Gujarat High Court

Nirmalaben Alias Babuben ... vs Gafurbhai Ibrahimbhai on 18 January, 2023

Bench: Aniruddha P. Mayee

     C/FA/768/2020                                  JUDGMENT DATED: 18/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                       R/FIRST APPEAL NO. 768 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
==========================================================

1    Whether Reporters of Local Papers may be allowed to see
     the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy of the
     judgment ?

4    Whether this case involves a substantial question of law
     as to the interpretation of the Constitution of India or any
     order made thereunder ?

==========================================================
               NIRMALABEN ALIAS BABUBEN JYOTINDRABHAI
                                     Versus
                          GAFURBHAI IBRAHIMBHAI
==========================================================
Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1,2
MR ADITYASINH JADEJA, AGP for the Defendant(s) No. 4
MR GC MAZMUDAR(1193) for the Defendant(s) No. 6
MR HG MAZMUDAR(1194) for the Defendant(s) No. 6
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,5
==========================================================
   CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                               Date : 18/01/2023
                               ORAL JUDGMENT

1. This First Appeal is preferred by the appellants against

the impugned judgment and award dated 25.02.2019

passed in Motor Accident Claims Petition, being MACP

No.162 of 2013 by the Motor Accident Claims Tribunal

(Main), Surendranagar, whereby the learned Tribunal has

partly allowed the claim of the appellants herein and

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

awarded an amount of Rs.10,62,000/- along with interest @

9% per annum from the date of claim petition till realization

as compensation.

2. The Brief facts leading to the case are as follows:

2.1 It is alleged that on 27.04.2013, the deceased was

travelling in jeep bearing Registration No.GJ-13-G-1249,

driven by the respondent No.5. At about 06:00 p.m., when

the said jeep was near Vana, it met with an accident with a

dumper bearing Registration No.GJ-13-AT-0789 which was

coming from the opposite direction and being driven at

excessive speed in a rash and negligent manner. As a result

of which, the deceased sustained grievous injuries and

succumbed to his injuries. The accident took place on

account of rash and negligent driving on the part of the

dumper driver.

2.2 The appellants preferred the claim petition under

Section 166 of the Motor Vehicles Act, 1988 claiming

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

compensation of Rs.20,00,000/- with respect to the death of

deceased- Jyotindrabhai Ichchhashanker. Upon issuance of

summons, the respondents appeared and contested the

claim petition.

2.3 The parties led oral as well as documentary evidence in

support of their case. After appreciating the evidence

brought on record, the learned Tribunal was pleased to

partly allowed the claim petition of the appellants herein

and awarded a compensation of Rs.10,62,000/- along with

9% interest per annum.

2.4 Aggrieved the appellants herein have filed the present

First Appeal.

3. Ms. Amrita Ajmera, learned advocate appearing for the

appellants submits that the learned Tribunal has erred in

calculating the just and proper compensation in the present

case. She submits that the learned Tribunal has divided the

claim for compensation in two parts i.e. pre-retirement and

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

post-retirement in the case of the deceased. She submits

that though the age of the deceased at the time of the

accident was about 54 years, he would have continued to

work after retirement, and therefore, there was an error in

calculating the income as well as the future prospect income

of the deceased. She further submits that even the

compensation granted under the conventional heads is

inadequate and ought to be enhanced.

4. She, therefore, submits that in the present case, the

income should not be split pre and post retirement and

should be calculated on singular multiplier basis. In

support of her contentions, learned advocate for the

appellant has relied upon the judgment of the Hon'ble

Supreme Court in the case of R. Valli and Ors. Versus Tamil

Nadu State Transport Corporation Limited, reported in

(2022) 5 SCC 107, wherein it has been held that only one

multiplier is to be applied keeping in view the age of the

deceased based on the principles laid down by the Hon'ble

Supreme Court.

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

5. Per contra, Ms.Kirti Pathak, learned advocate

appearing for respondent No.3 and Mr.G.C. Mazmudar,

learned advocate appearing for respondent No.6 jointly

submit that in the present case, the learned Tribunal has

considered all the aspects and arrived at the just and proper

compensation. They submit that admittedly the deceased

was 54 years of age, and therefore, the Tribunal has rightly

applied the multiplier pre and post retirement to come at an

appropriate calculation with respect to the income of the

deceased. They submit that this Hon'ble Court as well as

various other High Courts have adopted the split multiplier

i.e. multiplier up to the date of retirement and another

multiplier after retirement to arrive at just and proper

compensation. They submit that in view thereof, no

interference is called for in the present case as the

compensation which has been awarded is just and proper.

They submit that there is no infirmity in the impugned

order, and therefore, the Appeal be dismissed.

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

6. Heard the learned counsel for the parties and perused

the documents on record as well as the R & P of the case.

