Saiyada Akhtar Wd/O Mohsinhusen ... vs Zarifbhai Jamalkhan Pathan
2021 Latest Caselaw 17902 Guj

     C/FA/3807/2019                             JUDGMENT DATED: 30/11/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                  R/FIRST APPEAL NO. 3807 of 2019

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 ?

==============================================================
              SAIYADA AKHTAR WD/O MOHSINHUSEN KADRI
                               Versus
                    ZARIFBHAI JAMALKHAN PATHAN
==============================================================
Appearance:
MR VIVEK V BHAMARE(6710) for the Appellant(s) No. 1,2,3,4
MR VN BHAMARE(1122) for the Appellant(s) No. 1,2,3,4
MR YUSUFKHAN PATHAN(3799) for the Defendant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
RAJDEEPSINH R JODDHA(8855) for the Defendant(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT
                       Date : 30/11/2021
                       ORAL JUDGMENT

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

1.0. Heard Mr. Vivek Bhamare, learned advocate for the appellants- original claimants, Mr. Yusufkhan Pathan, learned advocate for the respondent no.1, Mr. Rajdeepsinh Joddha, learned advocate for the respondent no.3 and Ms. Kirti S Pathak, learned advocate for the respondent no.2. We have also perused the original record and proceedings of

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the case. As the short question as regard income arise in this appeal, with the consent of the learned advocates for the respective parties, the appeal is taken up for its final disposal forthwith.

2.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 30.01.2019 passed by the Motor Accident Claims Tribunal (Auxi), Ahmedabad (Rural) in MACP No.609 of 2006, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "Act" for sake of brevity).

3.0. As the record indicates that accident took place on 13.11.2005. It is the case of the appellants- original claimants that deceased Mohsinhusen Kadri was traveling with other relatives in Car bearing Registration No.GJ-1-HJ- 3738 from Ahmedabad to Dholka and when the car reached Sarkhej Dholka Road near the Chaloda village one Trolley bearing registration no. GJ-18-U-5091 was found stationary at the left side of the road, because of rash and negligent driving of the driver of the case, accident occurred and deceased sustained serious injuries and died on account of injuries. An FIR was lodged with the jurisdictional police station at Exh.34 and claimants preferred present claim petition under Section 166 of the Act and claimed compensation at Rs.35 lakhs. It was the case of the claimants that the deceased was practicing advocate at Ahmedabad and was earning Rs.3 lakhs pa. The appellant

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no.1 wife of the deceased was examined at Exh.32 and the appellants- original claimants also relied upon the plethora of documentary evidence, which are as under:

Exh.No.               Particulars
34                    FIR
35                    Panchnama of place of occurrence
36                    Inquest Panchnama
37                    PM Report
38                    Income Tax Return of Assessment year 2001-02
39                    Income Tax Return of Assessment year 2002-03
40                    Income Tax Return of Assessment year 2003-04
41                    Letter from Shri AH Sanghvi, Chief Judge and
                      Chairman
42                    Letter from Shri RP Dholakia, City Civil.
43                    Letter from Shri R.P. Dholakia, City Civil.
50                    Insurance Policy of Maruti Wagon R No. GJ-1-
                      HJ-3738

The Tribunal after considering the income tax return for the year 2001-02 to 2003-04 at Exhs. 38 to 40 came to the conclusion that the average income of the deceased would come to Rs.59000/- pa and after deducting ¼ towards personal expenses and following ratio laid down by the Hon'ble Supreme Court in the case of Sarla Verma & ors vs. Delhi Transport Corporation & ors reported in 2009 ACJ 1298 and in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680 granted 10% prospective income and applying multiplier of 9 as the age of the deceased was admittedly 57 years on the date of accident, awarded a sum of

C/FA/3807/2019 JUDGMENT DATED: 30/11/2021

Rs.4,45,500/- towards future dependency loss and over and above that also awarded a sum of Rs.70,000/- under the different conventional heads including funeral expenses and thus awarded a sum of Rs.5,15,500/- as total compensation. Considering the FIR at Exh.34 and panchnama of the place of occurrence at Exh.35, the Tribunal came to the conclusion that driver of both the vehicles i.e. car and trolley were equally negligent and attributed contributory negligence to the driver of the car at 50% and thus while partly allowing the claim petition, the opponents no.1 and 2 were made liable to pay 50% amount of compensation and opponent no.3 was made liable to pay 50% amount of compensation. Being aggrieved and dissatisfied with the same, the present appellants preferred present appeal.

4.0. Mr. Vivek Bhamare, learned advocate for the appellants has contended as under:

4.1. That the Tribunal has committed an error in taking average income of the deceased. Mr. Bhamare contended that the accident occurred on 13.11.2005 and therefore, income should have been assessed based upon the income tax return of assessment year 2003-04 at Exh.40 only which comes to Rs.67,300/-.

