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Judgment
Honourable Mr.Justice Akil Kureshi
This appeal is filed by the original applicants who were claimants in MACP No. 817 of 1998 filed before the Motor Accident Claims Tribunal (Aux.), Ahmedabad.
Briefly stated, facts are that one Narandas Kanjaria was travelling on his scooter going from Chiloda to Himatnagar at about 3.15 p.m. The vehicle met with an accident with an incoming truck owned by opponent No. 1 and insured by opponent No. 2 Insurance Company. The accident caused instantaneous death of the scooterist. His widow and minor children therefore, filed the above-mentioned claim petition seeking compensation of Rs. 25 lacs from the opponents.
Before the Claims Tribunal, the claimants examined and eye-witness one Gabhaji Bhikhaji Thakore who had also lodged the first information report about the accident. In his deposition at Ex. 36, said Gabhaji narrated the manner in which the accident had taken place. The claimants also produced FIR at Ex. 21 and panchnama of the scene of accident at Ex. 22. The claimants also produced several documents including the certificates indicating educational qualification of the deceased as also the pay slip issued by the employer shortly before the date of the accident. Claimant No. 1 widow of the deceased Vanitaben was examined at Ex. 33.
On the other hand, the opponents examined Dalpatbhai Rathod at Ex. 40, the driver of the truck involved in the accident.
On the basis of the oral as well as documentary evidence placed on record, the Claims Tribunal held that the truck driver was negligent to the extent of 80% in causing the accident and the deceased was attributed 20% negligence.
With respect to compensation, the Tribunal believed that the deceased was drawing gross salary of Rs. 17,000/- per month and his take home salary on the date of accident was believed to be Rs. 14,000/-. The Tribunal set apart one-third and thereafter worked out the dependency benefits of the claimants at Rs. 9300/- per month or Rs. 1,11,600 per annum. Considering the age of the deceased being 40 years, the Tribunal adopted multiplier of 14. Future loss was therefore worked out to Rs. 15,62,400/-. To this figure, the Tribunal added Rs. 10,000 towards loss of expectation of life and Rs. 5,000/- for consortium and ultimately worked out total figure of Rs. 15,77,400/-. Deducting 20% thereof towards contributory negligence of the deceased, the Tribunal directed that the opponents shall pay sum of Rs. 12,61,920/- to the claimants with interest at the rate of 12%.
We would first address the question of negligence. It is not in dispute that the scooter and the truck were travelling in opposite directions. The person who lodged the complaint before the police regarding accident had also deposed before the Tribunal at Ex. 36. In his deposition, the said witness Gabhaji stated that on 3rd August 1998, at about 3 O'' clock in the afternoon, when he was sitting at his stall on the road opposite to the stall, the accident took place between the scooter and the truck. The truck was coming from Himatnagar side at full speed. The scooter was coming from Chiloda. The scooter driver was driving the vehicle carefully on the left side of the road. The truck driver had driven the truck on the wrong side and had hit the scooterist with the front driver side of the vehicle. The scooter and the rider were dragged for a distance of nearly 40 feet after which the truck had dashed against a babool tree on the road side. In his complaint before the police also, he had given a similar version. He had stated that the truck was being driven rashly. After the accident, the truck had dashed against a babool tree on the side of the road. Panchnama of scene of accident Ex. 22 also recorded that after the point of impact, the truck had travelled another 40 ft. and dashed against a tree on the side of the road.
From the above, it clearly emerges that the truck had stopped nearly 40 feet after the impact with the scooter and that too only after hitting a tree on the side of the road. It is, thus, clear that the truck must have been driven at high speed. Else, the truck would have stopped soon after hitting the scooter. In addition to the above clear conclusion, we also have oral deposition of Gabhaji who stated that the truck was being driven at excessive speed. The scooterist was driving at a slow speed and was on his correct side of the road. The truck came on the wrong side and hit the scooter.
To counter such oral testimony of an eye-witness, who had every reason to be present at the scene of accident since he had a stall right opposite to the place where the accident took place, the opponents examined the truck driver at Ex. 38. He did say that he was driving the truck with due care and caution. However, there are significant aspects of the matter in his deposition which belied this theory. Firstly, he admitted that the truck had stopped after dashing against a tree and that such tree was on the wrong side of the road. Further, he stated before the Tribunal that while he was driving his vehicle, another truck was in front of him at a distance of about 15 ft. He further stated that another truck was coming from opposite direction. He explained that scooter driver tried to overtake the truck coming from opposite direction and that is how the accident occurred.
