Aminakhatun and Others vs Fakrusha Bismillahshah Fakir and Another

N.H. Bhatt, J.—This is an appeal preferred by the original claimants of Motor Accident Claim Application No. 10 of 1975, decided by the

Motor Accidents Claims, Tribunal, Ahmedabad (Rural) at Narol (hereinafter referred to as the Tribunal). The claimants are the widow, four minor

children and mother aged 77 of the deceased. They had put forth the claim at Rs. 5 lacs. The Tribunal however, held that the deceased was liable

for the mishap to the extent of 30% and ultimately awarded Rs. 63,000/- as 70% of the total amount of compensation worked out by the Tribunal.

This amount was then apportioned as detailed in para 55 of the judgment. Being aggrieved by the part rejection of their claim the claimants have

preferred this appeal. They have restricted their claim in appeal to Rs. 1,37,000/- only. It means that the initial claim of Rs. 5 lacs came to be

reduced to Rs. 2 lacs.

A few facts require to be stated in order to understand the happening of unfortunate accident that accounted for the loss of the life of deceased

Mahmu-dusman Gulamrasul on July 19, 1974 at cross roads in the capital of she State, namely, Gandhinagar. The deceased Mahmudusman and

his brother Ahmedmiyan had gone to Gandhinagar in connection with their business. They had some work with the Government Press there. They

had gone by the Scooter bearing No. GJB 9350 which was being driven by deceased Mahmudusman and Ahmedmiyan was sitting on the pillion

of the scooter. At about 3.00 p.m. they were on their journey back and were proceeding from north to south by one public road known as ''Ch''

road. At that time a Slate Transport bus bearing No. GTE 6659 came from the west proceeding to the east and in the intersection of the two roads

there was a collision between the bus and the scooter.

As a result of that, collision deceased Mahmudusman and Ahmedmiyan were thrown off. Mahmudusman died on the spot but the pillion rider

Ahmedmiyan escaped with some injuries. The case of the claimants was that this accident occurred solely due to the rash and negligent driving of

the driver of the bus insofar as while entering the intersection he had not slowed down the bus at all and had entered the intersection after the

scooterist had entered the intersection and covered a good part of it The claimants alleged that the deceased Mahmudusman was their sole bread

earner; that he was earning Rs. 41,000/- per year from his business in partnership and that he was 41 years old at the time he met with Ms

premature death. On behalf of the Gujarat State Road Transport Corporation (hereinafter referred to as the Corporation) and its driver it was

alleged that the collision was only due to rash and negligent driving on the part of the deceased and that the Corporation and its driver were not at

all responsible for the untimely death of the deceased.

Obviously, the first question that cropped up before the Tribunal was pertaining to this charge and the countercharge levelled on behalf of the

Corporation. The Tribunal, as stated above, found that both the sides were negligent and rash and the Tribunal thought that the blame can be

apportioned between the Corporation and the deceased in the ratio of 70:30. Mr. Soparkar, the learned Advocate appearing for the ordinal

claimants -- the appellants, firstly took us to the question of negligence. The burden of his submission was that in the facts and circumstances of the

case, the deceased could not at all be held liable for the accident. This question is to be dealt with first by us. The contents of the panchanama in

this case lend good deal of light in order to resolve the controversy. The panchanama is, Ex. 150 on the record. Bhikhabai Sivram was examined

to prove the contents of the said panchnama, at Ex. 149. The panchnama shows that there is a cross section of two roads, ''Ch'' road which runs

from the north to the south and the road No. 6 which runs from the west to the east. There was no dispute as to the fact of the collision between

the two vehicles. The evidence has proved that ''Ch'' road had originally a tarred width of 25'' but it was further widened by constructing additional

tar strips on both its sides. The original width of road No. 6 is stated to be 11 1/2'' and an additional tarred strip of 10'' was made on the northern

