Gujarat High Court
Bharatbhai Natwarlal Gor vs Shambhuramji C Rathod on 14 December, 2021
Bench: Hemant M. Prachchhak
C/FA/165/2003 ORDER DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 165 of 2003
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BHARATBHAI NATWARLAL GOR & 1 other(s)
Versus
SHAMBHURAMJI C RATHOD & 2 other(s)
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Appearance:
DELETED(20) for the Appellant(s) No. 2
MR AM PAREKH(562) for the Appellant(s) No. 1
DISPENSED WITH for the Defendant(s) No. 1
MR AJAY R MEHTA(453) for the Defendant(s) No. 3
MR HN BRAHMBHATT(200) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/12/2021
ORAL ORDER
1. The present appeal is claimant appeal filed for the
enhancement of the compensation. The appellants are the legal
heirs and representative of the deceased Paragbhai who died in
the vehicular accident in 25.04.1998. For the compensation of his
deceased son the present appellants have preferred the Motor
Accident Claim Petition No. 615 of 1998 before the learned Motor
Accident Claims Tribunal, Ahmedabad.
2. After considering the oral and documentary evidence and
arguments advanced by both the sides the Tribunal partly allowed
the petition by awarding a sum of Rs. 3,34,000/- at the rate of
12%. Subsequently the rate of interest was brought down at the
rate of 9% by filing purses.
3. The brief facts giving rise to the present appeal are as under:
C/FA/165/2003 ORDER DATED: 14/12/2021
3.1 The deceased was aged about 23 years at the time of
accident and running his own toy shop. The deceased Paragbhai
died in an accident on 25.04.1998 at about 10:30 PM while riding a
scooter bearing registration No. GJ-1-A-4319 when he was
proceeding from Naranpura vilalge to Naranpura cross roads and
hit by a truck driver with his truck bearing registration No. GJ-1-U-
3390 on the back side of the scooter. It is alleged that the truck
came from behind the deceased's scooter in a rash and negligent
manner at an excessive speed and hit him at his back, with the
result, the deceased's was knocked down and sustained serious
head injuries to which he succumbed. It is alleged that after
causing the above accident, the truck driver proceeded further in a
rash and negligent manner and caused an accident with one
Maruti car driver as also Maruti Zen and caused injuries to the
occupants therein. It is alleged that he further caused accidental
injuries to eight cyclists and then dashed with the pole at
Naranpura railway crossing and thereafter dashed with the wall
and turned turtle.
4. Heard learned advocates for the respective parties and
perused the materials on record.
5. Learned advocate for the appellant submitted that the
Tribunal, though held that the deceased Paragbhai was the victim
of rash and negligent driving of the Truck bearing Registration No.
GJ-01-U-3390 on 25.04.1998, erred in law and on facts in
awarding only Rs. 3,34,000/- as compensation to the appellant
and, thus, slicing down the claim to the tune of Rs. 11,66,000/-. He
C/FA/165/2003 ORDER DATED: 14/12/2021
has further submitted that the Tribunal did not appreciate and
consider the evidence of the claimant No. 1 at Exh.32, read with
Books of Accounts at Exh.35, in their proper perspective.
5.1 He has further submitted that the findings recorded in Para-
16 of the impugned judgment with the notice of the Income Tax
Department at Exh-142 and that the closing down the business of
krishna Toys which was carried on by the deceased Paragbhai,
are extraneous and irrelevant, inasmuch as the income of the
deceased Paragbhai and payment of Income Tax are duly proved
and if the service of the notice of Income Tax Department is not
explained by the father of deceased, it cannot be assumed that
there was no income as per the evidence at Exh.33 and Record at
Exh.35.
5.2 Tribunal based its findings while reducing the claim of the
appellants on conjectures and surmises and did not appreciate the
evidence of Shri Kanubhai Joshi, a Chartered Accountant at
Exh.38, in its proper perspective.
5.3 He has further submitted that the Tribunal erred in law in
confusing the paying of Income Tax by filing Income Tax Return
with regard to the business of the deceased Parag and failed to
examine the credibility of the business income of the deceased
Parag and the books of Accounts at Ex. 35. He has further
submitted that the Tribunal omitted to read and/or misread the
material pleadings and evidence. on record and erred in reducing
the claim of the claimant to the tune of Rs. 3,34,000/- only. The
Tribunal erred in holding that there was variation in the profits in
the business of the deceased Paragbhai inasmuch as there may
C/FA/165/2003 ORDER DATED: 14/12/2021
be fluctuations in business.
5.4 He has further submitted that the Tribunal erred in holding
that the accounts were prepared wrongly with a view to claim
higher compensation and erred in denying due compensation on
the basis of alleged wrongful or doubtful accounts. He has
submitted that the Tribunal gravely erred on facts and in law in
assessing the income of the deceased at only Rs. 2,000/- per
month. The Tribunal erred in law in assessing the income of the
deceased at Rs. 3000/- per month and deducting one half
therefrom and assessing to Rs. 1500/- as dependency loss per
month are erroneous, unjust and contrary to the pleadings and
evidence on record. The Tribunal erred in law in awarding only Rs.
10,000/- towards expectation of life. He has submitted that the
Tribunal erred in law in not awarding anything on the count of
shock, sufferings and pains of the appellants inasmuch as the
deceased Paragbhai was the only son of the appellants, who died
in the accident at the age of 23 years.
6. Learned advocates for the defendant have submitted that the
Tribunal has not committed any error while passing the impugned
award. He has prayed for dismissal of the appeal.
7. I have heard the advocates appeared for the respective
parties and the present case is required consideration, and thus
the impugned order is required to be substituted as under:
Future loss of income Rs. 6,04,800/-
Rs. 4000 X 40% = Rs. 1600
Rs. 4000 + Rs. 1600 = Rs. 5600
Rs. 5600 X 50% = Rs. 2800
C/FA/165/2003 ORDER DATED: 14/12/2021
Rs. 2800 X 12 = Rs. 33,600
Rs. 33,600 X 18 =
Medical expenses, special diet & attendant charges etc. Rs. 70,000/-
Rs. 3,74,800/-
Tribunal awarded the compensation Rs. 3,34,000/-
Remaining amount Rs. 3,40,800/-
8. Accordingly a sum of Rs. 3,40,800/- requires to be awarded
towards future loss of income which is just and reasonable
compensation and same is awarded in substituted award by the
Tribunal.
9. For reasons aforestated, I proceed to pass following order.
(i) First appeal is partly allowed. The amount of compensation
is hereby enhanced to the tune of Rs. 3,40,800/-. The
Insurance Company is directed to deposit enhanced amount
with interest at the rate of 6% from the date of application till
realization of the amount expeditiously at any rate within an
outer limit of two months from the date of receipt of certified
copy of this order.
(ii) The Tribunal is directed to pay 30% of the enhanced amount
of compensation to the father of the deceased Paragbhai by
way of issuing account payee cheque and remaining 70% of
the enhanced amount of compensation to be invested in
Fixed Deposit for further period of three years in any
Nationalized Bank and the interest accrued thereon to be
paid to the appellant on every quarterly.
(iii) The Court fees on enhanced compensation amount to be
C/FA/165/2003 ORDER DATED: 14/12/2021
paid by the appellant before the Tribunal at the time of
disbursement and withdrawal of the amount.
(iv) The award is modified to the aforesaid extent.
Record and proceedings be sent back to the concerned
Tribunal forthwith.
(HEMANT M. PRACHCHHAK,J)
T. J. Bharwad
