Sanobanu Nazirbhai Mirza Vs Ahmedabad Municipal Transport Service

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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,

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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

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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

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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.

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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

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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

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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

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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

1 1998 (2) GLH 670

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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 Corporation2, 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 2 (1994) 2 SCC 189 3 (1994) 2 SCC 176

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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

4 2001 (2) GLR 1777

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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

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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

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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,

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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

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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 Singh6,

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 5 (2012) 6 SCC 421 6 2013 (6) SCALE 563

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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

future prospects [Rs.5,000+Rs.2,500] =Rs.7,500/- p.m.

(iii) 1/5th of (ii) to be deducted [Rs.7,500-Rs.1,500/-]

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as personal expenses of the deceased

. =Rs.6,000/- p.m.

(iv) Compensation after multiplier of 20 is applied

[Rs.6,000/-x12x20] =Rs.14,40,000/-

(v) Loss of consortium Rs.1,00,000/- (vi) Loss of care and guidance

for minor children Rs.1,00,000/-

(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

transportation expenses Rs.3,000/-

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

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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.”

7 (2003) 2 SCC 274

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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

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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

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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

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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)

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SANOBANU NAZIRBHAI MIRZA Vs AHMEDABAD MUNICIPAL TRANSPORT SERVICE

SANOBANU NAZIRBHAI MIRZA Vs AHMEDABAD MUNICIPAL TRANSPORT SERVICE