Habibbhai Daudbhai Banga vs Jivrambhai Gangaram Katara
2021 Latest Caselaw 16221 Guj

     C/FA/3014/2021                                  ORDER DATED: 14/10/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                   R/FIRST APPEAL NO. 3014 of 2021
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                               HABIBBHAI DAUDBHAI BANGA
                                             Versus
                             JIVRAMBHAI GANGARAM KATARA
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Appearance:
MR ANKIT SHAH(6371) for the Appellant(s) No. 1
MR. HARSHAD D BAROT(7287) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
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  CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
                   Date : 14/10/2021
                    ORAL ORDER

1. The present appeal under Section 173 of the Motor Vehicles Act is preferred by the appellant and claimant for enhancement of compensation granted to him by the learned MACT (Aux.), Aravalli at Modasa by judgment and award dated 30.11.2018 in MACP No.95/2017.

2. Heard Mr. Ankit Shah, learned advocate for the appellant.

3. Mr. Shah, learned advocate submits that the monthly income of Rs.4000/- assessed by the tribunal is on very lower side. According to his submission, the appellant has claimed in the claim petition that he was earning Rs.6000/- by doing small business of metal and sand on commission basis in a small village. He submits that books of account cannot be expected from a small business man. According to his submission, minimum wages for unskilled labourer was Rs.7717/- at the time of the accident. He, therefore, urges that the tribunal ought to have assessed the monthly income of the appellant at Rs.6000/- per month as claimed. He, therefore, submits that the appeal requires consideration.

C/FA/3014/2021 ORDER DATED: 14/10/2021

4. I have considered the submission of learned advocate for the appellant.

5. The present appeal is preferred for enhancement on the ground that the monthly income is assessed on a lower side by the tribunal.

6. It emerges from the impugned judgment that the appellant met with an accident on 09.12.2016 in the night hours. In the accident, he suffered serious bodily injuries resulting into permanent disability. The appellant, therefore, filed the claim petition in the accident claims tribunal to claim compensation of Rs.6,00,000/- inter alia on the ground that at the time of accident he was earning Rs.6,000/- per month by doing small business of metal and sand on commission basis. It is an admitted fact that the applicant has not produced any documentary evidence to buttress his claim that he was earning Rs.6,000/- per month. In absence of any such cogent and reliable evidence as regards the monthly income, the tribunal has assessed Rs.4,000/- as monthly income of the appellant considering the year of the accident i.e. 2016.

7. The Tribunal has recorded following reasons in para- 8.1 for assessing the monthly income:-

"8.1 It is the case of the claimant that at the time of accident, claimant was earning Rs.600/- p.m. by way of doing business of metal, sand etc on commission basis at Meghraj. But the applicant has not produced any concrete evidence regarding his income at the time of accident and he has also produced any statement and selling bills regarding the business income and expenditure. Hence, he has not proved him

C/FA/3014/2021 ORDER DATED: 14/10/2021

income. However, it is cardinal principle of law that Tribunal cannot expect from the poor labourer or small time vendor to maintain his/her books of account with respect to his/her monthly income and expenditure. However, considering the fact that claimant was doing business and considering the year of the accident i.e. 2016, monthly income of the claimant is assessed Rs.4000/- p.m."

8. In view of the above, I do not find any infirmity in the reasons assigned by the tribunal. Submissions of Mr. Shah, learned advocate that book of account cannot be accepted from business or earning by a small business in a small village cannot be accepted. The appellant at least could not produced more tangible evidence in the form of bills, vouchers, bank account etc. as recorded by the tribunal. I am, therefore, of the considered view that the cogent and convincing reasons assigned by the tribunal could not call for interference in this appeal.

9. For the foregoing reasons, the appeal fails and is hereby dismissed at threshold.

(A.G.URAIZEE, J)

Manoj