Gujarat High Court
New India Assurance Co.Ltd vs Swatiben Wd\O Girishbhai ... on 13 December, 2021
Bench: R.M.Chhaya
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4183 of 2009
With
R/FIRST APPEAL NO. 673 of 2012
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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NEW INDIA ASSURANCE CO.LTD
Versus
SWATIBEN WD\O GIRISHBHAI DHULABHAI PATEL & 6 other(s)
==========================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
MR HARSHADRAY A DAVE(3461) for the Defendant(s) No.
1,2,3,4
NOTICE SERVED BY DS(5) for the Defendant(s) No. 5
RULE NOT RECD BACK(63) for the Defendant(s) No.
5.1,5.2,5.3,5.4
RULE SERVED(64) for the Defendant(s) No. 6,7
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/12/2021
Page 1 of 13
Downloaded on : Wed Jan 12 09:38:27 IST 2022
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 14.05.2009 passed by the
Motor Accident claims Tribunal, Ahmedabad Rural at
Mirzapur in MACP No. 994 of 2002, the insurance
company has preferred First Appeal No. 4183 of 2009
whereas the original claimants have preferred First
Appeal No. 673 of 2012 under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as the
"Act"). Both the appeals are clubbed together and
are heard together. The same evidence is relied upon
by both the sides.
2. When the accident took place and the claim
petition was filed, the parents were alive. During
the pendency of this appeal, the original respondent
no.5 Dahiben Dhulabhai Patel expired and the
insurance company as well as the claimants have
brought the heirs of deceased Dahiben Dhulabhai Patel
who are the other original respondents-claimants in
these appeals. It is pointed out that during the
pendency of this appeal, even the father, i.e.,
original respondent no.4 Dhulabhai Khodidas Patel has
expired on 10.03.2020. Ms. Bhaya as well as Mr. Dave
submitted that the other heirs of Dhulabhai are
already on record in form of respondents-original
claimants. The death certificate issued by the
authorities of Ahmedabad Municipal Corporation is
taken on record. At the request of learned counsel
appearing for the parties, as the estate of Dhulabhai
Khodidas Patel is already represented by other
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
respondents, the prayer to delete Dhulabhai is
granted.
3. Following facts emerge from the record of the
appeals -
3.1 The accident took place on 16.07.2002. The
record indicates that deceased Girishbhai and his
brother-in-law Rajubhai were travelling in car
bearing No.GJ-1-PP-826 owned by M/s. Automotive
Valves Pvt Ltd. at about 6.00 AM. It is also a
matter of record that the car being driven by
deceased Girishbhai and when it reached Kanjari
Chowkdi on National Highway No.8, a Qualis car
bearing registration no. GJ-16-K-3518 being driven in
rash and negligent manner, came from the wrong side
and dashed with the car as a result of which, the
deceased sustained serious injuries and succumbed to
the same. A FIR came to be registered with the
jurisdictional police station and the present claim
petition was filed by the original claimants being
MACP No. 994 of 2002. The original claimant Swatiben
had deposed at exhibit 42 and the eye witness
Rajendrabhai Patel had deposed at exhibit 43.
Documentary evidence were also relied upon such as
FIR at exhibit 44, Panchnama at exhibit 45 and
charge-sheet at exhibit 48, income tax returns of the
deceased for the year 2000-01 at exhibit 50,
statement of total income for the year 2000-01 at
exhibit 51, income tax return for the year 2001-2002
at exh 52 and statement of total income for the year
20010-02 at exh. 53, income tax return for the year
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
2002-01 at exhibit 54, copy of investment made by
deceased in FDR, LIC bond etc. from exhibit 55 to 66.
