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Judgment
Jayant M. Patel, J.—As all these appeals arise from the common judgment and award passed by the Tribunal, that too, arising from the common accident, they are being considered simultaneously. The short facts of the case appear to be that on 21-11-2000 when deceased Harsukhbhai Sorathia was going as pillion-rider with Mulji Ladhabhai Hadiya, who was driving the scooter bearing registration No. GJW-12-D-9171 and when they reached near Narayan Farm at about 6-00 O''clock, one Fiat car bearing registration No. GUX-9594 came from the opposite direction and dashed with the scooter and also dashed with one Fiat Uno car bearing registration No. GJ-12-E-9936. Resultantly, deceased Harsukhbhai as well as Muljibhai sustained injuries. Later on, Harsukhbhai succumbed to the injuries whereas, Muljibhai, who was driving the scooter, sustained serious injuries. The claim petitions were filed by the dependent members of family of Harsukhbhai being Motor Accident Claim Petition No. 786 of 2000 for the compensation of Rs. 1 crore and by injured Muljibhai being Motor Accident Claim Petition No. 785 of 2000 for the compensation of Rs. 50 lakhs. The Tribunal, at the conclusion of the proceedings, awarded Rs. 45,35,000/- and Rs. 16,42,500/- with interest @ 9% per annum in the respective claim petitions. It is under this circumstances, the present appeals before this Court.
We may record that there were two Insurance Companies, one was of the Fiat car, namely the Oriental Insurance Company Ltd. and another was of Fiat Uno car, which is the New India Assurance Company Ltd. So far as The Oriental Insurance Company Ltd., the insurance company of the Fiat car, is concerned, it has preferred First Appeal Nos. 2636 of 2008 and 2637 of 2008 against quantum of compensation, whereas the New India Assurance Company Ltd., the another insurance company of Fiat Uno car, has preferred First Appeal Nos. 2901 of 2008 and 2902 of 2008 against negligence and quantum of compensation.
We have heard Mr. Shelat, learned Counsel for the Oriental Insurance Company Ltd., Mr. Sandip C. Shah, learned Counsel for the New India Assurance Company Ltd. and Mr. Vishal Mehta, learned Counsel with Mr. Mehul S. Shah, learned Counsel for the original claimants in the respective appeals, Ms. Juthani, learned Counsel with Mr. Meena, learned Counsel for the Oriental Insurance Company Ltd. in First Appeal Nos. 2901 of 2008 and 2902 of 2008, the main contesting parties.
It was submitted by the learned Counsel appearing for the appellants - Insurance Companies that inter se attribution of negligence by the Tribunal is erroneous. The learned Counsel for the Oriental Insurance Company Ltd. submitted that there is appropriate attribution of negligence to the driver of Fiat car and the Fiat Uno car by 70% and 30%, whereas, the learned Counsel appearing for the New India Assurance Company Ltd. submitted that the driver of Fiat car should have been made fully negligent and no attribution should have been made to the driver of the Fiat Uno car because of the nature of the accident and on account of rash and negligent driving of the driver of the Fiat car and not the driver of the Fiat Uno car.
4.1. In view of the aforesaid contentions, we may address on the question of attribution of negligence. It may be recorded that the Tribunal has found driver of the scooter not at all negligent and that part of the finding of the Tribunal is not under challenge but the attribution of negligence between the drivers of the Fiat car and the Fiat Uno car is essentially under challenge.
4.2. We have considered the record and proceedings. The evidence on record by way of depositions of the witnesses, F.I.R. and the panchnama show it is true that as per the claimants and even in the F.I.R. the driver of the Fiat car initially dashed with the Fiat Uno car and then dashed with the scooter. But the panchnama of the site of the accident shows slightly different situation. There is damage on the front side to the Fiat car including on the radiator, and therefore, the negligence was there on the part of the driver of the Fiat car. However, so far as Fiat Uno car is concerned, there is also damage on the right side of the vehicle and also on the front glass, but the relevant aspect is that the position of Fiat Uno car is also nearing the white strip which is in the centre of the road. Therefore, the possibility of driver of Fiat Uno car driving the vehicle nearing the centre of the road could not be ruled out. If the aforesaid facts and circumstances are considered, it is difficult to hold that the driver of the Fiat Uno car was not at all negligent. Had the car being driven on the extreme left side, the chances of dashing by Fiat car to Fiat Uno car could have been avoided, but at the same time, since the Fiat car has dashed from the side of Fiat Uno car, and consequently, there is also dashing with the scooter, we find that more liability deserves to be attributed to the driver of the Fiat car and reasonable less liability can be attributed to the driver of the Fiat Uno car. The Tribunal has reasonably balanced the aspects of negligence by attributing 70% negligence to the driver of the Fiat car and 30% to the driver of the Fiat Uno car. Considering the facts and circumstances, we do not find that the view taken by the Tribunal is unreasonable or perverse which may call for interference in exercise of the appellate power by this Court. Hence, the contention raised by the respective Insurance Companies cannot be accepted. Hence, the said contention is rejected.
