal are that the deceased - Hitendrasinh was returning home on 19.06.1990 at about 5.30 PM riding pillion on the scooter bearing registration No. GJ-1D-8139, driven by respondent No. 4 herein. While they were passing by Madhupura Market, a jeep bearing registration No. GRR 3937 came from the opposite direction at a high and excessive speed and dashed with the scooter. As a result of the accident, the deceased as well as the rider of the Scooter, who happened to be his brother, fell off from the scooter and unfortunately the deceased came under the front ride side wheel of the jeep. The deceased was taken to the Hospital where he was declared brought dead. Accordingly, the parents of the deceased have filed Motor Accident Claim Petition No. 163 of 1993 before the Motor Accidents Claims Tribunal (Aux.), Court No. 15, Ahmedabad claiming compensation of Rs. 10 lakhs. According to the claim petition, at the time of the accident, the deceased was aged 21 years and was pursuing first year of B.E. (Civil) Degree in Engineering College at Dhule, Maharashtra. At the time of the accident, the Scooter was insured with respondent No. 5-insurance company while the offending jeep, which was of the ownership of the respondent No. 1, was insured with respondent No. 3 - insurance company. The Tribunal, by the impugned judgment and award, partly allowed the claim petition and awarded a sum of Rs. 2,93,800/- with interest at the rate of 7.5% and proportionate costs to the claimants. 3. The Tribunal, by the impugned judgment and award, partly allowed the claim petition and awarded a sum of Rs. 2,93,800/- with interest at the rate of 7.5% and proportionate costs to the claimants. 3. At this juncture, it is relevant to mention that after pronouncement of the award and before the appeal could be filed, the husband of the appellant, who was the claimant No. 2 before the Tribunal, left for his heavenly abode and therefore, the appellant, who happens to be the mother of the deceased, filed the present appeal for enhancement in the compensation. 4. I have heard Mr. Jigar Gadhvi, learned advocate for the appellant, Mr. Sunil B Parikh, learned advocate for respondent No.3 and Mr. Palak Thakkar, learned advocate for respondent No.5-insurance company. Mr. Makbul Ansari, learned advocate for respondent No.2 is not present when the matter is called out. 5. Mr. Jigar Gadhvi, learned advocate for the appellant urges vehemently that the Tribunal has assessed the monthly income of the deceased at a very low side ignoring the fact that the deceased was a student of Civil Engineering degree. He further submits that the conventional amount as also the amount awarded under the head of funeral expenses is on lower side whereas no award is made for transportation of the body. In support of this contention, he has relied upon the decision of the Supreme Court in the case of Neeta w/o Kallappa Kadolkar & Ors. v. Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur, (2015) 3 SCC 590 and in the case of Radhakrishna & Anr. v. Gokul & Ors., 2013 (13) SCALE 420 . 6. It is his further submission that in view of the decision of the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 the Tribunal ought to have adopted the multiplier of 17 instead of 16 to determine the dependancy of the appellant. It is his alternative submission that a lump sum upward enhancement may be made to do complete justice to the appellant. He, therefore, urges that the appeal may be allowed and the compensation awarded by the Tribunal be enhanced accordingly. 7. Mr. Sunil Parikh, learned advocate for respondent No. 3-insurance company has supported the impugned judgment and award of the Tribunal. He, therefore, urges that the appeal may be allowed and the compensation awarded by the Tribunal be enhanced accordingly. 7. Mr. Sunil Parikh, learned advocate for respondent No. 3-insurance company has supported the impugned judgment and award of the Tribunal. It is his submission that after considering all the factors including the fact that the deceased was a student of engineering course the Tribunal has assessed the monthly income of the deceased. It is his further submission that he Tribunal has not considered the decision of the Supreme Court in the case of New India Insurance Co. Ltd. v. Shanti Nath (2007) 10 SCC 1 to consider the age of the parents for adopting the appropriate multiplier. He, therefore, urges that the appeal may be dismissed. 8. Mr. Palak Thakkar, learned advocate for the respondent No. 5-insurance company of the Scooter has adopted the submissions of Mr. Sunil Parikh. 9. The admitted facts which emerge from the record are that the deceased Hitendrasinh met with an accident on 19.06.1990 and he was a student of engineering. The claimants were his parents. Admittedly, therefore, the deceased was a non-earning person though he had prospect of earning in future after completing his studies. 10. Mr. Gadhvi, learned advocate for the appellant has vehemently urged that the Tribunal has ignored the fact that the deceased was pursuing engineering course which was a very relevant factor for determining his income. 11. In the case of Neeta w/o Kallappa Kadolkar & Ors. v. Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur, (supra) the Supreme Court has accepted the submission of the claimants to assess the monthly income of the deceased on the basis of the speculation and presumption as the deceased was involved in agricultural activity and there was no proof of his income. 12. In the case of Radhakrishna & Anr. v. Gokul & Ors., (supra) it is observed as under in paragraphs 13 and 14: "13. In Lata Wadhwa's case, the accident had occurred on 03.03.1989 and this Court awarded compensation of Rs. 4,10,000 to the parents of the deceased children who were students of Classes VI to X. In M.S. Grewal's case, the accident had occurred on 28.5.1995. This Court awarded compensation of Rs. 5,00,000 to the parents of the children who were students of IV, V and VI classes. 4,10,000 to the parents of the deceased children who were students of Classes VI to X. In M.S. Grewal's case, the accident had occurred on 28.5.1995. This Court awarded compensation of Rs. 5,00,000 to the parents of the children who were students of IV, V and VI classes. In Anil Kumar Mishra's case, the accident had occurred on 23.6.1993 and the victim of accident, who was a student of final year Engineering was awarded compensation of Rs. 9,06,000. 