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Ahmedabad Municipal Corporation and anr. Vs. Aminabibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1979CriLJ622
AppellantAhmedabad Municipal Corporation and anr.
RespondentAminabibi and ors.
Cases ReferredIn Chandrakauta v. Pravia Mangaldas
Excerpt:
.....family,and his robust health on the date of the accident. the evidence, if at all, pointed in the direction that he was not well just prior to the accident as held earlier. in both those cases where the deceased persons were 50 and 55 years of age, there was positive evidence to indicate that they were in excellent good health at or about the time of the accident and still 12 years' multiple was applied. we are herein concerned with a person who was aged 59 and about whose robust health at the time of the accident there is, as earlier pointed out, no evidence. in a case like the present, on the state' of evidence on record, the court would have been justified in adopting the multiple of 6 even on a liberal basis. to the extent that the appeal has failed, the respondents will be entitled..........indicate that they were in excellent good health at or about the time of the accident and still 12 years' multiple was applied. we are herein concerned with a person who was aged 59 and about whose robust health at the time of the accident there is, as earlier pointed out, no evidence. the evidence, on the contrary points in the other direction. in the bracket of advanced age after 55 years every year that passes makes a difference. besides, this is not a mathematical problem which is possible of solution on the basis of an abstract formula. to adopt the multiplier of 11 in the facts and circumstances of this case on the basis of those decisions is, therefore, not justified.12. the tribunal also took into consideration another circumstance namely, that gratuity rules in the mill in.....
Judgment:

P.D. Desai, J.

1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 preferred by the Ahmedabad Municipal Corporation and its Transport Manager (original opponents Nos. 1 and 2) is directed against the award dated Sept. 3, 1973, made by the Motor Accident Claims Tribunal 1-A, Ahmedabad (hereinafter referred to as 'the Tribunal') in Motor Accident Claims Tribunal No. l-A/5 of 1973. Under the impugned award, respondents Nos. 1 and 4 to 7 (original applicants Nos. 1 and 4 to 7) have been held entitled to compensation in the sum of Rs. 49,500/- with interest thereon at the rate of 6% per annum from the date of the application till payment or realization. The said respondents were also held entitled to full costs of the claim application. Three out of the respondents, namely, respondents Nos. 5, 6 and 7 being minors, a sum of Rs. 21,000/- out of the awarded amount (Rs. 7000/- for each minor) was directed to be invested in the names of the minors in Government securities or in fixed deposits with the State Bank of India, Ahmedabad. The amount apportioned in favour of each minor was directed to be paid to him/her on the concerned minor attaining majority. In the meantime, the first respondent (mother) was held entitled to receive profit or interest earned on the securities or fixed deposits, as the case may be, since she was maintaining the minors. The claim in this appeal is restricted to Rs. 20,000/-.

2. The accident giving rise to the claim application occurred on July 21, 1972 between 6 and 6-30 A. M. on the road from Delhi Darwaja to Gandhi Bridge. The deceased Nanumiya Ismailmiya, who was at the material time aged about 59 and was serving in the Tata Advance Mills, was proceeding from Gandhi Bridge side to Delhi Darwaja side. At that time A, M- T. S. bus bearing No. GTA. 8467 running on 86/1 route and driven by respondent No. 8 (original opponent No. 3) came from the opposite direction, that is to say, from the Delhi Darwaja side and knocked down the deceased. The deceased, who received serious injuries on the head, was immediately removed to the Civil Hospital at Ahmedabad where he expired at about 7-30 A. M.

3. The present application came to be filed thereafter by respondents Nos. 1 to 7 and in the said claim application, compensation in the total sum of Rs. 50,000/- was claimed under the following heads;

Rs. 2,000/- : Medical and other incidental ex-penses and pain and sufferingto the members of the family.Rs. 12,000/- : Pecuniary loss up to the date of probable retirement.Rs. 35,000/- : Pecuniary loss from and after the date of retirement.Rs. 5,000/- : Pain and suffering.__________ Rs. 54,000/- :

Though on the aforesaid basis, the claimants would have been entitled to compensation in the sum of Rs. 54000/-, the claim in the application was restricted to Rs, 50,000/-.

4. The Tribunal found that the deceased met with his death as a result of the injuries sustained by him in the course of the accident which occurred on account of the rash and negligent driving of the A. M. T. S. bus in question by the eighth respondent. The Tribunal further held that the first and second appellants were vicariously liable for the said act of the eighth respondent. As regards damages, the Tribunal held that the income of the deceased from the Tata Advance Mills was between Rs. 300/- to Rupees 350/- inclusive of all allowances. Besides, the deceased was carrying on business as a grocer and from that source his net income was Rs. .100/- to Rs, 150/- per month. In all. according to the Tribunal, the monthly earning of the deceased at the material time was Rs. 450/-. Out of the said amount, according to the Tribunal, the deceased must have been spending Rs. 100/- per month on himself. The dependency benefit was accordingly worked out at Rs. 350/- per month and Rs. 4200/- per annum. The Tribunal adopted the multiplier of 11 and computed the total dependency benefit at Rs, 46,2-00./-. To the aforesaid amount the Tribunal added Rs. 3,000/- being the conventional amount for the loss of expectation of life and Rupees 300/- for pain and suffering. Accordingly, the Tribunal made a total award in the sum of Rs. 49,500/-.

5. In view of the fact that the appellants have acquiesced in the award to the extent of Rs. 29,500/- by restricting the claim in appeal to Rs. 20,000/- only, it is apparent that they are not challenging their liability to pay damages to the concerned respondents on account of the tortious act of respondent No. 8. Under such circumstances, it would not be necessary to reassess the evidence with regard to negligence. We must proceed on the assumption that the findings recorded by the Tribunal on those aspects of the case have become final and conclusive and that they cannot be assailed in the course of this appeal.

6. That leaves in the field only one question, namely, whether the Tribunal was right in law in awarding damages in excess of the sum of Rs. 29,500/-. In the memo of appeal and at the hearing no challenge has rightly been levelled against the award in the sum of Rs. 3300/-, that being the compensation awarded for loss of expectation of life and pain and suffering. The said amount is the conventional amount which this Court has consistently awarded with slight variations justified in the facts and circumstances of each case. The real controversy between the parties, therefore, narrows down to the award in the sum of Rs. 20,000/- for future pecuniary loss.

7. The Tribunal, on the basis of the reasoning aforesaid, computed the monthly income of the deceased at Rs. 450/-. An attempt was made on behalf of the appellants to persuade us to take a different view on this aspect of the case. It might appear that the estimate of the Tribunal in this behalf is somewhat liberal. However, we are not inclined to disturb the finding of the Tribunal on this point as the difference in the ultimate analysis would be within the brackets. We would, therefore, proceed on the basis that the monthly income of the deceased was Rs. 4.50/- and that the dependency benefit was to the time of Rs. 350/- per month.

8. The material question, which however, arises for determination, is whether the Tribunal was justified in adopting the multiple of .11 on the facts and in the circumstances of the present case. It might be recalled in this connection that the deceased was 59 years of age on the date of the accident. The evidence on record discloses that the age of superannuation in the mill in which the deceased was employed was 62 at the material time and that if an employee was physically fit, he was continued in employment even up to the age of 70 or 72. The Tribunal was of the view that since this evidence was not controverted on behalf of the appellants, there was no reason to believe that the deceased would have necessarily retired from the mill on his attaining the age of 62 within about three years from the date of the accident. We might assume that thus far the Tribunal was right. However, when it comes to determining the multiple, all the chances of life, good or bad, must be taken into account. To assume for certainty all the most advantageous possibilities and take no account of the disadvantages is not to strike a fair balance. In the present case, therefore, one cannot overlook the probability that the dependency benefit might not have continued at all or to the same extent in future. That would have depended upon several imponderable factors such as the health of the deceased, his life coming to an end in the normal course or even otherwise by some other accident which ha might have met with and such and similar other factors. In selecting the multiple, all these factors have to be discounted for. In this connection, it further requires to be borne in mind that the deceased was a mill worker almost at the end of his career. There were no chances none at least have been deposed to of any promotion or any substantial increase in his emoluments. In case his employment came to an. end for some reason, his Only source of income would have been from the grocery shop, which was estimated to be Rs. 100/- to Rs. 150/- per month at the time of the accident. Besides, there is no evidence on the record of the case to establish that the deceased belonged to a family where longevity was the hall-mark. There is no evidence even to suggest that the deceased was in robust health. In fact, there is evidence which establishes that in the month of May, 1972, that is to say, just two months before the date of the accident, the deceased had obtained leave for one month on the ground of sickness. An attempt was made on behalf of the claimants to explain away this circumstance on the basis that if that ground was not put forward, the deceased would not have been granted leave. This appears to us to be a doubtful explanation inter alia because it is not stated as to why it was necessary to take leave at all on such false pretext. Be that as it may, in the absence of positive evidence as to longevity in the family and excellent health enjoyed by the deceased at or about the time of the accident, it would be hazardous to proceed on the footing that he would have necessarily continued to be gainfully employed or that the dependency benefit would have been available till the deceased attained the age of 70 or 72. This is one aspect of the case which has to be borne in mind.

