New India Assurance Co Ltd vs Indiraben Rajeshkumar Patel
2021 Latest Caselaw 18600 Guj

      C/FA/2/2010                               JUDGMENT DATED: 21/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2 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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                      NEW INDIA ASSURANCE CO LTD
                                 Versus
                INDIRABEN RAJESHKUMAR PATEL & 4 other(s)
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Appearance:
MR AJAY R MEHTA for MR RAJNI H MEHTA(468) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 4
MR SHIVANG M SHAH(5916) for the Defendant(s) No. 1,2,3
RULE SERVED(64) for the Defendant(s) No. 5
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                            Date : 21/12/2021

                           ORAL JUDGMENT

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

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 31.8.2009 passed by the Motor Accident Claims Tribunal (Aux), in Claim Petition no.403/01, the appellant- insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

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

2.1 That the accident took place on 23.3.2001. It is the case of the appellants-original claimants that the deceased was driving his motorcycle bearing registration no. GJ-21 A- 7011 and one Budhiyabhai Halpati was the pillion rider and was proceeding towards Gandevi from nursery of Rajeshbhai. It is the case of the appellants-original claimants that the motorcycle was being driven in a very slow and careful manner and when it reached the scene of occurrence, a truck bearing registration no. GJ-15 U-5110 came from the wrong side and dashed with motorcycle because of which the deceased sustained fatal injuries and ultimately, succumb to the same. An FIR was lodged with Gandevi Police Station at Exh.90 by the pillion rider himself.

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

2.2 It was the case of the appellants-original claimants that the deceased was 45 years old. However, the Tribunal has considered the deceased to be of 50 years old as per the postmortem note in absence of any evidence. It was the case of the appellants-original claimants that the deceased had huge agricultural farm and was running a nursery in the name of Rajesh nursery. It is further the case of the appellants-original claimants that he had also further income by way of transport business and had also income from dairy farming in the name of Vasundhara dairy. On that basis, the appellants-original claimants filed the present claim petition under Section 166 of the Act and claimed compensation of Rs.75,00,000/-. The appellants-original claimants examined Ishvarbhai at Exh.69 and Rasikbhai at Exh.73 in order to prove the income. The Tribunal considered the income of the deceased from all 4 different vocations at Rs.2,51,200/- and after deducting one-third, applied multiplier of 13 and awarded a sum of Rs.21,77,500/- as compensation under the loss of dependency and also awarded further amount of Rs.22,000/- towards loss of estate and consortium including funeral expenses and thus, awarded total compensation of Rs.21,99,500/- with 9% interest per annum from the date of filing of the claim petition till

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

its realization and being aggrieved by the same, the appellant - insurance Company has preferred this appeal.

3. Heard Mr. Ajay R. Mehta, learned advocate for Mr. Rajni H. Mehta, learned advocate for the appellant - insurance Company and Mr. Shivang Shah, learned advocate for the original claimants. Though served, no one appears for the other respondents.

4. Mr. Ajay R. Mehta, learned advocate for the appellant has taken this Court through the depositions of Sumanbhai Exh.62, Ishvarbhai Exh.69 and Rasikbhai at Exh.73 and contended that except the said evidence, there is no corroborative evidence to even remotely prove that the income of the deceased as claimed by the original claimants ever exist. Referring to the same set of evidence, Mr. Mehta contended that on the contrary, it has come on record that the income from agriculture, nursery as well as dairy farming, has increased after the accident. According to Mr. Mehta, learned advocate for the appellant, the land and the business of nursery and dairy farming has continued even after the death of Rajeshbhai and at the most, the original claimants would be entitled to supervisory loss of the deceased and not the total income

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

as calculated by the Tribunal. It was thus contended by Mr. Mehta, learned advocate for the appellant that the income as determined by the Tribunal is very excessive in nature which deserves to be sliced down. On the aforesaid aspects, Mr. Mehta contended that the appeal be allowed as prayed for.

