Oriental Insurance Co Ltd. vs Bhavesh Mahendrakumar Panchal
2021 Latest Caselaw 854 Guj

          C/FA/2387/2010                                       JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 2387 of 2010

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                                 sd/­
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1     Whether Reporters of Local Papers may be allowed to see             NO
      the judgment ?

2     To be referred to the Reporter or not ?                             NO

3     Whether their Lordships wish to see the fair copy of the            NO
      judgment ?

4     Whether this case involves a substantial question of law as         NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

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                     ORIENTAL INSURANCE CO LTD.
                                Versus
             BHAVESH MAHENDRAKUMAR PANCHAL & 5 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR JA ADESHRA(107) for the Defendant(s) No. 1,2,3,4
RULE SERVED(64) for the Defendant(s) No. 5,6
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
                       Date : 20/01/2021
                        ORAL JUDGMENT

Being aggrieved and dissatisfied with the impugned judgment and award dated 4.2.2010 passed by the Motor Accident Claims Tribunal (Auxi), Ahmedabad City Civil Court, Ahmedabad in MACP No. 413 of 2006, present appeal is filed only for Rs.3,50,000/­ by the appellant Insurance Company under Section 173 of the Motor Vehicles Act, 1988.

2.0. The record indicates that the accident occurred on 7.5.2006 on Kalol Mehsana Highway at about 6.30 am near Chhatral

C/FA/2387/2010 JUDGMENT

Chokdi. As per the record, deceased Mahendrakumar was riding his Hero Honda bearing No. GJ­1 EF­6097 and at the relevant time Truck bearing registration No.GJ­24­U­2025 which was being driven in excessive speed and in rash and negligent manner and because of bump, truck was jumped and lost his control and fell down on the deceased motorcycle. As per the record, deceased Mahendrakumar as well as his wife Laxmiben who was pillion rider were crushed down since the truck fell down on them and deceased Mahendrakumar died on the spot. An FIR was lodged with the jurisdictional police station at Exh.40. Present claim petition was filed along with another claim petition being MACP No.414 of 2006 for Laxmiben. The respondents - claimants contended before the Tribunal that Mahendrakumar was 45 years and was manufacturing mill machineries parts in the name of Vishwakarma Industries and was earning Rs.15000/­ per month and that he was the sole bread winner of the family. Mr. Bhavesh Mahendrakumar Panchal was examined at Exh.31 and one eyewitness Mr. Pareshkumar Natvarlal Panchal was also examined at Exh.32. The respondents­ original claimants also relied upon the following documentary evidences.

Particulars Exh. No. Form No.2/D filled by the deceased Panchal 35 Mahendrakumar for the year 2002­03 Form No.2/D filled by the deceased Panchal 36 Mahendrakumar for the year 2003­04 Form No.2/D filled by the deceased Panchal 37 Mahendrakumar for the year 2004­05 Form No.2/D filled by the deceased Panchal 38

C/FA/2387/2010 JUDGMENT

Mahendrakumar for the year 2005­063 Various abstracts showing sale and purchase, 39 debts and credit statement of income, profit and loss accounts etc. collectively

Certified Copy of the inquest Panchnama of the 42 deceased Mahedrakumar Certified Copy of the postmortem note of the 43 deceased Mahendrakumar Certified copy of the inquest Panchnama of the 44 deceased Laxmiben Panchal Certified Copy of the postmortem note of the 45 deceased Laxmiben Panchal

School leaving certificate of the deceased 51 Panchal Mahendrakumar Certificate given by Shop & Establishment 52 Department of AMC showing the business of the deceased Panchal Mahendrakumar under the name of Vishwakarma Industries PAN Card of the deceased Panchal 53 Mahendrakumar

The learned Tribunal after appreciating the evidence on record, determined the income of the deceased at Rs.15000/­ per month and considering the income tax return at Exh.35 determined the prospective income to the tune of Rs.9000/­ and applying multiplier of 13 awarded sum of Rs.10,57,000/­ (rounded off) as

C/FA/2387/2010 JUDGMENT

compensation under the head of loss of dependency and additionally also awarded a sum of Rs.33000/­ under the conventional heads and thus awarded total compensation of Rs.10,90,000/­ with 8% interest from the date of filing claim petition till its realization. Being aggrieved and dissatisfied with the same, present appellant - Insurance Company preferred the present appeal only for Rs.3,50,000/­.

3.0. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant and Mr. J A Adeshra, learned advocate for the original claimants and I have also perused the original record and proceedings of the case.

4.0. Mr. Nanavati, learned advocate for the appellant contended that the Tribunal has misread the income tax returns at Exh.35 to 37 and even if the average income has taken early income of the deceased,, the same would come to Rs.83,168/­. Mr. Nanavati further contended that the Tribunal has also applied wrong multiplier and according to Mr. Nanavati appropriate multiplier would be 10. Mr. Nanavati also contended that the income of the deceased was increasing and deduction for personal expenses living pleasure should have been 1/4th instead of 1/3rd is erroneous. It was also contended by Nanavati that there is no evidence to that effect that because of the death of the deceased business was closed. Such important aspect has been not considered by the Tribunal and therefore, according to Mr. Nanavati, the impugned judgment and award is erroneous and same deserves to be quashed and set aside by allowing the appeal.

C/FA/2387/2010 JUDGMENT

5.0. Per contra, Mr. Adeshra, learned advocate for the original claimants has supported the impugned judgment and award and has submitted that the observations made by the Tribunal in para 10 of the judgment are the correct interpretation and on appreciation of evidence on record and the Tribunal has therefore rightly calculated the income of the deceased which does not require any interference. According to Mr. Adeshra, learned advocate for the claimants after properly appreciating the evidence on record, more particularly Exhs. 35 to 39 just compensation is awarded by the Tribunal. Mr. Adeshra contended that as per the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the Claimants would be entitled to Rs.70,000/­ as compensation under the conventional head instead of Rs.33,000/­ as awarded by the Tribunal. Mr. Adeshra therefore, contended that the impugned judgment and award is passed on correct appreciation of evidence and no interference is called for. Appeal being merits less, deserves to be dismissed.

6. No other and further submissions/ contentions/ grounds have been raised by the learned advocates for the respective parties.

7. Upon re­appreciation of the evidence on record more particularly, income tax returns at Exh. 35 to 38 and statement of sales at Exh. 39, the income as calculated by the Tribunal is proper and same does not require any modification. Following the ratio laid down by the Hon'ble Supreme Court in the case of Pranay

C/FA/2387/2010 JUDGMENT

Sethi (supra) and considering the age of the deceased on the date of accident, the Tribunal rightly awarded prospective income and on the contrary has applied 13 multiplier whereas the claimants should have been awarded, however, in facts of this case, appropriate multiplier would be 14.

8. Upon re­appreciation of the evidence as well as findings arrived at by the Tribunal, this Court finds that there is no error on appreciating the evidence on record and Tribunal has awarded just compensation which does not require any interference of this Court in exercise of its appellate powers. Present appeal is merit less deserves to be dismissed and is accordingly dismissed. Registry is directed to send back the Record and proceedings of the case to the Tribunal forthwith.

sd/­ (R.M.CHHAYA, J) KAUSHIK J. RATHOD