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2023 DIGILAW 156 (GUJ)

Nirmalaben Alias Babuben Jyotindrabhai v. Gafurbhai Ibrahimbhai

2023-01-18

ANIRUDDHA P.MAYEE

body2023
JUDGMENT : ANIRUDDHA P. MAYEE, J. 1. This First Appeal is preferred by the appellants against the impugned judgment and award dated 25.02.2019 passed in Motor Accident Claims Petition, being MACP No.162 of 2013 by the Motor Accident Claims Tribunal (Main), Surendranagar, whereby the learned Tribunal has partly allowed the claim of the appellants herein and awarded an amount of Rs.10,62,000/- along with interest @ 9% per annum from the date of claim petition till realization as compensation. 2. The Brief facts leading to the case are as follows: 2.1 It is alleged that on 27.04.2013, the deceased was travelling in jeep bearing Registration No.GJ-13-G-1249, driven by the respondent No.5. At about 06:00 p.m., when the said jeep was near Vana, it met with an accident with a dumper bearing Registration No.GJ-13-AT-0789 which was coming from the opposite direction and being driven at excessive speed in a rash and negligent manner. As a result of which, the deceased sustained grievous injuries and succumbed to his injuries. The accident took place on account of rash and negligent driving on the part of the dumper driver. 2.2 The appellants preferred the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.20,00,000/- with respect to the death of deceased- Jyotindrabhai Ichchhashanker. Upon issuance of summons, the respondents appeared and contested the claim petition. 2.3 The parties led oral as well as documentary evidence in support of their case. After appreciating the evidence brought on record, the learned Tribunal was pleased to partly allowed the claim petition of the appellants herein and awarded a compensation of Rs.10,62,000/- along with 9% interest per annum. 2.4 Aggrieved the appellants herein have filed the present First Appeal. 3. Ms. Amrita Ajmera, learned advocate appearing for the appellants submits that the learned Tribunal has erred in calculating the just and proper compensation in the present case. She submits that the learned Tribunal has divided the claim for compensation in two parts i.e. pre-retirement and post-retirement in the case of the deceased. She submits that though the age of the deceased at the time of the accident was about 54 years, he would have continued to work after retirement, and therefore, there was an error in calculating the income as well as the future prospect income of the deceased. She submits that though the age of the deceased at the time of the accident was about 54 years, he would have continued to work after retirement, and therefore, there was an error in calculating the income as well as the future prospect income of the deceased. She further submits that even the compensation granted under the conventional heads is inadequate and ought to be enhanced. 4. She, therefore, submits that in the present case, the income should not be split pre and post retirement and should be calculated on singular multiplier basis. In support of her contentions, learned advocate for the appellant has relied upon the judgment of the Hon’ble Supreme Court in the case of R. Valli and Ors. Versus Tamil Nadu State Transport Corporation Limited, reported in (2022) 5 SCC 107 , wherein it has been held that only one multiplier is to be applied keeping in view the age of the deceased based on the principles laid down by the Hon’ble Supreme Court. 5. Per contra, Ms.Kirti Pathak, learned advocate appearing for respondent No.3 and Mr.G.C. Mazmudar, learned advocate appearing for respondent No.6 jointly submit that in the present case, the learned Tribunal has considered all the aspects and arrived at the just and proper compensation. They submit that admittedly the deceased was 54 years of age, and therefore, the Tribunal has rightly applied the multiplier pre and post retirement to come at an appropriate calculation with respect to the income of the deceased. They submit that this Hon’ble Court as well as various other High Courts have adopted the split multiplier i.e. multiplier up to the date of retirement and another multiplier after retirement to arrive at just and proper compensation. They submit that in view thereof, no interference is called for in the present case as the compensation which has been awarded is just and proper. They submit that there is no infirmity in the impugned order, and therefore, the Appeal be dismissed. 6. Heard the learned counsel for the parties and perused the documents on record as well as the R & P of the case. 7. In the recent decision, the Hon’ble Supreme Court in the case of R. Valli and Ors. Versus Tamil Nadu State Transport Corporation Limited, reported in (2022) 5 SCC 107 , has held as follows: “5. 6. Heard the learned counsel for the parties and perused the documents on record as well as the R & P of the case. 7. In the recent decision, the Hon’ble Supreme Court in the case of R. Valli and Ors. Versus Tamil Nadu State Transport Corporation Limited, reported in (2022) 5 SCC 107 , has held as follows: “5. Learned counsel for the appellants argued that the multiplier methodology adopted by the Tribunal and affirmed by the High Court was erroneous and not sustainable. It was contended that the multiplier is applied keeping in view the age of deceased and income at the time of death and not by considering the remaining years of service. It was argued that if a person who dies in an accident is 31 years of age and has 27 years of service left, the multiplier is not 28 years but keeping in view the judgment of this Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., 2009) 6 SCC 121, the age of the deceased at the time of death is the base for choosing a multiplier and not the years left in employment. It was held as under: “42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas [ (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Trilok Chandra [ (1996) 4 SCC 362 ] and Charlie [ (2005) 10 SCC 720 : 2005 SCC (Cri) 1657] ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M- 11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 6. The judgment in Sarla Verma was affirmed in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 . The judgment in Sarla Verma was affirmed in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 . Both the judgments were affirmed by the Constitution Bench of this Court reported as National Insurance Company Limited v. Pranay Sethi & Ors., (2017) 16 SCC 680 . This Court in Pranay Sethi held as under: “44. At this stage, we must immediately say that insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and “income” means actual income less the tax paid. The multiplier has already been fixed in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which has been approved in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] with which we concur. xx xx xx 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. xx xx xx 59.7. The age of the deceased should be the basis for applying the multiplier.” 7. In Pranay Sethi, this Court held that the age of the deceased is the basis for applying suitable multiplier and that the compensation is to be determined keeping in view the future prospects. xx xx xx 59.7. The age of the deceased should be the basis for applying the multiplier.” 7. In Pranay Sethi, this Court held that the age of the deceased is the basis for applying suitable multiplier and that the compensation is to be determined keeping in view the future prospects. The future prospects were held to 15% in respect of a deceased between the age of 50 to 60 years. 8. Mr. Amit Anand Tiwari, learned Additional Advocate General has referred to certain orders of the High Courts reported as Uma Shankar & Ors. v. Revathy Vadivel & Ors., 2014 SCC OnLine Mad 846, Smt. Kamlesh Devi & Ors. v. Sh. Kitab Singh & Ors., 2011 SCC OnLine Del 2843 and Union of India & Ors. v. K.S. Lakshmi Kumar & Ors., 2000 SCC OnLine Kar 406 to support the applicability of split multiplier i.e., multiplier upto the date of retirement and another multiplier after retirement. 9. The judgments referred to by Mr. Tiwari are prior to the enunciation of law by this Court in Pranay Sethi. Therefore, such judgments no longer can be said to be good law as suitable multiplier is to be applied keeping in view the age of the deceased in terms of para 59.7 of the judgment in Pranay Sethi. 10. A three-Judge Bench in an order reported as United India Insurance Co. Ltd. v. Satinder Kaur alia Satwinder Kaur & Ors., 2020 SCC OnLine SC 410 has applied the multiplier keeping in view the age of the deceased even if he was a bachelor. The Court held as under: “48. Another three-judge bench in Royal Sundaram Alliance Insurance Co. Ltd. v. Mandala Yadagari Goud, (2019) 5 SCC 554 traced out the law on this issue, and held that the compensation is to be computed based on what the deceased would have contributed to support the dependants. In the case of the death of a married person, it is an accepted norm that the age of the deceased would be taken into account. Thus, even in the case of a bachelor, the same principle must be applied.” 11. Thus, we find that the method of determination of compensation applying two multipliers is clearly erroneous and run counter to the judgment of this Court in Pranay Sethi, affirming the judgment in Sarla Verma. Thus, even in the case of a bachelor, the same principle must be applied.” 11. Thus, we find that the method of determination of compensation applying two multipliers is clearly erroneous and run counter to the judgment of this Court in Pranay Sethi, affirming the judgment in Sarla Verma. Since the deceased was 54 years of age on the date of incident, therefore, the suitable multiplier would be 11 as per the judgment of this Court in Sarla Verma approved by this Court in Pranay Sethi. 8. In view thereof, the impugned judgment and award is in the teeth of law as laid down by the Hon’ble Supreme Court and thus needs modification accordingly. 9. In the present case, admittedly the age of the deceased was 54 years and he was a government employee working as a Watchman in the Irrigation Department, Government of Gujarat. The salary slip is produced on record. As per the salary slip, his income was Rs.15,200/- per month after deduction of professional tax. Therefore, the said income of the deceased is now taken for calculation of just and proper compensation in the present case. 10. After adding 15%, the future prospective income would come to Rs.17,480/-. Deducting 1/3 towards personal expenses i.e. Rs.5,826/- per month and adding a multiplier of 11 as per the case of Sarla Verma Vs. Delhi Transport Corporation reported in (2009) 6 SCC 121 , the total dependency amount/loss of dependency would come to Rs.15,38,328/-. Adding Rs.16,500/- towards loss of estate, Rs.16,500/- towards funeral expenses and Rs.88,000/- (44,000x2) towards loss of consortium, the total amount of compensation would come to Rs.16,59,328/-. 11. Thus, the amount of just and proper compensation would be as under: Sr.No. Head Amount A Monthly dependency Rs.15,200/- B Future prospects (15% of month dependency) Rs.17,480/- C 1/3 deduction towards personal expenses Rs.5,826/- D Total dependency Rs.11,654/- E Age multiplier 11 F Compensation for loss of dependency Rs.15,38,328/- G Loss of estate Rs.16,500/- H Funeral expenses Rs.16,500/- I Consortium Rs.88,000/- Total Rs,16,59,328/- 12. Hence, in the present case, the appellants are entitled to an additional compensation of Rs.5,97,000/- (16,59,300- 10,62,00=Rs.5,97,000/-) along with interest @ 6% per annum from the date of filing of the claim petition till realization of the same. Hence, in the present case, the appellants are entitled to an additional compensation of Rs.5,97,000/- (16,59,300- 10,62,00=Rs.5,97,000/-) along with interest @ 6% per annum from the date of filing of the claim petition till realization of the same. The compensation of Rs.10,62,000/- along with 9% interest as awarded by the learned Tribunal has since been deposited before the Tribunal by the respective Insurance Companies, and therefore, the same is not disturbed in the present case. 13. Accordingly, the appellants herein are entitled to an additional compensation of Rs.5,97,000/- (16,59,300- 10,62,00) along with interest @ 6% per annum from the date of filing of claim petition till its realization. The impugned judgment and award with respect to the amount awarded along with interest is confirmed to that extent only. 14. Hence, the enhanced amount of compensation along with interest shall be deposited by the Insurance Companies-respondent Nos.3 and 6 within a period of four weeks from the date of receipt of this order in the learned Tribunal. Once, the additional amount of compensation along with interest is deposited, the total amount of compensation as deposited with the Tribunal be released to the appellants by RTGS/account payee cheque after following due procedure and verification. 15. In view of the aforesaid observations, the First Appeal is partly allowed. The impugned Judgment and award is modified to the aforesaid extent. Record and proceedings of the case, if any, be remitted back to the learned Tribunal.