9. The other aspect which must equally be present to the mind is that 12 to 15 has 1979 Cri L. J./40 V been a common multiplier in the case of a healthy man having a normal expectation of working life. In Halsbury's Laws of England, Fourth Edition, Vol. 12, para 1156, at, page 453, it has been pointed out that for a plaintiff in his thirties, having a normal expectation of working life, a multiplier of 14 or 15 has often been taken. In The Quantum of Damages in Personal Injury and Fatal Accident Claims by Kemp and Kemp, Vol. 1, Fourth Edition, the learned authors have given in a table at page 136 the multiple adopted in authenticated awards in England. The said table discloses the following pattern with regard to people in advanced age group :

Sex. Age at the Pre accident Number date of the dent occu year trial. pation purchasedate_____________________________________________________________Male 57 Precious Metal 7CraftmanMale 62 Labourer 3Male 65 Electrical Fitter 2 1/2

We cannot overlook that these multiples were adopted even in a country where longevity and standards of living are higher than those in our country.

10. In C. K. Subramonia Iyer v. T. K. Nair. : [1970]2SCR688 , the Supreme Court has cited with approval the passage from Winfield on Torts, 7th Edition at pp. 135 and 136 to illustrate as to how in England damages are calculated where the system of basic figure being capitalized by certain number of years purchase is adopted. In the extracted passage it is pointed out that the number of years' purchase is left fluid and from 12 to 15 has been quite a common multiple in the case of a healthy man and the number should not be materially reduced by reason of the hazardous nature of the occupation of the deceased man. The principle, of course, will apply where the deceased was a breadwinner of the family.

In Gobald Motor Service Ltd. v. Veluswami : [1962]1SCR929 , the deceased was aged 34 at the time of his death and the Supreme Court upheld the award on the basis that it represented capitalization at. 8 years purchase. In Municipal Corporation of Delhi v. Subhagwanti : [1966]3SCR649 , one of the deceased was 30 years old. In the said case it was found that if the basic figure of annual dependency was multiplied by the multiple of 15 years' purchase, the estimate of damages would be based on correct principles. In Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. : AIR1971SC1624 , the deceased was aged about 42 and in that case the multiplier of 15 was approved. In Hirji Virji Transport v. Basiranbibi (1971) 12 Guj LR 783, this Court in terms referred to some of the above decisions and held that when this common multiplier was accepted in the English decisions as varying normally from 12 to 15, the said factor clearly took into account the element of annuity. That is why the Supreme Court adopted the purchase factor of 15 years in the case of persons who were in thirties and forties. It was pointed out that that was the factor which led the Court to apply the outer multiple of 15 years' purchase in that case where the deceased was aged 45. In British India Insurance Co. v. Khagesh Jani 1977 Ace CJ 416 (Guj), where the deceased was aged about 29 the multiplier of 15 was applied. In Chandrakauta v. Pravia Mangaldas : AIR1975Guj142 , the multiplier of ]Q was adopted in the case where the deceased was 42 years old. In First Appeal No. 435 of 1970 decided on 5/6-7-1972 this Court observed that the Supreme Court has not laid down that the common multiplier cannot exceed 15 in any case. It was possible to conceive of a case where it would be necessary to apply a multiplier of above 15. However, even in that case where the deceased was aged about 35, 15 was found to be the proper multiple. It would appear from these illustrative cases that the trend has been to capitalize the loss of dependency benefit at 15 years' purchase on the outer side in the case of persons in thirties and forties when they were the bread-winners of the family. It is well settled that in making awards in accident cases, the Court is usually guided by awards made in previous cases. Therefore, these decisions must be held as providing the guideline for the determination of the correct multiple in the case of a person who was at the fag end of fifties.

