SANOBANU NAZIRBHAI MIRZA Vs AHMEDABAD MUNICIPAL TRANSPORT SERVICE
Bench: G.S. SINGHVI,V. GOPALA GOWDA
Case number: C.A. No.-008251-008251 / 2013
Diary number: 34708 / 2012
Advocates: HARESH RAICHURA Vs
H. S. PARIHAR
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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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