side and a similar strip of 12 1/2'' was made on the southern side of this road. Thus, the total width of road No. 6 was 34''. For want of any other

details it can be said that any rate both the roads were comparatively bigger roads. There were fresh scratch marks formed on the road showing

that the scooter or its silencer was dragged with the bus after the collision and the spot from which these scratch-marks started was taken to be the

spot where the first impact had occurred. At the time the panchnama was made the bus was standing close to the southern edge of the eastern limb

of section of west east road (road No. 6). The bus was on its extreme wrong side. The scooter was lying about 43'' to the east of the exact spot of

collision and it was in the last half portion of the eastern section of the road No. 6, The Tribunal held that even after the collision, the bus had

traversed a distance of about 69'' in the direction of its destination and the scooter was also dragged with the bus UD to a distance of 43''. The

scooter had been damaged on its right side and there was a dent on the right side mudguard. The bus had scratches on the body on the left side in

the region of the driver''s cabin, and also on the left front tyre. There was also a slight dent on the left corner of the front bumper of the bus.

Significantly enough the brakes marks of either of the two vehicles were not there in portions before the beginning of intersection. This means that

the drivers of both the vehicles had entered the intersection without applying their brakes, The Tribunal in our opinion, rightly concluded that the

distance of 4'' must be taken to be the distance towards the east from the mid-line of the width of the ''Ch'' road. The Tribunal, in our opinion,

rightly concluded that the covering of 69'' distance by the driver of the bus led to the inference that the bus had entered the intersection at fast

speed.

Naturally enough, on behalf of the claimants reliance was placed on the version of Ahmedmiyan -- the pillion rider. He himself was a claimant in

a counter-claim petition No. 9/75, apart from his being the brother-cum-partner of the deceased. As a matter of fact, till that day, the two brothers

with their families were residing under a common roof and were having a common mess. The evidence of Ahmedmiyan to the effect that the

deceased had sounded the horn of the scooter and had also given a signal to the bus driver to show that he wanted to proceed straight i. e.

towards the south after crossing the intersection, was rightly doubted and ultimately discarded by the Tribunal. The important admission in his

evidence was to the effect that the scooter was continued to be driven ahead as they felt that it would safely cross the square before the bus

arrived near them. The Tribunal has rightly emphasised the fact that as a man entering the cross section, it was necessary for him to give

precedence to the vehicle coming from his right hand side. The two factors therefore, that he had not applied the brakes and the fact that he did not

allow the vehicle coming from the right hand side to have earlier clearance, are suggestive of his part of negligence. The Tribunal, in our view,

therefore, rightly concluded that the deceased also was guilty of rashness and negligence. Ahmedmiyan''s tacit admission that the speed of the

scooter was not reduced was rightly employed by ''he Tribunal in reaching this conclusion. On the other side there is evidence of the opponent No.

1 at Ex. 171. His evidence also militated against the circumstances noted in the panchnama. The suggestion of the opponent No. 1 that he had not

even seen the scooter within the square before he entered the intersection, is also suggestive of his rashness and negligence. The Tribunal for good

reasons disbelieved his assertion that his bus was proceeding at a speed of 20 to 25 kms. per hour. The electric horn was not in working condition

when it was examined by Chandrakant T. Dave -- the Motor Vehicles Inspector. The fact that the bus covered a distance of about 69 after the

brakes were applied clearly proves that the bus had entered the cross-section at a considerably higher speed and the brakes came to be applied

for the first time, after the collision with the scootar took place.

The Tribunal has examined this question very critically in paras 7 to 26 of the judgment. We on our own would have perhaps attributed about

25% or 20% of the negligence to the deceased, but we are not in a position to do so when the assessment of the Tribunal in this regard is not in

any way erroneous on a point of law. A fact-finding body''s conclusion on factual aspects ordinarily do not call any interference with unless there is

wrong application of the principle or the facts are misread or not read. We, therefore, do not think that the Tribunal''s finding on that score calls for

any interference with.

