New India Assurance Co Ltd Through vs Nandlal Hariramji Salvi
2023 Latest Caselaw 3141 Guj

     C/FA/4404/2008                                JUDGMENT DATED: 21/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4404 of 2008

                                    With
                      R/CROSS OBJECTION NO. 106 of 2008
                                      In
                         FIRST APPEAL NO. 4404 of 2008

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO
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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                 No
     of the judgment ?

4    Whether this case involves a substantial question                 No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                  NEW INDIA ASSURANCE CO LTD THROUGH
                                 Versus
                    NANDLAL HARIRAMJI SALVI & 3 other(s)
==========================================================
Appearance:
Ms.MASUMI NANAVATY, ADVOCATE FOR MR VIBHUTI
NANAVATY(513) for the Appellant(s) No. 1
MR.MOHSIN HAKIM, ADVOCATE FOR MR MTM HAKIM(1190) for
the Defendant(s) No. 3,4
RULE SERVED for the Defendant(s) No. 1,2
==========================================================
    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                               Date : 21/04/2023

                              ORAL JUDGMENT

1. This appeal has been preferred by the appellant -

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

the New India Assurance Company Limited under section

173 read with Section 166 of the Motor Vehicles Act ("the

Act" for short) being aggrieved and dissatisfied by the

judgment and award passed in Motor Accident Claims

Petition No.457 of 2000 by the learned Motor Accident

Claims Tribunal (Aux.), Vadodara on 11.4.2008.

2. The original claimant has also filed Cross

Objection No.106 of 2008 in First Appeal No.4404 of 2008

for enhancement of the amount of compensation awarded

by the learned Tribunal.

3. The brief facts of the case that emerge from the

record are as under.

3.1 That on 11.9.1999, the claimant was driving her

Maruti car No.GJ 6 A 1126 and coming from Udaipur to

Kesariya and while she reached Baragauv village on

National Highway No.8 at Rajasthan she was driving the car

on the correct side of the road in medium speed and just

near the turning at Baragauv village, the opponent No.1

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

came driving Tanker No.RJ 27 G 2686 in full speed, in a

rash and negligent manner on the wrong side of the road as

he was overtaking another vehicle and hit the Maruti car

and the accident occurred. That the claimant and

occupants of the car were injured and the claimant has

filed the application under section 166 of the Act seeking

inter alia compensation for injuries sustained as a result of

the motor vehicular accident.

4. The learned Tribunal, after having considered the

evidence on record, held the driver of the offending vehicle

as sole responsible for the accident in question and awarded

compensation by considering the income of the claimant at

Rs.7000/- per month. Considering the injuries sustained,

the learned Tribunal has assessed permanent disability

body as a whole at 50% and considering the age of the

claimant to be of 60 years, the learned Tribunal has adopted

multiplier of 6. Accordingly, the learned Tribunal awarded a

sum of Rs.2,52,000/- under the head of loss of future

income, Rs.1,00,000/- under the head of pain, shock and

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

suffering, Rs.60,000/- under the head of medical expenses,

Rs.60,000/- under the head of actual loss of income,

Rs.5000/- under the head of transportation and

Rs.10,000/- towards special diet charges. Thus, in all, the

learned Tribunal has awarded a sum of Rs.7,18,000/- by

way of compensation with 7.5% interest from the date of

application till realization.

5. Being aggrieved and dissatisfied by the aforesaid

award, the appellant - insurance company has approached

this Court by way of this appeal.

6. I have heard learned advocate Ms.Masumi

Nanavaty, learned advocate for Mr.Vibhuti Nanavati,

learned advocate for the appellant and Mr.Mohsin Hakim,

learned advocate for Mr.MTM Hakim, learned advocate for

respondent Nos.3 and 4. Though served, respondent Nos.1

and 2 have not appeared.

7. It is mainly contended by Ms.Masumi Nanavaty,

learned advocate appearing for the appellant - insurance

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

company that the learned Tribunal has erred in considering

the future loss of income even though it has been

established by the claimant herself that in spite of the

accidental injuries, her professional income has gradually

increased. It is, therefore, submitted that there was no loss

of income on account of the alleged disability. Ms.Nanavaty

has further submitted that the learned Tribunal ought to

have considered the income of the claimant at Rs.4500/-

per month instead of Rs.7000/- per month and has further

submitted that the learned Tribunal has also erred in

awarding the amount of compensation on other heads such

as pain, shock and suffering. She, therefore, urged this

Court to allow the appeal.

8. On the other-hand, Mr.Mohsin Hakim, learned

advocate for respondent Nos.3 and 4 has submitted that the

amount awarded by learned Tribunal is extremely on the

lower side, disproportionate and not in consonance with the

facts and evidence on record and the learned Tribunal has

erred in computing the income of the claimant at Rs.7000/-

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

per month. That the learned Tribunal has not properly

assessed the earning capacity and misinterpreted the

income tax returns. The learned advocate has further

submitted that the claimant's deposition was recorded vide

Exh.61, but the opponents including the appellant

insurance company have not challenged the same by cross

examining the claimant on the point of income, disability,

expenses etc and no witnesses were examined by the

opponents to rebut the evidence of the claimant. Moreover,

considering the future medical treatment of the claimant,

the learned Tribunal ought to have awarded higher amount

and the learned Tribunal has also erred in applying the

multiplier in case of the claimant. Lastly, the learned

advocate has requested this Court to enhance the amount of

compensation.

