Gujarat High Court
Taraben Pramodkumar Patel vs Koshikbhai Pramodbhai Patel on 23 February, 2022
Bench: Hemant M. Prachchhak
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4815 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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TARABEN PRAMODKUMAR PATEL
Versus
KOSHIKBHAI PRAMODBHAI PATEL
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 23/02/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 29.07.2019 passed by the
Motor Accident Claims Tribunal (Aux), Kheda at Nadiad
passed in MACP No. 1164 of 2011, the original
claimant has preferred this appeal under Section 173
of the Motor Vehicles Act, 1988 (hereinafter referred
to as the "Act").
2. The following facts emerge from the record of
the appeal -
2.1 On 18.04.2011, the deceased was travelling on
motorcycle bearing registration no. GJ-06-AS 5130,
which was being driven by the son of the deceased.
The record indicates that when the motorcycle reached
near Sabri Hotel, a vehicle came from the opposite
side with full light, because of which, the driver of
the motorcycle lost his control and dashed with an
unknown truck like vehicle which was in the side.
Serious injuries were received by the deceased and
ultimately, the deceased succumbed to the same. FIR
was lodged at exhibit 22 and the present claim
petition was filed under Section 166 of the Act,
claiming compensation of Rs. 25,00,000/-.
2.2 The claimant was examined at exhibit 20 and
reliance was placed on documentary evidence such as
Complaint at exhibit 22, panchnama at exhibit 23,
inquest panchnama at exhibit 24, PM report at exhibit
25, Driving license of motorcycle driver at exhibit
26, Birth Certificate of deceased at exhibit 27,
details of agriculture land at exhibits 28 and 29,
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
income certificate of the deceased at exhibit 36,
Central Excise Registration Certificate at exhibit
37, Udhyog Adhaar at exhibit 38, Central sale tax
registration at exhibit 39, Gujarat sale tax
certificate at exhibit 40, certificate of
registration at exhibit 41, certificate of
professional registration at exhibit 42, ITR of the
deceased at exhibits 55 to 57, Audit report at
exhibit 58 to 60, RC book of the offending vehicle at
exhibit 65, insurance policy of offending vehicle at
exhibit 66, memorandum of association at exhibit 67,
Copy of order of income of deceased at exhibits 68 to
71, Final report of police at exhibit 74.
2.3 The Tribunal came to the conclusion that the
accident occurred due to the sole negligence of the
offending vehicle. The appellant-claimant contended
that the deceased was earning Rs.25,000/- per month.
The claimant examined one Kishor Kumar, the Chartered
Accountant, at exhibit 54 and contended that deceased
was Director in a company named Relax Plasto Pvt.
Ltd.. The claimant also examined Avnish Tulsibhai
Patel at exhibit 35, who deposed before the Tribunal
that the deceased was Director in the firm and was
paid monthly salary of Rs.10,000. In order to prove
the income, the claimant relied upon the ITRs for the
assessment years 2008-09 at exhibit 55, 2009-10 at
exhibit 56 and 2010-11 at exhibit 57. The Tribunal
considering the evidence on record, determined the
income of the deceased at Rs. 10,000/- per month and
after considering prospective income to the extent of
10%, as per the judgment of the Apex Court in the
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
case of National Insurance Company Ltd. Vs. Pranay
Sethi, reported in 2017 (16) SCC 680, deducted 1/3rd
towards personal expenses and applying multiplier of
11, awarded compensation of Rs. 12,82,600/- under the
head of Future Economic loss and also awarded further
compensation of Rs.70,000/- under different
conventional heads including funeral expenses and
thus, while partly allowing the claim petition,
awarded a sum of Rs.13,52,600/-. Being aggrieved by
the same, the present appeal is filed.
3. Heard Dr. R.G. Dwivedi, learned advocate for the
appellant and Mr. Maulik Shelat, learned advocate
with Mr. Bhavin Thakar, learned advocate for the
insurance company. As the liability is not denied,
the presence of other respondents who are served, is
not necessary for deciding the present appeal and
with the consent of the learned advocates appearing
for the parties, the appeal is taken up for final
disposal.
5. We have also perused the Record and Proceedings.
6. Dr.R.G. Dwivedi, learned advocate for the
appellant has invited attention of this court through
the evidence at exhibits 55 to 57, which are the
records of the income tax. Dr. Dwivedi also relied
upon the deposition of Chartered Accountant at
exhibit 54. Dr. Dwivedi contended that the Tribunal
has committed an error in considering the annual
salary income. Referring to the deposition of
Kishorbhai at exhibit 54, it was contended by Dr.
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
Dwivedi that it has clearly come on record by way of
evidence of an expert, i.e. Chartered Accountant that
the income from other source were shown in the
computation of income for each of the assessment
year, the same relates to income from commission
which has stopped because of the sad demise of the
husband of the appellant, i.e., the deceased.
According to Dr.Dwivedi, the said amount has to be
considered to be part of the income of the deceased
and accordingly, monthly income deserves to be
determined. On the aforesaid ground, it was
contended by Dr. Dwivedi that the impugned judgment
and award deserves to be modified.
7.As against this, Mr. Shelat has opposed this
appeal. It was contended by Mr. Shelat that the
Tribunal has committed no error in determining the
income of deceased at Rs.10,000/- per month and no
interference is called for.
8. Mr. Shelat contended that the respondent no.1
happens to be the son of the deceased and one of the
class-1 heir and therefore, his share is required to
be deducted from the total compensation as he himself
was the tortfeaser. Mr. Shelat has relied upon the
Division Bench judgment of this Court in First Appeal
No. 2367 of 2019 dated 11.12.2019. According to Mr.
Shelat, the appeal being meritless, deserves to be
dismissed.
8. Dr. Dwivedi, in rejoinder, contended that the
offending vehicle, i.e., the scooter, belonged to the
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
uncle of the deceased an not the deceased and
therefore, the respondent cannot be held to be
tortfeaser. Dr. Dwivedi in all fairness has also
invited the attention of this Court to the judgment
in the case of Ranjana Prakash & Ors. vs. Divisional
Manager and Anr. reported in (2011) 14 SCC 639
wherein in para 8, it has been observe thus -
"8. Where an appeal is filed challenging the
quantum of compensation, irrespective of who
files the appeal, the appropriate course for the
High Court is to examine the facts and by
applying the relevant principles, determine the
just compensation. If the compensation
determined by it is higher than the compensation
awarded by the Tribunal, the High Court will
allow the appeal, if it is by the claimants and
dismiss the appeal, if it is by the
owner/insurer. Similarly, if the compensation
determined by the High Court is lesser than the
compensation awarded by the Tribunal, the High
Court will dismiss any appeal by the claimants
for enhancement, but allow any appeal by
owner/insurer for reduction. The High Court
cannot obviously increase the compensation in an
appeal by owner/insurer for reducing the
compensation, nor can it reduce the compensation
in an appeal by the claimants seeking
enhancement of compensation."
9. No other or further submissions or contentions
or grounds have been raised by the learned advocates
appearing for the respective parties.
10. At the outset, before considering the
submissions made by the respective advocates, it
deserves to be noted that the insurance company has
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
not challenged the award and it has satisfied the
award. Dr. Dwivedi, learned advocate for the
appellant submitted that the award has already been
satisfied by the insurance company. The question
which arises for consideration is whether the
Tribunal has committed any error in determining the
income of the deceased at Rs. 10,000/- p.m. In order
to examine the said issue, it would be appropriate to
refer to the deposition of the Chartered Accountant
Kishorbhai at exhibit 54. The Chartered Accountant
in his deposition has clearly mentioned that he has
filled in the return for all the three assessment
years. He has also deposed that income from other
sources is by way of income from earning commission.
He has also deposed in his cross-examination that he
has filled in the form and has audited the accounts
of deceased Pramodkumar T. Patel who was Director in
Relax Plasto Pvt. Ltd. The income tax acknowledgment
at exhibit 55 relates to assessment year 2008-09. It
shows that the gross total income of the deceased was
Rs. 1,41,240/- out of which 1,34,400/- was by way of
salary and Rs.6,840/- was from other source of
income, i.e., Commission. Similarly, exhibit 56 is
ITR for the assessment year 2009-10, wherein gross
total income is shown as Rs.145,560/- out of which,
Rs.1,20,000/- is by way of salary and Rs.24,560/- is
by way of income from other sources. The ITR at
exhibit 57 relates to assessment year 2010-11,
wherein the income shown is gross total income of
Rs.2,07,840/-, out of which, Rs. 1,20,000/- is the
income from salary and income from other sources is
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
Rs.87,840/-. An attempt was made by the learned
counsel for the appellant that there was income from
agriculture also. However, there is no evidence to
that effect and even in the deposition of Chartered
Accountant, there is no such mention about any income
from agriculture. Having re-appreciated the evidence
on record and more particularly considering the
deposition of Chartered Accountant, who has audited
the accounts as well as who has filled in the return
during the life time of the deceased, the income from
other sources was by way of commission, which has
ceased because of the sad demise of the deceased and
hence, the gross-income which requires to be
considered is the gross total income as shown in the
ITR and not only his salary income. Having come to
the aforesaid conclusion, the income for the year
2008-09 would be Rs.1,41,240/- (no income tax was
deducted) and the income for the assessment year
2009-10 would be Rs.1,45,560/- (no income tax
deducted) and income for assessment year 2010-11
would be Rs. 2,07,840/- - Rs.762/- = Rs.2,07,078/-.
Hence, on taking aggregate of last 3 years, and
average of 3 years, the average income of the
deceased would come to Rs.13,718.83, which is rounded
of to Rs. 13,700/-. Thus, the income of the deceased
would come to Rs. 13,700/-. Hence, the question
raised in this appeal is answered accordingly. The
Tribunal has therefore committed an error in
considering the income of the deceased at Rs.10,000/-
per month. Having come to the aforesaid conclusion,
the appellant would be entitled to compensation the
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
head of loss of Future economic loss as under -
Rs.13,700/- + Rs. 1,370/- = Rs.15,070/- -
Rs.5,023/- = Rs.10,047/- X 12 X 11 = Rs.
13,26,204/-
The total compensation would be as under -
Rs.13,26,204/- - Future economic loss
Rs. 15,000/- - Estate and Loss of Life
Rs. 40,000/- - Loss of consortium
Rs. 15,000/- - Funeral expenses
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Rs.13,96,204/- Total compensation
--------------
11. Following the judgment of the Division Bench of
this Court, in facts of this case, it is an admitted
position that the driver of the offending vehicle
happens to be the son of the deceased and he being a
tortfeaser, is not entitled to any compensation. Dr.
Dwivedi, at this stage, on inquiry made by this
Court, contended that there are four heirs of the
deceased including the appellant and hence, 1/4th
requires to be deducted from the total compensation
as determined by this Court. If such exercise is
undertaken, the same would come to Rs. 10,47,153/-
(Rs.13,96,204/- - Rs.3,49,051/- (1/4th))
10. Following ratio laid down by the Apex Court in
the case of Ranjana Prakash (supra), this Court in
appeal filed by the appellant-claimant, cannot reduce
the compensation granted as awarded by the Tribunal
and therefore, the appeal requires to be dismissed
C/FA/4815/2019 JUDGMENT DATED: 23/02/2022
and is accordingly dismissed. However, there shall
be no order as to costs. Record & Proceedings be
transmitted to the Tribunal forthwith.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
BIJOY B. PILLAI
