Sarojben Rakeshbhai Tiwari vs Dineshbhai Ramratan Chauhan
2021 Latest Caselaw 16462 Guj

     C/FA/5598/2019                             JUDGMENT DATED: 21/10/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 5598 of 2019

FOR APPROVAL AND SIGNATURE:
 HONOURABLE MR. JUSTICE R.M.CHHAYA                          sd/-
 and
HONOURABLE MR. JUSTICE SAMIR J. DAVE                         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 ?

==============================================================
                       SAROJBEN RAKESHBHAI TIWARI
                                  Versus
                      DINESHBHAI RAMRATAN CHAUHAN
==============================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5,6
MR HARSHEEL D SHUKLA(6158) for the Defendant(s) No. 3
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1
==============================================================
    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE SAMIR J. DAVE
                       Date : 21/10/2021
                       ORAL JUDGMENT

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

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 31.01.2019 passed by the learned Motor Accident Claims Tribunal (Auxi), Kalol in MACP No.222 of 2012, the appellants have preferred this appeal under Section 173 of the Motor Vehicles Act,1988 (hereinafter referred to as the "Act").

C/FA/5598/2019 JUDGMENT DATED: 21/10/2021

2.0. The following facts emerge from the record of the appeal:

2.1. That the accident occurred on 30.09.2010 at about 21.30 hours. It is the case of the appellants- original claimants that the deceased was driving his motorcycle bearing registration no. UP-79-2785 on Kalol Chhatral Highway and at that moment, the Trailor bearing registration No. NL-01-G-3553 was stationed on the road without any indicators, because of which, the deceased dashed his motorcycle to the Trailor. The deceased sustained serious injuries and succumbed to the same. An FIR was lodged with the Kalol Taluka Police Station being CR-I- 191 of 2020. The appellants firstly approached the Tribunal and filed claim petition under Section 163 A of the Act and claim compensation of Rs.8 lakh. The record indicates that thereafter the said application was converted by way of amendment into claim petition under Section 166 of the Act and appellants claimed compensation of Rs.25 lakh with 18% interest. It was the case of the appellants that the deceased was 39 years old and was working in Mahendra Suitings and was earning Rs.12000/- per month. The appellant no.1 was examined at Exh.26. The appellants relied upon the following documentary evidence:

Particulars                                          Exh. No








    C/FA/5598/2019                                JUDGMENT DATED: 21/10/2021

2.2. The Tribunal after appreciating the evidence on record determined the income of the deceased at Rs.3000/- and after following the ratio laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680 awarded a sum of Rs.5,67,000/- as compensation under the head of future loss of dependency and Rs.70,000/- under the different conventional heads including funeral expenses and while partly allowing the claim petition, determined the entitlement of total compensation at Rs. 6,37,000/-. The Tribunal upon appreciation of the evidence as to how the accident took place came to the conclusion that the driver of the Trailer as well as deceased was driving motorcycle were contributory negligent and Tribunal held that the driver of the motorcycle was negligent to the extent of 20% and while partly allowing the claim petition, awarded net compensation of Rs.5,09,600/- with 7.5% interest p.a. from the date of filing claim petition till its realization.

2.3. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the appellants

C/FA/5598/2019 JUDGMENT DATED: 21/10/2021

- original claimants have preferred this appeal.

3.0. Heard Mr. Nishit Bhalodi, learned advocate for the appellants - original claimants, Mr. Rathin Raval, learned advocate for the Insurance Company and Mr. Harsheel Shukla, learned advocate for the respondent no.3. Though served, nobody appears on behalf of the respondent no.1. Mr. Bhalodi, learned advocate for the appellants has also produced the copies of relevant evidence for perusal of this Court.

4.0. Mr. Bhalodi, learned advocate for the appellants contended that the Tribunal has committed an error in determining the income of the deceased at Rs.3000/- per month and that the Tribunal has wrongly discarded the provident fund slip of the deceased which proves that the deceased was in service of Textile Mill known as Mahendra Suitings. Mr. Bhalodi, learned advocate for the appellants however candidly submitted that the appellants does not dispute the grant of compensation under the different conventional heads as well as the negligence of the deceased which is assessed at 20%. Mr. Bhalodi on the aforesaid ground contended that the appeal be allowed accordingly and impugned judgment and award be modified to the aforesaid extent. Mr. Bhalodi contended that the considering the evidence on record the income of the deceased could have been assessed at Rs.5000/- per month. Mr. Bhalodi does not press ground C mentioned in

C/FA/5598/2019 JUDGMENT DATED: 21/10/2021

the memo of appeal.

5.0. Per contra, Mr. Raval, learned advocate for the respondent Insurance Company has opposed this appeal and has contended that no evidence was adduced as far as income is concerned and the Tribunal has left with no alternative but to determine the income as per the guess work. According to Mr. Raval, the income of deceased determined at Rs.3000/- per month is on proper appreciation of evidence and no interference is called for. Mr. Raval submitted that the appeal being meritless, deserves to be dismissed.

6.0. No other and further submissions / contentions have been raised by the learned advocates for the respective parties.

7.0. Having reappreciated the evidence on record, it is matter of record that the appellant had produced provident fund slip before the Tribunal. It is no doubt true that the appellants did not produce any salary slip of the deceased but fact remains that the appellants have been able to prove that the deceased was working in the said textile factory. Considering the date of accident being 30.09.2010 and also considering the fact that the deceased was a skilled worker and even in absence of any evidence and even by guess work, the income of the deceased should have been determined at Rs.5000/- per month. Having come to the

C/FA/5598/2019 JUDGMENT DATED: 21/10/2021

aforesaid conclusion, the appellants would be entitled to compensation under the head of future loss of income as under:

Rs. 5000/- per month (income) + Rs.2000/-/- (40% prospective income) = 7000/- - 1750/- (1/4 towards personal income) = Rs.5250/- X 12 (pa)= Rs. 63000/- p.a. X 15 (Multiplier as the age of the deceased was 39 years) = 9,45,000/-.

The original claimants shall also be entitled to Rs.70,000/- under the different conventional heads. As the contributory negligent to the tune of 20% is not disputed by the appellants, the appellants shall be entitled to compensation as under:

Particulars                            Amount (Rs.)
Future loss of income                  9,45,000
Conventional Head                      70,000/-
Total Compensation                     10,15,000/- - 2,03,000/- (20%
                                       negligent of the deceased) =
                                       Rs.8,12,000/-

8.0. Thus, the appellants- claimants would be entitled to total compensation of Rs.8,12,000/-. As the Tribunal has awarded an amount of Rs. 5,09,600/-, the respondent Insurance Company shall deposit the additional amount of Rs. 3,02,400/- with 7.5% interest from the date of filing claim petition till its realization and with proportionate costs with the Tribunal within a period of 8 weeks from the

C/FA/5598/2019 JUDGMENT DATED: 21/10/2021

receipt of the order. Appeal is thus, partly allowed. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith, if any. However, there shall be no order as to costs.

sd/-

(R.M.CHHAYA,J)

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(SAMIR J. DAVE,J) KAUSHIK J. RATHOD