Sonalben Nikunjbhai Babariya vs Dilipbhai Devshibhai Gosiya
2021 Latest Caselaw 17588 Guj

      C/FA/4658/2019                                    JUDGMENT DATED: 23/11/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO.          4658 of 2019


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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                        SONALBEN NIKUNJBHAI BABARIYA
                                    Versus
                         DILIPBHAI DEVSHIBHAI GOSIYA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
NOTICE SERVED(4) for the Defendant(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 23/11/2021

                             ORAL JUDGMENT

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

1. Feeling aggrieved and dissatisfied by the

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judgment and award dated 09.10.2018 passed by the Motor Accident claims Tribunal at Dhoraji in MACP No. 45 of 2016, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. The following facts emerge from the record of the appeal -

2.1 It is the case of the claimants that on 06.06.2016, Nikunj Mahendrabhai Babariya was driving his motorcar bearing registration no. GJ-06-DQ-8710 towards Upleta. The record indicates that at about 9.30 am, when the car was nearby Upleta on Rajkot- Porbandar National Highway, a travel bus bearing registration No. GJ-03-y-0272 came from the other side and tried to overtake from the wrong side and hit the motor car. The deceased who was 35 years old, died on the spot.

2.2 It was the case of the appellants that the deceased was partner in Dron International School and was working as a teacher of mathematics and was doing private tuitions at Moti Paneli and also taking periods in Krishna School, Dhoraji and was earning Rs. 50,000/- to Rs. 60,000/- per month. On the basis of the said averments, the appellants filed claim petition under Section 166 of the Act and claimed compensation of Rs.50,00,000/- with 18% interest. Oral evidence was led at exhibit 22 and the appellants also relied upon the documentary evidences such as FIR at exhibit 22, panchnama of the scene of

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occurrence at exhibit 23, police statement of Ashishbhai Chhaganbhai at exhibit 24, inquest panchnama at exhibit 25, PM note at exhibit 26, driving license of the opponent no.1 at exhibit 27, RC book of the Travels bus at exhibit 28, Fitness Certificate of the travels bus at exhibit 29, permit of the travels bus at exhibit 30, insurance policy of the travels bus at exhibit 31, R.C book of the motor car at exhibit 32, photographs of the place of the accident at exhibit 33, pan card of the deceased at exhibit 34, passbook of deceased of Shri Rajkot District Cooperative Bank Ltd. at exhibit 35, birth certificates at exhibit 36 and 37.

2.3 The Tribunal after appreciating the evidence on record, came to the conclusion that the appellants have not been able to prove the income or even the fact that the deceased was partner in the Dron School and also appreciating the evidence in form of the pass book entries at exhibit 35, determined the income of the deceased at Rs. 7,000/- per month. The Tribunal considered that no other evidence is produced and applying the multiplier of 15 and considering increase of income to the tune of 40% as prospective income and after deducting 1/4th towards personal expenses, awarded a sum of Rs. 13,23,000/- as compensation under the head of loss of dependency and also awarded further amoutn of Rs. 70,000/- under conventional heads including funeral expenses and thus awarded Rs.13,93,000/- with 9% interest p.a. Considering the manner in which the accident had occurred, the Tribunal came to the conclusion that

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the deceased was also negligent to the tune of 10% and while partly allowing the claim petition, awarded total compensation of Rs. 12,53,700/- with 9% interest p.a. from the date of the filing of the claim petition till its realisation. Being aggrieved by the same, the present appeal is filed.

3. Heard Mr. Nishit Bhalodi, learned advocate for the appellants and Mr. Vibhuti Nanavati, learned advocate for the insurance company. We have also perused the original record and proceedings. As per the earlier order dated 01.10.2019, the learned advocate were heard for final disposal of the appeal.

4. Mr. Bhalodi, learned counsel appearing for the appellants contended that the Tribunal has considered meagre income of Rs.7,000/- per month. Even there was evidence on record to show that the deceased was Sanchalak (manager) in the Dron International School at Dhoraji. Mr. Bhalodi, relying upon the bank entries in the pass book at exhibit 35, contended that the income determined at Rs.7,000/- is even lesser than a skilled worker. On the aforesaid grounds, it was contended that the appeal be allowed by enhancing the income. According to Mr. Bhalodi, though there is no other evidence on record to prove the income, the pass book entries do reflect that frequently, amounts were being deposited. Mr. Bhalodi also contended that the deceased was aged 35 on the date of the accident and therefore, the appropriate multiplier would be 16. On the aforesaid grounds, Mr. Bhalodi contended that the impugned

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judgment and award be modified.

