New India Assurance Company Ltd ... vs Gulabsinh Laxmansinh Rathod
2021 Latest Caselaw 17341 Guj

     C/FA/4659/2019                             JUDGMENT DATED: 17/11/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 4659 of 2019
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                   In R/FIRST APPEAL NO. 4659 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA                          sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT                    sd/-
==============================================================
1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

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

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

==============================================================
       NEW INDIA ASSURANCE COMPANY LTD BHUJ-KACHCHH
                           Versus
                GULABSINH LAXMANSINH RATHOD
==============================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 6
MR NILESH M SHAH(780) for the Defendant(s) No. 3,4,5
NOTICE SERVED(4) for the Defendant(s) No. 2
NOTICE UNSERVED(8) for the Defendant(s) No. 1
==============================================================
    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT
                       Date : 17/11/2021
                       ORAL JUDGMENT

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

1.0. Feeling aggrieved and dissatisfied with the impugned

C/FA/4659/2019 JUDGMENT DATED: 17/11/2021

judgment and award dated 26.10.2018 passed in MACP No.528 of 2008 by the learned Motor Accident Claims Tribunal (Auxi), Kutch, the appellant- Insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2.0. The following facts emerge from the record of this appeal:

2.1. That on 28.07.2008 the deceased was going to Motaper Dargah with his family brothers and thereafter they were going to Hajipur from Motaper in Maruti Car No.Gj-12-J-3450 and deceased was driving the Maruti Car on left hand side of the road with moderate speed and when Maruti reached near Sukhpar Lohana- Samajvadi Nakhatrana Highway, at that time, truck bearing registration no. GJ-12-T-6496 being driven by opponent no.1 from opposite side in rash and negligent manner and dashed with the Maruti car of the deceased, because of which, the deceased sustained serious injuries and succumbed to the same during the treatment. An FIR was lodged with the jurisdictional police station. The original claimants filed present claim petition under Section 166 of the Act and claimed compensation of Rs.1,00,00,000/-. The original claimant no.1 was examined at Exh.29 and over and above the same, the original claimants also relied upon the plethora of documentary evidence:

Particulars                                           Exh. No.








    C/FA/4659/2019                              JUDGMENT DATED: 17/11/2021




Death Certificate                                  7/4

License of opponent no.1                           7/6
RC Book of Truck No. GJ-12-T-6496                  7/7

Insurance Policy of offending vehicle truck 7/8

Certificate of Registration of Abubakar 45 Contractor & Co. Kandla Form No.16 A (Income Tax Return) of 46 to 49 Abubakar Contractors and Co Kandla Form No.ST -3 (Service Tax) of Abubakar 50 to 52 Copy of partnership deed in which 53 deceased was partner Copy of return acknowledgment of year 54 2007 of deceased

Copy of Income Tax Return of year 2009- 59 10 of deceased

The Tribunal after appreciating the evidence on record and considering the submissions made by the respective parties, partly allowed the claim petition and awarded the compensation of Rs. 28,61,152/- with 9% interest from the date of application till its realization with proportionate costs. Being aggrieved and dissatisfied with the same, the present appeal is filed by the Insurance Company.

C/FA/4659/2019 JUDGMENT DATED: 17/11/2021

3.0. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant - Insurance Company and Mr. Nilesh Shah, learned advocate for the original claimants. Though served nobody appears on behalf of respondent no.1. As liability is not denied, presence of respondent no.1 is not necessary. With the consent of the learned advocates for the respective parties, the matter is taken up for its final hearing forthwith. We 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 committed an error in determining the income of the deceased at Rs.11,486/- per month. Mr. Nanavati further contended that the Tribunal has wrongly increased the income by way of prospective income to the extent of 50%. Mr. Nanavati further contended that the deceased did not have permanent job but was doing his own business and was aged about 25 years on the date of accident and therefore, appropriate extent of prospective income should be 40%. On the aforesaid two grounds, it was contended by Mr. Nanavati that the impugned judgment and award deserves to be modified.

