Gujarat High Court
Alkaben Rashmibhai Amin vs Vinodbhai Vajabhai Solanki on 6 October, 2022
Bench: A.J.Desai
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.2791 of 2010
With
R/FIRST APPEAL NO.2792 of 2010
HONOURABLE MR. JUSTICE A. J. DESAI Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
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1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
=========================================
ALKABEN RASHMIBHAI AMIN & 4 others
Versus
VINODBHAI VAJABHAI SOLANKI & 2 others
=========================================
Appearance :
First Appeal No.2791 of 2010
MR.HIREN M MODI for the Appellants.
MS MOXA G THAKKER for the Defendant No.3.
RULE SERVED for the Defendant No.1.
RULE UNSERVED for the Defendant No.2
First Appeal No.2792 of 2010
MR.HIREN M MODI for the Appellant.
RULE SERVED for the Defendant Nos.1, 4 and 5.
RULE UNSERVED for the Defendant No.2
MS MOXA G THAKKER for the Defendant No.3.
MR GC MAZMUDAR for the Defendant No.6.
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C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
=========================================
CORAM:HONOURABLE MR. JUSTICE A. J. DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 06/10/2022
COMMON ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. These cross appeals under Section 173 of the Motor
Vehicles Act, 1988 ('the Act' for short) are filed challenging the
common judgment and award dated 26.2.2010, passed by learned
Motor Accident Claims Tribunal (Auxiliary), Himmatnagar in MACP
No.964 of 1997 and MACP No.965 OF 1997 , wherein the tribunal
allowed both the claim petitions in part.
2. First Appeal No. 2791 arises out of MACP No.964 of
1997, whereas First Appeal No.2792 of 2010 arises out of MACP
No.965 of 1997. As both the claim petitions are arising out of same
accident and decided by common judgment and award dated
26.02.2010, with the consent of the parties they are heard and
decided together.
4. The facts in brief are as under: -
4.1 On 30.6.1997 at around 10.30 a.m., Rashmibhai
Manibhai Amin along with Krushan Krupeshkumar Patel were
going from Ahmedabad to Godhra in Maruti Car No. GJ-1-PP-471.
When they reached near village Veganpur sim, a truck No.GJ-17-X-
2655, came from opposite direction in rash and negligent manner
and dashed with the Maruti Car. Due to said collision, Rashmibhai
Amin sustained grievous injuries and succumbed to the same. Co-
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
passenger- Krushan Patel aged 13 years sustained injuries and
was taken to hospital for treatment.
4.2 Legal heirs of deceased Rashmibhai Amin preferred
Motor Accident Claim Petition No.964 of 1997 under Section 166 of
the Act seeking compensation of Rs.35 Lacs, whereas Krushan
Patel preferred Motor Accident Claim Petition No.965 of 1997
under Section 166 of the Act seeking compensation of
Rs.1,50,000/-. It was case of both the original claimants in their
respective claim petitions that the accident occasioned on account
of rash and negligent driving on the part of the driver of the Truck.
For the said accident, FIR was lodged and Panchnama was drawn.
4.3 Upon claim petitions being filed, the learned Tribunal
issued notices. The respondents appeared and filed their respective
written statements to the claim petitions. Respondent No.6 - United
India Insurance Company Limited, is the company with whom
Maruti Car having registration No. GJ-1-PP-471 was insured,
whereas, Respondent No.3 - The New India Assurance Company
Limited is the company with whom truck bearing Registration
No.GJ-17-X-2655 was insured
4.4 The Tribunal upon hearing the parties and after
appreciation of evidence, decided the issue as under: -
(i). In relation to negligence, the Tribunal in both the claim
petitions held the driver of the Truck negligent to the extent of 80%
and driver of the Car i.e. deceased Rashmibhai Amin negligent to
the extent of 20%.
