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M.V. ACT = WONDERFUL JUDGEMENT VVV IMPORTANT = Apex court enhanced the compensation to Rs. 16 lakhs – just compensation even though there is no prayer in the claim petition to that extent as they filed application claiming compensation under Section 166 of the M.V. Act.= loss of care and guidance for minor children & loss of consortium = Rs.1,00,000/- must be added under the head of loss of consortium and Rs.1,00,000 under the head of loss of care and guidance for minor children. Further, it was held by this Court in the case referred to supra that Rs.25,000/- must be awarded for funeral expenses as this Court has made observations in the case referred to supra that the tribunals have been frugal in awarding the compensation under the head ‘funeral expenses’ and hence, we award Rs.25,000 under the head of funeral expenses to the claimants/legal representatives .; Increase of income for private employees ranging from 30% to 50% = an addition of 30% increase must be applied for increase in total income of the deceased over a period of time if he had been alive. Further, in the recent decision in Rajesh & Ors. V. Rajbir Singh[6], this Court while referring to the case of Santosh Devi (supra) held that in the case of self-employed persons or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects of the deceased. ; How to determine the income of deceased = The State Government in exercise of its statutory power under Section 3 of the Minimum Wages Act, 1948 must issue a notification for fixing the wages of a polisher. Even in the absence of such a notification, both the Tribunal as well as the High Court should have at least taken the income of the deceased as Rs.40,000/- per annum as per the table provided in the IInd Schedule to Section 163-A of the M.V. Act for the purpose of determining just, fair and reasonable compensation under the heading loss of dependency of the appellants, though the said amount is applicable only to the claims under no fault liability. ; Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants. “There is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is — it should be “just” compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.”= Accordingly, the appeal is allowed on the above said terms. The respondent is directed to pay the enhanced compensation in this appeal with interest awarded, in favour of the appellants in the following ratio. 75% of the awarded amount shall be paid equally in favour of appellant Nos. 1 to 3 and the remaining 25% must be in the name of appellant Nos. 4 and 5 in equal proportion with proportionate interest. Out of the 75%, each of appellant Nos. 1 to 3 will get 25% and further, 10% of the share of appellant No.2 and 10% of the share of appellant No.3 must be deposited with proportional interest payable to each one of them in any Nationalized Bank of their choice and the rest 15% of each of their award amounts, with proportionate interest to be paid to them. The appellant Nos. 2 and 3 are at liberty to move the Tribunal to release the money so deposited for their welfare and developmental purpose. The above said direction regarding the payment and deposit shall be made within six weeks by depositing it in the Bank and disburse the amount by way of demand draft drawn in the name of each one of them as directed above. There will be no order as to costs.

PUBLISHED IN http://judis.nic.in/supremecourt/imgst.aspx?filename=40844

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 
IN THE SUPREME COURT OF INDIA CIVIL
APPELLATE JURISDICTION
CIVIL APPEAL NO.8251 OF 2013 (Arising out of SLP (C)
No. 36602 of 2012)
SANOBANU NAZIRBHAI MIRZA & ORS. … APPELLANTS

VS.

AHMEDABAD MUNICIPAL TRANSPORT SERVICE … RESPONDENT

J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted.
2. The legal representatives of the deceased Nazirbhai who died in a
road accident on 30th May, 1998 were aggrieved by the judgment and order
dated 11.01.2012 of the High Court of Gujarat at Ahmedabad in First Appeal
No. 1549 of 2002 wherein the High Court had partly allowed the appeal of
the respondent and reduced the compensation awarded in favour of the
claimants by the Motor Accident Claims Tribunal (in short ‘the Tribunal’)
at Ahmedabad in MACP No. 563 of 1998 dated 23.10.2001 from Rs.3,51,300/- to
Rs.2,51,800/- with a direction to the appellants-claimants to refund the
excess amount of Rs.99,500/- along with the interest at the rate of 9% per
annum. The appellants-claimants have filed this appeal urging certain
grounds and prayed for setting aside the impugned judgment and award passed
by the High Court.

