Heirs Of Decd. Laxmidas Raghavbhai Kansagara & Chaturaben & 4 Other(S) vs Vaja Laxman Khima Hadi Harijan & 4 Other(S)

1.0. Feeling aggrieved and dissatisfied with the judgment and award dated 11.06.2012 passed by the Motor Accident Claims Tribunal (Auxi) Veraval

in MACP No.34 of 2000, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to

as the “Actâ€​ for short).

2.0. It is the case of the original claimants that the accident took place on 21.11.1999. It is further the case of the claimants that Laxmidas Raghavbhai

Kansagara and his wife Chaturaben Laxmidas Kansagara were going on Hero Honda Motor Cycle No. GJÂ2HÂ0628 and on that moment when

they reached the place of accident Truck bearing No. GJÂ12TÂ6695 being driven in rash and negligent manner and in excessive speed tried to

overtake ST Bus, which was going in front of his vehicle, because of which, said Truck dashed with another Truck bearing No. GJÂ1TÂ7200, which

was coming from the opposite side and because of such collusion between two Trucks, Hero Honda Motorcycle driven by the deceased Laxmidas

Raghavbhai Kansagara dashed and crushed between both the Trucks. An FIR was lodged with jurisdictional police station being Exh.27. Thereafter,

the appellants preferred claim petition under Section 166 of the Act and prayed for compensation of Rs.35,50,000/Â cumulatively for deceased

Laxmidas Raghavbhai Kansagara and deceased Chaturaben Laxmidas Kansagara. The appellants claimants adduced documentary evidence such as

panchnama of scene of occurrence at Exh.28, PM Report of deceased Laxmidas Kansagara at Exh.29, PM Report of deceased Chaturaben

Laxmidas Kansagara at Exh.30, Birth Certificate of both the deceased at Exh.31 & 32 respectively and other relevant evidence such as death

certificate of both the deceased at Exhs. 33 and 34, copy of driving license of deceased at Exh.35, RC Book at Exh.36. It was the case of the

claimants that Laxmidas was agriculturist and was earning Rs.2,50,000/ p.a.. It was further the case of the appellants original claimants that

deceased Laxmidas was partner in Bhavesh Oil Industry and use to earn Rs.70,000/Â p.a. It was further the case of the claimants that the deceased

Laxmidas was having Goods Carriage Permit of vehicle bearing No. GTXÂ5299 and was earning Rs.50,000/Â p.a. It was thus, case of the original

claimants that income of the deceased Laxmidas per annum was Rs.3,70,000/Â. The appellant no.1 Âson of the deceased Laxmidas was examined at

Exh.25 and he reiterated the same. The learned Tribunal after appreciating the evidence on record, come to the conclusion that the except village

form no. 8A, which was also produced by the claimants at Exhs.37, 42 and 43, no other documentary evidence was adduced to even remotely support

the income of the either of the sources as pleaded by the claimants. The Tribunal considering the cross examination of the witness at Exh. 25 come to

the conclusion that it is admitted by the said witness that deceased never used to maintain any account of Bhavesh Oil Mill Industry or agricultural

yield or even the transportation. In absence of any documentary evidence, the Tribunal assessed the income of deceased Laxmidas at Rs.2250/Â per

month and after deducting 1/3rd towards his personal expenses and considering him to be aged 45 years as per the PM Note at Exh.29, awarded a

sum of Rs.2,52,000/Â under the head of future loss of income by applying multiplier 14. Over and above the said amount, the Tribunal was pleased to

further award sum of Rs.10,000/Â under the head of loss of estate and Rs.2000/Â towards funeral expenses and thus, awarded total compensation of

Rs.2,64,000/Â to the appellants. Similarly, the Tribunal also considered the joint application filed for deceased Chaturaben Laxmidas Kansagara. In

absence of any documentary evidence as deceased Chaturaben Laxmidas Kansagara was house wife, the Tribunal has assessed the income at

Rs.1500/Â per month and applying 15 multiplier and after deducting 1/3rd towards her personal expenses, awarding a sum of Rs.1,80,000/Â as

compensation under the head of future loss of income. Over and above that, the Tribunal has also awarded a sum of Rs.10,000/Â towards loss of

estate and Rs.2000/Â towards funeral expenses and thus awarded Rs.1,92,000/Â as compensation on account of death of deceased Chaturaben

Laxmidas Kansagara and thus, in all, the Tribunal awarded Rs.4,56,000/Â ( Rs.2,64,000/Â + Rs.1,92,000/Â) as compensation in both the cases.