The claimants also examined the brother of the
deceased Chetanbhai who was working as Director in
the same Company at exhibit 76 and also produced
income tax returns of Chetanbhai for the assessment
years 2003-04, 2004-2005 and 2006-07 at exhibits 77
to 80. The Tribunal after considering the oral
deposition of eye-witness Rajendrabhai at exhibit 43,
the deposition of the owner of the Vehicle Dilipbhai
at exhibit 95, the FIR at exhibit 44, panchnama at
exhibit 45, charge-sheet at exhibit 48, oral
deposition of the driver of the Qualis car at exhibit
87 and also deposition of the wife of the deceased at
exhibit 42, came to the conclusion that as per the
documentary evidences on record, the driver of
vehicle Qualis bearing registration no.GJ-16-K-3518
was solely negligent for the accident. The Tribunal
relied upon the income returns at exhibits 50,
determined the income of the deceased at
Rs.5,88,000/- p.a. and after deducting 1/5th towards
personal expenses, applied multiplier of 14 and
awarded a sum of Rs. 1,20,00,000/- as compensation
under the head of loss of dependency, Rs.20,000/- as
consortium, Rs.20,000/- as loss of estate and
Rs.5,000/- as funeral expenses and thus, while
allowing the claim petition, awarded a sum of
Rs.1,20,45,000/- with 9% interest from the date of
filing of the claim petition till realisation. Being
aggrieved by the same, the insurance company as well
as the claimants have filed the respective appeals as
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
observed hereinabove.
4. Heard Ms. Lilu Bhaya, learned advocate for the
insurance company and Mr. Harshadray A. Dave, learned
advocate for the original claimants in both the
appeals and have also perused the original Record and
Proceedings.
5. Ms. Bhaya, learned counsel appearing for the
appellant insurance company contended that the
Tribunal has misread the evidence on record and more
particularly the FIR at exhibit 42 and the panchnama
of the scene of occurrence at 45. Ms. Bhaya
contended that the Tribunal has not appreciated the
evidence, both oral and documentary, and has not
properly examined the manner in which the accident
has taken place. According to Ms. Bhaya, the manner
in which the accident has occurred, the same is the
case of contributory negligence, and according to Ms.
Bhaya, learned advocate for the insurance company,
the same may be considered to 50:50.
Ms. Bhaya submitted that the Tribunal has
awarded an excessive amount under the head of Future
Loss of Income. Ms. Bhaya contended that even though
the income tax returns submitted and relied upon by
the claimants is the best evidence to determine the
income, the Tribunal has factually erred in not
considering the important aspect that what is to be
considered as income of the deceased should be only
salaried income minus tax. Ms. Bhaya relying upon
the evidence on record submitted that the claimant,
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
wife of the deceased, has herself admitted in the
cross-examination that she has been inducted as a
Director in the same company and other movable assets
like share, bonds, etc. has been transferred in her
name and hence, according to Ms. Bhaya, there is no
loss of income except salary. Ms. Bhaya also
contended that the Tribunal has also erred in
deducting 1/5th instead of 1/3rd towards personal
expense. According to Ms. Bhaya, learned counsel for
the insurance company, the parents were not dependent
and both parents have independent income from the
Company.
Ms. Bhaya, also contended that the age of the
deceased on the date of the accident was 42 years and
hence, appropriate multiplier would be 14 and not 15
as wrongly granted by the Tribunal.
On the aforesaid grounds, Ms. Bhaya contended that
the appeal filed by the insurance company deserves to
be allowed and the appeal filed by the claimants for
enhancement, being totally meritless, deserves to be
dismissed.
6. Per contra Mr. Harshadray Dave, learned advocate
appearing for the claimants has opposed the appeal
filed by the insurance company and has submitted that
the appeal filed by the claimants deserves to be
allowed. Mr. Dave contended that the Tribunal has
rightly determined the income of the deceased based
upon the income tax return at exhibit 50. Mr. Dave
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
also contended that witness Chetanbhai, who happens
to be the brother of the deceased has been examined
at 76 and the claimants have proved the income of the
deceased as if the deceased would have been alive, he
would have earned the same amount as now earned by
Chetanbhai. Mr. Dave contended that the multiplier
also is properly granted and the deceased had 5
dependents on the date of the accident and out of
which, son was a minor and parents had lost son who
was managing the affairs of the company. Mr. Dave
contended that the contention raised by the learned
counsel for the insurance company that as the parents
have independent income, they should not be
considered as dependents is without any basis. Mr.
