Gujarat High Court
United India Insurance Co.Ltd vs Kantilal Gordhandas Mandalia ... on 24 November, 2021
Bench: R.M.Chhaya
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3608 of 2006
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 3608 of 2006
With
R/FIRST APPEAL NO. 3087 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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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 ?
==============================================================
UNITED INDIA INSURANCE CO.LTD,
Versus
KANTILAL GORDHANDAS MANDALIA (DECD. THRO LEGAL HEIRS) &
4 other(s)
==============================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR HARSHADRAY A DAVE(3461) for the Defendant(s) No. 1,1.1
NOTICE SERVED(4) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1.2,1.3,1.4,1.5,2
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 24/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
common judgment and award dated 29.04.2005 passed by
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
the Motor Accident Claims Tribunal (Main), Surendranagar
in MACP No.681 of 1994 and other allied matters, the
original claimants as well as Insurance Company have
preferred the present appeals under Section 173 of the
Motor Vehicles Act, 1988. Present appeals arise out of Claim
Petition No. 681 of 1994. In a way, both the appeals are
cross appeals. First Appeal No. 3608 of 2006 is filed by the
Insurance Company whereas First Appeal No. 3087 of 2009
is filed by the original claimants.
2.0. Heard Mr. Maulik Shelat, learned advocate for the
Insurance Company and Mr. H.A.Dave, learned advocate for
the original claimants and Mr. J.K. Chauhan, learned
advocate for Mr. Jigar Gadhvi, learned advocate for the
driver of the truck involved in the accident. Though served,
nobody appears for other respondents.
3.0. The following facts emerge from the record of the
appeals:
3.1. That the accident occurred on 20.03.1994 at about 9
pm on National Highway No.8 in the sim of village Janshali
on Limbdi Bagodara Road when deceased Kanatilal
Mandalia along with his wife and kids were coming from
Rajkot and were going towards Ahmedabad by NE 118 Car
No.GCB 4040 which was being driven by deceased Kantilal.
It is the case of the original claimants that deceased Kantilal
Gordhandas was driving his case with slow and reasonable
speed and also on the left side of the road and when said
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
car reached near scene of accident, one Truck No.5137
belonging to opponent no.2, was lying facing towards
National Highway No.8, going from Rajkot to Ahmedabad
that too on the left side of the road and without putting any
reflector and it was not possible for deceased Kantilal to see
the lying truck on the left side of the road and hence
deceased was dazzled on account of full lights of the
vehicles coming from the opposite direction, because of
which, deceased dashed with the rear portion of the lying
Truck No.GQY 5137, which resulted into serious accident,
due to which, deceased Kantilal and deceased Kanubhai
died on the spot. It is further the case that Hansaben and
Deepaliben also sustained serious injuries. An FIR was
lodged with the jurisdictional police Station. The original
claimants preferred claim petition under Section 166 of the
Act and claimed compensation of Rs.1, 50,00,000/-. The
original claimants also adduced following oral as well as
documentary evidence before the Tribunal.
Exh.No. Particulars
116 Deposition of Claimant Hansaben
127 Deposition of Ashokbhai Gordhandas
134 Deposition of Chartered Accountant
137 Circle of Income Tax Department for AY 1993-
135 Details of Taxable income of partnership firm
136 Details of Taxable income of deceased
141 Income Tax return of partnership firm for AY
1991-92
142 Income Tax return of partnership firm for AY
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
1992-93
143 Income Tax return of partnership firm for AY
1993-94
144 Income Tax return of partnership firm for AY
1994-95
150 Income Tax return of deceased partner for AY
1991-92
151 Income Tax return of deceased partner for AY
1992-93
152 Income Tax return of deceased partner for AY
1993-94
153 Income Tax return of deceased partner for AY
1994-95
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. 93,35,550/- in MACP No. 681 of 2004
with 9% interest from the date of application till its
realization with proportionate costs. Being aggrieved and
dissatisfied with the same, the Insurance Company and
original claimants have preferred the present appeals.
4.0. Mr. Maulik Shelat, learned advocate for the Insurance
Company at the outset submitted that the Tribunal has
committed an obvious error in determining and calculating
the income of the deceased. Mr. Shelat contended that the
the deceased had income from partnership firm viz. M/s.
