C/FA/2837/2021 JUDGMENT DATED: 08/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2837 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JARINABEN WIDOW OF SHABBIRBHAI MALEK
Versus
DIPAKBHAI VAKALABHAI SHUKLA
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Appearance:
MR DHRUV K DAVE(6928) for the Appellant(s) No. 1,2,3,4
DELETED for the Defendant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 08/02/2023
ORAL JUDGMENT
1. This First Appeal is preferred by the appellants against the impugned judgment and award dated 26.03.2019 Page 1 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023 C/FA/2837/2021 JUDGMENT DATED: 08/02/2023 passed in Motor Accident Claims Petition No.1317 of 2012 by the Motor Accident Claims Tribunal, Vadodara whereby the learned Tribunal has awarded the compensation of Rs.8,01,250/- along with interest @ 9% per annum.
2. The factual matrix in the present appeal is as follows: 2.1 The deceased -Shabbirbhai Vajirbhai Malek was riding motorcycle bearing Registration No.GJ-6-DF-2237 and going from Village Ranu to Village Sadhi on 16.09.2012. The deceased was driving his motorcycle on the correct side of the road. When he reached on the road proceeding towards Village Ranu, he came to be knocked down by Eicher Tempo which was being driven in rash and negligent manner. As a result, the deceased received grievous injuries on his head and died on the spot.
2.2 An offence also came to be registered at the Padra Police Station vide I-CR No.181 of 2012 against the driver of the Eicher Tempo. At the time of death, the deceased was Page 2 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023 C/FA/2837/2021 JUDGMENT DATED: 08/02/2023 aged about 47 years and he was hale and healthy person. The deceased was mainly engaged in the business of milching and animal husbandry.
2.3 Aggrieved the appellants preferred the claim petition under Section 166 of the Motor Vehicles Act, 1988 for the compensation of Rs.25,00,000/-. The learned Tribunal was pleased to issue summons to the respondents. The parties appeared and led evidence in support of their case. After assessing the evidence on record, the learned Tribunal was pleased to award a compensation of Rs.8,01,250/- along with interest @ 9% per annum.
2.4 Aggrieved the appellants have preferred this appeal.
3. Mr. Dhruv K. Dave, learned advocate appearing for the appellants submits that the appellants have brought the cogent evidence on record to show that the deceased was in the business of milching and animal husbandry. He was given a certificate by the State Government for high yield of Page 3 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023 C/FA/2837/2021 JUDGMENT DATED: 08/02/2023 milk production per day. He was also known doctor in the area around his residence in respect of milch animals. The deceased was also engaged in the business of producing and selling milch animals. It was, therefore, claimed that out of these activities, the combined annual income of the deceased was Rs.2,50,000/- annually. He submits that the appellants had produced on record the certificate of The Sadhi Doodh Udpadak Sahakari Mandali Limited (for short, "Mandali") whereby the family of the deceased had sold milk worth Rs.2,05,163/- to the Mandali from 01.04.2012 to 31.03.2013.
4. It is submitted that the official of the Mandali has also deposed by way of oral evidence in support of the said income Certificate from the Mandali. It is submitted by the learned advocate for the appellants that the said Certificate ought to have been taken in to account while assessing the income of the deceased. However, the learned Tribunal has erred in not taking the same into account and rejecting the same. He submits that even the passbook of the deceased Page 4 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023 C/FA/2837/2021 JUDGMENT DATED: 08/02/2023 was filed on record by way of evidence which shows that in the year 2011, the cumulative amount deposited in the savings account of the deceased was Rs.60,000/-. Therefore, he submits that the appellants have cogently proved that the income of the deceased was Rs.2,50,000/- annually. He submits that the learned Tribunal has wrongly calculated the monthly income of the deceased, and therefore, has committed an error in computing the just and proper compensation in the present case. He further submits that learned Tribunal has erred in awarding just and proper compensation and the First Appeal be allowed.
5. Per contra, Ms. Kirti Pathak, learned advocate appearing for respondent No.3 -Insurance Company vehemently opposes the appeal and submits that no cogent evidence has been brought on record with respect to the monthly and annual income of the deceased. She submits that the Certificate issued by the Mandali cannot be relied upon as the same is issued in March, 2017 much later in time after the death of the deceased. She submits that the Page 5 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023 C/FA/2837/2021 JUDGMENT DATED: 08/02/2023 said Certificate has a lot of discrepancies and the learned Tribunal has rightly ignored the same.
