Nafisabanu Wd/O Imtiyaz Ahemad ... vs Rajendrakumar Hariram Yadav
2021 Latest Caselaw 16663 Guj

      C/FA/4217/2017                             JUDGMENT DATED: 25/10/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4217 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MR. JUSTICE SAMIR J. DAVE

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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 ?

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          NAFISABANU WD/O IMTIYAZ AHEMAD SHAIKH & 2 other(s)
                               Versus
              RAJENDRAKUMAR HARIRAM YADAV & 3 other(s)
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Appearance:
MR MTM HAKIM for MR MOHSIN M HAKIM(5396) for the Appellant(s) No.
1,2,3
MR A A DAUDIVHORA(7516) for the Defendant(s) No. 1,2
Advocate name deleted as per Court's order dated 05/09/2018. for the
Defendant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
NOTICE SERVED(4) for the Defendant(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE SAMIR J. DAVE
                         Date : 25/10/2021
                        ORAL JUDGMENT

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

1. Heard Mr. M.T.M. Hakim, learned advocate for Mr. Mohsin Hakim, learned advocate for the

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appellants, Mr. A.A. Daudivhora, learned advocate for respondents no.1 and 2 and Mr. Tanmay Karia, learned advocate for the respondent no.3 - insurance Company. By an order dated 10.1.2018, a Coordinate Bench of this Court was pleased to issue notice for final disposal. Hence, learned advocates were heard for final disposal of the appeal.

2. Feeling aggrieved and dissatisfied by the judgment and award dated 28.8.2017 passed by the Motor Accident Claims Tribunal (Aux), Bharuch in MACP no.684 of 2008, the appellants-original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

3. Following facts emerge from the record of the appeal:-

3.1 That, on 29.5.2008 at about 9:00 a.m., the deceased was riding on a motorcycle bearing registration no. GJ-16 AD-2323 as a pillion rider and was proceeding towards Village Haldarva to join his services. It is the case of the appellants - original claimants that when the motorcycle reached Kematur Chokdi on National Highway no.8, respondent no.4 who was driving the motorcycle stopped the motorcycle

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on the road due to traffic and at that time, a truck bearing registration no. MH-19 Z-2200 came from behind driving in a rash and negligent manner and knocked down the motorcycle from behind, because of which, the deceased sustained serious injuries and died while he was being taken to the hospital. An FIR was lodged with the jurisdictional Police Station and the present claim petition was filed by the appellants under Section 166 of the Act and claimed compensation of Rs.75,00,000/-. The claimant no.1 was examined at Exh.56 and one Pravinbhai Rathva was examined at Exh.61 and truck driver was examined at Exh.91. The claimants relied upon plethora of documentary evidences, such as, FIR Exh.45, Panchnama Exh.46, inquest Panchnama Exh.47, postmortem note of the deceased Exh.48, R.C. book of truck Exh.49, insurance policy of truck Exh.50, certificate of electrical engineering of the deceased Exh.62, salary statement of the deceased Exh.63, statement of revised pay scale Exh.64, death certificate of the deceased Exh.65, revised basic pay statement of the deceased Exh.66, salary slips from February, 2008 to May, 2008 Exh.67, seniority list Exh.68, office order of Shri J.M. Pancholi Exh.73, salary statement of the deceased Exh.74, Form- 16 Exh.75, proposed salary details of the

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deceased Exh.73, board resolution Exh.79 and board resolution no.19/323 dated 15.10.2001 at Exh.80.

3.2 It was the case of the appellants - original claimants that the deceased was working as an Executive Engineer in Gujarat Energy Transmission Corporation Ltd. at Bharuch and had a monthly salary of Rs.60,188/- on the date of the accident. It was further the case of the appellants that the deceased got benefit of increase in pay based upon 6th pay commission with effect from 1.1.2006 and there was rise in the salary. A calculation sheet was also relied upon by the appellants at Exh.74. The Tribunal, after considering the evidence on record and more particularly, salary slips Exh.67, came to the conclusion that the rise in salary would not be applicable and after deducting income-tax, came to the conclusion that the income of the deceased was Rs.4,10,920/- on the date of the accident and after deducting one-third towards personal expenses and applying multiplier of 9, the Tribunal was pleased to award compensation of Rs.24,65,523/- under the head of loss of dependency and further awarded a sum of Rs.1,00,000/- under the head of loss of consortium, loss of estate as well as loss of love and affection to the deceased and

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Rs.10,000/- towards funeral expenses and thus, awarded total compensation of Rs.25,75,523/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization and being aggrieved by the same, the present appeal is filed by the appellants - original claimants.

