Gujarat High Court
Dinubhai Dipabhai Nayak vs Dinubhai Harmanbhai Patel on 21 January, 2021
Bench: R.M.Chhaya
C/FA/1620/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1620 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/
=============================================
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 ?
=============================================
DINUBHAI DIPABHAI NAYAK
Versus
DINUBHAI HARMANBHAI PATEL & 2 other(s)
=============================================
Appearance:
MS ANU S VERMA(977) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2.1,2.2,2.3,2.4,2.5,2.6
=============================================
CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 21/01/2021
ORAL JUDGMENT
Feeling aggrieved and dissatisfied with the common
judgment and award dated 19..09.2008 passed by the Motor
Accident Claims Tribunal (Auxi), Nadiad in Claim Petition No.
2560 of 2001, original claimant has preferred this appeal.
2.0. Following facts emerge from the record of the appeal.
2.1. That on 2.6.2001 while appellant claimant was on his duty as
a driver police constable and while he was driving his vehicle
C/FA/1620/2009 JUDGMENT
Bullet very carefully and in a moderate speed, Tempo Truck
bearing registration no. GJ7A4931 being driven in rash and
negligent manner and without adhering to the traffic rules came
from the other side and dashed with the Bullet being driven by the
appellant. An FIR came to be lodged with the jurisdictional police
Station and appellant filed present Claim Petition under Section
166 of the Motor Vehicles Act, 1988 and claimed compensation of
Rs.5 lakhs.
2.2. It was the case of the appellant that he was working as a police
constable driver and was earning Rs.5000/ per month. The
appellant claimant was examined and appellant claimant also
relied upon the necessary documentary evidence relating to the
accident including police papers and more particularly, in order to
butress his argument and contention as regards income relied upon
the pay slip at Exh.59. The Tribunal upon appreciation of evidence
on record, determined the income of the appellant at Rs.2500/ per
month as a notional income and considering the degree of injuries
sustained by the appellant as well as medical evidence on record,
determined the disability of the body as a whole to the extent of
35% and awarded a sum of Rs.47250/ with interest at the rate of
9% pa upto 31.12.2002 and 7.5% from 1.1.2003 till date of
realization. Being aggrieved and dissatisfied with the same, present
appeal is filed.
3.0. Heard Mr. Jitendra Singh, learned advocate for Ms. Anu
Verma, learned advocate for the appellant and Mr. H.G. Mazmudar,
learned advocate for the respondent no.3. Though served, nobody
appears on behalf of the other respondents.
C/FA/1620/2009 JUDGMENT
4.0. Mr. Jitendra Singh, learned advocate for the appellant has
contended that even though there was clear cut evidence on record
and the appellant claimant had proved that appellant was a
government servant working as permanent police constable driver
with the police department, the Tribunal has erred in considering
only notional income of the appellant. On the said ground, it was
therefore, contended that impugned judgment and award may be
modified and appeal be allowed to the aforesaid extent.
5.0. Per contra, Mr. Mazmudar, learned advocate for the
respondent no.3 has opposed the present appeal and has submitted
that the appellant has not been able to prove monthly income as
averred by the appellant and therefore, the Tribunal has rightly
determined the income being notional income at Rs.2500/ per
month. Ma. Mazmudar contended that the appeal deserves to be
dismissed.
6.0. No other and further submissions, contentions and grounds
have been made by the learned advocates for the respective parties.
7.0. I have perused the original record and proceedings of the
case. Upon considering the submissions made by the learned
advocates for the respective parties, it is a matter of record that the
appellant was working as a police constable driver with the police
department of the State of Gujarat. The factum of accident is not in
dispute as well as the disability of the body as a whole is not also in
dispute to this appeal. However, the only dispute which is raised in
this appeal is regarding what was the income of the deceased on
C/FA/1620/2009 JUDGMENT
the date of accident i.e. 2.6.2001. The pay certificate at Exh.59 is of
2008 and therefore, same cannot be made basis for determining the
income of the appellant on the date of accident. However, in the
record another pay slip for the month of August 2002 is there
which shows that gross pay of appellant was Rs.4928/ in the
month of August 2002 and deductions are shown, however out of
such deduction only a sum of Rs.20/ is deductible as professional
tax. Taking basis of the said salary slip and as provided by the
Hon'ble Supreme Court in the case of National Insurance Company
Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680,
income from salary would mean gross salary minus tax, upon
appreciating such piece of evidence, the Tribunal has wrongly
taken notional income at Rs.2500/ which deserves to be
determined at Rs.4900/ per month (rounded figure). Having come
to the aforesaid conclusion and considering the 35% disability of
the body as as whole, the appellant would be entitled to
compensation as under:
"Rs.4900/ per month @ 35% 1715x 12 x 5 = Rs.1,02,900/ ( as
the appellant was government servant) his total compensation
would come to Rs. 1,02,900/ out of which 10% is required to be
deducted as contributory negligence of the appellant. Rs.1,02,900
Rs.10,290/ that would come to Rs.92,610/."
The appellant would be entitled to total compensation of
Rs..92610/. As the Tribunal has awarded Rs.47250/, the
appellant would be entitled to an additional amount of Rs.45360/.
Considering the other of evidence, in opinion of this Court, the
appellant would be awarded a sum of Rs.50,000/ as additional
C/FA/1620/2009 JUDGMENT
compensation to arrive at a figure of just compensation. The
appellant would be entitled to 7.5% interest on the enhanced
compensation from the date of Claim Petition till its realization.
Accordingly, the appeal is allowed to the aforesaid extent. The
impugned judgment and order is modified to the aforesaid extent.
The insurance Company shall deposit the additional amount as
awarded within a period of three months from the date of receipt
of this judgment and order. However, there shall be no order as to
costs. Registry is directed to send the original record and
proceedings back to the Tribunal forthwith.
sd/
(R.M.CHHAYA, J)
KAUSHIK J. RATHOD
