Bhavarlalji Devichandji ... vs Mukeshbhai C Patel
2021 Latest Caselaw 18564 Guj

      C/FA/2454/2010                             JUDGMENT DATED: 20/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2454 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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              BHAVARLALJI DEVICHANDJI BHANDARI & 5 other(s)
                                Versus
                    MUKESHBHAI C PATEL & 1 other(s)
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Appearance:
DELETED(20) for the Appellant(s) No. 1
MR VILAV K BHATIA(5338) for the Appellant(s) No. 2,3,4,5,6
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
SERVED BY AFFIX. (R)(67) 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

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

C/FA/2454/2010 JUDGMENT DATED: 20/12/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 8.9.2009 passed by the Motor Accident Claims Tribunal (Aux), City Civil Court, Ahmedabad in MACP no.654 of 2004, the appellants-original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Heard Mr. Vilav Bhatia, learned advocate for the appellants - original claimants and Mr. Vibhuti Nanavati, learned advocate for the insurance Company.

3. Following facts emerge from the record of the appeal:-

3.1 That, the accident took place on 11.3.2004. It is the case of the appellants-original claimants that on that day, the deceased was going to Himmatnagar from his office by driving his Tata Indigo Car bearing registration no. GJ-18 AA-2272. At that time, a tanker bearing registration no. GJ-12 W-6008 came from opposite direction being driven in a rash and negligent manner and dashed with the car, as a result of which, the deceased sustained grievous injuries. It is the case of the appellants - original claimants that the deceased was admitted to the hospital and

C/FA/2454/2010 JUDGMENT DATED: 20/12/2021

during the treatment, he died. It is the case of the appellants - original claimants that on the date of the accident, the deceased was 46 years old and was doing finance business and was earning Rs.5,00,000/- per year and thereby, claimed compensation of Rs.75,00,000/-.

3.2 The original applicant no.3 - Kusumdevi was examined at Exh.33. The appellants - original claimants also relied upon the documentary evidences, such as, copy of complaint Exh.35, copy of the Panchnama Exh.36, copy of inquest Panchnama Exh.37, copy of charge-sheet Exh.38, copy of postmortem report Exh.39, certificate regarding postmortem of the deceased Exh.40, copies of income-tax returns Exhs.41, 42, and 43, copies of profit and loss account of the deceased Exhs.44, 45, and 46, copy of partnership deed of Milap Trading Company Exh.47, copy of PAN card of the deceased Exh.48, copy of partnership deed of Milap Investment Company Exh.49, copy of form no.45D of M/s. R.B. Enterprise Exh.50, copy of partnership deed of Triveni Sales Corporation Exh.51 and copy of R.C. Book of car bearing registration no. GJ-18 AA-2272 Exh.54. The Tribunal, after considering the income-tax returns at Exhs.41, 42 and 43 and profit and loss accounts at Exhs.44, 45 and 46, assessed

C/FA/2454/2010 JUDGMENT DATED: 20/12/2021

the yearly income of the deceased at Rs.2,40,000/- and deducting one-fifth towards personal expenses, awarded compensation of Rs.1,92,000/- and applying multiplier of 10, granted Rs.19,20,000/- under the head of loss of income, The Tribunal also awarded Rs.30,000/- towards loss of estate, Rs.20,000/- towards loss of consortium, Rs.5,000/- towards funeral charges and Rs.20,000/- towards damage to the car and thereby, awarded total compensation of Rs.19,95,000/- along with 8% interest per annum with proportionate costs and interest from the date of filing of the claim petition till its realization. Being aggrieved by the same, the appellants-original claimants have preferred this appeal.

4. Mr. Vilav Bhatia, learned advocate for the appellants - original claimants contended that the Tribunal has misread the evidence, more particularly, income-tax returns at Exhs.41, 42 and 43 and profit and loss accounts at Exhs.44, 45 and 46 and has erred in not considering the total income of the deceased. Mr. Bhatia, learned advocate for the appellants - original claimants contended that the Tribunal has also erred in not determining the prospective income. Mr. Bhatia further contended that the Tribunal has awarded lesser

C/FA/2454/2010 JUDGMENT DATED: 20/12/2021

amount under the heads of loss of consortium and funeral charges, which deserve to be enhanced. Mr. Bhatia also contended that the Tribunal has also erred in adopting multiplier of 10 looking to the age of the deceased of 46 years on the date of the accident, which may suitably be increased. On the aforesaid grounds, it was contended by Mr. Bhatia, learned advocate for the appellants-original claimants that the impugned judgment and award deserves to be modified by allowing the appeal.

5. Per contra, Mr. Vibhuti Nanavati, learned advocate for the respondent no.2 - insurance Company has contended that the Tribunal has appreciated the evidence on record and awarded just and adequate compensation under each heads, which do not require any alteration or modification in exercise of appellate jurisdiction of this Court. Mr. Nanavati further contended that the evidence on record shows that on the contrary, the Tribunal has deducted one-fifth towards personal expenses instead of one-fourth as the number of dependents were six in number. Mr. Nanavati therefore contended that the appeal, being merit-less, deserves to be dismissed.

C/FA/2454/2010 JUDGMENT DATED: 20/12/2021

6. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. We have perused the original record and proceedings and have extensively gone through the observations made by the Tribunal. Upon reappreciation of the evidence on record, it clearly transpires that the deceased was 46 years old on the date of the accident. Following the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 and Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, the appellants-original claimants would be entitled to prospective income to the tune of 25%. However, as the number of dependents were six in number, deduction towards personal expenses should be one- fourth. Over and above the same, the appellants-original claimants would also be entitled to additional compensation of Rs.70,000/- under conventional heads and funeral charges.

8. Having come to the aforesaid conclusion, the appellants - original claimants would be entitled to compensation as under:-

C/FA/2454/2010 JUDGMENT DATED: 20/12/2021

Rs.2,40,000/- Income per year + Rs.60,000/- Prospective income 25% = Rs.3,00,000/- Income per year

- Rs.75,000/- One-fourth deduction = Rs.2,25,000/- Income per year X 13 Multiplier = Rs.29,25,000/- Compensation + Rs.15,000/- Loss of estate + Rs.40,000/- Loss of consortium + Rs.15,000/- Funeral charges = Rs.29,95,000/- Total compensation

9. Thus, the appellants - original claimants would be entitled to total compensation of Rs.29,95,000/-. As the Tribunal has awarded Rs.19,95,000/-, the appellants - original claimants would be entitled to an additional amount of Rs.10,00,000/- as additional compensation along with 8% interest per annum and costs as awarded by the Tribunal from the date of filing of the claim petition till its realization. The impugned judgment and award stands modified to the aforesaid extent. The insurance Company shall deposit the additional/enhanced amount along with the interest as provided in this judgment within a period of eight weeks from the date of receipt of this judgment.

C/FA/2454/2010 JUDGMENT DATED: 20/12/2021

10. The appeal is thus partly allowed. 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) Maulik