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Judgment
J.C. Upadhyaya, J.—Challenge in this Appeal u/s 173 of the Motor Vehicles Act, 1988 (''the Act'' for short) is to the judgment and award dated 8th November, 2000, rendered in MACP No. 77 of 1995 by MACT (Main), Vadodara, whereby the aforesaid claim petition preferred by the appellants u/s 166 of the Act came to be partly allowed and the appellants-original claimants were granted compensation of Rs. 6,05,000/- with running interest at the rate of 12% per annum from the date of the claim petition till realization from the respondents (original opponents) jointly and severally with proportionate cost thereon.
The facts leading to the aforesaid claim petition in nutshell are that the vehicular accident occurred on dated 21.7.1994, and on that day, deceased Mahendrabhai was driving scooter, bearing Registration No. GJ-6B-2484 and one Nandkishor Joshi was the pillion rider. When they were returning from village Ajod and were passing on National Highway No. 8, on their left side, with moderate speed, one Truck, bearing Registration No. KA-25-1572, driven by the original opponent No. 1 and owned by the original opponent No. 2 and insured by original opponent opponent No. 3 National Insurance Company Limited, came from behind. The scooter driven by the deceased Mahendrabhai dashed with the truck. It is further alleged by the claimants that the respondent - opponent No. 1 - the driver of the truck was driving the truck rashly and negligently and without blowing horn, the driver of the truck attempted to overtake the scooter and the accident occurred. Deceased Mahendrabhai sustained serious injuries and succumbed to the injuries.
2.1 It is further pertinent to note that Nandkishor Joshi, who was pillion rider on the scooter also sustained bodily injuries and he preferred an MACP No. 78 of 1995 against the respondents herein u/s 166 of the Act and the Tribunal consolidated both the claim petitions, namely, MACP No. 77 of 1995 and MACP No. 78 of 1995 and common evidence was recorded and the impugned common judgment and award came to be passed.
2.2 Though the original opponent No. 1 driver and original opponent No. 2 owner of the offending truck came to be duly served with the notice but did not file any reply, but respondent - original opponent No. 3 National Insurance Company Limited filed its reply at Exhibit-13, denying the averments and allegations regarding the description of accident, rash and negligent driving by respondent - opponent No. 1 driver of the trick, income, injuries and treatment etc of the deceased - Mahendrabhai. The Insurance Company contended that the accident was the outcome of the rash and negligent driving of the scooter by the deceased.
The Tribunal recorded the evidence of the appellant - original claimant No. 1 Shashikalaben, the widow of the deceased at Exhibit-21. During the course of her evidence, necessary documents, like copies Village Form No. 7 and 12 and other relevant documents were produced. The claimants also examined Gajendrabhai Dahyabhai at Exhibit-41 as their witness to show that the deceased was doing agricultural work as well as he was selling the pesticides. The Tribunal also recorded the evidence of one Bhupendrabhai to prove the income of the deceased. Appreciating the oral and documentary evidence on record, the Tribunal came to the conclusion that the deceased was helping his family in cultivating the agricultural land and his services as agriculturist in helping his family was assessed to at Rs. 3,000/- per month. At the time of the accident and death, the deceased was aged about 38 years and, therefore, the Tribunal considered the prospective future monthly income of the deceased at Rs. 4,500/-. The Tribunal further observed that there were in all 12 units including the deceased in the family and taking the total expenditure of the family per month, the personal expenditure which would have been incurred by the deceased towards his own subsistence would come to Rs. 750/- per month and if this personal expenditure of the deceased is sliced down from the total prospective income of the deceased, the total value of the dependency would be Rs. 3,750/- per month and considering the age of the deceased, so also the age of the dependents, the Tribunal selected multiplier of 13 years, and accordingly on that basis, the amount was worked out at Rs. 5,85,000/-. Rs. 10,000/- were awarded towards loss of expectation of life and Rs. 5,000/- were awarded towards consortium and further Rs. 5,000/- were awarded towards charges for obsequial ceremony and, thus, the Tribunal held that the claimants were entitled to get Rs. 6,05,000/- by way of compensation with running interest at the rate of 12% per annum from the date of filing of the claim petition till the realization of the amount from the respondents - opponents jointly and severally.
Feeling aggrieved by and dissatisfied with the impugned judgment and award rendered by the Tribunal, the appellants, who were original claimants in the aforesaid claim petition, preferred this Appeal on the ground that the amount awarded by the Tribunal by way of compensation is inadequate and insufficient as against their original claim of Rs. 30 lacs. It is to be noted that the impugned judgment and award rendered by the Tribunal came to be challenged by the respondent - opponent No. 3-National Insurance Company, by preferring a separate appeal, bearing First Appeal No. 3687 of 2001. Considering the copy of the judgment rendered by a Division Bench of this Court on 01st November, 2001 in First Appeal No. 3687 of 2001, it transpires that the said Appeal was confined regarding the rate of interest awarded by the Tribunal to the claimants. The Division Bench of this Court considering earlier decisions delivered by this Court, came to the conclusion that the rate of interest as awarded by the Tribunal is required to be modified. Accordingly, it was ordered that the original claimants were entitled to compensation as determined by the Tribunal in the impugned award, but they were entitled to interest at the rate of 12% per annum from the date of the claim petition upto 31st December, 1999 and at the rate of 9% until realization. Accordingly, the impugned judgment and award rendered by the Tribunal came to be modified only regarding the rate of interest.
