New India Assurance Co Ltd vs Jayantilal Laxmanbhai Chauhan
2021 Latest Caselaw 17743 Guj

      C/FA/4160/2019                              JUDGMENT DATED: 25/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4160 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

==========================================================

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 ?

==========================================================
                         NEW INDIA ASSURANCE CO LTD
                                    Versus
                       JAYANTILAL LAXMANBHAI CHAUHAN
==========================================================
Appearance:
MR AJAY R MEHTA(453) for the Appellant(s) No. 1
ADVOCATE NOT GIVEN for the Defendant(s) No. 4
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3
NOTICE UNSERVED(8) for the Defendant(s) No. 5
==========================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 25/11/2021



                                   Page 1 of 5

                                                        Downloaded on : Wed Jan 12 04:35:48 IST 2022
       C/FA/4160/2019                              JUDGMENT DATED: 25/11/2021




                                ORAL JUDGMENT

]

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

1. Being aggrieved and dis-satisfied by the judgement and award dated 15.4.2009 passed by learned 3 rd Additional District and Sessions Court, MACT (Aux.), Ahmedabad Rural at Mirzapur in MACP No.684 of 2012, the Insurance Company has 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 On 19.5.2012, the deceased Kamlaben Jayantilal Chauhan was walking on the road near Rameshwar Cross Road, at that time driver of one truck bearing registration No.GJ-1-BV-1346 came with full speed and in rash and negligent manner and dashed with the deceased. The deceased sustained severe injuries on her body and died during treatment. Therefore, legal heirs of deceased Kamlaben Jayantilal Chauhan have filed the Claim Petition.

3. Heard Mr. Ajay Mehta, learned advocate for the appellant and Mr. Hiren Modi, learned advocate for the original claimants. The Insurance Company has not denied the liability and, therefore, the presence of other respondents is not essential for deciding this appeal.

4. With the consent of the learned advocates for the parties, the appeal is taken up for final disposal.

C/FA/4160/2019 JUDGMENT DATED: 25/11/2021

5. Mr. Mehta, learned advocate appearing for the appellant has provided photocopies of the relevant evidence, more particularly, the pay-slips Exhs. 38, 39 and 40. It was contended that the Tribunal has committed an error in determining the income of the deceased. Relying upon the pay-slips at Exhs. 38, 39 and 40, it was contended that the computation of income as done by the Tribunal is erroneous reading of the said evidence. Mr. Mehta, learned advocate, contended that the Tribunal has though awarded prospective income to the tune of 15%, has deducted 10% of the income upon re-appreciation of the evidence more particularly salary slip of March, 2012, April, 2012 and May, 2012 and the average income even if the income-tax is not deducted comes to Rs.16,947/-. On the aforesaid ground, it was contended by Mr.Mehta, learned advocate that the appeal requires consideration and the impugned judgement and order deserves to be modified.

6. Per contra, Mr. Hiren Modi, learned advocate for the original claimants has supported the impugned judgement and award and submitted that the income as calculated by the Tribunal is proper and correct appreciation of evidence on record. Mr. Modi, learned advocate contended that the appeal being merit-less deserves to be dismissed and no other or further submissions have been made by learned advocates appearing for the parties.

7. On perusal of the pay slips at Exh.38, it shows that the monthly salary for the month of March, 2012 was Rs.16,523/-, whereas Exh.39 shows that the monthly salary of the deceased for the month of April was Rs.17,154/- and Exh.40 shows that

C/FA/4160/2019 JUDGMENT DATED: 25/11/2021

the monthly salary for the month of May was Rs.17,163/- per month. Upon appreciation of the said evidence on record, it clearly transpires that no income-tax is deducted and, therefore, 10% income-tax in the instant case is not required to be deducted. The accident as per the record took place on 19.5.2012 and as per the available record, considering the salary of the deceased based upon the salary slip of May, 2012, it would be appropriate to take average of the last three preceding months to arrive at the income of the deceased.

8. Having come to the aforesaid conclusion, therefore, the income of the deceased would come to Rs.16,747/-as the deceased was 52 years old. Following the ratio laid down by the Apex Court in the case of Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 and National Insurance Company Limited v. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the respondents-original claimants would be entitled to prospective income to the tune of 15% and appropriate multiplier would be that of 11. In the light of the aforesaid, the respondents-original claimants would be entitled to compensation under the head of loss of dependency as under:

Rs.16,747/- (per month income) + Rs.2512/- (15% prospective income) = 19259/- - 6419/- (1/3 towards personal income) = Rs. 12840/- x 12 (pa) = 1,54,080/- x 11 (Multiplier as the age of the deceased was 52 years) = 16,94,880/-.

9. In addition to this, the respondent-original claimants would be entitled to compensation under the different conventional heads including funeral expenses to the tune of

C/FA/4160/2019 JUDGMENT DATED: 25/11/2021

Rs.70,000/-.

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

Particulars                         Amount (Rs.)
Future loss of income               16,94,880/-
Funeral expenses                    70,000/-
Total                               17,64,880/-

11. Thus, the appellants- claimants would be entitled to total compensation of Rs.17,64,880/-. As the Tribunal has awarded an amount of Rs. 18,62,560/-, the respondent Insurance Company would be entitled to the refund of Rs.97,680/- with 9% interest p.a. and proportionate costs from the date of filing of the claim petition till its realization with the Tribunal within a period of 8 weeks from the receipt of the order. Appeal is thus partly allowed. The rest of the judgment and award passed by the learned Tribunal has remained unaltered. Appellants shall pay the deficit Court fees forthwith. 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.

(R.M.CHHAYA, J)

(MAUNA M. BHATT, J) NAIR SMITA V.