Gujarat High Court
Jignashaben Wd/O Patel ... vs Prahaladram Chhaganram Mali on 20 December, 2021
Bench: R.M.Chhaya
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5271 of 2019
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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JIGNASHABEN WD/O PATEL BHAVESHKUMAR PRABHUDAS
Versus
PRAHALADRAM CHHAGANRAM MALI
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Appearance:
MR JM BAROT(143) for the Appellant(s) No. 1,2,3,4,5
MR VC THOMAS(5476) for the Defendant(s) No. 2
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 20/12/2021
ORAL JUDGMENT
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. Feeling aggrieved and dissatisfied by the judgement and
award dated 21.5.2019 passed by the Motor Accident Claims
Tribunal (Aux), Mahesana in MACP No. 370 of 2015, the
appellants - original claimants have preferred the present
appeal under Section 173 of the Motor Vehicles Act, 1988
("The Act" for short).
2. The following facts emerge from the record of the appeal.
2.1 That on 4.7.2015, Bhaveshkumar - the deceased
accompanied with claimants - Sanjaybhai and Devendrabhai
left the house from Mahesana to Dhanera for business purpose
in Wagon - R bearing registration No.GJ-02-AC3665. The car
was driven by Bhaveshkumar - the deceased at a moderate
speed. At about 2:30 p.m. (noon hours) when the Wagon - R
reached the sim of village Samarvada near the bridge on
Dhanera - Dessa Road, one Bolero Jeep bearing registration
No. RJ-04-GB-1356 being driven at an excessive speed in rash
and negligent manner came from opposite direction and dashed
with the car being driven by deceased - Bhaveshkumar. On
account of this, Bhaveshkumar - the deceased received
grievous injuries and succumbed to the said injuries on the
spot. An FIR came to be lodged before the Dhanera Police
Station being C.R. No.I-71/2015 against the driver of Bolero
Jeep No.RJ-04-GB-1356.
2.2. The original claimants of MACP No.370 of 2015 filed
claim petition before the Tribunal under Section 166 of the Act
seeking compensation of Rs.1,25,00,000/-. The other two
claim petitions being MACP Nos. 371 of 2015 and 372 of 2015
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
were also filed by claimants Sanjaybhai and Devendrabhai
respectively for the injury sustained. However, against
judgement and award of MACP Nos. 371 of 2015 and 372 of
2015, no appeal has been filed by the claimants under Section
173 of the Act, therefore they are not considered herein.
3. The Tribunal upon appreciation of oral and documentary
evidence held as under:
(i) For negligence, the Tribunal observed that from the
perusal of the panchnama it becomes clear that both the
vehicles dashed with each other being head on collusion and
on account thereof substantial damage was noticed on both the
vehicles. Both the drivers of vehicles were negligent in driving
the vehicle and on account of which the accident in question
took place. It is true that the complaint as well as the charge-
sheet was lodged against the driver of Bolero Jeep, however,
the fact that both the vehicles were collided with each other
from front side and, therefore, the driver of Bolero Jeep
cannot be stated to be solely negligent for occurrence of the
said accident. The Tribunal after taking into consideration the
version of other claimants, testified on oath, the method and
manner in which the accident occurred observed that the
driver of Bolero Jeep and driver of Wagon - R are negligent
to the extent of 75% and 25% respectively for the occurrence
of the said accident.
(ii) For quantum, the Tribunal awarded total compensation of
Rs.38,77,090/- as under:
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
Loss of Dependency Rs.38,07,090/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Loss of love and affection and Rs.40,000/-
consortium
Total Rs.38,77,090/-
4. Aggrieved by the said judgement and award, the present
appeal has been preferred by the appellants.
5. We have heard Mr. J.M.Barot, learned advocate
appearing for the appellants - original claimants and Mr.
V.C.Thomas, learned advocate for Respondent No.2 - Insurance
Company. As liability has not been denied, the presence of
Respondent No.1 is not necessary for deciding this appeal.
6. Considering the issue involved and with the consent of
parties, the appeal is taken up for final hearing.
7. Mr. J.M.Barot, learned advocate for the appellants -
original claimants made following submissions:
(i) That the Tribunal has erred in holding driver of Wagon -
R as 25% negligent. Referring to the panchnama, he
submitted that the accident occurred on account of sole
negligence on the part of the driver of Bolero Jeep and,
therefore, the Tribunal is in error to contribute 25% negligence
to the driver of Wagon - R.
(ii) That the Tribunal has committed an error in considering
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
the income-tax returns for AY 2012-2013, 2013-2014 and 2014-
2015 at Exh.64, Exh.65 and Exh.66 respectively for
determination of income of the claimants. He vehemently
contended that income-tax return for AY 2015-2016, shows,
the net income of the deceased at Rs.4,79,540/-. Therefore,
the Tribunal has committed an error in taking into
consideration the average of income shown for AY 2012-2013,
2013-2014 and 2014-2015. He further submitted that the
income-tax return for AY 2015-2016 is the income of the
deceased for the financial year 2014-2015 and, therefore, the
Tribunal ought to have considered the said income for
calculating the loss of dependency.
(iii) Referring to the decision of the Hon'ble Supreme Court
in the case of Sarla Verma (Smt) & Ors. v. Delhi Transport
Corporation & Anr. (2009) 6 SCC 121 and National Insurance
Company Limited v. Pranay Sethi & Ors. (2017) 16 SCC 680,
he contended that considering the age of the deceased,
multiplier has been wrongly applied as 17 instead of 18.