Dave contended that on the contrary, the claimants
are entitled to further amount of consortium being
parental consortium and filial consortium which is
not granted. Mr. Dave also further contended that
the Tribunal has granted a meagre amount under the
head of loss of estate and funeral charges, which
deserves to be enhanced appropriately. Mr. Dave
contendd that relying upon the income tax returns at
exhibit 50, 52 and 54, contended that the Tribunal
has assessed lesser income of the deceased than what
was there on record, which has been duly proved the
original claimants before the Tribunal. According to
Mr. Dave, the non-consideration of such material on
record is an obvious error committed by the Tribunal.
On the aforesaid grounds, Mr. Dave reiterated that
the appeal of the insurance company being meritless,
deserves to be dismissed and the appeal filed by the
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
original claimants deserves to be allowed.
7. No other or further submissions have been made
by the learned counsel appearing for the parties.
8. We may first deal with the contention of
negligence raised by Ms. Bhaya, learned advocate for
the insurance company. It is an admitted position
that the present appeals arise out of MACP No.994 of
2002 wherein deceased Girishbhai succumbed to the
injuries whereas the other co-passenger Rajendrabhai
K. Patel who is also been examined as witness in the
present claim petition was injured who did file a
claim petition under Section 166 which came to be
numbered as MACP No. 1005 of 2002 before the same
Court and both the claim petitions were clubbed
together and heard together. It further transpires
from the judgment and award in question that issue
no.1 was a common issue framed in both the petitions,
which reads as under -
"1. Whether the petitioners proves that the
deceased died because of the rash and negligent
driving of the driver of the vehicle involved in
the accident?"
Mr. Dave learned counsel appearing for the original
claimants made a statement that issue no.1 is a
common issue in both the petitions, which has been
decided by the Tribunal and the findings arrived at
by the Tribunal that the driver of the Qualis car was
solely negligent, is not challenged as far as MACP
No. 1005 of 2002 is concerned. In light of the
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
aforesaid, as the aspect of negligence is accepted by
the appellant insurance company in one claim
petition, the appellant insurance company cannot be
permitted to raise that issue in this appeal. In
light of such factual position, the contention of
negligence raised by Ms. Bhaya deserves to be
negatived.
9. Upon perusal of the observations as regards
determination of the income in the impugned judgment
and award indicates that the learned Tribunal relied
upon exhibit 50, the income tax return, which also
includes statement of income for the assessment year
2000-01. The Tribunal has determined a magic figure
of Rs.5,88,000/-. Upon re-appreciation of the whole
evidence as regards income is concerned, the income
tax return for the year 2000-01 is at exhibit 50,
which is made the basis for determination of income.
Exhibit 51 is the statement of total income for the
year 2000-01. Exhibit 52 is the income tax return
for the year 2001-02 and exhibit 53 is the statement
of total income for 2001-02. Exhibit 54 is the
income tax return for the year 2002-03. Upon re-
appreciation of the said piece of evidence, we are of
the considered opinion that considering the date of
the accident being 16.07.2002, it would be
appropriate to base the income of the deceased based
upon the exhibit 54, the income tax return for the
year 2002-03, which is most proximate to the date of
the accident. Upon re-appreciation of the evidence
of the income tax return for 2000-01, which is made
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
the based by the Tribunal, it is found that the
figure of Rs.5,88,000/- is concerned and arrived at
by the Tribunal which is total gross income of the
deceased from salary, other sources and share of the
minor from the company. The record clearly
establishes the fact that the income from other
sources has remained as it is as the estate of the
deceased has devolved in favour of the original
claimants, i.e., wife, daughter, son and parents and
therefore, considering the fact that the deceased was
a salaried Director, only income from the salary can
be considered to be the base of the income. We find
that the Tribunal has committed an error in
straightaway taking the gross income for the year
2000-01 as the yearly income of the deceased. As
observed above, the best piece of evidence for
determining the income of the deceased would be
exhibit 54, i.e., income tax return for 2002-03,
wherein the income from salary received by the
deceased is reflected as Rs. 4,59,000/-, out of which
the tax paid, if deducted, the same is Rs.1,36,000/-
(rounded off) and hence, the gross income minus tax
would come to Rs.3,23,000/-.