Considering the manner in which the accident has occurred, the Tribunal has come to the conclusion that the Truck Driver of vehicle bearing

Registration No.GJÂ12TÂ6695 which is ensured with the respondent no.3 herein has negligent to the extent of 70% and the Truck Driver of the

vehicle bearing Registration No. GJÂ1TÂ7200 has negligent to the extent of 30% and thus, partly allowed the claim petition with 8% interest from the

date of application till its realization.

3.0. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the appellants claimants have preferred this

appeal.

4.0. Heard Mr. Amar Mithani, learned advocate for the appellants, Mr. Y.J. Patel, learned advocate for the respondent nos. 1 and 2 and Ms. Sonal

Vyas, learned advocate for the respondent nos. 3 & 5Â​ Insurance Company. Though served, nobody appears on behalf of respondent no.4.

5.0. Mr. Mithani, learned advocate for the appellantsÂ​ claimants has contended as under:

(1). That the Tribunal has erred in determining the income of the deceased Laxmidas at Rs.2250/Â. Relying upon the deposition of witness at Exh.25,

Mr. Mithani contended that the appellants claimants had proved that deceased Laxmidas had income from the three sources viz. Agricultural,

Transportation and Partnership in Oil Industry and according to Mr. Mithani no further documentary evidence was necessary to prove the income of

the deceased.

(2). Mr. Mithani also further contended that the learned Tribunal has erred in not considering the increase in income by way of prospective income,

which ought to have been granted to the appellants. According to Mr. Mithani such prospective rise has to be 40% of the income.

(3). Mr. Mithani further contended that on the date of accident, the deceased had more than four dependents and therefore, the Tribunal has erred in

deducting 1/3rd amount from the income as personal expenses of the deceased, which should be suitably modified to the extent 1/4th . Mr. Mithani

also further pointed out that while partly allowing the claim petition against the opponent nos. 1 to 4, the Tribunal ought to have made all respondents

jointly and severally liable for the total compensation and the Tribunal has therefore, erred in bifurcating 30% amount awarded for Truck bearing

registration No.GJÂ1TÂ7200. Mr. Mithani also contended that considering the date of accident to be 21.11.1999, the Tribunal ought to have awarded

interest at the rate of 9% instead of 8%. On the aforesaid grounds, Mr. Mithani contended that appeal be allowed and the impugned judgment and

award be modified to the aforesaid extent.

6.0. Per contra, Ms. Sonal Vyas, learned advocate for same Insurance Company â€" respondent nos. 3 and 5 has supported the impugned judgment

and award. Ms. Vyas contended that the Tribunal has rightly assessed the income of deceased Laxmidas at Rs.2250/Â per month and income of the

deceased Chaturaben Laxmidas Kansagara at Rs.1500/Â per month, as the appellants have not even remotely brought on record any evidence to

justify their claim of income from the three different sources. Ms. Vyas further contended that the accident has occurred in the year 1999 and

therefore, the Tribunal has rightly not consider any compensation as prospective income. It was further contended by Ms. Vyas that the learned

Tribunal has rightly deducted 1/3rd towards personal expenses and Tribunal has also rightly awarded interest at the rate of 8% by exercise of its

discretion judiciously as the accident has occurred in the year 1999. It was reiterated by Ms. Vyas that appeal being merit less and deserves to be

dismissed.

7.0. Mr. Y J Patel, learned advocate for the respondent nos. 1 and 2 has submitted that this Court may pass appropriate order in facts of this case.

8.0. We have perused the Record and Proceedings of the case. Upon considering the submissions made and on appreciation of evidence on record,

more particularly, considering the deposition of witness at Exh.25, it is on record that the deceased Laxmidas was an agriculturist and was also earning

from Bhavesh Oil Industry as well as was owner of the vehicle which was used in transportation. The Tribunal has merely come to the conclusion

that no documentary evidence was produced, Mr. Mithani has not shown anything from the Record and Proceedings, which would remotely even

prove the income as averred in the claim petition and as asserted before the Tribunal. However, even as per the guess work considering the age and

other factors that the deceased Laxmidas had three different source of income, in our opinion, the income can safely be assessed at Rs.3000/Â per

month. Following the ratio laid down by the Hon'ble Supreme Court in the case of Smt. Sarla Verma and ors vs. Delhi Road Transport Corporation

and Anr reported in (2009) 6 SCC 121 and in the case of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 68,0 the