To our mind, admission of the driver that the truck had dashed against a tree on the wrong side of the road is significant. This completely belies his theory that he was driving the vehicle at slow speed. Had this been so, the truck would not have travelled 40 ft. after hitting the scooter nor would have swirled on the wrong side of the road and stopped only after hitting a tree. His further explanation that the scooterist came from behind a truck and tried to overtake the vehicle and that is how the accident occurred is also totally falsified by his own account. He stated that there was another truck going in front of him at a distance of 15 ft. We fail to see how the scooter driver could overtake a truck coming from the opposite direction and hit the truck of the deponent while still missing another truck in front of him at a distance of nearly 15 ft. What happened to the truck which scooter driver was trying to overtake is anybody''s guess.
In view of the above, in our opinion, the claimants established before the Tribunal that the accident occurred on account of sole negligence of the truck driver. The Tribunal, in our opinion, therefore, committed an error in attributing 20% contributory negligence to the deceased scooter- driver.
With respect to computation of compensation, as already noted, the Tribunal believed the gross income of the deceased at Rs. 17,000/- per month at the time of accident. The Tribunal taking into account certain statutory deductions believed the income of the deceased at Rs. 14,000/- per month. Counsel for the appellant submitted that the Tribunal ought to have accepted the income of the deceased at Rs. 17,000/- and thereafter ought to have given some increase for the future. On the other hand, counsel for the Insurance Company submitted that the Tribunal misread the pay-slip Ex. 26 produced by the claimants in which gross salary of the deceased was Rs. 13,111/- and after deduction, net pay of was Rs. 9256 per month. We have given our anxious thoughts to the submissions of both sides. We partially agree with both the counsel. It is true, as contended by Shri Sandip Shah for the appellant, that the Tribunal did not provide for any further increase in the salary. If the income of the deceased was Rs. 17,000/- gross as contended by the appellant, we would have granted some further increase in computation of future loss of income. However, here we agree with the counsel Shri Shalin Mehta for the Insurance Company that the Tribunal misread the salary slip at Ex. 26. Close perusal of the salary slip indicates that the total earnings of the deceased which included basic pay, variable DA and other allowances such as, special pay, overtime, all put together came to Rs. 13,111/-. The deceased had suffered deductions (not all statutory) of Rs. 3855/- from such gross pay. Amount of Rs. 17,237/- appeared to represent arrears of pay including DA arrears and HRA arrears from which the employer also deducted further CPF of Rs. 3807/-. This would clearly indicate that Rs. 17,237/- was not the gross pay of the deceased and it represented certain arrears which might have become payable due to retrospective implementation of the DA increase. However, pay of the month of July 1995 remained at Rs. 13,111/- gross and Rs. 9256/- net. Deduction of Rs. 3855 included CPF contribution and recovery towards certain advances. Ignoring principally the PF contribution which essentially would be the saving of the employee, such deductions would roughly come to Rs. 3,000/-, thus leaving a sum of Rs. 10,000/- as net pay of the deceased. Granting benefit of future increase in the salary, therefore, of Rs. 14,000/- adopted by the Tribunal needs, in our opinion, no tinkering. For the reasons somewhat different from what is adopted by the Tribunal, we confirm such computation.
With respect to multiplier, we adopt the multiplier of 15 instead of 14 as done by the Claims Tribunal following the decision of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .
Computation of future loss of income thus comes to the following:
Rs. 1,11,600 x 15 = Rs. 16,74,000/-.
Remaining amounts (Rs. 15,000) awarded by the Tribunal are left unchanged and, thus, the total amount payable to the claimants would come to Rs. 16,89,000/-. Since we have held that no negligence can be attributed to the deceased for causing the accident, the claimants shall receive the said amount in full. Since the Tribunal has already awarded an amount of Rs. 12,61,920/-, the claimants would receive an amount of Rs. 4,27,080/- over and above what was already awarded by the Tribunal. Such additional compensation shall be paid with simple interest at the rate of 12% from date of the claim petition till date of the award and thereafter at the rate of 9% till the actual payment.
The appeal is accordingly partly allowed. The award of the Claims Tribunal is modified to the above extent. R & P be returned to the Tribunal.