This brings us to the question of compensation which was very elaborately and very vehemently argued by both the sides. We would at this

stage record our respectful compliance with the ratio laid down in this regard. It is not the function of the appellate Court to substitute its own

figures of damages unless a case for interference in appeal is made out on well recognised grounds. Unless a Judge has applied a wrong principle

of law or the amount of compensation awarded is so grossly low that it can be dubbed as perverse, the appellate Court''s interference is not called

for. The reasons behind this sound principle regarding the appellate Court''s power are not far to seek. The Tribunal has advantage of watching the

demeanour of the witnesses. The evidence being led before its eyes and its hearing as emanating from human mouth and examination of documents

explained by those living exhibits afford better basis for appreciating the facts. Keeping this principle in mind, we proceed to examine the question

of compensation in this case.

The deceased is proved to be a businessman who died at the age of 41 years. His brother Ahmedmiyan at Ex. 85, has given the evidence to the

following effect:

.....I carry on business in the name of G. C. Soniwala & Sons. My brother Mahmed Usman was a partner in this. We started the partnership in

1958. My brother was the 3rd partner at that time. The partnership lasted till 1964, when my father retired. .....In 1964 the profit of the firm was

about Rs. 39,000/-Exhs. 68/23, 68/24, 68/25 are the original assessment orders received by me. ...We developed the business. In the year

previous to the death of my brother our firm profit was Rs. 80,000/- to Rupees 85,000/- ..... We both brothers were residing together. After his

death his family members live separate from me. When we were joint the household expenditure was Rs. 1200/- to Rs. 1300/- per month.....

Our business is in threads, paper, buttions, needles, etc., I am a stockist of J. & P. Coats, threads and Calico threads. It is true that our business

has been there since the time of my father. We have wholesale, semi-wholesale and retail business. Our shop is near Jumma Masjid. It is 7'' wide

and 25 feet deep. I have 3 to 4 employees in my shop.......... After the death of my brother Mohmedusman, his two minor sons have been

admitted to the benefit of partnership, I have a 50 per cent share in the profits and the minors have a 50 percent share in the profits .....It is not true

that Mohmedmiyan Nawabsahab is not employed by me.

It is not true that my brother Mahmed-usman was nol taking any part in running our business.....

The widow of the deceased Bai Aminakhatun, who is examined at Ex. 49, appears to be a modest household wife. All that she says is that her

husband used to spend Rs. 1,200/- to Rs. 1,300/- per month after the family needs, and that the family consisted of six members of

Ahmedmiyan''s family also. According to her the income was Rs. 40,000/- to Rs. 45,000/- per annum over and above rental income of Rs. 2000/-

to Rupees 3000/- per annum. Her evidence, therefore, does not render much assistance about the income.

The assessment orders Exhibits 89, 90 and 91 pertain to the years 1966-67, 1971-72 and 1972-73 respectively, Exhibit 89 shows the profit at

Rs. 47,000/-, Ex. 90 shows the profit at Rs. 72,780/- and Ex. 91 shows the profit at Rupees 7,715.68/- (sic). As deposed to by Ahmedmiyan the

profit of the firm was about Rs. 39,000/- in the year 1964. Two more factors also deserve to be noted. In the profit of the firm there was reflected

the role of the capital of the deceased. It was about Rs. 1,50,000/- at the time of his death. The second important circumstance is that the brother-

in-law of the deceased was writing the accounts books on a part-time basis, when Ahmedmiyan was in the hospital, the said part-time employment

was made a full time employment and he was paid Rs. 500/- per month so that he could devote all the time to the business of the firm of the

deceased and that of injured Ahmedmivah, These two circumstances deserve to be specifically noted, because various arguments were advanced

in the light of the other attendant circumstances on the basis of these two factors. On behalf of the Corporation it was very vehemently contended

that, when admittedly there were no losses in the year of the death of the deceased and in the subsequent year, the only loss that the heirs of the

deceased suffered was in the form of Rupees 500/- per month required to be spent for requisitioning the services of the brother-in-law of the

deceased. The figures of the income were sought to be taken as the basis of the loss occasioned to the heirs of the deceased in their capital assets,

as far as claimants were concerned.