6. She further submits that though the the averments are made with respect to the business of the deceased in respect of buying and selling of milch animals as well as rendering services as a doctor for milch animals, nothing has been brought on record to show any income from such activities. In absence of the same, she submits that the assessment of the monthly income of the deceased as arrived at by the learned Tribunal is just and proper and that no interference is called for in the said amount. She submits that the learned Tribunal has rightly calculated the just and proper compensation in the present case, and therefore, the First Appeal be dismissed with costs.
7. Heard the learned counsel for the parties and perused the documents on record as well as the Record & Proceedings of the case.
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8. In respect of the assessment of the income of the deceased, the appellants have produced on record the passbook of the savings Bank account of the deceased and the Certificate issued by the Mandali in the name of Shabnamben Saddambhai Malek. A perusal of the oral evidence of witness No.2 examined on behalf of the appellants, Mr.Arvindbhai Prajapati reveals that he is working as a clerk in the said Mandali. He has produced the said statement of the payments made to Shabnamben Saddambhai Malek for various years. However, in the cross- examination, he has stated that there was no Resolution by the Mandali authorizing him to prepare such statement and neither he was officially authorized to give any deposition in the present case. Further, he admits that the certificate is not signed by the President of the Mandali. He has also not submitted any bills in support of the statement which he has produced on record.
9. In view of the these discrepancies, the learned Tribunal has rightly ignored the said Certificate with respect to the Page 7 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023 C/FA/2837/2021 JUDGMENT DATED: 08/02/2023 income of the deceased and the same could not have been relied upon to assess the income of the deceased. Further, with respect to the Bank Statements of the Saving Account of the deceased produced on the record, it is revealed that there are some deposits, however, the same cannot be said to be in nature of any income and neither the same can be relied upon by way of any specific nature of income as received by the deceased from any particular activity which he was allegedly doing. There are random amounts deposited in the bank account and perusal of the said Bank statement does not reveal whether the said deposits can be considered as income of the deceased or not. In the absence of any cogent reliable evidence on record with respect to the income of the deceased, the learned Tribunal has assessed the income of the deceased at Rs.5,000/- per month and 60,000/- annually. Even if we go by the minimum wages as prescribed by the Assistant Labour Commissioner Government of Gujarat for the relevant period, the monthly wages for a skilled worker would be Rs.4,980/-. Page 8 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023
C/FA/2837/2021 JUDGMENT DATED: 08/02/2023
10. In view thereof, it can be safely assumed that the monthly income of the deceased was Rs.5,000/- per month. No error can be stated to have been committed by the learned Tribunal while assessing the monthly income of the deceased. Therefore, the monthly income as assessed by the Tribunal needs no interference.
11. Computing the compensation on the basis of the monthly income as assessed, the appellants are entitled to a compensation of Rs.7,31,250/- towards future loss of income. The learned Tribunal has awarded Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. It has also awarded Rs.40,000/- towards loss of consortium. However, in view of the judgment rendered in the case of Magma Gneral Insurance Co. Ltd. Vs. Nanu Ram, reported in (2018) 18 SCC 130, the appellants are entitled to Rs.1,60,000/- (Rs.40,000X4) towards loss of consortium. The learned Tribunal has awarded Rs.40,000/- towards the same.
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12. This Court is of the opinion that the appellants are entitled to the following compensation which is modified accordingly:
Sr.No. Head Amount
A Towards future loss of income Rs.7,31.250/-
B Towards loss of estate Rs.15,000/-
C Towards funeral expenses Rs.15,000/-
D Towards loss of consortium Rs.1,60,000/-
Total Rs.9,21,250/-
12. Therefore, this Court is of the opinion that the just and proper compensation in the present case is Rs.9,21,250/-. The amount of compensation as awarded by learned Tribunal along with interest is confirmed. The appellant is entitled for an additional compensation of Rs.1,20,000/- along with 6% interest per annum from the date of filing of the claim petition till its realization. The respondent No.3 is directed to deposit the additional amount of compensation along with interest @ 6% per annum within a period of six weeks from the date of receipt of the order of this Court. Upon depositing of such additional compensation, the learned Tribunal is directed to release the entire amount of Page 10 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023 C/FA/2837/2021 JUDGMENT DATED: 08/02/2023 compensation within a period of four weeks thereafter upon following the due procedure and after due verification.
13. Accordingly the First Appeal is partly allowed. No order as to costs. Record and proceedings of the case, if any, be remitted back to the learned Tribunal.
(ANIRUDDHA P. MAYEE, J.) ALI Page 11 of 11 Downloaded on : Mon Feb 13 20:48:06 IST 2023