The New India Assurance Co. Ltd vs Heirs Of Decd. Devanshbhai ...
2021 Latest Caselaw 18700 Guj

      C/FA/2359/2006                             JUDGMENT DATED: 23/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2359 of 2006
                                    With
                       R/FIRST APPEAL NO. 2453 of 2006

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 ?

==========================================================
                THE NEW INDIA ASSURANCE CO. LTD.
                              Versus
      HEIRS OF DECD. DEVANSHBHAI NALINBHAI VELANI & 4 other(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 1.4,1.5
MR AMAR D MITHANI(484) for the Defendant(s) No. 1.1,1.2,1.3
MR SUNIL B PARIKH for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 4
RULE UNSERVED(68) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 23/12/2021
                          COMMON ORAL JUDGMENT

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

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

1. Feeling aggrieved and dissatisfied by the common judgment and award dated 23.11.2005 passed by the Motor Accident Claims Tribunal (Aux), Rajkot in MACP no.679/04, the two insurance Companies of the vehicles involved in the accident have 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 It is the case of the original claimants that on 2.5.2004 at about 10:00 p.m., the original claimants along with other family members were traveling in Esteem Car bearing registration no. GJ-3 K-4734 from Ahmedabad to Rajkot. It is further the case of the original claimants that when they reached Village Kuchiyadad, the tyre of the Car got punctured, because of which, the car was stopped on the side of the highway and the deceased changed the tyre. It is further the case of the original claimants that while the deceased was standing near dicky, rear portion of the car, a truck bearing registration no. GJ-10 V-5942 came from behind being driven in a rash and negligent manner and dashed with the Car in such a manner that the deceased - Naresh and

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

Devansh were sandwiched between the Car and the truck and died on the spot. The dependents of the deceased Devansh filed MACP No.679/04 under Section 166 of the Act and claimed compensation of Rs.35,00,000/-.

2.2 It was the case of the original claimants that the deceased Devansh was 33 years old and was having a business of computer hardware in the name and style of Isha Enterprise at Bhavnagar and had annual income of Rs.1,10,000/- for which income-tax was also being paid by the deceased. An FIR was lodged with the jurisdictional Police Station and the original claimants also relied upon the oral deposition of the one of the claimants at Exh.62 and also produced documentary evidence to prove the income being Exhs.56 to 60 i.e. the income-tax returns of the Assessment Years 2001-02, 2002- 03 and 2003-04. The original claimants also relied upon other documentary evidence, such as, postmortem note, Panchnama of the scene of occurrence, etc. The Tribunal, after appreciating the evidence on record, came to the conclusion that the drivers of both the vehicles were negligent in the ratio of 70:30. As far as the quantum is concerned, the Tribunal considered the income-tax returns at Exhs.57, 58 and 59 and determined the income of the deceased at Rs.88,376/- per annum and

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

after considering the prospective income to the extent of 50%, applied multiplier of 17 and awarded a sum of Rs.17,95,200/- as compensation under the head of loss of dependency, Rs.1,00,000/- under conventional amount, Rs.50,000/- towards consortium to the wife and Rs.15,000/- towards funeral expenses and thus, awarded total compensation of Rs.19,60,200/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization. Being aggrieved by the same, the present appeals are filed by the insurance Companies of the truck as well as Esteem car.

3. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant, Mr. Sunil Parikh, learned advocate for the respondent no.3 and Mr. Amar Mithani, learned advocate for the original claimants. As the liability is not the question to be decided by this Court as it is not raised, presence of other respondents is not necessary. We have also perused the original record and proceedings.

4. The learned advocates for the insurance Companies have raised the following contentions:-

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

4.1 That, the Tribunal has misread the income-tax returns at Exh.57, The learned advocates, referring to the said income-tax return Exh.57, contended that in the Assessment Year 2001-02, the deceased had paid income-tax amounting to Rs.4,296/- which deserves to be deducted.

4.2 It was further contended by the learned advocates for the insurance Companies that as the age of the deceased was 33 years, following the judgment of the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, appropriate prospective income would be 40% and not 50% as granted by the Tribunal.

4.3 It was also contended by the learned advocates for the insurance Companies that the Tribunal has also erred in deducting one-fifth amount towards personal expenses of the deceased instead of one-fourth.