5.0. Per contra, Mr. Nilesh Shah, learned advocate for the original claimants contended that the Tribunal has rightly considered the average of three years income tax returns relied upon by the claimants and has rightly determined the income of the deceased. Mr. Shah contended that the Tribunal has rightly given benefit of additional income by way of prospective income to the extent of 50%. Accordingly, it was

C/FA/4659/2019 JUDGMENT DATED: 17/11/2021

contended by learned advocate for the respondent - original claimants that the appeal being meritless, deserves to be dismissed.

6.0. No other and further submissions/ contentions have been made by the learned advocates for the respective parties.

7.0. We have perused the original Record and Proceedings and have also considered the observations made by the Tribunal as regard income. Upon re-appreciation of evidence on record, it appears that deceased was partner of a firm and in the year of accident i.e. AY 2009-10 there was income of Rs.1,30,927/-. Upon re-appreciation of the evidence on record, we find that the income of deceased even considering 3 years average can safely be determined at Rs.11000/- per month. Mr. Nanavati, learned advocate for the appellant is correct in ascertaining that even as per the judgments of the Hon'ble Supreme Court in the case of Sarla Verma and ors. vs. Delhi Transport Corporation and Anr reported in 2009 ACJ 1298 as well as in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680, the deceased was below 40 years and was self employed, the claimants would be entitled to prospective income only to the extent of 40%.

8.0. Additionally, we find that the original claimants are wife and two minor children and hence following ratio laid down by the Hon'ble Supreme Court in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder

C/FA/4659/2019 JUDGMENT DATED: 17/11/2021

Kaur reported in AIR 2020 SC 3076, the respondent nos. 4 and 5 being daughter and son would be entitled to parental consortium of Rs.40,000/- each. Having come to the aforesaid conclusion, therefore, the respondents - original claimants would be entitled to compensation under the head of future loss of income as under:

Rs. 11,000/- per month (income) + Rs.4400/- (40% prospective income) = 15,400/- - 3850/- (1/4 towards personal income = Rs.11,550/- x 12 (pa)= 1,38,600/- X 18 (Multiplier as the age of the deceased was 25 years) = 24,94,800/-.

8.1. Following the judgment of the Hon'ble Supreme Court in the case of Satinder Kaur @ Satwinder Kaur (supra), the respondent nos. 4 and 5 would be entitled to parental consortium to the tune of 40,000/- each and respondent no.1 would be entitled to consortium to tune of Rs.40,000. Over and above the same, the respondents - original claimants would be entitled to Rs.15,000/- loss of estate and Rs.15,000/- towards funeral expenses.

9.0. Having come to the aforesaid conclusion, therefore, the respondents - original claimants would be entitled to total compensation as under:

Particulars                              Amount (Rs.)
Future loss of income                    24,94,800/-
Consortium & Parental consortium         1,20,000/-
Loss of estate                           15,000/-






       C/FA/4659/2019                         JUDGMENT DATED: 17/11/2021



Conventional and Funeral Expenses            15,000/-
Total Compensation                           26,44,800/-

10. Thus, the claimants would be entitled to compensation of Rs.26,44,800/-- with 9% interest from the date of application till its realization. As the Tribunal has awarded an amount of Rs. 28,61,152/-, the appellant Insurance Company shall therefore, be entitled to refund of Rs.2,16,352/- with proportionate interest and costs thereon. The Tribunal shall refund the said amount forthwith to the appellant Insurance Company.

11. In view of the aforesaid, the impugned judgment and award passed by the Tribunal is modified to the aforesaid extent. Thus, appeal is partly allowed.

As the appeal is disposed of, connected Civil Application also stands disposed of. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.

sd/-

(R.M.CHHAYA,J)

sd/-

(MAUNA M. BHATT,J) KAUSHIK J. RATHOD