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ASHVINBHAI JAYANTILAL MODI vs. RAMKARAN RAMCHANDRA SHARMA & ANR. dated 2014-09-25

 


                        IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 8131-8132 OF 2014
                (Arising out of SLP(C) NOS. 743-744 OF 2014)


ASHVINBHAI JAYANTILAL MODI              …APPELLANT

                                     Vs.

RAMKARAN RAMCHANDRA SHARMA & ANR.     ….RESPONDENTS

 

                               J U D G M E N T

 

  V. GOPALA GOWDA, J.

These appeals have been filed by the appellant against the  impugned  common
Judgment and order dated 18.6.2013 passed in First Appeal No. 1064  of  2005
with First  Appeal  No.1555  of  2005  by  the  High  Court  of  Gujarat  at
Ahmedabad, wherein the High Court dismissed First  Appeal  No.1064  of  2005
which was filed by the claimant and allowed First  Appeal  No.1555  of  2005
which was filed by the Insurance Company.
The necessary relevant facts are stated hereunder  to  appreciate  the  case
with a view to determine whether the appellant, Ashvinbhai Jayantilal  Modi,
the father of Raj (deceased) is  entitled  for  relief  as  prayed  in  this
appeal.
On 12.07.2002, Raj Ashvinbhai, the deceased was  heading  to  Istanpur  from
Uttamnagar on his two-wheeler. While  on  his  way,  near  Bhadvatnagar  bus
stand,  a  truck  bearing  registration  no.  GQA  7215  belonging  to   the
respondent, Ramkaran Ramchandra  Sharma  crashed  into  the  two-wheeler  on
which Raj was riding. Due to the force created by this accident, Raj’s  two-
wheeler slid for about 25 feet while Raj fell down  and  sustained  grievous
injuries. Thereupon he was taken to L.G. Hospital wherein  he  succumbed  to
his injuries. On the same day,  a  panchnama  was  filed  before  the  Vatva
Police Station, Ahmedabad.
The claimant-appellant filed a claim petition  before  the  Motor  Accidents
Claims  Tribunal  (in  short  ‘the   Tribunal’)   at   Ahmedabad,   claiming
Rs.28,73,000/- as compensation. The Tribunal ascertained the  future  income
of the deceased at Rs.18,000/- per month. 1/3rd of the  monthly  income  was
deducted  towards  personal  expenses.  Therefore,  Rs.12,000/-  per   month
(Rs.1,44,000/- p.a.) was calculated  for  the  loss  of  dependency  to  the
parents of the deceased. Since the age of the deceased at the  time  of  his
death was 19 years, on applying the appropriate multiplier of 16, the  total
compensation towards loss of dependency was  arrived  at  Rs.23,04,000/-.  A
sum of Rs.15,000/- was awarded towards love  and  affection  and  Rs.5,000/-
towards funeral expenses and thus a  total  compensation  of  Rs.23,24,000/-
was arrived at  by  the  Tribunal.  The  Tribunal  apportioned  contributory
negligence at 20% on the part of the deceased and 80% on the driver  of  the
offending truck and thus, after making  20% deduction  towards  contributory
negligence on the part of the deceased the Tribunal  awarded  an  amount  of
Rs.18,59,200/- with interest at the rate of 9% per annum to the appellant.
Being aggrieved by the judgment  and  award  passed  by  the  Tribunal,  the
appellant preferred First Appeal No.1064 of 2005 before the High  Court  for
enhancement of compensation, whereas the  2nd  respondent-Insurance  Company
preferred  First  Appeal  No.1555  of  2005  for  the  reduction   of    the
compensation awarded by the Tribunal.
  After hearing the parties, the High Court affirmed the  future  income  of
the deceased at Rs.18,000/- per month as  determined  by  the  Tribunal  and
deducted 50% towards personal expenses. It further held  that  the  Tribunal
had erred in considering the age of the deceased at the time  of  his  death
rather than the age of the parents for determination  of  multiplier,  since
they are the claimants in the case on hand, as per the guidelines laid  down
in Sarla Verma & Ors. v. Delhi Transport Corporation &  Anr.[1].  Therefore,
by applying the appropriate multiplier of 13, the High Court determined  the
loss  of  dependency  at  Rs.14,04,000/-  as   against   Rs.23,04,000/-   as
considered by the Tribunal. After examining the facts, evidence produced  on
record and circumstances of the case, the High Court was of  the  view  that
the contributory negligence on the part of  the  deceased  was  higher  than
20%, however, it affirmed the contributory negligence as determined  by  the
Tribunal. Therefore, after 20%  deduction  towards  contributory  negligence
and addition towards other heads, the High Court, by its  impugned  Judgment
and order awarded a compensation under all heads of Rs.11,39,200/-  with  9%
interest per annum. Aggrieved by the same, the  appellant  has  filed  these
appeals.