(iv) That the Tribunal has committed an error in not granting
the amount of compensation under the head pain, shock and
suffering.
He thus submitted to allow the appeal.
8. Per contra, Mr. V.C.Thomas, learned advocate appearing
for respondent No.2 - Insurance Company submitted that there
is no error in the impugned judgement and award. He
submitted that the judgement and award dated 21.5.2019 is
based on the evidence on record. He also relied on the
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
decision in the case of V.Subbulakshmi Y Ors. v. S. Lakshmi
& Anr. reported in (2008) 4 SCC 224 and requested to dismiss
the appeal.
9. No other and further submissions/contentions are made
by learned advocates appearing for the parties in this appeal.
10. We have perused the oral and documentary evidence on
record. Regarding the issue of negligence, upon re-
appreciation of evidence we find that the panchnama shows
the head on collusion of both the vehicles. Because of the
impact, the Bolero Jeep turned turtle and was found on the
left side of the road proceeding towards Deesa. Substantial
damage was also caused to Wagon - R car. There is a
testimony on oath by both the injured claimants of Claim
Petition No. 371 of 2015 and 372 of 2015 enacting the manner
and method in which the accident took place. Therefore, the
contention of the claimant that driver of Bolero Jeep was 100%
negligence and there is no negligence on the part of the
deceased who is driver of the Wagon - R car is in our opinion
contrary to the evidence on record. The Tribunal in our
opinion correctly appreciated the evidence particularly the
panchnama and the examination-in-chief by the other injured
claimants of other two claim petitions who were eye witness to
the accident and, therefore, no interference is called for.
Therefore, we hold that the Tribunal has rightly decided the
issue of negligence holding driver of Bolero Jeep negligent to
the extent of 75% and driver of Wagon - R to the extent of
25%.
11. With regard to quantum, we have perused the returns
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
produced at Exh. 67 for AY 2015-2016. The said return shows
net total income of deceased for assessment year 2015-2016 at
Rs.4,79,540/-. The return for AY 2015-2016 is in respect of
income earned by the deceased for the period 1.4.2014 to
31.3.2015. There are other two returns at Exh. 65 for
assessment year 2013-2014 and at Exh.66 for assessment year
2014-2015. If these three returns are taken into consideration
for determining the income of the claimant then for AY 2013-
2014, the income of the deceased was Rs. 2,53,131/- (Total
income Rs.2,59,220 - Rs.6099 tax payable). The return for AY
2014-2015 at Exh.66 shows the income of the deceased at
Rs.2,96,733/- (Total income Rs.3,05,740 - Rs.9007 tax
payable). The return for AY 2015-2016 shows income at
Rs.4,55,873/- (Rs. 4,79,540 - Rs.23,667 tax payable) and the
average of these three years would come to Rs.3,35,245/-
(Rs.10,05,737 divided by 3) will be his income p.a.
12. We are not unmindful of the fact that the last return at
Exh.67 for AY 2015-2016 (FY 2014-2015) shows the income of
Rs.4,55,873/- and was filed after the death of the deceased.
Moreover, there is steep rise in the income of the deceased for
AY 2015-2016. The deceased being proprietor of a firm doing
business, fluctuation in income cannot be ignored. Further, in
our opinion there is no straight jacket formula, to accept last
return filed to arrive at the just compensation. Therefore, we
deemed it appropriate to consider average of last three I.T.
returns filed by the claimant to determine the income of the
deceased.
13. It is evident that the deceased was aged 42 years and self
employed at the time of accident and, therefore, 25%
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
prospective income will be applicable in view of decision in
the case Sarla Verma (Smt) & Ors. v. Delhi Transport
Corporation & Anr. As the deceased had five dependents, 1/4th
amount is to be deducted towards his personal expenses and
multiplier of 14 would apply. Thus, the loss of dependency is
as under:
"Rs,3,35,245 + Rs.83,811 (25% (prospective income) =
Rs.4,19,056 - Rs.1,04,764 (1/4th personal expenses) =
Rs.3,14,292 x 14 (multiplier) = Rs.44,00,088/-."
14. As the deceased is survived by widow, two minor
children and parents, Rs.40,000/- each would be appropriate as
spousal, parental and filial consortium. For Funeral and loss
of estate Rs.15,000/- each would be appropriate.
Loss of Dependency Rs. 44,00,088/-
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
Loss of love and affection and Rs.2,00,000/-
consortium
Total Rs.46,30,088
15. Thus, the appellants - claimants would be entitled to
total compensation of Rs.46,30,088/-. As the Tribunal has
awarded an amount of Rs.38,77,090/-, the respondent
Insurance Company shall deposit the balance additional amount
of compensation of Rs.7,52,998/- with 7.5% interest p.a. and
proportionate costs from the date of filing of the claim petition
till its realization with the Tribunal within a period of 8 weeks
from the receipt of the order. Appeal is thus partly allowed.
C/FA/5271/2019 JUDGMENT DATED: 20/12/2021
The rest of the judgment and award passed by the learned
Tribunal has remained unaltered. Registry is directed to
transmit back the Record and Proceedings of the case to the
concerned Tribunal forthwith. However, there shall be no order
as to costs.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