4.3. It was also contended by the learned Counsel for the Insurance Companies that the quantum of compensation and more particularly, the assessment of income as made by the Tribunal is on a much higher side and without proper application of mind, whereas, the learned Counsel for the claimants contended that the Tribunal has properly assessed the income based on the material and documents produced on record and no interference may be made by this Court in the quantum of compensation awarded by the Tribunal to the respective claimants in the respective claim petitions.
4.4. The examination of the contention shows that the Tribunal has not properly examined the record and the evidence produced including that of Chartered Accountant Certificate, Income Tax Returns and most importantly, the aspect that the Returns filed for the Accounting Years 1999-2000 and 2000-2001 were filed after the date of accident, which was 21-11-2000. We may not be understood to say that whenever the Return is filed after the date of the accident, it may be discarded in toto for the assessment of the income, but at the same time, the Court should see the evidence with the scanned eye in a case where the support is on the basis of documents come into existence after the date of accident.
4.5. We may record that on behalf of the claimants, one witness-Shivaji Ladhabhai Sorathia, who is the brother of deceased Harsukhbhai, had filed affidavit in support of claim petition at Exh. 50 and he was also cross-examined. In the cross-examination, the said witness has stated that prior to formation of Roopam Construction, a partnership firm, the deceased was doing small-big sub-contractor work. The said witness, who can be said to have better knowledge, has deposed that income of the deceased was Rs. 4,000/- to Rs. 5,000/- per month at that time i.e. prior to formation of the partnership firm and he was not paying any income tax. Be it recorded that in the year 1998-1999, the exemption limit for the income tax was Rs. 40,000/- and for the Accounting Year of 1998-1999, it was raised to Rs. 50,000/- and continued up to 2004-2005. Therefore, the statement of the said witness that the deceased was earning Rs. 4,000/- to Rs. 5,000/- prior to the formation of the firm and not paying the income tax is reliable in view of the fact that even otherwise, if one was earning Rs. 4,000/- during respective period, he may not be paying income tax keeping in view the exemption limit, minor deduction available under the Income Tax Act. As per the Chartered Accountant Certificate produced at Exh. 66 and the Income Tax Return filed for the year 1998-1999, the income shown is of Rs. 51,512/- of deceased Harsukhbhai. Therefore, it has to be presumed that his income for the respective Accounting Year of 1998-1999 was Rs. 51,512/-. However, the Income Tax Returns for the Accounting Years 1999-2000 and 2000-2001 are filed after the date of accident and the death of the deceased and the income is roughly stated by more than 3.5 times than that of the year 1998-1999. It is true that the tax is paid but after the date of accident and the death of the deceased, but if the reliability of the Returns are tested in light of the previous year''s Return for the year 1998-1999 and the admission of witness in the cross-examination that the income of the deceased was Rs. 4,000/- to Rs. 5,000/- per month prior to formation of firm, it can be said that the reliability of Income Tax Returns for the years 1999-2000 and 2000-2001 were seriously at doubt. In any case, at the same time, it cannot be said that there would not be any rise in the income of the deceased. There are documents produced for the work of contract received by the firm. Hence, we find that it would be reasonable to consider 1/2 of the income for the purpose of income of the deceased than shown in the Income Tax Returns of 1999-2000 and 2000-2001 which have been filed after the date of accident and the death of the deceased. Accordingly, the reasonable income for the year 1999-2Q00 and 2000-2001 can be considered at Rs. 95,000/- and Rs. 1,02,000/- per annum. If the aforesaid income of Rs. 51,512/- for the year 1998-1999, income of Rs. 95,000/- for the year 1999-2000 and income of Rs. 1,02,000/- for the year 2000-2001 are considered and averaged out and the amount is rounded off, it would be Rs. 82,666/- and in our view, it can be rounded off to Rs. 85,000/- per annum, the average income of the deceased which can be considered for the purpose of prospective income.
4.6. The age of the deceased was 36 years, and therefore, the prospective income can be considered by giving rise of 50% and such amount would be Rs. 42,500/-. Hence, total prospective income can be considered at Rs. 1,27,500/-. In normal circumstances, the matter can be considered for the purpose of deduction of income tax, had the basis of full income shown in the Income Tax Return was taken. But, in view of the peculiar circumstances as referred hereinabove by us that broadly 50% of the amount is considered of the Income Tax Return filed after the death of the deceased, we find that no deduction may be made in the amount of Rs. 1,27,500/-, which is considered as the prospective income as observed by us hereinabove. Out of the said amount, 1/4th of the amount may be deducted towards personal expenses of the deceased as the number of claimants were four, as per the decision of the Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , which comes to Rs. 31,875/- and 3/4th of the aforesaid amount would come to Rs. 95,625/- and if rounded off, it can be Rs. 96,000/- per annum for the purpose of considering the dependency benefits.