The question of damages has been a source of headache more often than riot and this headache becomes more acute, and it is so quite often,

when the parties do not lead sufficient evidence which with some vigilance could be produced. The evidence on the record of this case consists of

what has been stated above, and it is in the light of this evidence, both oral and documentary, that the question of damages-cum-com-pensation is

required to be resolved.

In our opinion, every case presents its own unique picture and there cannot be any hard and fast rule that can be uniformly applied to all the

cases of compensation arising out of the death of the deceased. The cases where the men are engaged in service or professional skill are far easier

to be dealt with. There the total average earnings minus what the deceased could be expected to spend after himself represents the dependency

benefit-cum-loss of estates. The cases of businessmen and the cases of agriculturists pursuing agriculture also stand on a different footing. In the

case of business flourishing and going on substantially if not wholly because of the business skill of the deceased businessman do not present any

difficulty. As for example, the business of diamond cutting and polishing. In the cases like this, whatever is earned by the deceased can be

legitimately thought to be the outcome mostly of the acumen of the businessman in detecting the worth of diamonds, marketing them indigenously or

abroad and cutting them into suitable prisms and polishing. In the cases of agriculturists the land on which agricultural operations are conducted is

left intact. In cases of some agriculturists the income from the land may not be considerably less for lack of insight and ability of the deceased

cultivator. This shows that ability may not be much called for. So the cases arising out of deaths or disabilities of argiculturists do not present a

comparable picture in deciding the cases of businessmen. In the ordinary business, like the business of threads etc., many factors contribute to

making the business a successful going concern. Capital has its own role to play. Goodwill earned in the past is also a factor to be taken into

account. The place of business also has its own importance and last but not the least would be the business calibre of and proper supervision and

control by the entrepreneur -- a very important factor. In some cases one factor might be playing a more vital role and in another last factor may be

a decisive one. So those who put forth claims arising out of the death of such businessmen should produce reasonable evidence on the record to

show the nature of the business, its dimensions, its potentialities and latent dangers and also the contribution of the personal skill of the businessman

in mending and manning the business.

Munkman in his Damages for Personal injuries and Death, Fifth Edition, at page 164, notes as follows:

Damages under Lord Campbell''s Act are limited to the actual financial loss sustained by reason of the death. If, after the death, the position of the

dependants remains unchanged, they have sustained no loss and cannot recover damages. This would be the situation, for example, if the deceased

lived entirely on investment income and the whole of his investments passed to the widow. .....

It is, therefore, clear that when a dependant receives support from the same source of income both before and after death, there is no loss and no

damages except to the extent that the property is reduced by taxation on the death.....It cannot be gainsaid that in principle, the measure of

damages for pecuniary loss is the exact amount of money which has been lost or spent, in consequence of the injury. The basic principle so far as

loss of earnings and out of pocket expenses are concerned, is that the injured person should be placed in the same financial position so far as can

be done by an award of money, as he would have been had the accident not happened. This is the genesis of the law of damages, and there cannot

be any controversy regarding the broad soundness of that proposition.

