Gujarat High Court
United India Insurance Co Ltd vs Legal Heirs Of Decd. Liladhar ... on 6 December, 2021
Bench: R.M.Chhaya
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5868 of 2008
With
R/FIRST APPEAL NO. 482 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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UNITED INDIA INSURANCE CO LTD
Versus
LEGAL HEIRS OF DECD. LILADHAR BECHARBHAI SATODIYA & 6
other(s)
==========================================================
Appearance:
SHARMISHTA A DAVE(8735) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 2
MR HEMANT S SHAH(756) for the Defendant(s) No. 5
MR VH KANARA(1881) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 06/12/2021
ORAL JUDGMENT
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the common
judgment and award passed by the Motor Accident
Claims Tribunal (Aux), Jamnagar in MACP no. 262 of
1997 dated 12.05.2005, the insurance company has
preferred First Appeal No. 5868 of 2008 whereas the
original claimants have preferred cross appeal being
First Appeal no.482 of 2010.
2. As per the record, the original claimant, i.e.,
respondent no.1 in First Appeal No. 5868 of 2008, who
was injured in the accident, has also preferred
another appeal for the same accident being First
Appeal No. 1129 of 2010, which is heard together, but
is disposed of by separate judgment and order.
3. Heard Mrs. Sharmistha Dave, learned advocate for
the appellants, Mr. Kaash Thakkar, learned advocate
for Mr. V.H. Kanara for the original claimants -
respondents no. 1 and 3 and Mr. Hemant Shah, learned
advocate for the other insurance company, i.e.,
insurance company of the fiat car being New India
Assurance Co. Ltd. in both the appeals.
4. We have also perused the original record and
proceedings of the Tribunal.
5. The following facts emerge from the record of
the appeals -
5.1 As per the record, the accident took place on
20.12.1996. It is the case of the respondents-
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
original claimants that deceased Dr. Liladhar B.
Satodiya and his wife i.e., respondent no.1 Madhuben
were travelling in a Fiat car bearing registration
No. GUT- 7418 from Jamnagar to Gondal. The record
indicates that when the car reached Rajkot-Paddhari
highway at about 3.00 pm, suddenly the driver of the
impeding vehicle being Metador bearing registration
no.GJ-3U-8091 came there and dashed with the fiat car
driven by one Samad Bhimsinh Ahir. The record
indicates that the deceased Dr. Liladhar sustained
serious injuries and died on the spot. Whereas,
respondent no.1 Madhuben also sustained serious
injuries. An FIR was lodged with the jurisdictional
police station and the present claim petitions were
filed by the heirs of deceased Dr. Liladharbhai and
claimed compensation of Rs. 30,00,000/-. It was the
case of the original claimants that Dr. Liladharbhai
was practising radiologist at Jamnagar and was
earning Rs.20,000/- per month. The appellant-
insurance company did file its Written Statement at
exhibit 40. The claimants adduced oral evidence and
examined Madhuben, one of the original claimants at
exhibit 77, Dr. Jayantilal Saini at exhibit, 96,
Rameshbhai Raval at exhibit 99. The insurance
company also examined one Sukhdevsinh Jadeja at
exhibit 112 who was the driver of the Matador and one
Samad Bhimsinh Ahir at exhibit 119, the driver of the
fiat car. Over and above the same, the claimants
relied upon plethora of documentary evidence such as
FIR at exhibit 121, charge-sheet at exhibit 125,
panchnama at exhibit 44, inquest panchnama at exhibit
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
45, pm note of the deceased at exhibit 46, birth
certificate of deceased Liladhar at exhibit 47,
driving license of driver of metador at exhibit 113,
Fitness certificate of metador at exhibit 115, permit
of metador at exhibit 114, driving license of driver
of fiat car at exhibit 122, RC book of fiat car at
exhibit 123, receipt of insurance policy of fiat car
at exhibit 124.
5.2 The Tribunal after considering the FIR at
exhibit 121 and panchnama at exhibit 44 and oral
deposition of Sukhdevsinh Jadeja at exhbiit 112 and
Samad Bhimsinh Ahir at exhibit 119, came to the
conclusion that the driver of both the vehicles were
negligent and further held that driver of the Matador
was negligent to the extent of 90% whereas driver of
Fiat car was negligent to the tune of 10%. Relying
upon the income tax returns as well as other
documents relating to accounts, considered the income
tax returns to be the basis of determination of
income and the Tribunal determined the income of the
deceased at Rs.8,500/- per month and after giving 60%
rise and applying multiplier of 13, awarded a sum of
Rs.13,26,000/- as compensation under the head of
future loss of income. The Tribunal was also further
pleased to grant Rs.10,000/- as compensation under
the loss of estate and funeral charges etc., and
Rs.10,000/- towards consortium and thus, while partly
allowing the claim petition, awarded total gross
compensation of Rs.13,46,000/- and after deducting
10% towards negligence of the driver of the fiat car,
awarded a sum of Rs. 12,11,400/- with 9% interest and
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
costs while partly allowing the claim petition.