5. Per contra, Mr. Vibhuti Nanavati, learned advocate for the insurance company has opposed the appeal and submitted that no evidence whatsoever about the income or that the deceased was managing the school is on record. Mr. Nanavati contended that the appellants have not even remotely proved the income and therefore, the Tribunal has correctly assessed the income of the deceased at Rs.7,000/- and no interference is called for. Mr. Nanavati contended that the Tribunal has rightly applied the multiplier of 15 and no modification is called for and the appeal being meritless, deserves to be dismissed.

6. No other or further submissions have been made by the learned counsel appearing for the respective parties.

7. At the outset, it deserves to be noted that there is no evidence except assertion in the claim petition that the deceased was earning Rs.50,000/- per month. The entries in the pass-book at exhibit 35 does not even show a single entry of deposit by cheque. Some cash deposits and withdrawals are found in the pass-book, which cannot be made the basis of determining the income of the deceased. There is nothing on record to show as to what was the profession/vocation of the deceased. The newspaper cutting at exhibit 38 is the only evidence on which heavy reliance is placed to buttress that the

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deceased was managing the Dron International School. Except that, there is nothing on record. Mr. Bhalodi, learned counsel appearing for the appellant has also candidly admitted that there is no other evidence on record to show or even remotely prove the income of the deceased. Only on the basis of the newspaper report, it cannot be said that the deceased was managing affairs of the school. It appears that on the sad demise of the deceased, an obituary was given by the staff members of the school wherein it is mentioned as Sanchalak. Merely on the basis of such advertisement, it cannot be said tht the deceased as a sanchalak of the school, was being paid any salary or remuneration. Even at the cost of repetition, upon re-appreciation of the evidence in form of passbook at exhibit 35, does not inspire any confidence, if believed that the deceased was running the school or was managing the school. No such regular payment, monthly or otherwise, is found from the entries of the passbook. As admitted by the learned counsel for the appellants, there is no other evidence to even remotely show that the deceased was working as sanchalak of the school. Though in the claim petition it is averred that the deceased was also engaged in tuition classes and was teacher in some Krishna School, Dhoraji, except mere version in the petition, no evidence is produced even to remotely suggest about the qualification of the deceased. Such fact is even not averred in the claim petition. In total absence of any such evidence, it cannot be said that the Tribunal has committed any

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error in assessing the income of the deceased who died in the year 2016 at Rs.7,000/-. The principle enunciated in the case of claim petition is just and adequate compensation. We are conscious of the fact that strict rules of evidence is not necessary to be adhered to in every case while deciding the claim petition, but at least there has to be some evidence on record. In absence of the same, in a case like the present one, even as per the guesswork, income of Rs.7,000/- as determined by the Tribunal cannot be said to be an error.

8. It is a matter of fact that the age of the deceased was 35 years on the date of the accident and hence, following the judgment of the Apex Court in the case of Sarla Verma vs. Delhi Road Transport Corporation reported in (2009) 6 SCC 121, the appropriate multiplier would be 16.

9. As far as deduction towards personal expenses as well as negligence of 10% is concerned, the same is not disputed in this appeal and therefore, the same does not require any further scrutiny by this Court. However, we are of the opinion that the appellants no.2 and 3 who happen to be minor children would be entitled to further compensation by way of parental consortium and appellants no 4 and 5 would be entitled to filial compensation of Rs.40,000/- each.

10. Having come to the aforesaid conclusion, the appellants would be entitled to compensation as under-

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Rs.7,000/- (income) + Rs.2,800/- (40% prospective income) = Rs.9,800/- - Rs.2,450/- (1/4th towards personal expenses) = Rs.7,350/- X 12 = Rs.88,200/- X 16 (multiplier) = Rs.14,11,200/- (Loss of Dependency)

Rs.14,11,200/- - Loss of dependency Rs. 15,000/- - Loss of estate Rs. 40,000/- - Loss of consortium Rs. 15,000/- - Funeral expenses Rs. 1,20,000/- - Filial and parental consortium

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Rs.16,01,200/-

     - Rs. 1,60,120/-                      -      10% negligence
       ---------------
       Rs.15,01,080/-                      -      Total Compensation
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10. Thus, the appellants-original claimants would be entitled to total compensation of Rs.15,01,080/-.

As the Tribunal has awarded Rs.12,53, 700/-, the appellants-original claimants would be entitled to an additional compensation of Rs.2,47,380/- with interest at the rate of 9% p.a. and costs from the date of filing of the claim petition till its realisation. The impugned judgment and award stands modified to the aforesaid extent. The insurance company shall deposit the additional amount along with interest as provided in this judgment within a period of eight weeks from the date of the receipt of this judgmemnt.

11. The appeal is thus partly allowed. However, there shall be no order as to costs in this appeal.

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Registry is directed to remit the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) BIJOY B. PILLAI