Chandrikaben Narotambhai Patel vs Parshwanath Travels Pvt Ltd
2022 Latest Caselaw 8941 Guj

      C/FA/650/2021                             JUDGMENT DATED: 10/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 650 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.J.DESAI

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

==========================================================
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 ?

==========================================================
                      CHANDRIKABEN NAROTAMBHAI PATEL
                                   Versus
                        PARSHWANATH TRAVELS PVT LTD
==========================================================
Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 4
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 3
==========================================================

    CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT


                                  Page 1 of 9

                                                      Downloaded on : Fri Oct 14 22:16:35 IST 2022
      C/FA/650/2021                             JUDGMENT DATED: 10/10/2022




                           Date : 10/10/2022

                         ORAL JUDGMENT

(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)

1. This appeal under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short) has been filed by the appellants - original claimants challenging the judgment and award dated 15.3.2019 passed by MACT (Auxi), CBI Court No.4, City Civil & Sessions Court, Ahmedabad in MACP No.398 of 2011 wherein the Tribunal awarded total compensation of Rs. 26,56,324/- under different heads.

2. The brief facts are as under:

2.1. That the accident in question occurred between Maruti Alto Car No. GJ-1-HG-7729 and luxuy bus No. RJ-27-P-6466. On 17.5.2011 at about 4:30 p.m., Narotambhai Vitthalbhai Patel (hereinafter referred to as 'deceased') was driving a Maruti Alto Car NO. GJ-1-HG-7729, from Ahmedabad to Ambaji. When the car reached near Prantiya, the luxury bus No.RJ-25-P-6466 came from opposite direction in a rash and negligent manner and collided with Maruti Alto Car from front. For the said accident, the deceased died on the spot. The legal heirs of deceased as original claimants filed claim petition under Section 166 of the Act seeking compensation of Rs.1.5 crore. It was case of the original claimants that the accident

C/FA/650/2021 JUDGMENT DATED: 10/10/2022

occurred on account of sole negligence of the driver of luxury bus. It was further their case that the deceased by way of doing business in the name of Patel Engineering Works, Ahmedabad was earning Rs.4,71,578/- p.a. It was further their case that the deceased was a partner in the partnership firm and in support of their claim had produced income tax return for Assessment Year 2008-2009 Exh.45, Assessment Year 2009-2010 Exh.46 and Assessment Year 2010-2011 Exh.47.

3. Upon claim petition being filed, notices were issued. Respondents appeared and filed their respective written statements. The Tribunal after hearing the parties and upon appreciation of evidence decided the issue of negligence in favour of original claimants by holding the driver of luxury bus as sole negligent for occurrence of the accident. In relation to compensation the Tribunal awarded Rs.7,98,061/- under different heads as under:

Rs.25,86,324/- Towards dependency Loss Rs.15,000/- Towards funeral expenses Rs.15,000/- Towards loss of estate Rs.40,000/- Towards loss of consortium Rs.26,56,324/- Total Compensation

C/FA/650/2021 JUDGMENT DATED: 10/10/2022

4. Aggrieved by the quantum of compensation awarded, present appeal is filed by the original claimants seeking enhancement.

5. Heard Mr. Nishit Bhalodi, learned advocate for the appellants - original claimants and Mr. Tanmay Karia, learned advocate for respondent No.2 - Insurance Company. As liability has not been denied, presence of respondent No.1 (owner of bus), respondent No.3 (owner of Alto Car) and respondent No.4 (Insurer of Alto Car) is not necessary, and dispensed with.

6. Mr. Bhalodi, learned advocate for the appellants - original claimants submitted that the Tribunal is in error in assessing the Income Tax returns of the deceased by taking into consideration the written filed by the partnership firm and then dividing the same by ½ considering that there were two partners to the firm through which the deceased was doing his business. He further submitted that the income tax returns filed by the deceased as individual are on record at Exh.45 for AY 2008-2009, Exh.46 for AY 2009-2010 and Exh.47 for AY 2010-2011. In the last return filed by the deceased for the year under consideration (AY 2010-2011), the gross total income was declared at Rs.4,94,456/- and after deducting the tax the net income would come to Rs.4,60,619/- and therefore,

C/FA/650/2021 JUDGMENT DATED: 10/10/2022

the Tribunal is in error in considering the returns filed by the firm and not by the deceased in his individual capacity. He further submitted that as deceased was 48 years old at the time of accident, the claimants would be entitled to 25% rise towards future prospective income. 1/4th is required to be deducted towards personal expenses and multiplier of 13 would be applicable. He further submitted that the claimants would also be entitled to compensation under other conventional heads i.e. consortium, funeral expenses and loss of estate as per decision of Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 and National Insurance Company Ltd. vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680. He thus submitted to enhance the compensation and to allow his appeal.