3. The brief facts of this case are stated below to appreciate the rival
claims of the parties:

On 30.05.1998, the deceased Nazirbhai was going on his bicycle to his
contract work of polishing at about 10.30 a.m. at the house of one
Rashidbhai Pathan in Haranwali Pole. While he was waiting for other
labourers at Kalidas Mill Kachha cross road with a bicycle, at about 10.45
a.m., one Ahmedabad Municipal Transport Service (AMTS) bus bearing
registration No. GJ-1-TT-8337 came with high speed in a rash and negligent
manner in the one-way and hit him with its front portion and knocked him
down and caused bodily injuries. He was crushed under the wheel of his
bicycle and later succumbed to his injuries at 6.00 p.m on the same day.
The legal heirs of the deceased – his widow, his minor children and his
parents filed a claim petition before the Tribunal for awarding just and
reasonable compensation wherein the Tribunal awarded a sum of Rs. 3,51,300/-
along with interest @ 9% per annum from the date of application till
realization. The respondent aggrieved by the judgment and award of the
Tribunal filed an appeal in the High Court urging for reduction of
compensation awarded in favour of the claimants on the ground that the
Tribunal has committed an error on facts and in law in assessing the income
of the deceased on the basis of the IInd schedule to Section 163-A of the
Motor Vehicles Act, 1988 (in short the M.V. Act) and that the accident
being of the year 1998, income should have been assessed as Rs.15,000/- per
annum. The High Court partly allowed the appeal of the respondent and
reduced the compensation to Rs.2,51,800/- and ordered that the excess
amount of Rs.99,500/- shall be returned to the respondent along with
interest @ 9% per annum. Being aggrieved by this judgment and award
passed by the High Court, the legal representatives of the deceased filed
this civil appeal urging various grounds and legal contentions and
requested this Court to set aside the impugned judgment and award and
further, award just and reasonable compensation by modifying the judgment
of the Tribunal.

4. It is urged by the learned counsel for the appellants, Ms. Saroj
Raichura, that the Gujarat High Court in exercise of its appellate
jurisdiction has modified the judgment and award passed by the Tribunal
after a long lapse of 11-12 years, which is in violation of the right to
life and natural justice and statutory rights of the appellants under the
provisions of the M.V.Act. Another ground urged is that the High Court was
not right in holding that the compensation awarded by the learned Members
of the Tribunal is excessive and consequently, the direction issued to the
appellants to refund an amount of Rs.99,500/- along with an interest of 9%
interest after long lapse of 11 years is wholly unsustainable in law. It is
submitted that at the time of death the deceased was aged 25 years and was
hale and hearty and would have lived long, had he not met with the
accident. Prior to the accident, he was engaged in the work of polishing
and colouring and was earning Rs.4,000/- to Rs.5,000/- per month and he was
good at his work and would have progressed in the future. It is urged that
since the appellant No.3 was born after the death of the deceased,
compensation under the head of loss of fatherhood should also be awarded.
The further legal contention urged is that the High Court interfered with
the judgment and award by reducing the compensation after 11 long years
even though the Tribunal after proper appreciation of facts and legal
evidence on record has rightly awarded the compensation. The same should
not have been interfered with by the High Court in the exercise of its
appellate jurisdiction. Therefore, the appellants have approached this
Court to set aside the impugned judgment and order of the High Court and
prayed to pass an order awarding just and reasonable compensation.

5. We have carefully examined the correctness of the impugned judgment
and award passed by the High Court of Gujarat in exercise of its appellate
jurisdiction with a view to find out whether the interference of the High
Court with the quantum of compensation awarded by the Tribunal in its
judgment is legal, valid and justified and further, as to what amount the
claimants are entitled to. We have also perused the judgment passed by the
Tribunal on the basis of pleadings and evidence on record wherein it has
recorded the categorical finding of fact holding that the deceased
sustained bodily injuries in a road traffic accident on 30.05.1998 at about
10.30 a.m. while he was going to attend his contract work of polishing at
the house of one Rashidbhai Pathan in Haranwali Pole. While he was waiting
for the other labourers at Kalidas Mill Kachha cross road with a bicycle,
at that point of time at about 10.45 a.m. one AMTS bus bearing registration
No. GJ-1-TT-8337 came at high speed in a rash and negligent manner in the
one-way and hit him with its front portion and knocked him down and caused
grievous bodily injuries. He was crushed under the wheel of his bicycle and
later succumbed to the injuries at 6.00 p.m. The finding is recorded by the
Tribunal on the basis of legal evidence on record and held that the
accident occurred on account of rash and negligent driving of the offending
vehicle by its driver and the deceased sustained injuries and succumbed to
them on the evening of the same day. The above said finding of fact has not
been set aside by the appellate authority in exercise of its appellate
jurisdiction.

