Gujarat High Court
United India Insurance Company ... vs Heirs Of Decd. Ikbalbhai ... on 1 April, 2021
Bench: Ilesh J. Vora
C/FA/208/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 208 of 2013
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UNITED INDIA INSURANCE COMPANY LTD
Versus
HEIRS OF DECD. IKBALBHAI GULAMNABI VOHRA & 1 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR BHUNESH C RUPERA(3896) for the Defendant(s) No. 2
MR RAXIT J DHOLAKIA(3709) for the Defendant(s) No. 1.1,1.2,1.3
RULE SERVED(64) for the Defendant(s) No. 1.1,1.2,1.3
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CORAM: HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 01/04/2021
ORAL ORDER
1. The United India Insurance Co. Ltd. - original opponent No.2 herein
has filed this appeal under Section 173 of the Motor Vehicles Act,
1988 (hereinafter referred to as the 'MV Act' for short) against the
judgment and award dated 31.08.2012 passed by the learned
Motor Accident Claim Tribunal, Anand (hereinafter referred to as
the Tribunal for short) in MACP No.499/2009, whereby, in fatal
claim, the Tribunal awarded total compensation of Rs.12,88,842/-
with interest @ 7 % p.a.
2. The brief facts are that, the deceased Iqbalbhai Gulambhai Vahora
met with an accident on 20.08.2009 when his motorcycle was hit by
offending truck No.HR-58-6-1387, as a result, he succumbed to the
injuries. Upon the lodging of the FIR, the driver of the truck was
arrested and finally, he was chargesheeted. The respondent Nos.1
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to 3 being the widow and major sons of the deceased filed the
claim petition No.499/2009 before the Motor Accident Claims
Tribunal (Main), Anand joining the owner of the vehicle as
respondent No.1 and United India Insurance Co. Ltd. with whom
the vehicle was insured as respondent No.2. Before the Tribunal,
the owner of the truck took defence of total denial, whereas, the
appellant - insurance company filed a counter denying the
averments of the claim petition and contended that, the deceased
himself was negligent in causing the accident and the amount
claimed is excessive and prayed to dismiss the claim petition.
3. After consideration the oral as well as documentary evidence, ld.
Tribunal allwoed the claim petition and awarded total
compensation of Rs.12,88,842/- along with 7 % interest p.a. holding
the owner as well as the insurance company held liable jointly and
severally to pay the compensation.
4. Being aggrieved by and dissatisfied wit the impugned judgment and
award dated 31.08.2012, the appellant Insurance Company has
come up before this Court with the present appeal.
5. Heard Mr. Maulik J. Shelat, learned counsel appearing for the
appellant - Insurance Company and Mr. Raxit Dholakia, learned
counsel appearing for respondent Nos.1/1 to 1/3 - original
claimants.
6. Shri Maulik J. Shelat, learned counsel appearing for the insurance
company contended that, the learned Tribubnal has erred in
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considering 30 % prospective income which should have been
considered to the tune of 25 % and therefore, the same deserves to
be modified accordingly. It was further pointed out that, the ld.
Tribunal has erred in considering the last income of the deceased.
In this context, he has submitted that, while computing the income
of the deceased, the learned Tribunal had considered the income
of the deceased at Rs.1,10,850/- p.a., which could not have taken
into consideration as the deceased was tax payer and the income
tax returns for the last three years were placed on record by the
claimants. Therefore, the ld. Tribunal ought to have considered the
average income of the deceased while computing the income of
the deceased.
7. In the aforesaid background facts, the learned counsel appearing
for the insurance company would submit that, the ld. Tribunal is
not justified in awarding the compensation qua future prospective
income, which requires interference of this Court and the appeal
may be allowed as prayed for.
8. On the other hand, Mr. Raxit Dholakia, learned counsel appearing
for the original claimants would submit that, the amount awarded
under the head of future prospective income is just and proper,
which does not require any interference by this Court and hence,
the appeal may be dismissed.
9. Upon hearing the arguments made by learned counsel for the
parties, the issue arises for determination is, whether the amount
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of compensation as determined by the ld. Tribunal needs any
interference ?
10. Undisputedly, the deceased Ikbalbhai Vohra died at the age of 48
years in a road accident, which occurred on 20.08.2009 at the place
mentioned in the panchnama of place of incident. After analysis of
the evidence on record, more particularly, the deposition of widow
Arifaben being PW:1 at Exh:23, it appears that, the deceased was in
business of sale and purchase of radiators and its repairing work.
Before the ld. Tribunal, the widow had produced the copies of last
three years income tax returns i.e. A.Y. 2008-09 (Rs.1,10,850/-), A.Y.
2007-08 (Rs.1,01,050/-) and Rs.2006-07 (Rs.88,559/-). Admittedly,
returns were filed before the alleged accident and there is no
dispute raised by the insurance company about its genuineness.
11. In the impugned award, the ld. Tribunal had considered the last
income of Rs.1,10,850/- and made the addition of 30 % towards
future prospective income and accordingly, awarded compensation
of Rs.18,73,264/- towards loss of future income (Rs.9237/- + 30 % X
12 X 13). The ld. Tribunal after deducting 1/3rd towards personal
expenses also awarded Rs.10,000/- towards pain, shock and
sufferings, Rs.10,000/- towards loss to estate, Rs.5,000/- towards
funeral expenses, Rs.5,000/- towards transport expenses and
Rs.10,000/- towards the loss of consortium and thereby, awarded
total compensation of Rs. 12,88,842/-.
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12. The main contention raised by the Insurance Company is that, the
ld. Tribunal ought to have computed the income of the deceased
on the basis of average last three years income and could not have
considered the last income as shown in the income tax returns for
the A.Y. 2008-09.
13. Having heard the learned counsel for the respective parties, I am of
the opinion that, there is no error in the impugned judgment and
award. It is pertinent to note that, in the case of Sarla Verma &
Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC
121], the Apex Court on the issue of addition of future prospective
amount, has held that, where the deceased was a self employed,
the court will usually take only the actual income at the time of
death. In view of the law laid down by the Apex Court, this Court is
of the view that, the learned Tribunal has not committed any error
while taking into consideration the last income of the deceased,
which appears to be just, proper and reasonable. It is required to
be noted that, under the conventional head, ld. Tribunal has
awarded Rs.25,000/-, whereas, as per the law laid down by the
Apex Court in the case of National Insurance Company Ltd. Vs.
Pranay Shethi [2017 (16) SC 680], it should be Rs.70,000/-.
Therefore, addition of 30 % instead of 25 % would make no major
difference to disturb the impugned judgment and award, which is
otherwise just and reasonable. In view of the overall facts and
circumstances of the present case, this Court is of the view that,
the amount of compensation appears to be just and reasonable,
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which does not require any interference.
14. In view of the discussions made hereinabove and the reasons
thereof, there is no merit in the present appeal and hence, it
deserves to be dismissed and is hereby dismissed. Interim relief
stands vacated. The learned Tribunal is directed to disburse the
amount accordingly. No order as to costs.
(ILESH J. VORA,J)
SUCHIT