4.7. The Tribunal has applied multiplier of 15, which is in accordance with the decision of the Apex Court in the case of Sarla Verma, (supra). Hence, the total amount after application of multiplier would be Rs. 14,40,000/- towards future economic loss and dependency benefits, as against dependency benefits, it was erroneously held by the Tribunal of Rs. 45,00,000/-.
4.8. On the aspect of loss of consortium and loss of love and affection and also on the aspects of funeral expenses, it appears that the Tribunal has awarded lower amount. Considering the recent trend of the Apex Court, we find it appropriate to award Rs. 1,00,000/- under the joint heads of loss of consortium and love and affection and Rs. 10,000/- towards funeral expenses, total Rs. 1,10,000/- under the said heads. Accordingly, the amount of compensation for the claimant(s) of Motor Accident Claim Petition No. 786 of 2000 would be Rs. 15,50,000/- and not Rs. 45,35,000/- as awarded by the Tribunal.
4.9. Under these circumstances, the judgment and award passed by the Tribunal deserves to be modified.
In respect of Motor Accident Claim Petition No. 785 of 2000 preferred by the injured claimant, the perusal of the discussion made by the Tribunal for assessment of the compensation shows that as per the salary-slip of the injured claimant, it was assessed at Rs. 7,000/- per month. The salary-slip was produced of Rs. 10,000/- per month of M/s. Roopam Construction, which was formed by deceased Harsukbhai, who also expired in the accident and his family members have filed a separate claim petition. In the evidence, it has come on record that earlier, prior to 1998, the injured was working with different companies and his salary was Rs. 6,000/- per month. No material has come on record that whether any income tax was deducted from the salary of the injured claimant or that he was paying income tax or Income Tax Return was filed. The date of accident is 21-11-2000 i.e. during the Accounting Year 2001-2002 the exemption limit was Rs. 50,000/-, and therefore, if one was not paying any income tax and was a salaried employee, his income can be assessed up to Rs. 50,000/- per year or monthly Rs. 4,166/- and can be rounded off at Rs. 4,200/- per month. The Tribunal has not considered the aspect of prospective income. Considering the facts and circumstances that the disability is certified to be to the extent of 90% of whole body, we find it appropriate to consider the aspect of prospective income by giving rise of 50%, since the injured claimant was salaried employee. Accordingly, if Rs. 2,100/- is added for the purpose of economic loss, it would be Rs. 6,300/- per month. Further, as 90% hole body disability is certified, considering the age of the injured of 38 years, appropriate multiplier would be 15, as per the decision of the Apex Court in the case of Smt. Sarla Verma (supra). As observed earlier, if the basis is considered of Rs. 6,300/- per month, per year it would be Rs. 75,600/- and after applying multiplier of 15, such amount would be Rs. 11,34,000/- towards future economic loss to the injured claimant and based on that since 90% disability is considered, it would be Rs. 10,20,600/-, as against the amount of Rs. 12,09,600/- assessed by the Tribunal.
5.1. The Tribunal has further awarded Rs. 3,50,000/- for the drugs, medicines, injections etc., Rs. 20,000/- towards attendant charges and Rs. 12,900/- towards damage caused to the scooter, to which, considering the facts and circumstances, we are not inclined to interfere. However, considering the injury suffered by the injured and the fact that he is having 90% disability which he may be required to undergo for whole of the life, it would be appropriate to award Rs. 1,00,000/- under the head of pain, shock and suffering and loss of enjoyment of life, as against Rs. 50,000/- awarded by the Tribunal. Accordingly, the total amount would be Rs. 15,03,500/- as against the amount of Rs. 16,42,500/- as awarded by the Tribunal.
In view of the aforesaid observations and discussion, it is held that the original claimant of claim petition - Motor Accident Claim Petition No. 786 of 2000 shall be entitled to the compensation of Rs. 15,50,000/- and the original claimant of Motor Accident Claim Petition No. 785 of 2000 shall be entitled to the compensation of Rs. 15,03,500/-, both with interest at the rate of 9% per annum from the date of application, until the amount is paid or deposited with the Tribunal and if deposited, with the accrued interest thereon. The judgment and award passed by the Tribunal shall stand modified and all the appeals shall stand allowed to the aforesaid extent. No order as to costs.
The Tribunal shall recalculate the amount of compensation and necessary refund of the amount, if any, shall be made to the concerned Insurance Company - appellant herein to the aforesaid extent.
Corrected as per the order dated 20-4-2015.