AI Structured Summary
Not yet generated for this judgment
Judgment
Honourable Mr. Justice R.M. Chhaya
The present appeal arises out of the judgment and award rendered by Motor Accident Claim Tribunal (Main) Bhavnagar in MAC Petition No. 331 of 1999 dated 06.09.2000.
The facts relating to the present appeal can be summarised as follows.
That the original claimants are the legal heirs and representatives of deceased Nisharhusen Umrabhai Kazi, being wife of deceased, three minor children of the deceased and father of the deceased.
It transpires from the record that deceased Nisharhusen was driving Tata Sumo Car bearing RTO Registration No. GJ- 4D- 894 on Ahmedabad - Bhavnagar Highway on 17.3.1999. It further transpires from the record that respondent no. 8 here in, had been to Ahmedabad in Maruti Esteem Car and was returning back on the date of accident at about 5.30 p.m. The engine of the Car driven by opponent no. 8, while the Car was between Bagodara and Bavla broke down. It also transpires that opponent no. 8 here in summoned the Tata Sumo Car belonging to opponent no. 4 herein. It further transpires from the record that deceased Nisharhusen drew the Tata Esteem Car at the place where the Maruti Esteem Car of opponent no. 8 was struck and thereafter deceased Nisharhusen helped opponent no. 8 in towing the Car with a rope, tied with Tata Sumo to bring it back to Bhavnagar.
4.1. It also transpires from the record that while Tata Sumo Car reached near village Muldharai at about 02.30 a.m. truck driven by respondent no. 2 herein bearing RTO Registration No. GJ-TT-6970 came from the otherside of the road in an excessive speed and dashed with Tata Sumo Car because of which deceased Nisharhusen received serious injuries. It further transpires from the record that the accident occurred because of rash and negligent driving by respondent no. 2 herein. It bornes from the record that immediately after the accident deceased Nisharhusen was taken to the Government Hospital at Vallabhipur and was thereafter was shifted to Bhavnagar Government Hospital for further treatment. However, he succumbed to the injuries on way to Bhavnagar.
The present appellants being legal heirs and representatives of deceased Nisharhusen filed MAC Petition before Motor Accident Claim Tribunal, Bhavnagar and claimed Rs. 10,10,020/- as compensation which came to be registered as MAC Petition No. 331 of 1999. It was the case of the appellants before the Tribunal that deceased Nisharhusen was aged 38 years on the date of accident and was employed as a driver at Bhavnagar with one Abbasbhai Jamalbhai who was the owner of Supreme Travels. It was the case of the appellants that deceased Nisharhusen was earning Rs. 200/- per day i.e. Rs. 6,000 /- p.m. The Tribunal after considering the evidence came to the conclusion that the driver of both the impending vehicles i.e. Truck as well as Tata Sumo were negligent in the ratio of 80:20 respectively and was pleased to partly allow the claim petition and passed an award of Rs. 3,12,000/- holding the owner, driver as well as the insurance company of the truck jointly and severely liable and also awarded interest @ 12% p.a. from the date of the petition till realization with proportionate costs. Being aggrieved by the said judgment and award, the original claimants have preferred the present appeal.
We have heard learned Advocate, Mr. Ankit Shah for Mr. Y.N. Ravani, learned Advocate for the appellants -original claimants and learned Advocate, Mr. Vibhuti Nanavati for respondent no. 5 - Insurance Company of Tata Sumo. Rest of the opponents have been served, however, no one has appeared.
We have perused the impugned judgment and award as well as paper book submitted by the parties.
It may be noted that learned Counsel Mr. Shah for the appellants has argued only on the point of quantum of the award. Mr. Shah has taken us through the impugned judgment and award. Mr. Shah further contended that the Tribunal has erred in coming to the conclusion that the monthly income of the deceased was Rs. 2,500 /- only eventhough the appellants have duly proved that deceased Nisharhusen was employed with Abasbhai Jamalbhai and was paid Rs. 150 / - per day as well as Rs. 50/- as allowance per day. Mr. Shah further relying upon Exh. 59 contended that the salary certificate issued by the employer of the deceased is duly proved by the appellants and the appellants have also examined the owner of Super Travels, Mr. Abbasbhai Jamalbhai at Exh. 57 who has supported the case of the appellants. Mr. Shah further contended that the Tribunal has wrongly calculated the income as well as wrongly calculated prospective income. Mr. Shah further contended that the Tribunal should have considered the income of the deceased as Rs. 4,000/- p.m. on the basis of the salary certificate at Exh. 59 as well as oral deposition of Abbasbhai Jamalbhai Uchadiya at Exh.57. Mr. Shah further contended that as per the decision of the Apex Court in case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, the Tribunal ought to have awarded prospective income to the tune of 50% of Rs. 4,000/-.