4.2. Mr. Bhamare further contended that the Tribunal has committed an error in considering only 10% prospective income. According to Mr. Bhamare prospective income

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should have been 15%.

4.3. It was also further contended that the Tribunal has not awarded filial consortium to father of the deceased. Mr. Bhamare also contended that the Tribunal has awarded 7.5% interest pa, it should be enhanced to 9%

4.4. It was also contended that the Tribunal has committed error in appreciating the evidence as to how and manner in which accident has occurred and wrongly come to the conclusion that the driver of the car was equally negligent. On the aforesaid grounds, it was contended by Mr. Bhamare that the appeal requires consideration and same be allowed as prayed for.

5.0. Mr. Yusufkhan Pathan, learned advocate for the respondent no.1 submitted that appeal being meritless, does not requires any consideration by this Court. Mr. Rajdeep Joddha, learned advocate for respondent no.3 submitted that the owner of the trolley has been wrongly made responsible for the accident. It was contended by Mr. Joddha that the accident has occurred at 7.30 pm and as trolley was punctured, it was made stationary on the correct side of the road and the driver of the car was solely negligent for the accident.

6.0. Ms. Pathak, learned advocate for the Insurance Company contended that the appeal being meritless and

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does not require any merits. According to Ms. Pathak, the Tribunal has rightly assessed the negligence as well as income and no modification is necessary. Ms. Pathak contended that as the age of the deceased was 57 years on the date of accident and as the deceased was practicing advocate, the Tribunal has rightly considered the multiplier as well as prospective income at 10%.

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

8.0. Upon perusal of the original record and proceedings of the case, we find that in order to prove income, claimants had relied upon Exh.38 being income tax return of AY 2001- 02 wherein the income reflected is Rs. 58,000/-, in the year 2002-03 income shown is Rs.54,020/- and in the year 2003-04 income was Rs. 67,300/-. It is no doubt true that taking average is recognized method however in order to arrive at just and adequate compensation in facts of this case as there was difference about Rs.14000/- in the income between 2002-03 and 2003-04. Upon re- appreciation of the evidence on record, we deem it fit that determination of the income on the income tax return of 2003-04 which is proximate from the date of accident which comes to Rs.67,300/-. The deceased was practicing advocate and therefore, falls within the category of self employed. Considering the ratio laid down by the Hon'ble

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Supreme Court in the case of Pranaya Sethi and as the age of the deceased was admittedly 57 years on the date of accident, the Tribunal has rightly awarded prospective income to the tune of 10% only. As far as argument of filial consortium is concerned, upon verification of the claim petition filed by the claimants as well as impugned judgment and award, it clearly appears that father of the deceased was never claimants and therefore, now in this appeal, the appellants cannot be permitted to claim filial consortium for father who is not claimant at all. Upon perusal of the claim petition and as recorded in para 1 of the judgment itself, it was case of the appellants themselves before the Tribunal that the accident occurred due to rash and negligent driving of the driver of the case involved in the accident. Upon re-appreciating the evidence in form of FIR at Exh.34 and panchnama at Exh.35, this Court is of the opinion that the Tribunal has rightly come to the conclusion that the driver of both the vehicles were equally liable and same does not require any modification. Having come to the aforesaid conclusion, upon re-calculation of the compensation the appellants would be entitled to compensation as under:

Rs. 67,300/- per annum (income) + Rs.6730/- (10% prospective income) = 74,030/- - 18,507/- (1/4 towards personal expenses = Rs.55,523/- X 9 (Multiplier as the age of the deceased was 58 years) = Rs.4,99,707/-

We have also considered the argument put forward by

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learned advocate for the appellants that as far as interest is concerned. Awarding of interest is a matter of discretionary and considering the fact that the accident has occurred in the year 2005, we find that the Tribunal has rightly exercised the discretion and granted 7.5% interest which does not require any modification. Resultantly, the appellants would be entitled compensation as under:

Particulars                          Amount (Rs.)
Future loss of income                4,99,707/-
Loss of consortium                   40,000/-
Loss of estate                       15,000/-
Funeral expenses                     15,000/-
Total compensation                   5,69,707/-

9.0. Thus, the claimants would be entitled to compensation of Rs.5,69,707/- with 7.5% interest from the date of application till its realization. As the Tribunal has awarded an amount of Rs. 5,15,500/-, the respondent nos. 1 to 3 shall deposit the additional amount of Rs.54,207/- awarded by this Court in the same proportioned as provided by the Tribunal i.e. respondent nos. 1 and 2 would be jointly liable for 50% of the enhanced amount and 50% enhanced amount shall be deposited by the respondent no.3 with 7.5% 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.

10. In view of the aforesaid, therefore, the appeal is partly allowed to the aforesaid extend and impugned judgment and award is modified to the aforesaid extend. Registry is directed to transmit back the Record and Proceedings of the

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case to the concerned Tribunal forthwith. However, there shall be no order as to costs.

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(R.M.CHHAYA,J)

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