Harjivan Juthabhai Jhaveri, Ahmedabad and had also his
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
own firm in the name of H.J. Jhaveri. The deceased had also
filed income tax return in his individual capacity. Mr. Shelat
contended that the Tribunal has relied upon the income tax
returns of the firm M/s. Harjivan Juthabhai Jhaveri for AY
1990-91 being Exh.141, AY 1991-92 at Exh.142, AY
1992093 at Exh.143 as well as individual returns filed by
the deceased Kantilal being Exhs. 150, 151 and 152 for the
same year. Mr. Shelat contended that the Tribunal has
taken into consideration the gross income without
deduction of the tax and has clubbed both the income i.e.
income from the firm and individual and has determined
income of the deceased, which is an obvious error. It was
contended that what is reflected in the individual return is
nothing but profit earned by the deceased Kantilal from the
very firm M/s. Harjivan Juthabhai Jhaveri. Mr. Shelat
further contended that the Tribunal has not appreciated the
manner in which the accident occurred and has misread the
panchnama. According to Mr. Shelat dirver of both the
vehicles were equally negligent and negligence should have
been attributed equally in the ratio of 50:50. On the
aforesaid grounds, Mr. Shelat contended that the appeal
filed by the Insurance Company deserves to be allowed.
According to Mr. Shelat, the appeal filed by the original
claimants wherein the ground of negligence is raised, being
meritless, deserves to be dismissed.
5.0. Per contra, Mr. Dave, learned advocate for the original
claimants contended that the Tribunal has on the contrary
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
wrongly attributed negligent to the extent of 50% as far as
deceased who is driving the car is concerned. Relying upon
the judgment of the Hon'ble Supreme Court in the case of
Archit Saini and Anr vs. Oriental Insurance Company
Limited and Ors reported in AIR 2018 SC 1143 it was
contended by Mr. Dave that considering the manner in
which the accident has occurred and fact that heavy vehicle
truck was parked during the night hours without any
parking light or reflector, which deserves to be construed as
sole negligence of the driver of the Truck. Mr. Dave further
contended that on a highway that too at night hours
because of traffic, the deceased could not see the truck and
car dashed with the truck, resulting into death of two
occupants and severe injuries sustained to other occupants.
Mr. Dave also relying upon the judgments of the Hon'ble
Supreme Court in the case of Magma General Insurance Co.
Ltd vs. Nanu Ral Alias Chuhur Ram & Ors reported in
(2018)18 SCC 130, United India Insurance Company
Limited vs. Satinder Kaur @ Satwinder Kaur reported in
AIR 2020 SC 3076 and Archit Saini and another (supra)
contended that the original claimants would be entitled to
parental and filial consortium as they have lost their dear
one i.e. father and son respectively in the accident. Mr. Dave
however candidly submitted that as far as income is
concerned, this Court may take into consideration the
income shown in the personal income tax returns at Exhs.
151, 152 r/w 143 and 153 r/w 144.
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
6.0. Mr. Shelat, learned advocate for the Insurance
Company and Mr. Dave, learned advocate for the original
claimants have also produced the calculation of personal
income of the deceased Kantilal which is as under:
Exh.No. AY Income (Rs.) Tax Paid Net Income
150 1991-92 2,57,111/- 76,540/- 1,80,571/-
151 1992-93 2,05,319/- 47846/- 1,57,473/-
152 1993-94 5,83,570/- NIL 5,83,570
153 1994-95 65,496/- NIL 65,496/-
Both the learned advocates for the parties have
candidly submitted that this Court may determined the
income based upon personal returns of deceased Kantilal
for the average of last three years i.e. Exhs. 151, 152 r/w
143 and 153 r/w 144. Learned advocates for the respective
parties have also invited the attention of this Court to
Exh.118 which exhibits that the driver of truck had
accepted his offence in the criminal proceedings. Mr. Shelat
as well as Mr. Dave, learned advocates for the respective
parties therefore, submitted that their appeals be partly
allowed based upon the calculation jointly submitted by
both the learned advocates for the respective parties.
Mr. Gadhvi, learned advocate for the driver of the truck
has submitted that this Court may pass appropriate order.
7.0. Upon appreciation of the panchnama at Exh. 26 and
62, it clearly appears that truck was parked on the highway
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
that too on night hours i.e. at about 10. pm. The
panchnama also clearly recites that there was no parking
light or reflector attached to the truck and because of such
negligence on part of the truck driver deceased who was
driving the car dashed with the stationary truck. Even
reappreciating the oral deposition of wife of the deceased
Hansaben and other eyewitnesses, it clearly transpires that
merely because of negligence on the part of the driver of the
truck by parking such a huge and heavy vehicle that too at
night hours that too without any reflector or parking light.