5. Per contra, Mr. Shivang Shah, learned advocate for the original claimants has supported the impugned judgment and award and has relied upon the same set of evidence. Mr. Shah contended that the transport business had to be closed because there is no one to take care of the said business. Mr. Shah further contended that even though the business has continued, presence of the deceased would have enhanced the income even further than what is derived today. Mr. Shah also contended that the income as determined by the Tribunal is just and proper and no interference is called for. According to Mr. Shah, what is awarded by the Tribunal is just and adequate compensation and no interference is called for.

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

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

7. We have perused the original record and proceedings. It clearly appears that there is no evidence as regards the total income of the deceased on record. However, the fact remains that the deceased was having a huge agricultural farm and was running a nursery in the name and style of Rajesh nursery. In the oral evidence as well as in documentary evidence by way of of some sale invoices, it has come on record that the deceased had business of dairy farming as well. Though in the evidence of Indiraben at Exh.41, it has been contended that the business is over, in his cross-examination, she has clearly admitted that the agricultural land has remained with her and she tills the same through labourers. In her cross-examination also, the said witness has admitted that the deceased never used to pay income-tax. She has also admitted that there is no documentary proof to even show the income from sale of sugarcane and chikoo. She has also denied the suggestions made by the insurance Company in her cross-examination and has categorically supported the version made in the affidavit. The only question which arises in this appeal is whether the income of the deceased is determined by the Tribunal is excessive or not. Upon reappreciation of the evidence on record, it is a matter of fact that the

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

deceased was running a nursery and had huge agricultural farm. There is also an evidence to show that he was also doing business of transportation by hiring his tempo amongst general public and has also business of dairy farming. The Tribunal has assessed the total income of Rs.2,51,200/-. However, such assumption is without any documentary proof whatsoever. However, upon oral reappreciation of the evidence on record, the fact remains that the deceased was engaged in four different vocations and therefore, in opinion of this Court, the income of the deceased cumulatively from all the four vocations per annum can safely be assessed at Rs.1,44,000/- i.e. Rs.12,000/- per month. Having come to the aforesaid conclusion, as the age of the deceased was 50 years as per the postmortem note, the original claimants would be entitled to increase in income by way of prospective income to the extent of 25% and after deducting one-third towards personal expenses and applying multiplier of 13, the original claimants would be entitled to compensation under the head of loss of dependency as under:-

Rs.12,000/- Income per month + Rs.3,000/- 25% prospective income = Rs.15,000/- Income per month

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

- Rs.5,000/- One-third towards personal expenses = Rs.10,000/- Income per month X 12 Yearly = Rs.1,20,000/- Income per year X 13 Multiplier = Rs.15,60,000/- Loss of dependency

8. Over and above the same, 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, United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076 and New India Assurance Company Ltd. Vs. Somwati, reported in (2020) 9 SCC 644, the original claimants would also be entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and over and above that, the wife would be entitled to spousal consortium of Rs.40,000/- and the minor child would be entitled to consortium of Rs.40,000/- as parental consortium. Having come to the aforesaid conclusion, the original claimants would be entitled to compensation as under:-

Rs.15,60,000/- Loss of dependency + Rs.15,000/- Loss of estate + Rs.15,000/- Funeral expenses + Rs.40,000/- Spousal consortium

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

+ Rs.40,000/- Parental consortium = Rs.16,70,000/- Total compensation

9. Thus, the original claimants would be entitled to total compensation of Rs.16,70,000/- along with 9% interest per annum and costs as awarded by the Tribunal from the date of filing of the claim petition till its realization. The Tribunal has awarded Rs.21,99,500/- and hence, the appellant- insurance Company shall be entitled for refund of Rs.5,29,500/- along with 9% interest per annum and costs as awarded by the Tribunal from the date of filing of the claim petition till its realization. The additional amount shall be refunded with interest as provided in this judgment within a period of eight weeks from the date of receipt of this judgment and order.

10. As per the earlier order passed by this Court dated 12.1.2010, the appellant - insurance Company has deposited only 50% of the amount awarded along with the proportionate interest and costs. Hence, the insurance Company shall deposit the remaining amount as per this judgment and order with proportionate cost and interest at the rate of 9% per annum with the Tribunal within a period of eight weeks from today.

C/FA/2/2010 JUDGMENT DATED: 21/12/2021

11. The appeal is thus partly allowed. The impugned judgment and award stands modified to the aforesaid extent only. 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