Mr. Shah further pointed out that eventhough the deceased was the only bread winner for the family of the appellants, the Tribunal has wrongly deducted 1/3 rd towards personal expenses of the deceased. Mr. Shah submitted that as the dependents of the deceased Nisharhusen - the present appellants, are more than four, the Tribunal ought to have deducted 1/4th towards personal expenses of the deceased. Mr. Shah therefore submitted that the appeal filed by the appellants deserves to be allowed as prayed for.
As against this, Mr. Nanavati for respondent no. 5 Insurance Company has supported the judgment and award. Mr. Nanavati pointed out that the Tribunal has correctly considered that the monthly income of the deceased Nisharhusen was Rs. 2,500/- p.m. Mr. Nanavati further pointed out that the owner of Supreme Travels has clearly deposed that the deceased worked for 15 to 20 days in a month. Mr. Nanavati pointed out that the claimants have not been able to prove the exact income of the deceased. Mr. Nanavati further pointed out that salary certificate at Exh.59 is rightly not believed by the Tribunal as deceased Nisharhusen was not in permanent service of Abbasbhai in Supreme Travels but was a daily wager driver and therefore the Tribunal has correctly estimated dictum figure of Rs. 2,500/- p.m. as income of the deceased. Mr. Nanavati further pointed out that the Tribunal has correctly deducted 1/3 rd towards personal accident of the deceased as father of the deceased present appellant no. 5 though aged 60 years was working as driver as deposed by Jamalbhai at Exh. 57. Mr. Nanavati therefore submitted that the appeal is devoid of any merit and deserves to be dismissed.
No other points are raised by the parties.
On bare reading of the deposition of Jamalbhai at Exh. 57, it clearly establishes the fact that deceased Nisharhusen was working since two years as driver with Abbasbhai Jamalbhai in Supreme Travels and was being paid Rs. 150/- per day and was also being paid Rs. 50/- per day as allowance. It also transpires that deceased Nisharhusen used to get work from Abbasbhai Jamalbhai for about 25 days in a month. We therefore find that the Tribunal is not correct in arriving at a dictum figure of Rs. 2,500/-p.m. Even if we discard the salary certificate at Exh.59 it clearly transpires from the deposition of Exh.57 Abbasbhai Jamalbhai, that deceased was paid Rs. 150/- per day and was being given work for 25 days in a month. Therefore, it can safely be assessed that the income of the deceased Nisharhusen was Rs. 3,750/-p.m. at the time of accident. We are however of the considered opinion that taking into consideration the nature of service of deceased Nisharhusen and conditions attached, the service was not of permanent nature and therefore, prospective income which requires to be added should be only to the tune of 30% of the present income which would come to Rs. 4,875/- p.m. and if rounded to Rs. 4,800/- p.m.
We also find considerable force in the contention raised by Mr. Shah for the appellants that deceased Nisharhusen had more than four dependents. The appellant no. 5 - father of the deceased was aged 60 years on the date of accident and there is no evidence which establishes the fact that he had his own income and therefore, the Tribunal has erred in deducting 1/3rd towards the personal expenses of the deceased. Following the ratio of the Apex Court in the case of Sarla Verma (supra) we therefore deemed it fit to deduct 1/4th of the income towards personal accident.
The appellants therefore would be entitled to future loss of dependency as under :
Rs. 3,600/- p.m. i.e. Rs. 43,200/- p.a. and applying multiplier of 15, total future loss of dependency would come to Rs. 6,48,000/- and adding Rs. 10,000/-towards loss of consortium, Rs. 5, 000/- towards funeral and transportation charges for bringing the dead body of the deceased, Rs. 5,000/- towards loss of estate and Rs. 10,000/- towards love and affection, as awarded by Tribunal the appellants would be entitled to compensation of Rs. 6,78,000/-.
As calculated above, the appellants would be entitled to a sum of Rs. 6,78,000/-, as compensation and upon deducting 20% of the said amount towards contributory negligence as held by the Tribunal, the appellants - original claimants would thus be entitled to net amount of Rs. 5,42,400/-, as compensation and thus respondent nos. 1 to 3 i.e. the owner, driver and insurance company of the offending truck respectively, would be jointly and severely liable to pay sum of Rs. 5,42,400/-, as compensation. However, the appellants would be entitled to interest @ 12% p.a. from the date of petition till realization with proportionate cost on Rs. 3,12,000/-, as originally awarded by the Tribunal, but the appellants shall be entitled to interest @ 9% p.a. from the date of petition till realization on the additional amount awarded by this judgment.
The appeal stands partly allowed. The judgment and award stands modified accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. The respondent nos. 1 to 3 are directed to deposit the awarded amount with the Tribunal within eight weeks from the date of the receipt of this judgment.