Relying upon this basic structure of the claims for damages arising out of death, Mr. Pandya, the learned Advocate appearing for the

Corporation, urged that the deceased had lost no income, that his capital had continued to be the capital in the new partnership firm run by bringing

together the two minor sons of the deceased and continuing partner Ahmedmiyan. It was at that stage urged by the learned Advocate for the

claimants that the widow of the deceased and other minor son were totally excluded from the partnership, but this argument was rightly repelled by

Mr. Pandya by urging that for all practical purposes the two minor sons, admitted to the partnership were the representatives of the deceased

because no accounts were settled, no capital falling to the shares of the widow and others was separated and the business was continued to be run

as before as if the deceased had not died, so much so that the profit share also remained unabated in the year of the sad demise of the deceased

and in the following year. This was the concession made by Mr. Soparkar, the learned Advocate appearing for the claimants, on the strength of the

documents procuced in the case. Mr. Pandya, therefore, vehemently contended that there was no loss occurred to the claimants which called for

monetary evaluation and subsequent payment thereof to them. As against this extreme stand taken on behalf of the Corporation, Mr. Soparkar the

learned Advocate for the claimants contended that his share of the profit minus return in the form of the interest on the capital and minus return on

the good-will assessed at about 25% of the total income, should be treated as loss to the estate of the deceased which would enure for the benefit

of the legal representatives of the deceased. Mr. Soparkar, in this connection, placed reliance on one unreported decision of this Court, to which I

was a party sitting with M. K. Shah, J., in F. A. No. 224/75 decided on 27/28-6-1979. In that case the yearly loss of business was Rs. 10,000/-

and it was taken as datum figure. However, the judgment does not show that the yearly loss was not there due to the loss of the life. So what was

taken as the basis in that case cannot be the basis to be followed in all cases.

It was urged that engagement of brother-in-law of the deceased at the salary of Rs. 500/- per month afforded the basis for working out the

compensation in the present case. This argument takes stock only of the period of about 1 1/2 years, but we cannot be oblivious of the business

potentiality of the deceased, who was only 41 years of age at the time of his untimely death and was having prospective career in front of him in the

coming 2 or 3 decades. It is too much to say that salaried employee, may be a near relative, would make for deficiency suffered because of the

loss of business acumen and personal skill which are the qualities only of an entrepreneur and not of a salarised employee.

One unreported decision of this Court in F. A. Nos. 165/68 and 166/68, decided by J. B. Mehta & S. N. Patel, JJ, on 10th and 13th

December 1971, referred to by Mr. Pandya itself partly supported the say of Mr. Pandya but partly cut at his submission. In that case the Motor

Accidents Claims Tribunal had held that the husband''s profit had not been adversely affected and the profit of the family firm had not ruined. The

Division Bench in this case had, inter alia, observed as follows:

In any event, Mr. Shah is right in relying on his decision (1949 (1) KB 643) for the principle that even though in case of a partnership profits

derived from partnership business have not been shown to be actually affected, so long as there is loss of the earning capacity, that economic loss

must be evaluated, The problem may be one which is din-cult of evaluation as it always happens wherever there is unused earning capacity .....

In the present case, therefore, the learned Tribunal, with great respect, was in error not evaluating impaired earning capacity, which had resulted in

the prospective economic loss in the present case.....

The High Court ultimately evaluated the earining capacity which had been lost because of the injury on the earning partner. In the very judgment,

the Division Bench afterwards held as follows:

..... Even though the other profit may remain the same, once the partnership loses benefit of the actual services to the extent of impairment of his

working faculty, that economic loss must be evaluated at least on this standard of remuneration of such a working partner.....

In that case, no doubt, the services came to be evaluated at Rs. 500/- per month, but that is a matter of details based on the facts of the case.

Coming to the facts of the present case, we find that this case is somewhat analogous to the case decided by the Division Bench of this court in

F. A. Nos. 165/68 and 166/68 (supra). We are, therefore, not to be understood to have refused to lake into account the profit of the deceased

partner. As stated by us, in some suitable cases it may afford a reasonable basis for working out the datum figure. As far as the facts of the case on

hand are concerned, they are to be kept specifically in view. It is to be noted pertinently that the deceased was one of the three pioneers of the

business. Secondly, he was actively participating in the day to day affairs of the business and the fact that he had gone to the Govt. Press at

Gandhi-nagar on that fateful day, by his scooter with his another partner-cum-bro-ther Ahmedmiyan shows that he was a live force of the firm.