Upon reappreciation of the evidence on record, therefore,
this Court is of the opinion that the driver of the truck was
solely negligent. It also further appears from the admission
of the driver in the criminal proceeding being Exh. 118
wherein the driver has accepted the offence. In totality of
facts, upon re-appreciation of such evidence on record we
hold that the Tribunal has committed an error in coming to
the conclusion that the driver of the car i.e. deceased has
negligent to the extent of 15%. We hold that the driver of the
truck was solely negligent. Ratio laid down by the Hon'ble
Supreme Court in the case of Archit Saini and another
(supra) would squarely applies to the case on hand and in
facts of this case, the driver of the truck is therefore, held
solely negligent.
8.0. As far as calculation of income is concerned, we have
also taken into consideration the agreed calculation
submitted by the learned counsel for the Insurance
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
Company as well as original claimants. The Tribunal with
respect has committed an obvious error in calculating
income. What is shown in the personal income tax return is
nothing but profit earned as a partner of the firm M/s.
Harjivan Juthabhai Jhaveri and the Tribunal has therefore,
wrongly merged both the income and calculated average
income. Though the original claimants have produced the
individual income tax returns for four consecutive
assessment years, we are of the opinion that income tax
returns at Exhs. 151, 152 r/w 143 and 153 r/w 144 which
relates to assessment year 1992-93, 1993-94 and 1994-95
should be made basis for determining the income and the
average of last three years deserves to be made the basis for
determination of the income. Having come to the aforesaid,
therefore, the income of the deceased would be average of
Rs.8,06,539/- which comes to Rs. 2,68,846/-. As the
deceased Kantilal was 44 years and was self employed, the
claimants would be entitled to increased in income by way
of prospective income to the tune of 25% and after
deducting 1/4th towards personal expenses as there are five
claimants and applying multiplier of 14 based upon age of
the deceased, following the judgments of the Hon'ble
Supreme Court in the case of National Insurance Company
Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC
680 and in the case of Sarla Verma and ors. vs. Delhi
Transport Corporation and Anr reported in 2009 ACJ 1298,
the original claimants would be entitled to Rs.35,28,602/-as
compensation under the head of loss of dependency.
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
Following the judgment of the Hon'ble Supreme Court in the
case of Satinder Kaur @ Satwinder Kaur (supra) and Archit
Saini (supra), the appellants would be entitled to spousal
consortium, parental consortium and filial consortium to
the tune of Rs.40,000/- each and additionally the claimants
would also be entitled to Rs.15000/- towards loss of estate
and Rs.15000/- towards funeral expenses. Thus, the
original claimants would be entitled to total compensation
as under:
Particulars Amount (Rs.)
Future loss of income 35,28,602/-
Parental consortium 2,00,000/-
Loss of estate & Funeral expenses 30,000/-
Total Compensation 37,58,602/-
9.0. Thus, First Appeal No. 3608 of 2006 filed by the
Insurance Company is partly allowed and First Appeal
No.3087 of 2009 filed by the original claimants is also partly
allowed. The original claimants would be entitled to total
compensation of Rs.37,58,602/-.
10. It deserves to be noted that while passing the order
dated 7.3.2007 in Civil Application No.11049 of 2006 this
Court was pleased to stay the operation and execution of
the impugned judgment and award on condition that
appellant Insurance Company shall deposit 25% of the
compensation amount awarded by the Tribunal together
with proportionate costs and interest at the rate of 9% pa by
30.04.2007.The learned counsel for the Insurance Company
C/FA/3608/2006 JUDGMENT DATED: 24/11/2021
submitted that as per the said order, the Insurance
Company must have been deposited an amount of
Rs.23,33,887.50 with proportionate costs and interest and
hence the original claimants would be entitled to further
amount of Rs.14,24,714.50. However, it is clarified that on
enhanced amount of Rs.14,24,714.50, the original
claimants shall be entitled for interest at the rate of 8%
instead of 9% as the accident is of the year 1994. The
Insurance Company shall deposit the enhanced amount of
Rs.14,24,714.50 /- with 8% interest from the date of claim
petition till its realization with the Tribunal within a period
of 8 weeks from the receipt of the order .Both the appeals
are disposed of accordingly. Rest of the award is not altered.
Considering the fact that accident is of 1994, amount shall
be disbursed as per the award passed by the Tribunal.
As the appeals are disposed of, connected Civil
Application, if any, 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