It has been contended by the learned Senior Counsel for  the  appellant  Mr.
Fakriddin that the offending truck hit the two-wheeler  from  behind.  As  a
result, the deceased fell down  and  his  two-wheeler  was  dragged  by  the
offending truck up to a distance of about 25 feet. Thus, the finding of  the
Tribunal as well as the High Court towards contributory  negligence  of  the
deceased at 20% is uncalled for. Further it  was  contended  that  the  High
Court has reduced the compensation  from  Rs.18,59,200/-  to  Rs.11,39,200/-
which is contrary to the principles laid down  by  this  Court  in  Sanobanu
Nazirbhai Mirza & Ors.  Vs.  Ahmedabad Municipal Transport Service[2].

On the other hand, the learned Counsel for the  respondents  contended  that
the High Court has rightly reduced the compensation  by  deducting  50%  for
personal expenses of the deceased since he was unmarried at the time of  his
death and adopted a multiplier of 13 by considering the age of  the  parents
as per the guidelines laid down by this Court in the  case  of  Sarla  Verma
(supra).
We have heard the learned counsel for the parties. In our  considered  view,
the deceased was 19 years old and was pursuing his medical degree with  good
marks at the time of the accident. With respect  to  the  future  income  of
students pursuing professional courses we refer to Arvind  Kumar  Mishra  v.
New India Assurance Co. Ltd. and Anr.[3], wherein this Court held as under:-

“14.  On  completion  of  Bachelor  of  Engineering  (Mechanical)  from  the
prestigious institute like B.I.T., it can  be  reasonably  assumed  that  he
would have got a good job. The appellant has stated in his evidence that  in
the campus interview he was selected by Tata as well as Reliance  Industries
and was offered pay package of Rs. 3,50,000/- per annum.  Even  if  that  is
not accepted for want of any evidence in support thereof,  there  would  not
have been any difficulty for him in getting some decent job in  the  private
sector. Had he decided to join  government  service  and  got  selected,  he
would have been put in the pay scale for Assistant Engineer and  would  have
at least earned Rs. 60,000/- per annum. Wherever he joined, he  had  a  fair
chance of some promotion and  remote  chance  of  some  high  position.  But
uncertainties of  life  cannot  be  ignored  taking  relevant  factors  into
consideration. In our opinion, it is  fair  and  reasonable  to  assess  his
future earnings at Rs. 60,000/- per annum taking the salary  and  allowances
payable to an Assistant Engineer in public employment as the basis….”