7. On the other hand Mr. Tanmay Karia, learned advocate for the Insurance Company supported the judgment and award of the Tribunal dated 15.3.2019.

8. Having heard learned advocates for the respective parties and upon appreciation of evidence on record, it is noticed that the Tribunal took into consideration the returns filed by the firm, in which the deceased was partner and doing business. The Tribunal considered, the income disclosed in the return

C/FA/650/2021 JUDGMENT DATED: 10/10/2022

filed by the firm and divided the same by ½ as there were two partners. In our opinion once the deceased had filed its income tax returns, as individual and the same were placed on record, the Tribunal should have considered the income tax returns filed by the deceased in his individual capacity and to that extent the judgment and award of the Tribunal is erroneous. The income tax returns filed by the deceased are as under:

(i) For AY 2008-2009 Gross income of Rs.4,40,354 minus Tax Rs.53520 = Rs.3,86,834/- net income. (Exh.45)

(ii) For AY 2009-2010 Gross income of Rs.4,78,925 minus Tax Rs.31,157 = Rs.4,47,768/- net income. (Exh.46)

(iii) For AY 2010-2011 Gross income of Rs.4,94,456 minus Tax Rs.33,837 = Rs.4,60,619 net income. (Exh.47)

9. The average net income of three years comes to Rs.4,31,740 (Rs.12,95,221 divided by 3). Further, we are in agreement with the submission of learned advocate for the appellants, that the original claimants would be entitled to 25% rise towards future prospective income as deceased was 48 years old and self-employed. In view of decision of Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Ors.

C/FA/650/2021 JUDGMENT DATED: 10/10/2022

(supra) multiplier of 13 would be applicable.

10. Therefore, the dependency loss would be as under:

"Rs.4,31,740 + Rs.1,07,935 = Rs.5,39,675 - Rs.1,34,919 (1/4th deduction) = Rs.4,04,756 x 13 (multiplier) = Rs.52,61,828/-"

11. In view of the decisions in the case of Satinder Kaur alias Satwinder Kaur vs. United India Insurance Co. Ltd. reported in AIR 2020 SC 3076 and Magma General Insurance Company Ltd. vs. Nanu Ram @ Chuhru Ram & Ors. reported in (2018) 18 SCC 130, as the deceased was survived by 5 dependents, the appellants would be entitled to Rs.40,000/- each towards consortium which would come to Rs.2,00,000/-. In our opinion, the appellants would also be entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Thus, the appellants would be entitled for total compensation as under:

Dependency Loss                     Rs.52,61,828/-
Loss of Consortium                  Rs.2,00,000/-
Loss of Estate                      Rs.15,000/-
Funeral Expenses                    Rs.15,000/-
Total                               Rs.54,91,828/-







         C/FA/650/2021                                           JUDGMENT DATED: 10/10/2022

12. In view of the above, we proceed to pass following order

O R D E R

(i) The appeal of the appellants - original claimants is partly allowed.

(ii) Thus, the appellants - original claimants would be entitled to total compensation of Rs.54,91,828/-. As the Tribunal has awarded an amount of Rs.26,56,324/-, the respondent Insurance Company shall deposit the balance additional amount of compensation of Rs.28,35,504/- (Rs.54,91,828 - Rs.26,56,324) 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 this order.

(iii) The rest of the judgment and award passed by the learned Tribunal has remained unaltered. However, there shall be no order as to costs.

(iv) Deficit court fees, if any, to be paid within 4 weeks from the date of receipt of the certified copy of this Judgment, failing which the same to be recovered from the additional compensation amount to be deposited by the Insurance Company.

C/FA/650/2021 JUDGMENT DATED: 10/10/2022

(v) Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith.

(A.J.DESAI, J)

(MAUNA M. BHATT,J) NAIR SMITA V.