4.4 It was also contended that the multiplier considering the age of the deceased as 33 years, would be 16 and not 17 as considered by the Tribunal.

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

On the aforesaid grounds, it was contended by the learned advocates for the insurance Companies that the appeals deserve to be allowed and the impugned judgment and award deserves to be modified accordingly.

5. Per contra, Mr. Amar Mithani, learned advocate for the original claimants has opposed both the appeals. Mr. Mithani contended that when average of 3 years income is to be calculated, the Tribunal is correct in not deducting income-tax for the Assessment Year 2001-02 as per Exh.57. Mr. Mithani further contended that the Tribunal has rightly given benefit of prospective income to the extent of 50% and even the deduction towards personal expenses and the multiplier applied by the Tribunal is in accordance with law, which does not require any interference by this Court in these appeals. Relying upon the judgment of the Hon'ble Apex Court in the case of United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076, it was contended by Mr. Mithani that the wife, two children as well as the mother who is alive today and the father has expired, remaining heirs would be entitled to spousal, parental and filial consortium respectively. According to Mr. Mithani, the compensation awarded by the Tribunal being just and

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

adequate, does not require any modification. According to Mr. Mithani, the appeals, being merit-less, deserve to be dismissed.

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

7. The learned advocates for the insurance Companies have not disputed the findings of negligence and therefore, the same is not necessary to be dealt with in these appeals.

8. Upon perusal of the original record and proceedings, it clearly transpires that in the income-tax return at Exh.57, which pertains to Assessment Year 2001-02, the business income of the deceased was shown to be Rs.76,480/- and in that year, the income-tax of Rs.4,296/- was paid. Following the ratio laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra), income would mean gross income minus tax and therefore, for the Assessment Year 2001-02, the income of the deceased would come to Rs.72,188/-. The income-tax returns at Exh.58 and 59 reveal that no income-tax was paid and hence, upon taking average of 3 years income-tax returns, the income of the deceased for 3 years would come to Rs.2,55,837/- and

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

the average income would therefore come to

years old on the date of the accident and had 5 dependents on the date of the accident. Following the judgment of the Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Sethi (supra), the original claimants would be entitled to increase in income by way of prospective income to the extent of 40%. Similarly, the deduction towards personal expenses would be one-fourth and not one-fifth as considered by the Tribunal. Similarly, as the age of the deceased was 33 years, appropriate multiplier would be that of 16 and not 17 as granted by the Tribunal. Mr. Mithani is correct in submitting that the original claimants would be entitled to consortium. Mr. Mithani candidly submitted that father has expired during pendency of these appeals and therefore, the wife, two minor children and mother are entitled to consortium.

9. Having come to the aforesaid conclusion, the income of the deceased is determined at Rs.85,279/- per annum and accordingly, the original claimants would be entitled to compensation as under:-

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

Rs.85,279/- Income per annum + Rs.34,111/- 40% prospective income = Rs.1,19,390/- Income per annum

- Rs.29,847/- One-fourth deduction towards personal expenses = Rs.89,543/- Income per annum X 16 Multiplier = Rs.14,32,688/- Loss of dependency + Rs.40,000/- Spousal consortium + Rs.80,000/- Parental consortium to two minor children (Rs.40,000/- X 2) + Rs.40,000/- Filial consortium + Rs.15,000/- Loss of estate + Rs.15,000/- Funeral expenses = Rs.16,22,688/- Total compensation

10. Thus, the original claimants would be entitled to total compensation of Rs.16,22,688/- with 9% interest per annum and costs from the date of filing of the claim petition till its realization. As the Tribunal has awarded compensation of Rs.19,60,200/-, the insurance Companies would be entitled to refund of Rs.3,37,512/- with 9% interest per annum and costs from the date of filing of the claim petition till its realization in the same ratio of 70:30 as awarded by the Tribunal. As the respondent no.5 is father of the deceased, the share of the father is given to respondent no.4 i.e. mother of the deceased i.e. Ansuyaben N. Velani. Remaining amount be given

C/FA/2359/2006 JUDGMENT DATED: 23/12/2021

to the original claimants after verification. 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.

11. Accordingly, the appeal is partly allowed to the aforesaid extent. The impugned judgment and award stands modified to the aforesaid extent. However, there shall be no order as to costs in this appeal. Registry is directed to send the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) Maulik