Tribunal has committed any error in not granting any prospective income. Following the aforesaid judgments,the appellants claimants would be

entitled to increase in income, in case of Laxmidas and Chaturaben to the extent of 40%. As far as age of both the deceased are concerned, the same

are not in dispute and the multiplier of the deceased Laxmidas is not disputed by the learned advocates for the respective parties but multiplier of the

deceased Chaturaben is in dispute. That multiplier of 14 applied by the Tribunal in case of Laxmidas is correct and same does not require any

modification. However, Chaturaben was aged 43 years as per the evidence on record and therefore, multiplier of 14 should have been applied instead

of 15 multiplier. Similarly, though the Chaturaben was house wife and no evidence is on record even in the year 1999, it can be presumed that as the

house wife Chaturaben would be earning Rs.2000/Â per month and even in case of Chaturaben, the appellants would be entitled to prospective

income to the tune of 40%.

8.1. Having come to the aforesaid conclusion, in case of deceased Laxmidas, the appellants would be entitled to compensation under the head of

future loss of income as under:

Rs. 3000/Â p.m (income) + Rs.1200/Â (40% prospective income) = 4200/Â Â 1050/Â (1/4th towards personal expenses = Rs.3150/Â X 12 =

37,800/Â​ X 14 (Multiplier) = 5,29,200/Â​.

8.2. In case of deceased Chaturaben, the appellants would be entitled to compensation under the head of loss of income as under:

Rs. 2000/Â p.m (income) + Rs.800/Â (40% prospective income) = 2800/Â Â 700/Â (1/4th towards personal expenses = Rs.2100/Â X 12 = 25,200/Â‐

X 14 (Multiplier) = 3,52,800/Â​.

9.0. That both the deceased i.e. Laxmidas and Chaturaben have expired in the same accident together, following the ratio laid down by the Hon'ble

Supreme Court in the case of Pranay Sethi (supra) the appellants claimants would be entitled to compensation of Rs. 30,000/ under head of

conventional. Thus, in case of Laxmidas, the appellants would be entitled to compensation as under:

“Rs. 5,29,200/Â​ as future loss of income + Rs.30,000/Â​ under the conventional head = Rs.5,59,200/Â​ as total compensation.â€​

9.1. As the Tribunal has awarded Rs.2,64,000/Â​, the appellants would be entitled to an amount of Rs.2,95,200/Â​ as additional compensation.

9.2. However, in case of deceased Chaturaben, the appellants would be entitled compensation as under:

“Rs.3,52,800/ as future loss of income + Rs.30,000/ under the conventional head (as per judgment of the Hon'ble Supreme Court in the case of

Pranay Sethi (supra) = Rs.3,82,800/ as total compensation.†Thus, the appellants would be entitled to total compensation of Rs.3,82,800/ in case

of deceased Chaturaben and as the Tribunal has awarded Rs.1,92,000/Â, the appellants would be entitled to an amount of Rs.1,90,800/Â as additional

compensation. Thus, considering the case of the deceased Laxmidas as well as deceased Chaturben, the appellants would be entitled to additional

compensation of Rs.4,86,000/Â​(2,95,200/Â​ (deceased Laxmidas ) + 1,90,800/Â​ (deceased Chaturaben).

9.3. As far as contention as regards interest as raised by Mr. Mithani is concerned, upon considering the overall aspect and the evidence on record,

we deem it fit that Tribunal has rightly exercised the discretion considering the date of accident i.e. 21.11.1999 and same does not require any

modification. The Tribunal has erred in bifurcating the award and has made respondent nos. 1 to 3 liable to the extent of 70% of the compensation

awarded and 30% of the compensation awarded is to be paid by the respondent no.4. As per the binding decision of the Hon'ble Supreme Court in the

case of T O Anthony (supra)vs. Karvarnan & Ors reported (2008) 3 SCC 748, the contention raised by Mr. Mithani that all the respondents are

required to be liable jointly and severally is deserved to be allowed.

In view of the aforesaid discussion, appeal is thus partly allowed and the impugned judgment and award passed by the learned Tribunal is modified

to the aforesaid extent. No costs. The respondent nos. 1 to 4 are held jointly and severally liable to pay the compensation as decided by this Court.

The Insurance Company shall deposit the additional amount of compensation of Rs. 4,86,000/Â with interest before the Tribunal within a period of

three months from the date of receipt of the present order. Registry is directed to send back the Record and Proceedings to the Tribunal forthwith.