4. Mr. Hakim, learned advocate for the appellants contended that the Tribunal has committed an error in determining the income of the deceased. Mr. Hakim contended that the Tribunal has wrongly calculated the income at Rs.38,919.46 and according to Mr. Hakim, the effect of 6th pay commission was given from 1.1.2006 i.e. before the date of the accident which took place on 29.5.2008. Relying upon the documentary evidence Exh.56, it was contended that in fact, after the death, arrears were received by the appellants. Mr. Hakim contended that as the effect of the increase in pay is given from 1.1.2006, the salary of the deceased was Rs.60,188/- on the date of the accident. Mr. Hakim also contended that as held by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, as the age of the deceased was 56 years and he was a salaried person, the appellants would be entitled to increase in income by way

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of prospective income to the tune of 15%, whereas, the Tribunal has not granted any prospective income. On the aforesaid grounds, it was therefore contended that the appeal may be allowed and the award be modified accordingly.

5. Mr. Vhora, learned advocate for the owner has opposed the appeal and has submitted that the truck driver has not committed any breach of the conditions of the insurance policy and therefore, the appellants have wrongly made respondent no.2 as party to the appeal.

6. Mr. Tanmay B. Karia, learned advocate for the insurance Company has opposed the appeal. Mr. Karia contended that the Tribunal has rightly assessed and has relied upon the salary statement to determine the income of the deceased from the date of the accident. Mr. Karia submitted that the Tribunal has committed no error and no interference is called for by this Court in exercise of its appellate jurisdiction. Mr. Karia also contended that the Tribunal has erred in awarding interest at the rate of 9% per annum, which should be granted at the rate of 8% per annum. According to Mr. Karia, the Tribunal has awarded just, fair and adequate compensation and therefore, it was contended

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that the appeal, being merit-less, deserves to be dismissed.

7. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

8. Upon reappreciation of the evidence on record and more particularly, the deposition of the claimant at Exh.56, and appreciating the evidence in form of office order, it clearly appears that the deceased, working as an Executive Engineer, got benefit of increase in salary based upon the provision of GSO-1 dated 1.7.2007 with effect from 1.1.2006. The documents at Exhs.63, 64, 65 and 67 if read in toto, clearly show that there was increase in the monthly salary of the deceased with effect from 1.1.2006 and therefore, the Tribunal has committed an error in coming to the conclusion that such effect cannot be given. Having noted the fact that the deceased had also got arrears of the revised pay from 6th pay commission, the effect of the same would be that the actual salary was increased with effect from the said date. This Court in the case of United India insurance Company Ltd. Vs. Rehanaben Salimbhai Mukindo, reported in 2018 (3) GCD 2408 held as under:-

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"10. The claimants had examined one Atul Mehta at exh.28. He was the employee of the bank. He stated that the deceased was working as an officer. In February 2005, his gross salary was Rs.19740/- per month. Such pay was revised in September 2005 with retrospective effect from November 2002. As per such pay revision in February 2005, pay of the deceased was fixed at Rs.22,492/- . Arrears of pay were also paid to the family. He stated that even if deceased was not promoted, his pay would have been Rs.80,000/- per month in June 2016, had he not met with the accident. He produced certificate of pay of the deceased at exh.29 and certificate indicating the prospective pay upon the date of retirement. He also produced the pay fixation and computation of arrears of the deceased upon retrospective pay revision."

9. In case on hand also, as stated hereinabove, the increase in salary was given effect to from 1.1.2006 and hence, on the date of the accident, the real salary of the deceased would come to Rs.60,188/- per month as canvassed by Mr. Hakim, learned advocate for the appellant. Following the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the appellants would also be entitled to prospective income to the tune of 15%. Having

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come to the aforesaid conclusion therefore, the appellants would be entitled to compensation under the head of loss of dependency as under:-

Rs.60,188/- Income per month X 12 Annual = Rs.7,22,256/- Income per year

- Rs.2,16,676.80 30% income-tax = Rs.5,05,579.20 Income + Rs.75,836.88 15% prospective income = Rs.5,81,416.08 Income

- Rs.1,93,805.36 One-third towards personal expenses = Rs.3,87,610.72 Total income X 9 Multiplier = Rs.34,88,496.48 Loss of dependency + Rs.70,000/- Conventional amount = Rs.35,58,496.48 Total compensation

10. It is, however, noteworthy that the Tribunal has awarded more amount of consortium and other conventional heads. Even according to Mr. Hakim, following the decision in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the same should be restricted to Rs.70,000/- including the funeral expenses and thus, the appellants would be entitled to Rs.35,58,496.48 rounded at Rs.35,58,500/-.

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11. Thus, the appellants - original claimants would be entitled to total compensation of Rs.35,58,500/- along with 9% interest per annum and costs as awarded by the Tribunal from the date of filing of the claim petition till its realization. As the Tribunal has awarded Rs.25,75,523/-, the appellants- original claimants would be entitled to an additional amount of Rs.9,82,977/- as additional compensation with 9% interest per annum from the date of filing of the claim petition till its realization. The impugned judgment and award stands modified to the aforesaid extent. The insurance Company shall deposit the additional/enhanced amount along with the interest as provided in this judgment within a period of eight weeks from the date of receipt of this judgment.

12. The appeal is thus partly allowed. However, there shall be no order as to costs in this appeal. Registry is directed to remit the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(SAMIR J. DAVE,J) Maulik