Being aggrieved by the same, as aforesaid, both the
insurance company of the Metador and the original
claimants have preferred these appeals.
6. Mrs. Dave, learned counsel appearing for the
appellant has taken this Court through the FIR at
exhibit 121, inquest panchnama at exhibit 45 as well
as the oral deposition of Sukhdevsinh Sajubha Jadeja
at exhibit 112 and oral deposition of Samantbhai
Bhimshibhai Ahir at exhibit 119. Mrs. Dave contended
that there is evidence to show that the driver of the
fiat car attempted to overtake the vehicle, because
of which, he had to come out of his limit and side
and dashed with the Metador. According to Mrs. Dave,
even in the deposition of Samant Bhimshi Ahir, he has
admitted that the road was straight and that he saw
the metador only from a distance of 15 Ft. According
to Mr. Dave, it is proved that the Fiat car was being
driven in rash and negligent manner because of which
the accident has occurred and according to Mrs. Dave,
the Tribunal ought to have considered the driver of
the Metador only negligent to the extent of 10%
whereas driver of the fiat car should have been
considered to be negligent to the extent of 90%.
Mrs. Dave referring to the income tax returns at
exhibits 58, 59 and 64, which relates to assessment
years 1994-95, 1995-96 and 1996-97, contended that
the Tribunal has committed an error in calculating
the income of the deceased at Rs. 8,500/- p.m.
Relying upon the income tax returns for the
assessment year 1996-1997, Mr. Dave contended that
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
the monthly income of the deceased ought to have been
determined at Rs.6,043/-. It was further contended
that other proof of agriculture income is rightly not
believed by the Tribunal being exhibits 104 to 106
and 108. Mr. Dave contended that the claimants have
not even produced any document regarding income from
land even after the death of Dr. Satodiya. It was
submitted by Mr. Dave that the Tribunal has correctly
come to the conclusion that even during the lifetime,
the deceased who was a practising radiologist was
doing agricultural activities through servants and
there is no supervisory loss. On the aforesaid
grounds, Mr. Dave contended that the appeal be
allowed as prayed for and the impugned judgment and
award deserves to be quashed and modified.
7. Per contra, Mr. Kash Thakkar, learned counsel
counsel appearing for the original claimants in both
the appeals contended that in another claim petition
relating to the same accident, the appellant
insurance company has already compromised the matter
and has paid agreed compensation. Referring to the
evidence of the accounts at exhibits 103 to 106 and
108, Mr. Kaash Thakkar contended that the Tribunal
has committed an error in not considering any
supervisory loss. According to Mr.Thakkar, learned
counsel appearing for the appellants, even though the
deceased was a practising radiologist, he was
actively engaged in agricultural activities and used
to derive sizeable income from agriculture. Mr.
Kaash Thakkar further contended that the future loss
of is thus erroneously calculated and awarded by the
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
Tribunal. Mr. Kaash Thakkar also contended that the
the respondents-claimants no.2 and 3 were minor at
the time of accident and therefore, both of them
would be entitled to parental consortium on loss of
their beloved father, who died in the accident. Mr.
Thakkar also contended that thus, the income is not
properly calculated. On the aforesaid grounds, Mr.
Kaash Thakkar contended that the appeal filed by the
insurance company being meritless, deserves to be
dismissed whereas the appeal filed by the original
claimants deserves to be allowed and compensation
deserves to be enhanced by modifying the award.
8. No other or further submissions have been made
by the learned counsel appearing for the respective
parties.
9. Upon re-appreciation of the evidence in form of
the panchnama at exhibit 45, it clearly transpires
that the Metador dashed with the fiat car from the
driver side. Even considering the deposition of the
driver of the Metador, Sukhdevsinh Jadeja at exhibit
112 and the damage to the fiat car, which is
indicated in the panchnama at exhibit 45 as well as
the condition of the road, wherein in panchnama also
it is mentioned that no brake marks of Metador are
found. The theory of overtaking which is raised by
the said witness does not inspire any confidence.