11. If these two factors are kept in mind, it would appear that the Tribunal erred in adopting the multiplier of 11 in this case having regard to the age of the deceased in the absence of any positive evidence as to longevity in his family,and his robust health on the date of the accident. The evidence, if at all, pointed in the direction that he was not well just prior to the accident as held earlier. The Tribunal relied on two decisions of this Court in support of its view that 11 was the proper multiple in the instant case. The first is the decision in First Appeal No. 420 of 1971 decided on 2-2-197:3 (Guj). In that case, the deceased was a healthy man who had suffered no ailment of any significance during his lifetime. He was at the lime of the accidental death 55 years of age. Against the said background, this Court thought it reasonable to capitalize the benefit which his dependants had lost on the basis of 12 years' purchase. In First Appeal No. 95 of 1970 decided on 7-2-1973 (Guj) the deceased was aged about 50. this Court found that she was a healthy and energetic lady. In view of that finding, 12 years' purchase factor was applied in capitalizing the datum figure. We are unable to see how these two decisions can assist us in the facts and circumstances of the present case. In both those cases where the deceased persons were 50 and 55 years of age, there was positive evidence to indicate that they were in excellent good health at or about the time of the accident and still 12 years' multiple was applied. We are herein concerned with a person who was aged 59 and about whose robust health at the time of the accident there is, as earlier pointed out, no evidence. The evidence, on the contrary points in the other direction. In the bracket of advanced age after 55 years every year that passes makes a difference. Besides, this is not a mathematical problem which is possible of solution on the basis of an abstract formula. To adopt the multiplier of 11 in the facts and circumstances of this case on the basis of those decisions is, therefore, not justified.

12. The Tribunal also took into consideration another circumstance namely, that Gratuity Rules in the mill in Which' the deceased was employed were revised to the benefit of the workers- within two months after the death of the deceased and that the deceased would have received an additional amount of Rs. 6000/- to Rs. 7000/- by way of gratuity had he survived- The evidence on this point is contained in a solitary sentence in the deposition of Abdulrehman Nanamiya, Ex. 20, son of the deceased who deposed that two months after the death of the deceased, new Gratuity Rules were introduced and that had the deceased died two months later, he would have received an additional amount of Rs. 6000/- to Rs. 7000/-. Another witness Gulammohmed Nannubhai, Ex. 33, who was also employed in Advance Mills, deposed that two months after the death of the deceased, new Gratuity Rules were introduced. He, however, did not specify the possible benefit which the deceased would have derived on the introduction of the new Rules. It appears to us even though there is no effective cross-examination, that the evidence on this point is not wholly satisfactory and that the material brought on record is not sufficient to establish conclusively that such a benefit would have accrued to the deceased. Even assuming, however, that the deceased would have benefited by the revision of the Gratuity Rules had he survived, still that circumstance would not justify the raising of the purchase factor to 11 in the facts and circumstances of the case. In a case like the present, on the state' of evidence on record, the Court would have been justified in adopting the multiple of 6 even on a liberal basis. However taking into account this possible benefit which would have accrued to the deceased on the revision of Gratuity Rules and which he might be assumed to have lost, at the highest the multiple which could be adopted is 8. In our opinion, therefore, even taking the most liberal view of the matter, on the facts and in the circumstance of the case, the Tribunal could not have applied the multiplier of 11 and that, at the highest, the multiple of 8 ought to have been applied.

13. In this view of the matter, in our opinion, the award of the Tribunal which suffers from an error of principle, will have to be modified. In place and stead of the award in the sum of Rs. 48,200/-, the claimants are held entitled to a sum of Rs. 33,600/-(Rs. 350 x 12 - Rs. 4200 x 8 = Rs. 33,600) under the head of loss of dependency benefit. The award of the Tribunal under the Other heads does not call for interference.

14. In the result, the appeal partly succeeds. The total award made by the Tribunal in the sum of Rs. 49,500/- is modified and the claimants are held entitled to Rupees . 36,900/-. Out of the amount awarded by the Tribunal, it has directed that a sum of Rs. 21,000/- should be invested in the names of the minors (Rs. 7000/- for each minor) in , Government securities or in fixed deposits. In the facts and circumstances of the case, this apportionment will stand notwithstanding the reduction in the total amount of the award. We take this view because respondent No. 4, who is on of the sons of the deceased, is aged about 21 on the date of the claim application and he could not have expected to derive dependency benefit over a long period. As regards respondent No. 1, she too could not have availed of the dependency benefit for as long a period as minor respondents Nos. 5 to 7. Under these circumstances, no recovery should be effected from the amounts apportioned to the minors in case those amounts are paid over to them. The other claimants who are held entitled to damages will share the balance amount of Rupees 15,900/- in the same proportion in which the amount awarded by the Tribunal was apportioned between them by the Tribunal. Those two claimants will refund the excess amount to the appellants if they have already recovered the same., In case the amount has been deposited in the Tribunal, the appellants .will be entitled to withdraw the amount which is. in excess of the award made herein. The appellants will be entitled to the proportionate costs of this appeal. The costs too will be recovered only from the claimants other than the minor claimants. To the extent that the appeal has failed, the respondents will be entitled to their proportionate costs in one set.


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