The Tribunal and the High Court have not  taken  into  proper  consideration
that the deceased was a student of medicine at  the  time  of  the  accident
while  determining  his  future  income.  The  courts  below  have   wrongly
ascertained the future income  of  the  deceased  at  only  Rs.18,000/-  per
month, which in our view is too less for  a  medical  graduate  these  days.
Therefore, the courts below have failed in  following  the  principles  laid
down by this Court in this aspect in the above  case.  The  deceased  was  a
diligent and outstanding student of medicine  who  could  have  pursued  his
M.D. after his  graduation  and  reached  greater  heights.  Today,  medical
practice is one of the most sought after  and  rewarding  professions.  With
the tremendous increase in demand for medical professionals, their  salaries
are also on the rise.  Therefore, we  have  no  doubt  in  ascertaining  the
future income of the deceased at Rs.25,000/- p.m.  i.e.  Rs.3,00,000/-  p.a.
Further, deducting 1/3rd of the annual income towards personal  expenses  as
per Oriental Insurance Co. Ltd. v. Deo Patodi and Ors[4], and  applying  the
appropriate multiplier of 13, keeping in mind the age of the parent  of  the
deceased, as per the guidelines laid down in Sarla Verma  case  (supra),  we
arrive at a total loss of dependency at Rs.26,00,000/-[(Rs.3,00,000/-  minus
1/3 X Rs.3,00,000/-)X 13].
Further, the Tribunal and the High Court have erred  in  not  following  the
principles laid down by this Court in M.  Mansoor  &  Anr  v.  United  India
Insurance Co. Ltd.[5] in awarding a meagre sum  of  just  Rs.15,000/-  under
the heads of loss of love and affection. Accordingly, we award Rs.1,00,000/-
 to the appellant towards the same.
With regard to the apportionment made by the Tribunal and  the  High  Court,
we are of the view,  after  considering  the  facts,  evidence  produced  on
record and circumstances of the case on hand, that there was  no  negligence
on the part of the deceased. The courts below have  failed  to  examine  the
facts of the case on hand with respect to the opinion of  this  Court  given
in Juju Kuruvila & Ors. v. Kunjujamma Mohan & Ors.[6]
      From the evidence produced on record, the two-wheeler of the  deceased
was dragged up to a stretch of about  20-25  feet  on  the  road  after  the
collision with the offending truck. We are of the considered view,  that  to
be able to create this kind of enormous effect on  the  two-wheeler  of  the
deceased, the offending truck must have been travelling  at  a  fairly  high
speed and that its driver did not have sufficient control over his  vehicle.
The driver of the offending  truck  should  have  been  aware  that  he  was
driving the heavy motor vehicle and taken sufficient caution. We do not  see
any direct evidence that shows negligence on the part of the  deceased  that
led to the accident. Therefore, as per the  principles  laid  down  by  this
Court in the case  referred  to  above  in  this  aspect,  the  contributory
negligence apportioned by the courts below on the part of  the  deceased  is
set aside.
The Tribunal and the  High  Court  have  further  failed  in  awarding  only
Rs.5,000/- towards funeral expenses instead of Rs.25,000/- according to  the
principles laid down by this Court in  Rajesh  &  Ors.  v.  Rajbir  Singh  &
Ors.[7]. Hence, we award Rs.25,000/- towards the same.
In the result, the appellant shall be entitled  to  compensation  under  the
following heads:

|1.       |Loss of dependency         |Rs.26,00,000/-           |
|2.       |Loss of love and affection |Rs.1,00,000/-            |
|3.       |Funeral expenses           |Rs.25,000/-              |
|         |TOTAL                      |Rs.27,25,000/-           |

Thus, the total compensation payable to the  appellant  by  the  respondent-
Insurance Company will be Rs.27,25,000/- with interest at  the  rate  of  9%
p.a. from the date of filing of the application till the date of payment.
 Accordingly,  we  allow  these  appeals  in  awarding  Rs.27,25,000/-  with
interest @9% p.a. The respondent-Insurance Company shall either pay  by  way
of demand draft in  favour  of  the  appellant  or  deposit  the  same  with
interest as  awarded  before  the  Motor  Accidents  Claims  Tribunal  after
deducting the amount already paid to  the  appellant,  if  any,  within  six
weeks from the date of receipt of the copy of this judgment. No Costs.

 


                                                ……………………………………………………………………J.
                        [V.GOPALA GOWDA]

 

                                                ……………………………………………………………………J.
                        [ADARSH KUMAR GOEL]


New Delhi,
September 25,2014


-----------------------
[1]
      [2] (2009)6 SCC 121
[3]
      [4] (2013) 9 SCR 882 
[5]
      [6] (2010) 10  SCC 254
[7]
      [8] (2009)13 SCC 123
[9]
      [10]   2013 (12) SCALE 324
[11]
      [12] (2013)9 SCC 166
[13]
      [14]  (2013) 9 SCC 54

-----------------------
|NON REPORTABLE    |

 

 


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