14. In the present case, the accident occurred on 20.1.2003. The deceased was 19 years old and was a student of Engineering course. The Tribunal determined the compensation by taking his annual income to be Rs. 15,000 and deducted 1/3rd towards personal expenses. In Arvind Kumar Mishra's case, the Bench proceeded on the assumption that after completion of the Engineering course, the appellant could have been appointed as Assistant Engineer and earn Rs. 60,000 per annum. However, keeping in view the degree of disability, his estimated earning was taken as Rs. 42,000 per annum and accordingly the amount of compensation was awarded. By applying the same yardstick and having regard to the age of the parents of the deceased, i.e., 45 and 42 respectively, we feel that ends of justice will be served by awarding a lump sum compensation of Rs. 7,00,000 to the appellants." 13. It is therefore clear that the appellant, on the basis of the fact that the deceased was pursuing studies of engineering when he met with an accident seek enhancement in the monthly income assessed by the Tribunal. 14. The Tribunal in paragraph 14 has assigned reasons for assessing the monthly income at Rs. 2100 per month. The Tribunal has considered the fact that the deceased was a student of first year engineering college and that he had no income of his own and considering the high rate of inflation and erosion in the value of rupee has chosen to assess the monthly income at Rs. 2100. The holistic reading of this paragraph makes it very clear that the Tribunal has, in fact, taken into consideration the fact that the deceased was a student of engineering. 15. The thrust of argument of Mr. Gadhvi that after completing the course of engineering the deceased would have got a good job fetching handsome salary. 2100. The holistic reading of this paragraph makes it very clear that the Tribunal has, in fact, taken into consideration the fact that the deceased was a student of engineering. 15. The thrust of argument of Mr. Gadhvi that after completing the course of engineering the deceased would have got a good job fetching handsome salary. It is true that normally, a professional earns good income, but, then, the uncertainties of life cannot be ignored and the fact that the accident had taken place in the year 1990 is also a relevant factor. In those days, wages and salaries were not as high as on today and the employment opportunities were also very few. 16. It is true that in some of the decisions the Supreme Court has considered higher monthly income even in the case of students of 8 to 10 standards, but, then, in those cases the background of parents, that is to say, the educational qualifications of the parents and their vocation has played a major role to conclude that a person belonging to an affluent background ordinarily would have a better prospect of earning a good income after completing his studies. In the case on hand, the appellant has not produced any evidence to show their family background and the vocation and other family members. I am, therefore, of the opinion that the Tribunal has rightly assessed the monthly income of the deceased at Rs. 2100, which does not warrant any interference in this appeal. 17. The submission as regards adoption of multiplier of 17 instead of 16, as adopted by the Tribunal, is concerned, as per the settled legal proposition, the age of the parents would be relevant factor to adopt an appropriate multiplier in case of deceased who was a bachelor unless it is shown that there were other family members who were or who can be said to be dependent on the deceased. In that case, the age of the deceased would be the relevant factor for determining the multiplier. Here, in the present case, the appellants were the only claimants and despite the judgment of the Supreme Court in the case of Shanti Pathak (supra) being brought to the notice of the Tribunal by the learned advocate for respondent No. 5-insurance company, the Tribunal has chosen to consider the age of the deceased for adopting the multiplier. Here, in the present case, the appellants were the only claimants and despite the judgment of the Supreme Court in the case of Shanti Pathak (supra) being brought to the notice of the Tribunal by the learned advocate for respondent No. 5-insurance company, the Tribunal has chosen to consider the age of the deceased for adopting the multiplier. Be it as it may, in absence of there being any cross objections or cross appeal, I am of the view that the multiplier adopted by the Tribunal does not need to be modified. 18. The Tribunal has awarded a sum of Rs. 20,000 under the head of Loss of Expectancy of Life. Mr. Gadhvi, learned advocate for the appellants submits that in view of the decision of the Supreme Court in the case of Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 a sum of Rs. 1,00,000 would be just and reasonable compensation under the said head. This submission cannot be accepted because in the said case the accident had happened on 5.10.2007 and the claimants were widow and three minor children of the deceased victim and therefore, the Supreme Court has awarded Rs. 1 lakh as compensation for loss of consortium whereas, as noted in the foregoing paragraphs, in the present case the accident is of 1990 and the claimants being the parents of the deceased a sum of Rs. 20,000 awarded by the Tribunal is just and reasonable. 19. The interest is the discretion of the Tribunal. The Tribunal has awarded interest at the rate of 7.5% on the amount of compensation. Mr. Gadhvi submits that interest at the rate of 9% would be appropriate rate of interest considering the other factors and circumstances, more particularly, the year in which the accident had happened when the rates of interest were as high as 12% per annum. Therefore, according to him, since the claim petition came to be decided in the year 2009, substantial loss of interest is caused to the appellants. Considering the overall facts when the Tribunal has awarded interest at the rate of 7.5%, I do not think it requires interference in this appeal. 20. For the foregoing reasons, the appeal fails and the same is dismissed. Considering the overall facts when the Tribunal has awarded interest at the rate of 7.5%, I do not think it requires interference in this appeal. 20. For the foregoing reasons, the appeal fails and the same is dismissed. The judgment and award dated 9th September 2009 passed by the Motor Accidents Claims Tribunal (Aux.), Court No. 15, Ahmedabad in Motor Accident Claim Petition No. 163 of 1993 judgment is confirmed. Parties are left to bear their own costs. Registry is directed to remit the Record and Proceedings of the case to the Tribunal forthwith. Appeal Dismissed.