6. The Tribunal has taken a sum of Rs. 15,000/- per annum as provided in
the IInd schedule to Section 163-A of the M.V. Act as notional income on
the basis of ratio laid down by the Gujarat High Court in the case of
Ritaben @ Vanitaben & Anr. Vs. Ahmedabad Municipal Transport Service &
Anr.[1] wherein it has held that a datum figure is required to be taken
into consideration for compensation in fatal cases. The same was applied
to the case on hand by the Tribunal and further Rs.30,000/- was added to
this figure which was then divided by 2 such that the net yearly income
comes to Rs.22,500/- out of which 1/3rd amount was deducted towards
personal expenses and maintenance of the deceased and thus the net
awardable dependency was calculated at Rs.15,000/- per annum. The case of
S.Chandra & Ors. Vs. Pallavan Transport Corporation[2], of this Court has
also been referred to regarding the average life expectancy, wherein this
Court has taken 20 as multiplier in case of the deceased aged 42 years.
Adverting to the case of General Manager, Kerala State Road Transport
Corporation, Trivendrum Vs. Susamma Thomas & Ors.[3], this Court discussed
the method to be followed to determine the multiplier to the multiplicand
and taken multiplier of 12 in a case where the deceased was aged 39 years.
However, the Tribunal after referring to S. Chandra’s case (supra)
preferred to rely on the same for taking multiplier of 20 in the case of
the deceased at the time of death as he was aged about 25 years as
reflected in the post mortem report. Therefore, the future economic loss
awardable to the appellants was calculated at Rs.3,00,000/-. Thereafter,
following the decision in the case of Gujarat State Road Transport
Corporation Vs. Suryakantaben D. Acharya & Ors.[4], wherein the Gujarat
High Court ruled that the conventional amount was required to be raised to
Rs.20,000/- from Rs.10,000/- having regard to the rise in prices and higher
rate of inflation which is a common phenomenon in Indian economy, the
Tribunal awarded a sum of Rs.20,000/- towards loss of expectancy of life
and Rs.500/- towards medical expenses. Since no evidence was produced
before the Tribunal by the appellants to sustain the medical claim and
attendant charges of Rs.2000/- therefore, the Tribunal has held that the
claim was on the higher side and it has awarded a sum of Rs.500/- towards
attendant charges. Further, Rs.300/- was awarded towards transportation
charges since the appellants have not adduced evidence to show that
Rs.2000/- was spent towards transportation of the dead body. The award has
been interfered with by the High Court in the impugned judgment and the
compensation was reduced to Rs.2,51,000/- taking only notional income of
Rs.15,000/- per annum as provided in the IInd Schedule to Section 163-A of
the M.V. Act and deducted 1/5th amount towards personal expenses. The
dependency benefit is taken to Rs.12,000/- per annum and 18 multiplier was
applied and awarded a sum of Rs.2,16,000 and another Rs.10,000/- was
awarded towards loss of consortium, Rs.10,000/- towards loss to estate,
Rs.5000/- towards funeral expenses, Rs.5,000/- towards pain, shock and
suffering, Rs.500/- towards attendant charges and Rs.300/- towards
transportation charges. The total compensation of Rs.2,51,800/- was
awarded by the High Court by modifying the judgment and award of the
Tribunal which has awarded a compensation of Rs.3,51,300/- and further the
High Court directed the appellants to refund an excess amount of
Rs.99,500/- with interest at the rate of 9% per annum to the respondent.
The same was rightly challenged by the appellants before this Court by
filing this appeal urging various grounds.