We have considered the submissions advanced by Mr. M.T.M. Hakim, learned Advocate for the appellants - original claimants and Ms. Anushree Kapadia, learned Advocate for Ms. Megha Jani, learned Advocate for the respondent No. 3-National Insurance Company Limited. Mr. Hakim, learned Advocate for the appellants submitted that the deceased was an agriculturist, cultivating lands at village Nana Karada, Taluka-Shinor. He was cultivating and farming three parcels of lands, namely, 30 bighas of land of his own ownership and the same is proved through the revenue records at Exhibit-33 and by cultivating his own land, he was earning Rs. 2 lacs per annum. It is further submitted that the deceased was also cultivating 30 bighas of land of the ownership of his brother Bhupendrabhai, who was residing at Bodeli and was earning Rs. 10,000/- per annum. It is also submitted that the deceased was also cultivating the land of the ownership of his mother Lilavatiben and was earning Rs. 25,000/- per annum. Mr. Hakim for the appellants further submitted that the deceased was cultivating and farming the lands by utilizing tube-well, tractor and electricity. The deceased was also purchasing seeds and pesticides for agricultural purposes from Gayatri Trading Company for himself and also was selling the same on commission basis. The income from this source is proved through certificate at Exhibit-42 and he derived the income by way of selling pesticides and seeds at Rs. 35,000/- per annum.
5.1 Mr. Hakim, learned Advocate for the appellants submitted that the deceased was also giving his tractor on rental basis to other farmers and was earning Rs. 36,000/- per annum. The claimants produced certain vouchers to show the income earned by the deceased from his tractor. It is submitted that despite such voluminous oral and documentary evidence on record, the Tribunal only took into consideration the agricultural income of the deceased and the Tribunal did not take into consideration the income derived by the deceased from other two sources, namely, selling seeds and pesticides as well as income derived from his tractor. The Tribunal, while considering the agricultural income of the deceased, did not take into consideration of income of other two sources derived by the deceased and came to the conclusion that the deceased was earning Rs. 3,000/- per month as his income. The multiplier applied by the Tribunal is also on lower side. The Tribunal would have applied the multiplier of 16 years in place of the multiplier of 13 years.
5.2 Mr. Hakim, learned Advocate representing the appellants - claimants ultimately urged that the claim deserves to be enhanced and the enhancement Appeal may kindly be allowed.
Ms. Anushree Kapadia, learned Advocate for Ms. Megha Jani, learned Advocate representing the respondent No. 3 National Insurance Company Limited fully supported the impugned judgment and award rendered by the Tribunal so far as the claim amount is concerned. However, it is submitted that the National Insurance Company Limited had filed First Appeal No. 3687 of 2001 challenging the impugned judgment and award regarding the rate of interest and vide judgment and order dated 01.11.2001, this Court modified the rate of interest granted by the Tribunal and, therefore, it is urged that the appeal preferred by the original claimants for enhancement deserves to be dismissed and the modification made by the Division Bench of this Court in First Appeal No. 3687 of 2001 may be considered while dismissing the present appeal.
We have considered the record and proceedings in context of the submissions advanced by the rival sides. So far as the issue regarding the negligence is concerned, it is pertinent to note that, the National Insurance Company Limited challenged the impugned judgment and award by preferring a First Appeal No. 3687 of 2001 and considering the copy of judgment rendered by the Division Bench of this Court dated 1.11.2001, the Insurance Company only pressed the said Appeal regarding the rate of interest awarded by the Tribunal to the claimants and no grievance was ventilated by the Insurance Company regarding the findings arrived at by the Tribunal to the effect that the vehicular accident in question was the outcome of the sole rash and negligent driving of the respondent-Opponent No. 1, the driver of the offending truck.
Appreciating, evaluating and scrutinizing the oral and documentary evidence on record, the Tribunal came to the conclusion that, the deceased was an agriculturist and he was cultivating the agricultural lands referred in the revenue records, extracts of which were produced on record in the claim petition. The Tribunal examining the evidence on record observed that the deceased was cultivating the land which belonged to his family and it was a joint Hindu family. The Tribunal, therefore, observed that on account of the demise of the deceased, the family sustained the loss of income only to the extent on the count of skill and efficiency in the services rendered by the deceased as an agriculturist. Examining the evidence of the widow of the deceased, the Tribunal observed that, even after the death of the deceased, the agricultural operation continued so far as the agricultural lands of the family was concerned.
