Nitaben Manishbhai Thakkar vs Vishalbhai Rameshbhai Vaghani
2022 Latest Caselaw 10298 Guj

     C/FA/1672/2019                               JUDGMENT DATED: 21/12/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1672 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
======================================================

      Whether Reporters of Local Papers may be allowed to see
 1                                                                        NO
      the judgment ?
 2 To be referred to the Reporter or not ?                                YES

      Whether their Lordships wish to see the fair copy of the
 3                                                                        NO
      judgment ?
   Whether this case involves a substantial question of law as
 4 to the interpretation of the Constitution of India or any              NO
   order made thereunder ?

======================================================
              NITABEN MANISHBHAI THAKKAR
                            Versus
            VISHALBHAI RAMESHBHAI VAGHANI
======================================================
Appearance:
MR YOGEN N PANDYA(5766) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
MR. BHAVIK P SHAH(6391) for the Defendant(s) No. 1,2
======================================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 21/12/2022

                            ORAL JUDGMENT

1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988

(MV Act) filed at the instance of the appellant - original claimant against

C/FA/1672/2019 JUDGMENT DATED: 21/12/2022

the judgment and award dated 05.05.2018 passed by the learned Motor

Accident Claims Tribunal (Auxiliary), Bhavnagar (Tribunal) in Motor

Accident Claim Petition No. 110 of 2015 (claim petition), which was

preferred under Section 166 of the MV Act, whereby, against a claim valued

at Rs.35 lakh for the injuries sustained in an accident that had occurred on

24.01.2014, the Tribunal has awarded a sum of Rs.5,81,400/- with interest at

the rate of 9% per annum from the date of claim petition till realization,

holding liable the opponents therein to pay the compensation to the

appellant - original claimant. Hence, grieved claimant has filed this appeal

on the point of quantum.

2. Since, the facts of the accidents are not in dispute, the same are not

detailed here.

3. None, present for the respondent Nos. 1 and 2 when called out. The

respondent No. 3 - the insurance company being the main contesting party,

the Court proceeded to hear the matter finally. Accordingly, heard, learned

advocate Mr. Yogen Pandya for the appellant and learned advocate Mr.

Tanmay B. Karia for the respondent No. 3 - insurance company.

3.1     The gist of the arguments of the learned advocate for the appellant is






      C/FA/1672/2019                                JUDGMENT DATED: 21/12/2022

that the appellant - claimant was running a firm in the name and style of Om

Marketing indulged in fitting and repairing work of Air Conditioner etc. and

was thereby, earning Rs.50,000/- per month and to substantiate the said fact,

though produced the ITR in support of her claim, the Tribunal did not take

into consideration such amount towards income of the appellant while

computing the compensation. Further, the Tribunal has erred in considering

Rs.3,000/- per month as the income of the appellant - claimant. Moreover,

it is submitted that the Tribunal has erred in awarding actual loss of income.

Further, it is submitted that under the heads of Pain, Shock and Suffering,

Special Diet, Attendant Charges and Transportation Charges also, the

Tribunal has awarded meagre amounts. Accordingly, it is urged that this

Court may allow this appeal considering the said aspects of the matter and

thereby, enhance the award suitably.

4. Per contra, the learned advocate for the respondent No. 3 - insurance

company, while heavily opposing this appeal and supporting the impugned

judgment and award, submitted that the impugned judgment and award

being just and proper, no interference is required at the hands of this Court.

It is submitted that the Tribunal has rightly not believed the tax returns for

want of proper seal and signature and copy of challan for tax deposit.

Further, admittedly, the appellant - claimant has not taken any course with

C/FA/1672/2019 JUDGMENT DATED: 21/12/2022

respect to air conditioner repairing work and has not studied about the same.

Further, there was no documentary evidence to suggest that the appellant

was taking contracts for AC repairing work. Accordingly, considering all

such facts and circumstances of the case, the Tribunal has rightly considered

the income of the claimant - appellant at Rs.3,000/- per month. Further, it is

submitted that the amount awarded under different heads are also rightly

awarded by the Tribunal and accordingly, he requested that this appeal

being bereft of any merits, deserves to be dismissed.

5. Regard being had to the submissions made and considering the

averments made in the appeal as well as a perusal of the record reveal that in

an accident that had occurred on 24.01.2014, the appellant - claimant had

sustained severe injuries and stated to have suffered great pain, shock and

suffering besides the loss of income. The appellant - claimant has sustained

28% disability body as a whole. The appellant - claimant stated to have

been indulged in a business of AC repairing work and was running a firm in

the name of Om Marketing and thereby, was earning to the tune of

Rs.50,000/- per month. A perusal of the record reveals that to substantiate

the said fact, the appellant - claimant had produced ITR for the relevant

assessment year before the Tribunal wherein, admittedly, her income is

shown as Rs.5,22,895/-. Nonetheless, the Tribunal has not believed such an

C/FA/1672/2019 JUDGMENT DATED: 21/12/2022

ITR on the count that the same does not bear the seal or signature of the

concerned authority. However, from a perusal of the record it transpires that

the appellant - claimant had filed e-return, copies of which are produced at

Exh. 42, which do not bear any seal or signature of the receiving authority.

The gross income of the appellant - claimant for the Assessment Year (AY)

2012-2013 is Rs.4,10,897/-, having net income Rs.3,10,900/-, for AY 2013-

2014 Rs.6,03,787/-, having net income Rs.5,03,183/- and for AY 2014-2015

Rs.6,23,455/-, having net income Rs.5,22,895/-. Further, the returns are

filed in the name of the appellant - claimant only. Therefore, there was no

reason for the Tribunal for not considering the said amount as income of the

appellant - claimant. Accordingly, when the appellant - claimant was a

running business as discussed herein above and was earning thereby, and in

that regard ITRs are also filed and produced on record, in the considered

opinion of the Court, the Tribunal has erred in considering the income of the

petitioner - claimant. However, the appellant - claimant has admitted that

her husband was doing the work of selling the Acs and the claimant was

doing the AC repairing work by taking contracts. Further, her husband used

to do the AC repairing and she only used to take contracts. Accordingly, the

income of the appellant - claimant is justified, however, since the applicant

- claimant was only indulged in taking contract work and her husband was

doing the rest, it would be in the fitness of things if her income is taken at

C/FA/1672/2019 JUDGMENT DATED: 21/12/2022

Rs.25,000/- per month. Further, the amounts awarded under different heads

are also required to be enhanced suitably as being trivial sum. Therefore,

this appeal, is required to be allowed to that extent and the impugned

judgment and award is required to be modified accordingly.

6. In the aforesaid backdrop, this appeal succeeds and is allowed

accordingly. The impugned judgment and award is modified to the

aforesaid extent and it is held that the appellant - claimant shall be entitled

for the following towards compensation:

             Head                 Award of Tribunal           Modified Amt. (Rs.)
                                       (Rs.)
Future loss of income                         1,41,120/-                11,76,000/-
                                                               (25,000x28%x12x14)
Pain, Shock & Suffering                         20,000/-                         35,000/-
Special Diet, Attendant,                        20,000/-                         50,000/-
Transportation
Medical Expenses                              3,91,184/-                      3,91,184/-
Actual loss of income                               9,000/-                      50,000/-
                          Total              5,81,304/-                   17,02,184/-
                                        R/o. 5,81,400/-               R/o,17,02,400/-
            Different Amt.                                                  11,21,000/-


6.1     The difference amount shall be deposited within a period of 08 (eight)

weeks.







       C/FA/1672/2019                                 JUDGMENT DATED: 21/12/2022




6.2     The appellant - claimant shall be entitled to interest at the rate of 6%

per annum on such enhanced amount of compensation, from the date of

petition till realization.

6.3 The rest of the impugned judgment and award is not disturbed.

6.4     R&P, if received, be sent back forthwith.


                                                               [ A. C. Joshi, J. ]
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