7. In the recent decision, the Hon'ble Supreme Court in

the case of R. Valli and Ors. Versus Tamil Nadu State

Transport Corporation Limited, reported in (2022) 5 SCC

107, has held as follows:

"5. Learned counsel for the appellants argued that the multiplier methodology adopted by the Tribunal and affirmed by the High Court was erroneous and not sustainable. It was contended that the multiplier is applied keeping in view the age of deceased and income at the time of death and not by considering the remaining years of service. It was argued that if a person who dies in an accident is 31 years of age and has 27 years of service left, the multiplier is not 28 years but keeping in view the judgment of this Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr.2, the age of the deceased at the time of death is the base for choosing a multiplier and not the years left in employment. It was held as under:

"42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas [(1994) 2 SCC 176 : 1994 2 (2009) 6 SCC 121 SCC (Cri) 335] , Trilok Chandra [(1996) 4 SCC 362] and Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M- 11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

6. The judgment in Sarla Verma was affirmed in Reshma Kumari & Ors. v. Madan Mohan & Anr.3. Both the judgments were affirmed by the Constitution Bench of this Court reported as National Insurance Company Limited v. Pranay Sethi & Ors.4. This Court in Pranay Sethi held as under:

"44. At this stage, we must immediately say that insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and "income" means actual income less the tax paid. The multiplier has already been fixed in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which has been approved in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] with which we concur.

xx xx xx 59.3. While determining the income, an addition of 50% of 3 (2013) 9 SCC 65 4 (2017) 16 SCC 680 actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

income means the income minus the tax component.

xx xx xx 59.7. The age of the deceased should be the basis for applying the multiplier."

7. In Pranay Sethi, this Court held that the age of the deceased is the basis for applying suitable multiplier and that the compensation is to be determined keeping in view the future prospects. The future prospects were held to 15% in respect of a deceased between the age of 50 to 60 years.

8. Mr. Amit Anand Tiwari, learned Additional Advocate General has referred to certain orders of the High Courts reported as Uma Shankar & Ors. v. Revathy Vadivel & Ors.5, Smt. Kamlesh Devi & Ors. v. Sh. Kitab Singh & Ors.6 and Union of India & Ors. v. K.S. Lakshmi Kumar & Ors.7 to support the applicability of split multiplier i.e., multiplier upto the date of retirement and another multiplier after retirement.

9. The judgments referred to by Mr. Tiwari are prior to the enunciation of law by this Court in Pranay Sethi. Therefore, such judgments no longer can be said to be good law as suitable multiplier is to be applied keeping in view the age of the deceased in terms of para 59.7 of the judgment in Pranay Sethi.

10. A three-Judge Bench in an order reported as United India Insurance Co. Ltd. v. Satinder Kaur alia Satwinder Kaur & Ors.8 has applied the multiplier keeping in view the age of the deceased even if he was a bachelor. The Court held as under:

"48. Another three-judge bench in Royal Sundaram Alliance Insurance Co. Ltd. v. Mandala Yadagari Goud, (2019) 5 SCC 554 traced out the law on this issue, and held that the compensation is to be computed based on what the deceased would have contributed to support the dependants. In the case of the death of a married person, it is an accepted norm that the age of the deceased would be 5 2014 SCC OnLine Mad 846 6 2011 SCC OnLine Del 2843 7 2000 SCC OnLine Kar 406 8 2020 SCC OnLine SC 410 taken into account. Thus, even in the case of a bachelor, the same principle must be applied."

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

11. Thus, we find that the method of determination of compensation applying two multipliers is clearly erroneous and run counter to the judgment of this Court in Pranay Sethi, affirming the judgment in Sarla Verma. Since the deceased was 54 years of age on the date of incident, therefore, the suitable multiplier would be 11 as per the judgment of this Court in Sarla Verma approved by this Court in Pranay Sethi.

8. In view thereof, the impugned judgment and award is

in the teeth of law as laid down by the Hon'ble Supreme

Court and thus needs modification accordingly.

9. In the present case, admittedly the age of the

deceased was 54 years and he was a government employee

working as a Watchman in the Irrigation Department,

Government of Gujarat. The salary slip is produced on

record. As per the salary slip, his income was Rs.15,200/-

per month after deduction of professional tax. Therefore, the

said income of the deceased is now taken for calculation of

just and proper compensation in the present case.

10. After adding 15%, the future prospective income would

come to Rs.17,480/-. Deducting 1/3 towards personal

expenses i.e. Rs.5,826/- per month and adding a multiplier

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

of 11 as per the case of Sarla Verma Vs. Delhi Transport

Corporation reported in (2009) 6 SCC 121, the total

dependency amount/loss of dependency would come to

Rs.15,38,328/-. Adding Rs.16,500/- towards loss of estate,

Rs.16,500/- towards funeral expenses and Rs.88,000/-

(44,000x2) towards loss of consortium, the total amount of

compensation would come to Rs.16,59,328/-.

11. Thus, the amount of just and proper compensation

would be as under:

Sr.No. Head                                       Amount
  A         Monthly dependency                    Rs.15,200/-
  B         Future prospects (15% of month        Rs.17,480/-
            dependency)
  C         1/3 deduction towards personal        Rs.5,826/-
            expenses
  D         Total dependency                      Rs.11,654/-

  F         Compensation for loss of dependency Rs.15,38,328/-
  G         Loss of estate                        Rs.16,500/-
  H         Funeral expenses                      Rs.16,500/-
      I     Consortium                            Rs.88,000/-
            Total                                 Rs,16,59,328/-

12. Hence, in the present case, the appellants are entitled

to an additional compensation of Rs.5,97,000/- (16,59,300-

C/FA/768/2020 JUDGMENT DATED: 18/01/2023

10,62,00=Rs.5,97,000/-) along with interest @ 6% per

annum from the date of filing of the claim petition till

realization of the same. The compensation of

Rs.10,62,000/- along with 9% interest as awarded by the

learned Tribunal has since been deposited before the

Tribunal by the respective Insurance Companies, and

therefore, the same is not disturbed in the present case.

13. Accordingly, the appellants herein are entitled to an

additional compensation of Rs.5,97,000/- (16,59,300-