9. I have gone through the record and proceedings

of the present appeal and find that there is no dispute with

regard to the age of the claimant as considered to be of 60

years by the learned Tribunal as the date of birth in the

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

Income Tax Returns produced at Exh. 65 shows the date of

birth of the claimant as 10.7.1939. The accident occurred

on 11.9.1999 hence the age of the claimant is rightly held to

be of 60 years. The main challenge is with regard to the

monthly income considered by the learned Tribunal to be of

Rs.7000/- per month of the claimant. Admittedly, the

claimant is a practicing advocate and the claimant has

produced income tax returns for the assessment years

2000-2001, 2001-2002, 2002-2003, 2003-2004 and 2004-

2005 and her income from the profession is shown as

Rs.52,365/-, Rs.83,066/-, Rs.63,564/-, Rs.72,802/- and

Rs.95,660/- respectively and the income tax returns are

produced at Exh.65. The learned Tribunal has considered

these income tax returns and held that the claimant has

income of Rs.7000/- per month. Learned advocate

Ms.Nanavati has vehemently argued that the income of the

claimant must be considered at Rs.4500/- per month,

whereas learned advocate Mr.Hakim has urged this Court

to consider the income of the claimant to be Rs.8700/- per

month. It is pertinent to note that the accident in question

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

had taken place on 11.9.1999 and the income tax returns

produced at Exh.65 are for the assessment year 2000-2001

onwards. The income for the assessment year 2000-2001

shows income of Rs.52365/- and it is apparent that after

the accident the claimant may not have been able to work

for some time. The learned Tribunal has held that the

claimant would not have worked for 10 months and

considering the income tax returns of 2000-2001 and

2001-2002 it appears that the learned Tribunal has rightly

considered the income of the claimant to be of Rs.7000/-

per month also considering the fact that the claimant is an

advocate practicing for more than 37 years in the courts at

Vadodara. Moreover, both the learned advocates have

agreed that the learned Tribunal has applied the multiplier

of 6 when in fact, the claimant is entitled for multiplier of 9

as per the judgment of the Honourable Supreme Court in

the case of Sarla Verma and others Vs Delhi Transport

Corporation and another, reported in (2009) 6 SCC 121.

Hence, the amount of future loss of income considering

disability of 50%, would come to Rs.7000/- x 50% = 3500 x

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

12 x 9 = 3,78,000/- instead of Rs.2,52,000/- as awarded by

the learned Tribunal.

10. The learned Tribunal has considered that the

claimant could not attend the Court for a period of 10

months and has suffered a lose of income but this amount

also seems to be erroneous as when the learned Tribunal

has held income of the claimant to be Rs.7000/- per month

and concluded that the claimant would not have worked for

10 months, the amount of Rs.70,000/- instead of

Rs.60,000/- ought to be awarded to the claimant towards

the actual loss of income.

11. Learned advocate Ms.Nanavati has vehemently

argued that the learned Tribunal has granted the amount of

Rs.2,00,000/- towards the future expenses for operation of

the claimant and the learned Tribunal has awarded interest

on this amount. The learned advocate has referred to the

judgment of the Honourable Supreme Court in the case of

R.D.Hattangadi Vs Pest Control (India) Pvt. Ltd.,

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

reported in (1995) 1 SCC 551 and has argued that no

interest shall be payable on the amount awarded towards

the future medical expenses. Learned advocate Mr.Hakim

has submitted that the learned Tribunal has rightly

awarded the amount with interest towards future medical

expenses. At this juncture, it would be appropriate to refer

to Sidram Vs. The Divisional Manager, United India

Insurance Company Limited and another of the Hon'ble

Supreme Court decided on 16 th November, 2022 in Civil

Appeal No.8510 of 2022 arising out of SLP (C)

No.19278 of 2018 wherein the learned Tribunal had also

awarded amongst other heads an amount of Rs.25,000/-

for future medical expenses and the Honourable High

Court had not awarded any amount towards future medical

expenses but the Honourable Supreme Court awarded an

amount of Rs.2,16,000/- to the claimant, with interest as

awarded by the learned Tribunal and hence, it would be

appropriate to hold that the learned Tribunal has not erred

in granting interest towards the future medical expenses to

the claimant.

C/FA/4404/2008 JUDGMENT DATED: 21/04/2023

12. In view of the above discussion, First Appeal

No.4404 of 2008 filed by the appellant - New India

Assurance Company Limited fails and the same is hereby

dismissed. Cross Objection No.106 of 2008 is partly

allowed. The impugned judgment and award passed by the

learned Motor Accident Claims Tribunal (Aux.) Vadodara

dated 11.4.2008 in Motor Accident Claims Petition No.457

of 2000 is hereby modified to the aforesaid extent. The

appellant insurance company is hereby directed to deposit

the enhanced amount of Rs.1,36,000/- before the learned

Tribunal within a period of 12 weeks from the date of receipt

of the order. The rate of interest on the enhanced amount

is to be at the rate of 6% per annum. The learned Tribunal

is directed to disburse the said enhanced amount to the

claimant by RTGS/NEFT after due verification. Record and

Proceedings be sent back to the concerned learned Tribunal

forthwith. There shall be no order as to costs. Rule is made

absolute to the aforesaid extent.

(S. V. PINTO,J) BEENA SHAH