10. We also find that in order to consider
prospective income, the Tribunal has relied upon the
oral deposition of brother of the deceased Chetanbhai
who was working as Director in the same Company and
has also taken into consideration the income tax
returns of witness Chetanbhai for the assessment
years 2003-04, 2004-2005 and 2006-07 at exhibits 77
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
to 80 respectively and has erroneously come to the
conclusion that as there was rise in the salary of
witness Chetanbhai, similar rise also has to be
considered for the deceased. The main claim petition
on record being Exhibit 1 clearly shows that the
dependents were five in number. Only because the
father and mother have other income, they do not lose
the status of dependents and hence, the Tribunal has
rightly deducted 1/5th towards personal expenses.
The contentions raised by Ms. Bhaya, learned counsel
for the insurance company that only wife, son and
daughter should be considered as dependents deserves
to be negatived. Following the ratio laid down by
the Apex Court in the case of National Insurance
Company Ltd. Vs. Pranay Sethi, reported in 2017 (16)
SCC 680, as the age of the deceased on the date of
the accident was 42 years, the appropriate multiplier
would be that of 14 and accordingly, the original
claimants would also be entitled to increase in
income by way of prospective income to the extent of
30% as the age of the deceased was between 40-50.
Similarly, following the ratio laid down by the Apex
Court in the case of Satinder Kaur alias Satwinder
Kaur and Ors. reported in AIR 2020 SC 3076, in the
case of Magma General Insurance Company Limited vs.
Nanuram alias Chuhru Ram and Ors. reported in (2018)
18 SCC 130 and in the case of New India Assurance
Company Limited v. Somwati and Others (2020) 9 SCC
644, the wife of the deceased would be entitled to
spousal consortium, minor son would be entitled to
parental consortium of Rs.40,000/- and both the
C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
parents would be entitled to filial consortium of
Rs.40,000/- each. Over and above the same, the
claimants would be entitled to Rs. 30,000/- under
different conventional heads like loss of estate and
funeral expenses.
11. As observed hereinabove, the Tribunal has based
the income of the deceased in an erroneous manner and
upon re-appreciation of the evidence as a whole and
more particularly income tax returns at exhibits 50,
52 and 54 and upon re-calculating the same, the
original claimants would be entitled to compensation
under the head of loss of dependency as under -
Rs.4,59,000/- (Gross income) - Rs. 1,36,000/-
(tax paid) = Rs.3,23,000/- (net income) +
Rs.96,900/- (30% prospective income) = Rs.
4,19,900/- - Rs. 83,980/- (1/5th deduction
towards personal expenses = Rs.3,35,920/- X 14
(multiplier) = Rs.47,02,880/- (loss of
dependency)
The claimants would be entitled to total
compensation as under -
Loss of dependency - Rs.47,02,880/-
Spousal consortium - Rs. 40,000/-
Parental consortium- Rs. 40,000/-
Filial consortium - Rs. 80,000/-
Loss of estate and
Funeral expenses - Rs. 30,000/-
--------------
Total compensation Rs.48,92,880/-
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C/FA/4183/2009 JUDGMENT DATED: 13/12/2021
Thus, the original claimants would be entitled to
total compensation of RS. 48,92,880/- with 9%
interest from the date of filing of the claim
petition till its realisation with proportionate
cost. As the Tribunal has awarded Rs.1,20,45,000/- to
the claimants, the insurance company would be
entitled to refund of Rs.71,52,120/- with
proportionate cost and interest. The Tribunal shall
refund the said amount to the insurance company
forthwith.
12. The impugned judgment and award is modified to
the aforesaid extent. The appeals are disposed of
accordingly. Record and proceedings be transmitted
to the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI,/-