After his father''s retirement from the business in 1964, he and his brother alone continued the business and developed it. His business acumen,

therefore, cannot be underestimated. The profits of the three years are already referred to by us. They show marked development and progress.

As against the profit of Rs. 39,000/- in the year 1964 the profit had risen to Rupees 72,780/- in the year 1971-72. As Ahmedmiyan deposes

without any challenge, in the year previous to the death of the deceased the profit of their firm had gone to Rs. 80,000/- to Rs. 85,000/- and that

the deceased had developed the business. As already noted by us above, the deceased was one of the three pio-neers of the business. Mr.

Pandya in this connection urged that the place of business of this firm, being near Jumma Masjid, had its own importance but there is no evidence

on record to show that the place of business had played any role in the successful business of the deceased. Secondly, it was urged by Mr. Pandya

that they were dealing in well known varieties of the threads as they were stockist of J. & P. Coats and Calico threads and there was no room for

the business capability of the deceased. Here also there is nothing on record to warrant a conclusion that the goods in which the deceased and his

brother dealt had acquired such huge fame as would not call for any supervision and business tact. We on our part do not know that Calico

threads and J. P. Coats and papers in which the deceased and his brother dealt had acquired such good name in the market. The contribution of

the good will certainly can be assumed to be there but what share of it in the total earnings of the deceased was, is difficult to be surmised. At any

rate, it has to be admitted that this good will also was built up by the deceased in the course of about two decades'' business and this has certainly

something to do with the personal skill and ability of the deceased partner. In above view of the matter, we find that the Tribunal has erroneously

adopted the figure of Rs. 500/- as the sum representing loss to the dependents or legal representatives of the deceased. Even a clerk who was

employed to fill in the partial void created by the death of the deceased and the temporary incapacity of Ahmedmiyan was paid Rs. 500/ p. m. then

a clerk''s ability to write accounts etc., is valued at Rs. 500/- per month, it will be, in our opinion, quite ridiculous to value the personal skill of the

deceased at the ordinary amount of Rs. 500/- per month. A businessman aged about 41 years, having about two decades'' successful career

behind his back and shown to be a man of active participation in the business can, in the facts and circumstances of this case, be valued at Rupees

1000/- to Rs. 1,500/- per month, as his personal contribution to the assets. We therefore, take Rs. 1.100/- per month as minimum net loss that will

be suffered by the legal representatives of the deceased because of his untimely death. As the father of the deceased, even after his retirement from

the business in the year 1964 lived for some time and as his mother, aged 77 years, was also alive on the day the application for claim was made,

taking of 15 years'' multiplier despite all imponderables and uncertainties of life, cannot be said to be in any way lenient. So employing 15 years''

multiplier the loss would come to Rs. 1,98,000/- (Rs. 1100 x 12 x 15 Rs. 1,98,000-00). Adding to this an amount of Rs. 5000/- being the

conventional amount for the loss of expectancy of life, the total would come to Rupees 2,03,000/- out of this 30% of the amount wilt be required

to be deducted. Thus, the amount after deducting 30% would come to Rs. 1,42,100/- (Rs. 2,03,000.00 -Rs. 60,900/- = Rs. 1,42,100.00). Out

of this Rs. 63,000/- have already been awarded by the Tribunal. Thus, there will be an additional award for Rs. 79,100/-.

We, therefore, direct that the respondents, original opponents will pay an additional amount of Rs. 79,100/-(over and above the amount

awarded by the Tribunal) together with running interest thereon at the rate of 6% per annum from the date of the application till payment with

proportionate costs of this appeal. This amount will be apportioned in the very ratio in which the Tribunal has done. The money allotted to the

respective minor by us also will be deposited in the name of the respective minor with some Nationalised Bank and will be handed over to the

respective minor on his or her attaining majority. The interest will be payable periodically to the mother and spent for the benefit of the concerned

minor.