Sabinabibi Wd/O Mohmed Faruk ... vs Mohmed Kalam Mohmed Umar
2022 Latest Caselaw 457 Guj

      C/FA/1736/2019                             JUDGMENT DATED: 13/01/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1736 of 2019

FOR APPROVAL AND SIGNATURE:
 HONOURABLE MR. JUSTICE R.M.CHHAYA                              sd/-
 and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA                           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 ?

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             SABINABIBI WD/O MOHMED FARUK CHANAWALA
                              Versus
                   MOHMED KALAM MOHMED UMAR
==============================================================
Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1,4,5
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 6
RULE SERVED(64) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
            and
            HONOURABLE MR. JUSTICE NIRAL R. MEHTA
                       Date : 13/01/2022
                       ORAL JUDGMENT

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

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 28.02.2018 passed in MACP No.463 of 2013 by the learned Motor Accident Claims Tribunal (Main), Bharuch, the original claimants have preferred present appeal under Section 173 of the Motor Vehicles Act, 1973.

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2.0. Heard Mr. Mohsin Hakim, learned advocate for the appellants- original claimants and Mr. Maulik Shelat, learned advocate for the respondent no.3. Though served, no one appears for the other respondents. Respondent no.6 Insurance Company has been exonerated and respondent no.3 Insurance Company has not filed any appeal and has not denied liability. With the consent of the learned advocate for the appellants and learned advocate for the respondent no.3, present appeal is taken up for its final hearing.

3.0. The accident took place on 16.2.2013 at about 4 hours in early morning between Luxury Bus bearing registration no. MH 04FK 8786 and Truck bearing registration no. MP-07-GA-3243. It is the case of the original claimants that the deceased was traveling by Luxury Bus from Jambusar to Mumbai. As the record indicates that the truck involved in the accident was being driven in rash and negligent manner and driver lost the control of the steering abruptly and went on the road of luxury bus and came on wrong side and dashed with the luxury bus, as a result of which, deceased along with other passengers suffered serious injuries and died on the spot. An FIR at Exh.73 was lodged with the jurisdictional police station and the original claimants preferred this appeal under Section 166 of the Act and claim compensation of Rs.30 lakhs. The deceased Mohmed Faruk Chanawala was plying his own truck and was doing wholesale business of Gram. One of the applicant Sabinabibi wife of Mohmed Faruk Chanawala was examined at Exh.40, Income Tax Inspector Shri Nileshbhai Mahendrabhai Trivedi examined at Exh.45 and the appellants claimants also relied upon the plethora of evidence as under:

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Particular Exh.No.

Copy of cover Note of the Truck involved in the 55 accident.

GA 3243 involved in the accident Copy of National permit of the aforesaid truck 57 involved in the accident Copy of driving license of the driver of the 58 luxury bus involved in the accident Copy of Insurance Policy of the luxury bus 59 bearing No.MH-04-FK-8786 involved in the accident Copy of RC Book of the luxury bus bearing 60 No.MH-04-FK-8786 involved in the accident. Copy of contract Carriage Permit of the luxury 61 bus bearing No.MH-04-FK-8786 involved in the accident Copy showing the details of passengers 62 traveling in the luxury bus.

Copy of Identity Card of the applicant no.4 63 issued by the Election Commission of India. Copy of Driving License of the deceased 64 Mohmed Faruk.

032 owned by the deceased.

Copy of passbook showing that the deceased 66 was holding the account in State Bank of India, Jambusar Copy of passbook showing that the deceased 67 was holding the account in the Janta Traders Co.Op. Society Limited, Jambusar Copy of certificate showing that the deceased 68 was investing the amount in PACL India Limited

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Copy of certificate showing that the deceased 69 was investing the amount in PACL Limited

Copy of Income Tax Tax Return of the 49 deceased filed for the AY 2011-12 Copy of Income Tax Tax Return of the 50 deceased filed for the AY 2012-13 Notarized copy of FIR converted into Gujarati 73 language from Marathi language Notarized copy of panchnama of scene of 74. offence converted into Gujarati language from Marathi language.

3.1. The Tribunal after considering the evidence on record came to the conclusion that the driver of the truck was solely negligent. On quantum aspect, the Tribunal considered the income tax return at Exhs.46 to 50 and other relevant documents and determined the income of the deceased at Rs.10,000/- per month and after giving 40% prospective income, deducted 1/4th towards personal expenses and applying multiplier of 17, awarded a sum of Rs.21,42,000/- as compensation for future economic loss. Over and above the same, the Tribunal was pleased to award Rs.77,000/- as compensation under the different conventional heads including funeral expenses and thus while partly allowing the claim petition was pleased to award a sum of Rs.22,29,000/- with 9% interest from the date of filing of claim petition till its realization. Being aggrieved and dissatisfied with the same, the present appeal is filed.

4.0. Mr. Hakim, learned advocate for the appellants contended that the Tribunal has committed an error in restricting the

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determination of income of the deceased at Rs.10,000/-. Relying upon the oral evidence of wife of the deceased at Exh. 40 as well as income tax inspector Mr. Trivedi at Exh.45 and the income tax returns for the AY 2011-12 and 2012-13 at Exhs.49 and 50, it was contended by Mr. Hakim that the Tribunal ought to have considered the income i.e. gross income minus tax for the two years and after taking average of the same should have been determined the income.

4.1. It was further contended that the appellants would also be entitled to consortium. On the aforesaid grounds, it was contended by Mr. Hakim that the impugned judgment and award deserves to be modified by partly allowing the appeal. Mr. Hakim also contended that the if the income is based on the same and if the compensation is enhanced more that what was prayed for, the appellants are also ready and willing to deposit the deficit court fees.

5.0. Per contra, Mr. Maulik Shelat, learned advocate for the Insurance Company has supported the impugned judgment and award. Mr. Shelat contended that the Tribunal has committed no error in determining the income of the deceased at Rs.10,000/-. According to Mr. Shelat, learned advocate for the Insurance Company that truck even after death of the deceased has remained with the appellants and therefore, there is no loss of income from the truck. Similarly, it was contended that the wholesale business must have been continued by heirs and hence there is no loss of income of the appellants. It was contended that the appeal being meritless, deserves to be dismissed.

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

7.0. Having considered the submissions made and on perusal of the relevant documents, more particularly, copies of income tax returns at Exhs. 49 & 50, question which arises in this appeal as to whether the Tribunal has correctly determined the income of the deceased at Rs.10,000/- per month or not ? Upon re-appreciating the evidence of income tax returns at Exhs. 49 & 50 for the AY 2011-12 and 2012-13 and following the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680 wherein it is held that the income would mean gross income minus tax, the average income for two years per annum comes to Rs.1,77,226/-, which comes to Rs.14,769/- per month. Considering the reasoning given by the learned Tribunal and upon re-appreciating the oral evidence of Mr. Trivedi at Exh.45, this Court is of the opinion that the Tribunal should have taken into consideration the income as per the income tax returns at Exhs. 49 & 50 and should not have restricted to Rs.10,000/- per month. The Tribunal has thus committed an obvious error. Considering the income of the deceased at Rs.1,77,226/- pa, the appellants would be entitled to 40% prospective income and after deducting 1/4th towards personal expenses and applying multiplier of 17 considering the age of the deceased to be 29 years on the date of accident, the appellants would be entitled to compensation under the dependency benefit as under:

"Rs1,77,226/- per annum (income) + Rs.70890/- (40% prospective income) =2,48,116/- - 62029/- (1/4 towards

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personal expenses = Rs.1,86,087/- X 17 (Multiplier as the age of the deceased was 29 years) = Rs29,77,392/-"

Hence, question as regard income raised in this appeal is answered accordingly. Over and above the same, Mr. Hakim is correct in contending that all the appellants would be entitled to consortium. Following the ratio laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd vs. Nanu Ral Alias Chuhur Ram & Ors reported in (2018)18 SCC 130, in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076 and in the case of New India Assurance Company Limited vs. Somwati and Ors reported in (2020) 9 SCC 644, the appellant wife, two minor children and parents would be entitled to consortium at Rs.40,000/- each. The original claimants would also be entitled to further amount of Rs15,000/- towards loss of estate and Rs. 15,000/- towards funeral expenses. Having come to the aforesaid conclusion, the appellants would be entitled to compensation as under:

Particulars                          Amount (Rs.)
Future loss of income                29,77,392/-
Loss of consortium                   2,00,000/-
Loss of estate                       15,000/-
Funeral expenses                     15,000/-
Total compensation                   32,07,392/-

8.0. Thus, the appellants - original claimants would be entitled to compensation of Rs.32,07,392/-, which would be just and adequate compensation. As the Tribunal has awarded Rs.22,29,000/-, the respondent No.3 Insurance Company shall deposit the additional amount of Rs.9,78,392/- with the

C/FA/1736/2019 JUDGMENT DATED: 13/01/2022

Tribunal within a period of eight weeks from the receipt of the order. However, on the additional amount of compensation awarded by this Court, the appellants would be entitled to interest at the rate of 6% from the date of filing of claim petition till its realization. The original claimants shall deposit deficit court fees and disbursement as per award be made only after such Court fees is deposited by the appellants. Rest of the award passed by the learned Tribunal remained unaltered. Appeal is thus, allowed accordingly. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(NIRAL R. MEHTA,J) KAUSHIK J. RATHOD