8.1 About the claim of the claimants that the deceased used to purchase seeds and pesticides from Gayatri Trading Company for himself and was also selling the same on commission basis, the Tribunal examined the evidence of one Gajendrabhai Dahyabhai, examined at Exhibit-41. Considering the certificates at Exhibit 42 and 43 and observed that looking to the evidence of Gajendrabhai Dahyabhai, examined at Exhibit-41, who was selling the pesticides to the deceased, has denied that deceased Mahendrabhai was purchasing the pesticides for the purpose of selling the same on commission basis. The Tribunal examining the oral and documentary evidence on record, held that the claimants failed to adduce any cogent and convincing evidence to the effect that the deceased was dealing in seeds and pesticides.
8.2 About the claim of the claimants regarding the income derived by the deceased from cultivating the land of one Bhupendrabhai, the learned Tribunal, examining the evidence of Shashikalaben, the widow of the deceased and Bhupendrabhai, observed that, according to Shashikalaben, the widow of the deceased, the deceased was getting Rs. 10,000/- per annum by cultivating the land of Bhupendrabhai whereas Bhupendrabhai deposed that he was paying Rs. 50,000/- as share of the deceased. The Tribunal, therefore, observed that there was material inconsistencies regarding the income of the deceased in the evidence adduced by the claimants.
8.3 About the claim of the claimants regarding the income derived by the deceased from his tractor, the Tribunal examining the evidence on record, held that the claimants have not examined any witness to whom the deceased was giving his tractor on hire basis to prove their case regarding the income derived by the deceased from his tractor. The Tribunal examining the extracts of account books produced on record, observed that the entries made in the account books cannot be said to have been duly established and proved.
Ultimately, the Tribunal in the impugned judgment and award observed that on account of the death of the deceased, who was an agriculturist, the family had sustained the loss of agricultural skill and management of the deceased. Coming to the said conclusion, the Tribunal relied upon certain decisions rendered by this Court. Ultimately, the Tribunal came to the conclusion that the income of the deceased, at the time of the incident, can be assessed at Rs. 3,000/- per month, which can be counted as loss of services of the deceased to his family. The Tribunal also took into consideration the future prospective income of the deceased and accordingly the future prospective income was assessed at Rs. 4,500/- per month. It is further pertinent to note that the deceased was a married man, having his widow and children. On the count of personal expenditure of the deceased, which he would have spent for his own maintenance, etc. had he been alive, only Rs. 750/- per month was considered to be his self expenses, and accordingly Rs. 750/- per month came to be deducted from the future prospective income of Rs. 4,500/- per month and accordingly the total value of the monthly loss of dependency benefits was calculated at Rs. 3,750/-. The Tribunal, considering the age of the deceased, so also the age of the widow, children and mother of the deceased, held that multiplier of 13 years was just and proper multiplier and accordingly the amount was worked out at Rs. 5,85,000/-. The Tribunal also took into consideration the other relevant heads, regarding the compensation, namely, loss of expectation of life, consortium and expenses towards obsequies ceremony and considering Rs. 20,000/- in all, on these counts, the Tribunal, ultimately, came to the conclusion that the claimants were entitled to Rs. 6,05,000/- by way of compensation.
We have re-examined and re-appreciated the oral and documentary evidence adduced by the claimants on record. We have also taken into consideration the fact that basically the nature of profession of the deceased was agriculture. The evidence further reveals that the deceased was owner of 30 bighas of land which he was cultivating and he was also cultivating the land of his joint Hindu family, but it clearly transpires that the deceased was doing the agricultural work in the capacity as member of joint Hindu family. Since the deceased was an agriculturist, on account of his death, the family sustained loss of management skill and efficiency of the deceased in the agricultural work. The incident occurred in the year 1994 wherein the deceased lost his life and considering the facts and circumstances of the case and evidence on record, we are of the considered opinion that Rs. 3,000/- per month fixed by the Tribunal towards the loss of services rendered by the deceased as an agriculturist to the family, cannot be said to be inadequate or insufficient. It is further pertinent to note that the Tribunal also took into consideration the future prospective income of the deceased. As stated above, the monthly expenditure, which the deceased would have spent for himself, had he been alive, was considered only at Rs. 750/- per month and the same came to be deducted from the future prospective income of Rs. 4,500/- per month of the deceased. Considering the facts and circumstances of the case, we are also of the considered opinion that, the multiplier fixed by the Tribunal cannot be said to be on lesser side.
In the above view of the matter, we are of the considered opinion that, the Tribunal did not commit any error or irregularity while fixing the amount of compensation in the impugned judgment and award challenged in this Appeal. The Appeal, therefore, is devoid of any merit and deserves dismissal.
For the foregoing reasons, the Appeal is dismissed. The impugned judgment and award dated 8th November, 2000, rendered in MACP No. 77 of 1995, by learned MACT (Main), Vadodara, allowing the appellants-claimants to recover Rs. 6,05,000/- by way of compensation from the respondents - original opponents jointly and severally, is confirmed, subject to the modification of rate of interest, made by this Court, vide judgment dated 01.11.2001, in First Appeal No. 3687 of 2001.