7. In our considered view, the approach of both the Tribunal as well as
the High Court in taking notional income of the deceased at Rs.15,000/- per
annum to which Rs.30,000/- was added and divided by 2 bringing it to a net
yearly income of Rs.22,500/- which has been interfered with by the High
Court by taking Rs.15,000/- as notional income on the basis of the IInd
Schedule to the Section 163-A of the M.V. Act is an erroneous approach to
determine just and reasonable compensation in favour of the legal
representatives of the deceased who was the sole earning member of the
family. It is an undisputed fact that the deceased was working as a
polisher, which is a skilled job. This important aspect of the case of the
appellants was not taken into consideration by both the Tribunal as well as
the High Court, thereby they have gravely erred by taking such low notional
income of the deceased though there is evidence on record and the claim
petition was filed under Section 166 of the M.V. Act. The High Court
taking Rs.15,000/- per annum as the notional income and deducting 1/5th
towards personal expenses which would come to Rs.12,000/- is not only an
erroneous approach of the High Court but is also vitiated in law. The
finding of fact recorded by the Tribunal in the absence of any rebuttal
evidence to show that the deceased was not working as a polisher and it is
not a skilled work is also an erroneous finding for the reason that both
the Tribunal and the High court have not assigned reason for not accepting
the evidence on record with regard to the nature of work that was being
performed by the deceased. The State Government in exercise of its
statutory power under Section 3 of the Minimum Wages Act, 1948 must issue a
notification for fixing the wages of a polisher. Even in the absence of
such a notification, both the Tribunal as well as the High Court should
have at least taken the income of the deceased as Rs.40,000/- per annum as
per the table provided in the IInd Schedule to Section 163-A of the M.V.
Act for the purpose of determining just, fair and reasonable compensation
under the heading loss of dependency of the appellants, though the said
amount is applicable only to the claims under no fault liability. If 1/5th
amount is deducted out of the above annual income the resultant
multiplicand would be Rs.32,000/- per annum. Both the Tribunal and the
High Court should have proceeded on the aforesaid basis and determined the
compensation under the heading loss of dependency of the appellants.

8. In view of the aforesaid fact, we have to hold that it would be just
and proper for this Court to take a sum of Rs.5000/- as the monthly income
of the deceased having regard to the nature of job that the deceased was
performing as a polisher, which is a skilled job, wherein the annual income
would come to Rs.60,000/-. This Court in judgment of Santosh Devi V.
National Insurance Co. Ltd.& Ors.[5], has held that an addition of 30%
increase must be applied for increase in total income of the deceased over
a period of time if he had been alive. Further, in the recent decision in
Rajesh & Ors. V. Rajbir Singh[6], this Court while referring to the case of
Santosh Devi (supra) held that in the case of self-employed persons or
persons with fixed wages, in case the deceased victim was below 40 years,
there must be an addition of 50% to the actual income of the deceased while
computing future prospects of the deceased. Keeping in view the five
dependants of the deceased in the case on hand, 1/5th amount is to be
deducted towards personal expenses. Having regard to the age of the
deceased as 25, as mentioned in the post mortem report, which age is taken
by both the Tribunal as well as the High Court, and keeping in mind the
life expectancy of the deceased, multiplier of 20 must be applied to the
multiplicand for the purpose of quantifying loss of dependancy. Further,
following the decision of this Court in Rajesh V. Rajbir Singh (supra),
Rs.1,00,000/- must be added under the head of loss of consortium and
Rs.1,00,000 under the head of loss of care and guidance for minor children.
Further, it was held by this Court in the case referred to supra that
Rs.25,000/- must be awarded for funeral expenses as this Court has made
observations in the case referred to supra that the tribunals have been
frugal in awarding the compensation under the head ‘funeral expenses’ and
hence, we award Rs.25,000 under the head of funeral expenses to the
claimants/legal representatives .

Hence, the total compensation has to be assessed under the various heads as
follows:

|Sl No. |HEADS |CALCULATIONS |
|(i) |Income |Rs.5,000/- p.m. |
|(ii) |50% of above to be added as |[Rs.5,000+Rs.2,500] |
| |future prospects |=Rs.7,500/- p.m. |
|(iii) |1/5th of (ii) to be deducted as| [Rs.7,500-Rs.1,500/-] |
| |personal expenses of the |. =Rs.6,000/- p.m. |
| |deceased | |
|(iv) |Compensation after multiplier |[Rs.6,000/-x12x20] |
| |of 20 is applied |=Rs.14,40,000/- |
|(v) |Loss of consortium |Rs.1,00,000/- |
|(vi) |Loss of care and guidance for |Rs.1,00,000/- |
| |minor children | |
|(vii) |Funeral and obsequies expenses |Rs.25,000/- |
|(ix) |Pain, loss and suffering |Rs.25,000/- |
|(x) |Medical expenses |Rs.3,000/- |
|(xi) |Attendant charges and |Rs.3,000/- |
| |transportation expenses | |
| | |
|TOTAL COMPENSATION AWARDED |Rs. 16,96,000/- |
The amount of Rs.16,96,000/- as calculated above, under the various
heads of losses, should be awarded in favour of appellants-claimants,
though there is no specific mention regarding enhancing of compensation as
in the appeal it has been basically requested by the appellants to set
aside the judgment and order passed by the High Court in the appeal filed
by the respondent. We must follow the legal principles of Nagappa Vs.
Gurudayal Singh & Ors.[7] at para 7, wherein with respect to the provisions
of the M.V. Act, this Court has observed as under:

“There is no restriction that compensation could be awarded only
up to the amount claimed by the claimant. In an appropriate
case, where from the evidence brought on record if the
Tribunal/court considers that the claimant is entitled to get
more compensation than claimed, the Tribunal may pass such
award. The only embargo is — it should be “just” compensation,
that is to say, it should be neither arbitrary, fanciful nor
unjustifiable from the evidence. This would be clear by
reference to the relevant provisions of the MV Act. Section 166
provides that an application for compensation arising out of an
accident involving the death of, or bodily injury to, persons
arising out of the use of motor vehicles, or damages to any
property of a third party so arising, or both, could be made (a)
by the person who has sustained the injury; or (b) by the owner
of the property; or (c) where death has resulted from the
accident, by all or any of the legal representatives of the
deceased; or (d) by any agent duly authorised by the person
injured or all or any of the legal representatives of the
deceased, as the case may be.”
In view of the aforesaid decision of this Court, we are of the view
that the legal representatives of the deceased are entitled to the
compensation as mentioned under the various heads in the table as provided
above in this judgment even though certain claims were not preferred by
them as we are of the view that they are legally and legitimately entitled
for the said claims. Accordingly we award the compensation, more than what
was claimed by them as it is the statutory duty of the Tribunal and the
appellate court to award just and reasonable compensation to the legal
representatives of the deceased to mitigate their hardship and agony as
held by this Court in a catena of cases. Therefore, this Court has awarded
just and reasonable compensation in favour of the appellants as they filed
application claiming compensation under Section 166 of the M.V. Act.
Keeping in view the aforesaid relevant facts and legal evidence on record
and in the absence of rebuttal evidence adduced by the respondent, we
determine just and reasonable compensation by awarding a total sum of Rs.
16,96,000/- with interest @ 7.5% from the date of filing the claim petition
till the date payment is made to the appellants.
10. Accordingly, the appeal is allowed on the above said terms. The
respondent is directed to pay the enhanced compensation in this appeal with
interest awarded, in favour of the appellants in the following ratio. 75%
of the awarded amount shall be paid equally in favour of appellant Nos. 1
to 3 and the remaining 25% must be in the name of appellant Nos. 4 and 5 in
equal proportion with proportionate interest. Out of the 75%, each of
appellant Nos. 1 to 3 will get 25% and further, 10% of the share of
appellant No.2 and 10% of the share of appellant No.3 must be deposited
with proportional interest payable to each one of them in any Nationalized
Bank of their choice and the rest 15% of each of their award amounts, with
proportionate interest to be paid to them. The appellant Nos. 2 and 3 are
at liberty to move the Tribunal to release the money so deposited for their
welfare and developmental purpose. The above said direction regarding the
payment and deposit shall be made within six weeks by depositing it in the
Bank and disburse the amount by way of demand draft drawn in the name of
each one of them as directed above. There will be no order as to costs.

…………………………………………………………J. [G.S.
SINGHVI]
………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi, October 3, 2013

ITEM NO.1A COURT NO.13 SECTION IX
(For Judgment)

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 8251 OF 2013
SANOBANU NAZIRBHAI MIRZA & ORS. Appellant (s)
VERSUS
AHMEDABAD MUNICIPAL TRANSPORT SERVICE Respondent(s)
Date: 03/10/2013 This Appeal was called on for pronouncement of Judgment
today.

For Appellant(s)
Mr. Haresh Raichura,Adv.
For Respondent(s)
Mr. H.S. Parihar,Adv.

UPON hearing counsel the Court made the following
O R D E R
Hon’ble Mr. Justice V. Gopala Gowda pronounced the judgment of
the Bench comprising Hon’ble Mr. Justice G.S. Singhvi and His Lordship.
Leave granted.
The appeal is allowed with no order as to costs in terms of the
signed reportable judgment.

[ Neeta ] [ Usha Sharma]
Sr. P.A. Court Master
(Signed Judgment is placed on the file)
———————–
[1] 1998 (2) GLH 670

[2] (1994) 2 SCC 189

[3] (1994) 2 SCC 176

[4] 2001 (2) GLR 1777

[5] (2012) 6 SCC 421

[6] 2013 (6) SCALE 563

[7] (2003) 2 SCC 274

———————–
-22-

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