Rana Menaben Wd/O Mansukhbhai Ugarabhai & Ors Vs Mahebubsha Anvarsha Fakir & Ors.

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Judgment

53 paragraphs · 2,582 words

Hasmukh D. Suthar, J

[1.0] Present First Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “MV Act”) is filed by the appellant – original opponent No.2 challenging the impugned judgment and award dated 31.07.2020 by the learned Motor Accident Claims Tribunal (Auxi.), Mahesana (for short “learned Tribunal”) in Motor Accident Claim Petition No.410 of 2015, whereby the learned Tribunal was pleased to partly allow the claim petition and awarded compensation of Rs.2,50,000/- to the appellants – original claimants.

[2.0] The brief facts leading to filing of present appeal is as follows:

[2.1] On 19.10.2015, the deceased was going from Ashram Cross Roads to his house and at that time, one Car bearing registration No.GJ-2-BP-1648 came with full speed in rash and negligent manner and hit the deceased pursuant to which the deceased sustained serious fatal injuries over his body and died. Therefore, the appellants herein – original claimants filed MACP No.410/2015 seeking compensation of Rs.7,00,000/-.

[2.2] After considering the evidence produced and adduced, the learned Tribunal held the driver of offending car solely negligent for the accident and was pleased to award Rs.2,50,000/- to the original claimants. Hence, the appellants – original claimants have filed the present First Appeal seeking enhancement of compensation as the learned Tribunal has awarded very meager compensation.

[3.0] Though served, respondent No.2 has chosen not to appear before this Court. Heard learned advocate Mr. Yogendra Thakore for the appellants – original claimants and learned advocate Mr. Chirayu Mehta appearing for the respondent No.3 – insurance company.

[4.0] Learned advocate Mr. Thakore appearing for the appellants – original claimants has submitted that the learned Tribunal has committed an error in awarding meager compensation and in not appreciating the evidence produced on record. Learned Tribunal has ignored the income of the deceased though the deceased was earning Rs.14,000/- per month, which was corroborated by the appellants – original claimants by producing income tax returns however, the learned Tribunal has erred in considering the income of the deceased at Rs.4,000/- per month which is on lower side. Further, even under the head of loss of love and affection and othe conventional heads also, the learned Tribunal has committed an error in not awarding the compensation. Hence, he has requested to allow the present appeal.

[5.0] Learned advocate Mr. Mehta appearing for the respondent – insurance company has opposed the present appeal by submitting that the learned Tribunal has properly considered and computed the monthly income in absence of any supporting evidence and proof of income and has appropriately assessed monthly income of the deceased at Rs.4,000/-. He has further submitted that deceased was aged 68 years at the time of accident and hence, claimants were not entitled to get any compensation under the head of future prospective income. He has further submitted that the learned Tribunal has deducted 1/4th amount towards dependency which ought to have been considered as 1/3rd as major son was not the dependant of the deceased. Hence, he has requested to dismiss the appeal.

[6.0] Having heard learned advocate appearing for respective parties and perusing the impugned judgment and award, it appears that present appeal is filed on the limited ground of quantum as negligence on the part of offending vehicle i.e. Car bearing registration No.GJ-2-BP-1648 is not in dispute.

[6.1] In order to make out the case in claim petition, claimant No.3 has tendered his evidence at Exh.21 and evidence of Income Tax Inspector Mr. R.M. Meena at Exh.39 to prove the income of the deceased, though learned Tribunal has considered the income of deceased at Rs.4000/- per month. It appears that copy of income tax returns filed for the years 2010-11 and 2011-12 by the deceased is produced at Exhs.40 and 41. Perusing the evidence produced before the learned Tribunal i.e. FIR (Exh.27), panchnama of scene of accident (Exh.28), Post-mortem note (Exh.30), insurance policy (Exh.32), driving license of driver of offending vehicle (Exh.33) and charge-sheet (Exh.34), involvement of offending vehicle, coverage of insurance and factum of death of the deceased due to vehicular accident is not in dispute.

[6.2] Further, the deceased at the time of accident was aged 68 years and he was doing the business of cloth and in this regard, claimants have produced certificate of registration of shop of the deceased is produced at Exh.36. Learned Tribunal while deciding the quantum assigned the reason that claimants have produced the income tax returns for the years 2010-11 and 2011-12 however the accident took place in the year 2015 and as the claimants have not produced any income tax returns for the year 2014-15 and 2015-16, the learned Tribunal has assessed notional income of deceased at Rs.4000/- per month. A bare perusal of the record of the claim petition, it appears that it was claimed by the appellants – claimants that deceased was earning Rs.14,000/- per month from business. In this regard, income tax returns have been filed and Income Tax Officer is examined wherein he has stated that income of the deceased was Rs.13,630/- per month. It is needless to say that while awarding the compensation, the learned Tribunal has to consider the income of the deceased based on surrounding circumstances and it is the duty of the learned Tribunal to award just and fair compensation. Further, assessment of compensation cannot be done with mathematical precision. The assessment of income of deceased is required to be done by adopting realistic approach. Considering the material placed on record and evidence of Income Tax Officer Mr. Meena, it is proved that the income of the deceased in the years 2011 and 2012 was Rs.14,000/- per month and therefore, considering gradual increase in the income, future prospective income ought to have been considered by the learned Tribunal. In this regard, reference is required to be made to the decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd vs Pranay Sethi reported in (2017) 16 SCC 680, wherein the Apex Court held that while awarding compensation, the Court is required to follow the guiding principles laid down by the Hon’ble Apex Court in Paragraph No.55, which reads as under:

“55. Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, “just compensation”. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. We approve the principle of “standardization” so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.”

In view of above, the learned Tribunal has to consider or determine the compensation on the foundation of fairness, reasonableness and equitability on acceptable legal standard. The concept of ‘just compensation’ has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. It is true that in the case of death, legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though discretion vested in the Tribunal is quite wide yet it is obligatory on the part of the Tribunal to be guided by the expression, that is, “just compensation” and determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and even after applying the apposite multiplier, the Tribunal has to award the just compensation. To award the just compensation, the Tribunal has to maintain uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by the Hon’ble Supreme Court for standardization which in its ambit includes addition of future prospects on the proven income and keeping in mind the principles of certainty, stability and consistency to determine the compensation in absence of cogent evidence and proof of income, Tribunal and/or Court has to consider the minimum wages of the prevalent time keeping in mind the work and profession of deceased or injured. Herein, the learned Tribunal has adopted very conservative approach and failed to just compensation. Even if for the sake of argument it is assumed that income tax returns for the years 2014 and 2015 were not filed and therefore, the learned Tribunal ought to have taken income at the rate of minimum wages prevailing in the year 2015. Hence, learned Tribunal has failed to consider the said aspect and very meager compensation is awarded in case of fatal accident. At this stage, it is apposite to refer to the decision of the Hon’ble Supreme Court in the case of Chandra @ Chanda @ Chandraram vs. Mukesh Kumar Yadav reported in (2022)1 SCC 198 wherein it has been observed and held that merely because claimants were unable to produce the documentary evidence to show monthly income of the deceased, same does not justify adoption of lowest tier of minimum wage while computing income. Even otherwise, in the instant case, the appellants – claimants had produced income tax returns of the deceased according to which the learned Tribunal ought to have considered monthly income of the deceased at Rs.14,000/- as Income Tax Officer is examined and income tax return is statutory evidence and document, which is required to be considered and relied upon to award just compensation. In this regard, reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Malarvizhi & Ors vs. United India Insurance Company Limited & Anr. reported in 2020 ACJ SC 526.

[6.3] As the deceased at the time of accident was admittedly aged about 68 years, learned Tribunal has rightly not assessed future prospective income of the deceased, which does not call for any interference by this Court. The deceased was having four dependants but as one of the son was major, he would not be dependant on the deceased and therefore, 1/3rd (Rs.4,667/-) is required to be deducted towards dependency and therefore, monthly loss of dependency would come to Rs.9,333/- and yearly loss of dependency would come to Rs.1,11,996/-. Further, as the deceased was aged 68 years, in view of decision of the Hon’ble Supreme Court in the case of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. reported in 2009 ACJ 1298, multiplier of 5 would apply. Applying the multiplier of 5, future loss of dependency would come to Rs.5,59,980/- (Rs.1,11,996 x 5).

[6.4] Further, the learned Tribunal by relying on the judgment of Pranay Sethi (Supra) has awarded Rs.15,000/- each under the two conventional heads of loss of estate and funeral expenditures however, this Court is of the view that said amount is required to be reassessed as Rs.18,150/- towards loss of estate and Rs.18,150/-towards funeral expenses.

[6.5] Further, in view of ratio laid down by the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram reported in (2018) 18 SCC 130 and Jana Bai Wd/o Dinkarrao Ghorpade & Ors. vs. M/s ICICI Lambord Insurance Company Ltd. reported in 2022 LiveLaw (SC) 666, the learned Tribunal has committed error in not awarding loss of consortium to the appellants – original claimants however, in view of above judgments the appellants – original claimants being legal heirs of the minor deceased are entitled for Rs.48,400/- each towards the loss of consortium. Therefore, the amount towards loss of consortium is assessed as Rs.1,93,600/- (i.e. Rs.48,400/- X 4).

[7.0] Thus, now the original claimants are entitled to the compensation as under:

Heads

Amount awarded by the

Tribunal

Reassessed by this Court

Future loss of

Rs.1,80,000/-

Rs.5,59,980/-

dependency