Upon re-appreciation of the evidence of Samad
Bhimsinh Ahir, driver of the fiat car, who in fact
is also an eye-witness of the accident, at exhibit
119, on the contrary it is found that the said
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
witness has stated that the Metador was being driven
in excessive speed and in wrong side. Even in the
cross-examination, he has denied the contrary
suggestion. Thus, the contention raised by Mr. Dave
that the driver of the fiat car was more negligent
than the driver of the Metador car and that the
negligence of the driver of the fiat car deserves to
be quantified at 90% is without any basis. Upon re-
appreciation of the evidence as a whole, more
particularly the manner in which the accident has
occurred, we concur with the findings arrived at by
the Tribunal that the driver of the Metador was
negligent to the extent of 90% whereas the driver of
the fiat car was negligent to the extent of 10%. As
far as the aspect of income is concerned, upon re-
appreciation of the evidence on record, we find that
there are three different types of evidence adduced
by the original claimants. The income tax return for
the assessment years 1994-95 at exhibit 58 shows that
the income was Rs. 1,00,414/- whereas in the
assessment year 1995-96, exhibit 57, it is mentioned
as 98,313/-. Mr. Kaash Thakkar for the original
claimants has relied upon the computation of income
and has contended that the income should be
determined from the said accounts as the computation
of income submitted before the income tax authorities
cannot be accepted outright. We find that the
Tribunal has considered the income as reflected in
the income tax return for the assessment year, which
was in proximity with the date of accident being
20.12.1996. Similarly, no reliance can be placed on
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
rough account which are exhibited at exhibits 103,
104, 105, 106 and 108. Even the deposition of the
accountant Shri Rameshbhai Raval at exhibit 99 does
not take the case of the original claimants any
further. The Tribunal after appreciation of the
evidence on record has properly weighed the same
while determining the income and upon re-appreciation
of the same, we find that the Tribunal has correctly
assessed the income of the deceased at Rs.1,00,000/-
p.a. Only because of the fact that the deceased was
a practising Radiologist ipso facto cannot be the
basis of any increase in monthly income as contended
by the learned counsel for the claimants. Similarly,
the income tax returns which are on record do show
that the income of the deceased who was a practising
Radiologist, can safely be assessed at Rs.1,00,000/-
per annum and Rs.8,500/- per month. Hence, the
contention raised by the learned counsel for the
appellant insurance company that the income should be
reduced and the contention of the learned counsel for
the original claimants that the income deserves to be
increased deserves to be negatived. Both such
contentions are contrary to the evidence on record
and in order to arrive at just and adequate
compensation, the Tribunal has rightly taken the
basis of income tax return and determined the income
of the deceased at Rs.1,00,000/- p.a., i.e.,
Rs.8,500/- p.m.
10. In view of the aforesaid, there is nothing to
show that there is any supervisory loss and upon re-
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
appreciation of the evidence on record, we are of the
opinion that the Tribunal has rightly calculated the
compensation under future loss of income. As far as
applicable multiplier and the deduction towards
personal expenses is concerned, is as per the ratio
laid down by the Apex Court in the case of Sarla
Verma vs. Delhi Road Transport Corporation reported
in (2009) 6 SCC 121 and National Insurance Company
Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680
and the same does not require any modification and
considering the age of the deceased on the date of
the accident being 47 years, following the judgment
of the Apex Court in the case of Pranay Sethi
(supra), applicable rise in income by way of
prospective income would be 25%. Over and above
that, the appellants no.2 and 3, both sons, who were
minor on the date of the accident, would be entitled
to Rs.40,000/- each as parental consortium. The
appellant no.1 would also be entitled to further
amount of Rs.40,000/- as spousal consortium,
Rs.15,000/- towards loss of estate and Rs. 15,000/-
and Rs.15,000/- as funeral expenses. Having come to
the aforesaid conclusion and upon re-calculating the
compensation, the same would be as under -
Rs.8,500/- (income) + 2,125/- (25% prospective
income) - Rs.3,542/- (1/3rd deduction towards
personal expenses = Rs.7,083/- X 12 X 13
(multiplier) = Rs.11,04,948/- (Future Loss of
Income)
Future Loss of income - Rs.11,04,948/-
Parental Consortium - Rs. 80,000/-
Spousal consortium
C/FA/5868/2008 JUDGMENT DATED: 06/12/2021
lost of estate and
Funeral expenses - Rs. 70,000/-
--------------
Total compensation Rs.12,54,948/-
--------------
12. Thus, the total compensation would come to
Rs.12,54,948/-. As the Tribunal has awarded
compensation of Rs.13,46,000/-, the insurance
company, i.e., appellant of First Appeal No. 5868 of
2008 would be entitled to refund of Rs.91,052/-. The
Tribunal shall refund the amount with proportionate
cost and interest as per this judgment to the
appellant-insurance company. The impugned judgment
and award stands modified to the aforesaid extent.
13. The appeal being First Appeal No. 5868/08 filed
by the insurance company is partly allowed to the
aforesaid extent and the appeal being First Appeal
No.482 of 2010 filed by the original claimants is
dismissed. However, there shall be no order as to
costs in this appeal. Registry is directed to remit
the record and proceedings back to the Tribunal
forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI