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
(ii). In relation to compensation, the Tribunal in MACP
No.964 of 1997(in case of deceased Rashmibhai Amin), assessed
the income of the deceased at Rs.3,000/- per month and after
deducting personal expenses and applying the multiplier of 15,
assessed the dependency loss at Rs.3,60,000/-. The tribunal also
awarded Rs.25,000/- towards other conventional heads and after
deducting 20% negligence of the deceased, awarded total
compensation of Rs.3,08,000/- .
(iii). In MACP No.965 of 1997 i.e in the case of injured
claimant - Krushan Patel, the Tribunal after considering the
Disability Certificate at Exh.79, assessed the disability at 10% and
accordingly awarded Rs.27,000/- towards loss of dependency. The
tribunal further, awarded Rs.3,000/- towards actual loss of income,
Rs.10,000/- towards pain, shock and suffering and Rs.6,000/-
towards special diet and attendant charges. Thus, the Tribunal has
awarded total compensation of Rs.46,000/-.
5. Aggrieved by the negligence held and quantum of
compensation awarded, First Appeal No 2791 of 2010, is filed by
the legal heirs of deceased Rashmibhai Amin and aggrieved by the
quantum of compensation awarded First Appeal No. 2792 of 2010
is filed by the original claimant Krushan Patel.
Heard Learned Advocate Mr. Hiren Modi for appellant in both the
claim Petitions, Learned Advocate Mr. H.G.Majumudar for
respondent no. 6- insurance company of Maruti car and Learned
Advocate Ms. Moxa Thakkar for respondent no. 3- insurance
company of Truck. The issuance of the Policies by respective
Insurance Companies have not been denied and liability not being
disputed, presence of other respondents is not necessary and
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
dispensed with.
6. The present appeals came to be admitted by the
coordinate Bench on 23.11.2010. Records and Proceedings have
been secured from the Tribunal and is placed before us for perusal.
7. Appearing for the Appellants in both the appeals,
Learned Advocate Mr. Hiren Modi, submitted that the tribunal is in
error in holding driver of Maruti car negligent to the extent of 20%.
Relying upon Panchnama at Exh.70, he submitted that as recorded,
the Truck came on the wrong side of the road and dashed with the
Maruti Car. The Mruti Car was driven on the correct side of the
road with moderate speed; however, the impact was so heavy that
both, the Car and the Truck fell into the water ditch, which was on
the left side of the Car.
7.1 He also relied upon the deposition of Krushan Patel
(Exh.59) who was sole eye-witness of the accident. The said
witness had stated in his deposition that the Truck came on wrong
side of the road and dashed with the Car resulted into accident.
Because of the huge impact of heavy vehicle, maruti car fell in to
the water ditch, which was on the left side of the car. Further as
the Truck was with high speed it lost its control and also fell in to
the water ditch. This establishes that the Truck driver was sole
negligent for the accident. Therefore, the Tribunal is in error in
holding the driver of Car negligent to the extent of 20%.
7.2 In relation to compensation, learned advocate Mr.
Hiren Modi submitted that, the Tribunal is in error in assessing the
income of the deceased at Rs.3,000/- per month. He further
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
submitted that the deceased was aged 38 years at the time of
accident and was earning Rs.35,000/- per month by doing the
business of transportation and trading in the name of Ambica
Traders. He was Civil Engineer and had worked for 10 years in
United States of America and in the year 1996, he returned from
United States of America and settled in India. He further
submitted that license for the business was produced at Exh.84 to
establish that the deceased was doing business in the name and
style of Ambica Traders. Further, the deceased was owner of four
Trucks which he was using for his business. The R.C. Books of the
said Trucks are on record at Exh.88 to 91. He submitted that the
Tribunal had ignored these evidences which clearly establishes that
the deceased was earning Rs.35,000/- per month.
7.3 He further submitted that the Tribunal is also in error
in not awarding future prospective income. He relied upon
decisions of the Hon'ble Supreme Court in the case of National
Insurance Co. Ltd. vs. Pranay Sethi and Ors. reported in
(2017) 16 SCC 680, and in the case of Sarla Verma (Smt) and
Ors. vs. Delhi Transport Corporation & Anr. reported in
(2009) 6 SCC 121. He, thus, submitted that the claimants are
entitled for the just compensation under other conventional heads
which the Tribunal has not properly considered.
7.4 With regard to First Appeal No.2792 of 2010, learned
advocate Mr. Modi, for the appellant submitted that the
compensation awarded in case of Minor Krushan is on the lower
side. He placed reliance on the decision of the Hon'ble Supreme
Court in the case of Mallikarjun v. Divisional Manager,
National Insurance Company Limited and another, 2014 (14)
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
SCC 396 and submitted that in the said decision, it has been held
by the Hon'ble Supreme Court that in the cases of disability
ranging between 10% to 30%, compensation of Rs.1,00,000/-
would be appropriate and therefore, the Tribunal is in error in
awarding compensation of only Rs.46,000/-.
He, thus, submitted to allow the appeals and enhance
the compensation.
8. On the other hand, Ms. Moxa Thakkar, learned
advocate for respondent No.3 - The New India Assurance Company
with whom the Truck was insured submitted that the Tribunal is
correct in holding the driver of the Car negligent to the extent of
20%. From the panchnama, it can be noticed that the car and truck
both fell in to the water ditch and therefore negligence of driver of
Maruti car cannot be ignored.
In relation to compensation, she submitted that record
shows that prior to two years from the date of accident, the
deceased was serving at New York in United States of America.
However, there is nothing on record to establish that the deceased
was earning Rs.35,000/- per month by doing the business of
transportation and trading. She further submitted that the income
tax returns placed on record are not of much relevance as they are
for the period, 10 years prior to the date of accident and, therefore,
the same could not be considered for assessing the income of the
deceased. Mere R.C. Books of the trucks in the name of deceased
as also the license of business would not establish that the
deceased was earning Rs.35,000/- per month. In absence of any
income proof, the Tribunal has correctly assessed the income of the
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
deceased at Rs.3,000/- per month. She, therefore, submitted that
the compensation awarded by the Tribunal is just and proper and
does not call for any interference by this Court.
9. For the quantum of compensation awarded in First
Appeal No 2792 of 2010, learned advocate Ms. Moxa Thakkar
submitted that the same is based on appreciation of evidence or
record and does not call for interference. She submitted that as the
deceased was minor at the time of accident, the Tribunal
considered the income of the Minor notionally at Rs 15,000/- per
annum. There being no error no interference is required.
10. Learned advocate Mr. G. C. Mazmudar, appearing for
respondent No.6 - United India Insurance Company Limited with
whom Maruti Car was insured, submitted that considering the
Panchnama coupled with the deposition of the sole eye-witness i.e.
Krushan Krupeshkumar Patel (appellant of First Appeal No.2792 of
2010), the Tribunal is in error in holding the driver of the Maruti
Car negligent to the extent of 20%. He, therefore submitted that
the respondent No.6 Insurance Company, may be exonerated and
the driver of the Truck be held sole negligent for the accident in
question.
ISSUE OF NEGLIGENCE
11. Heard learned advocates appearing for the respective
parties and perused the Records and proceedings. Upon re-
appreciation of evidence, it is noticed from Panchnama at Exh.70,
that the Truck came on the wrong side of the road and dashed with
the Maruti Car which was going on the correct side of the road and
because of the impact of heavy vehicle, the Truck dragged Maruti
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
Car into water ditch and both the vehicles fell down in the ditch
which was at north side and the Truck came from south side.
Further, deposition of the sole eye witness Krushan K. Patel, who
was also travelling in the Car with the deceased (Exh.59) cannot be
ignored. He had deposed that, accident occasioned as the Truck
came on wrong side of the road with high speed and dashed with
the Car. Further, in the cross-examination by the Insurance
Company, nothing contradictory came on record. On the contrary,
he had deposed that he along with deceased were travelling on the
correct side of the road with moderate speed and as the Truck
dashed with the Car from the front side, both the vehicles fell down
in the water ditch which was on the side of the road, where the Car
was going. Hence, considering the Panchnama as well as
deposition of Krushan K. Patel, a sole eye-witness and co-passenger
in the Car, in our opinion, the Tribunal is in error in holding the
driver of the Car negligent to the extent of 20%, particularly when
nothing contradictory came on record in the cross-examination of
the said witness. Therefore, the driver of the Truck is hereby held
sole negligent for the accident in question and hence, the
respondent No.3 - The New India Assurance Company Limited with
whom the said Truck was insured is held liable to pay the
compensation. Respondent No-6, The United India Insurance
Company- insurance company of Maruti car is exonerated from its
liability.
ISSUE OF COMPENSATION IN FA 2791 OF 2010
12. In relation to the compensation awarded to the legal
heirs of the deceased - (claimants of MACP No.964 of 1997), it is
not in dispute that the deceased was doing business of
transportation and trading in the name of Ambica Traders. A copy
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
of license of Talod Market Yard (Exh.85), establishes that he was
doing business as referred in the claim petition. Moreover, R.C.
Books of four Trucks which were in the name of the deceased are
at Exh.88 to 91. Further, in the deposition of Alkaben Rashmibhai
Amin - widow of deceased (Exh.54), had stated that her husband
was earning Rs.35,000/- per month. In the cross-examination, she
has fairly admitted that nothing could be placed on record which
establishes that the deceased was earning Rs.35,000/- per month.
She also deposed in her cross-examination that she does not have
any account in relation to the business of her deceased husband.
Hence, considering the R.C. Books produced by the claimants as
also the license owned by the deceased for his business, it cannot
be denied that the deceased was having independent business of
transportation and trading, and was earning from the said
business. However, it cannot be ignored that no income tax
returns were filed or any books of accounts or other documents
were produced in relation to business transactions of the deceased
in support of the income proof. Considering these facts, the
nature of business of the deceased and the economic condition of
the year in which the accident took place, we deem it appropriate
to assess the income of the deceased at Rs.10,000/- per month and
therefore, calculating the said amount and keeping the ratio laid
down by the Hon'ble Supreme Court in the case of Sarla Verma
(Smt) and Ors. vs. Delhi Transport Corporation & Anr. reported in
(2009) 6 SCC 121 and in the case of National Insurance Co. Ltd. vs.
Pranay Sethi & Ors. reported in (2017) 16 SCC 680, and as he was
self-employed his future prospective income would be considered
at 40%. Therefore, income of the deceased would come at Rs.
14,000/- p.m. Since the deceased was survived by four dependents,
1/4th of personal expenses is required to be deducted. Further,
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
since the deceased was aged 38 years at the time of accident, the
claimants would be entitled for multiplier of 15 which has been
rightly awarded by the Tribunal. Thus the future loss of income
would be as under:-
Rs.10,000 + 4,000 (40% rise) = 14,000 - 3,500 (1/4th towards
personal expenses) = Rs.10,500 per month X 12 = Rs.1,26,900 x 15
(multiplier as the deceased was aged 38 years at the time of
accident) = Rs.18,90,000/-.
13. Further, in view of the decision of Magma General
Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram
and Ors. (2018) 18 SCC 130 and Satinder Kaur alias
Satwinder Kaur v. United India Insurance Co. Ltd. [AIR 2020
SC 3076], claimants would be entitled for Rs.40,000/- each
towards consortium. As the deceased was survived by four
dependents - widow, mother and two minor children, the claimants
would be entitled for an amount of Rs.1,60,000/-. It is pertinent to
note that father of the deceased passed away during the pendency
of the Claim Petition and accordingly, he was deleted from the
appeal. Further, the claimants would be entitled for Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral expenses.
Hence, the claimants of First Appeal No.2791 of 2010 would be
entitled for total compensation as under: :-
Future loss of income Rs.18,90,000/-
Parental consortium & Loss of Rs.1,60,000/-
consortium
Loss of Estate Rs.15,000/-
Funeral Expenses Rs.15,000/-
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
Total Rs.20,40,000/-
14. Thus, the appellants - claimants of First Appeal
No.2791 of 2010 would be entitled to total compensation of
Rs.20,40,000/-. As the Tribunal has awarded an amount of
Rs.3,08,000/-, the respondent No.3 - The New India Assurance
Company Limited shall deposit the balance additional amount of
compensation of Rs.17,32,000/- (Rs.20,80,000 - Rs.3,08,000) with
6% interest p.a. with proportionate costs from the date of filing of
the claim petition till its realization with the Tribunal within a
period of 8 weeks from the receipt of the order. The impugned
judgment and award dated 26.2.2010 passed by learned Motor
Accident Claims Tribunal (Auxiliary), Himmatnagar in MACP
No.964 of 1997 is modified to the above extent.
ISSUE OF COMPENSATION IN FA 2792 OF 2010
15. So far as compensation awarded to the appellant -
Krushan K. Patel -in First Appeal No.2792 of 2010 (MACP No.965
of 1997), the disability certificate at Exh.79 shows disability at
10%. After considering the said certificate, the Tribunal awarded
total compensation of Rs.46,000/-. A reliance has been placed by
learned advocate Mr. Modi on the decision of the Hon'ble Supreme
Court in the case of Mallikarjun v. Divisional Manager,
National Insurance Company Limited and another (Supra),
particularly paragraph 12 which reads as under :-
"12. Though it is difficult to have an accurate assessment
of the compensation in the case of children suffering
disability on account of a motor vehicle accident, having
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
regard to the relevant factors, precedents and the
approach of various High Courts, we are of the view that
the appropriate compensation on all other heads in
addition to the actual expenditure for treatment,
attendant, etc., should be, if the disability is above 10%
and upto 30% to the whole body, Rs.3 lakhs; upto 60%,
Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it
should be Rs.6 lakhs. For permanent disability upto 10%,
it should be Re.1 lakh, unless there are exceptional
circumstances to take different yardstick. In the instant
case, the disability is to the tune of 18%. Appellant had a
longer period of hospitalization for about two months
causing also inconvenience and loss of earning to the
parents.................................."
16. Applying the same principle as the claimant sustained
10% permanent partial disability as a body as whole, in our opinion
the appellant of First Appeal No.2792 of 2010 would be entitled
for total compensation of Rs.1,00,000/-. As the Tribunal has
awarded an amount of Rs.46,000/-, the respondent No.3 - The New
India Assurance Company Limited shall deposit the balance
additional amount of compensation of Rs.54,000/- (Rs.1,00,000 -
Rs.46,000) with 6% interest p.a. and proportionate costs from the
date of filing of the claim petition till its realization with the
Tribunal within a period of 8 weeks from the receipt of the order.
The impugned judgment and award dated 26.2.2010 passed by
learned Motor Accident Claims Tribunal (Auxiliary), Himmatnagar
in MACP No.965 of 1997 is modified to the above extent.
17. Both the appeals are partly allowed to the above extent.
C/FA/2791/2010 JUDGMENT DATED: 06/10/2022
The rest of the judgment and award passed by the learned Tribunal
has remained unaltered.
18. After the additional amount of compensation as ordered
above is deposited by respondent No.3 - The New India Assurance
Company Limited, the Tribunal shall refund the amount deposited
by the respondent No.6 - United India Insurance Company Limited
by A/c. payee cheque, after due verification.
19. Registry is directed to transmit back the Record and
Proceedings of the case to the concerned Tribunal forthwith.
However, there shall be no order as to costs.
Sd/-
(A. J. DESAI, J)
Sd/-
(MAUNA M. BHATT,J)
SAVARIYA
