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Judgment
Honourable Mr. Justice Akil Kureshi
This appeal is filed by the Insurance Company of luxury bus involved in an accident. The appellant challenges the judgment and award dated 21st June 1994 passed by the Motor Accident Claims Tribunal (Main), Bhavnagar in MACP No. 258 of 1985. Briefly stated, facts are as follows:
1.1 One Rajendrabhai was traveling in a Fiat Car which he himself was driving. He along with his three companions were proceeding from Vidyanagar to Amreli for their work. When the car reached near Mahadev Temple at Vallabipur village, the luxury bus insured by the present appellant Insurance Company came from opposite direction and dashed against the Fiat car causing death of all the four passengers in the car. It is stated that the claim petitions filed by the dependents of other three deceased passengers were settled before Lok Adalat. The present claim petition is filed by the heirs of deceased Rajendrabhai. Before the Claims Tribunal they had claimed compensation of Rs. 12 lacs from the driver and owner of the Insurance Company of the luxury bus. The claimants happened to be the widow, two minor children and aged mother of deceased Rajendrabhai.
Before the Claims Tribunal, the claimants examined one Arjunbhai Muljibhai at Ex.35. He was stated to be an eye-witness of the accident. He stated that the Fiat car as being driven carefully and slowly. The luxury bus was driven rashly and in excessive speed. While trying to save some cattle crossing the road, the luxury bus met with the accident with the Fiat car. This witness was cross-examined by the opponents. His presence was doubted. It appears that he had never given any statement before the police. The claimants also examined father of the deceased Rajendrabhai at Ex.24. He stated, inter alia, that the deceased was aged 35 years of age on the date of the accident. He had 25% of the share in the partnership business in which the deponent himself and another person were other partners. He stated that the deceased had technical qualification. He was a diploma holder in Engineering. On account of such qualification, the deceased was the main working partner of the firm. He was an active partner. The deponent also produced the income tax returns of the partnership firm. Such returns, however, admittedly pertained to the period subsequent to the date of the accident.
On the basis of the above evidence, the Claims Tribunal came to the conclusion that the accident occurred on account of 70% negligence attributable to the driver of luxury bus and 30% to the driver of the Fiat car, i.e. deceased himself.
With respect to the compensation payable to the claimants, the Tribunal assessed income of the deceased at Rs. 60,000 per annum. Setting apart a sum of Rs. 12,000/- for the personal expenses of the deceased, the Tribunal awarded datum figure of Rs. 48,000/- per annum for the claimants. The Tribunal looking to the age of the deceased applied multiplier of 15 and held that the dependency benefits would be worked out at Rs. 7,20,000/-. To this, the Tribunal added a sum of Rs. 20,000/- towards loss of expectation of life and Rs. 15,000/- towards consortium and Rs. 5,000/- towards funeral expenses and total figure of Rs. 7,60,000/- was thus worked out by the Tribunal. Reducing the amount by 30% for the contributory negligence of the deceased, the Tribunal held that the claimants would receive compensation of Rs. 5,32,000/- payable jointly and severally by the original opponents.
Learned counsel for the Insurance Company did not seriously dispute the apportionment of negligence between the two drivers recorded by the Claims Tribunal. He, however, contended that the computation of income was excessive. He submitted that income tax returns produced by the claimants pertained to the period subsequent to the accident. He, therefore, submitted that the compensation awarded by the Tribunal should be reduced. It was also contended that the Tribunal did not apply any reduction towards income tax payable by the deceased.
On the other hand, learned counsel for the claimants submitted that the Tribunal erred in attributing 30% negligence to the deceased. He submitted that the driver of the luxury bus was not examined. It was further contended that even the income assessment made by the Tribunal was on the lower side.
Having thus heard the learned advocates for the parties and having perused the documents on record, it is an undisputed position that the deceased died in a vehicular accident when the Fiat car which he was driving dashed with a luxury bus which was insured by the appellant Insurance Company. With respect to negligence, the Claims Tribunal has on the basis of the evidence on record, attributed 70% negligence to the driver of the said luxury bus and the rest on the deceased himself. On the question of income of the deceased, the Claims Tribunal has relied on the income tax returns of the partnership firm in which the deceased was a partner. However,such returns pertained to the period subsequent to the date of accident.
We are of the opinion that there was some scope for modification, both with respect to the negligence attributed by the Tribunal on the deceased as well as the income assessed on the basis of income tax returns. In so far as negligence is concerned, the claimants examined a person who claimed to be an eyewitness. Though the opponents cross-examined such witness, and questioned his very presence on the ground that his statement was never recorded by the police, nothing substantial has come out from the cross-examination of this witness. More importantly, the best witness of the accident would have been the driver of the luxury bus, but he was not examined before the Claims Tribunal. Unfortunately, even the panchnama of the scene of the accident drawn by the Investigating Officer does not appear to have been produced on record or exhibited. Under the circumstances, with the scanty evidence on record, perhaps the negligence attributed to the deceased could have been reduced.
On the other hand, however, we are of the opinion that computation of income worked out by the Tribunal is on the higher side. The Tribunal relied on and accepted the income tax returns showing share of the deceased of Rs. 58,000/- per annum from such partnership business. Such returns were, however for the period after the date of the accident and would therefore not provide a very safe standard in absence of other corroborating evidence.
It can, however, not be disputed that the deceased was a partner in a partnership firm. The partnership firm was engaged in the business of providing water filter treatment. In addition to producing original agreement, the claimants also produced certain correspondence with various companies, from which it can be gathered that the firm provided filtration of water for reduction and control of pH in water for agricultural and other use. The deceased himself was a technically qualified person. He was a young man aged 35 years when his life was tragically cut short by the accident. It can therefore not be denied that not only he would be earning some decent profit from the partnership but that there was every possibility that such income would rise in future. In that view of the matter, even if we were to discard the deceased income at Rs. 60,000/- per annum at the time of the accident, it cannot be denied that the deceased had a source of income from the partnership business.
Taking into consideration the totality of the facts and circumstances of the case and balancing some modification which call for on one hand on the question of negligence and on the other hand the assessment of income of the deceased, at this distant point of time, we are of the opinion that the award passed by the Tribunal is required to be confirmed as it is. We make it clear that some of the aspects of the reasonings adopted by the Tribunal do not appear to be legally justifiable and we should not be seen to have adopted such reasons for confirming the award. We have given our own reasons to indicate that on the point of negligence, there was possibility of reducing the liability of the deceased and on the other hand, on the question of income, there was possibility of reducing the same to some extent. For an accident which took place in the year 1985, after a gap of so many years, we are not inclined to modify the award even if there is possibility of minuscule adjustments here and there. In the result, the appeal as well as the crossobjections are dismissed. During the pendency of the appeal any amount deposited by the Insurance Company still remained invested, the claimant will be entitled to withdraw the same upon maturity of such fixed deposit. Further, if at the time of filing of appeal the appellant Insurance Company had deposited the statutory amount of Rs. 25,000/- and if the same is not yet transmitted to the Claims Tribunal, the same shall be done by the Registry. R & P also shall be returned to the Tribunal.