Gujarat High Court
Sushilaben Sureshbhai Jani vs Bhaveshbhai Karshanbhai ... on 9 August, 2023
Bench: Gita Gopi
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C/FA/2878/2022 JUDGMENT DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2878 of 2022
With
R/FIRST APPEAL NO. 2880 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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SUSHILABEN SURESHBHAI JANI
Versus
BHAVESHBHAI KARSHANBHAI PRAJAPATI
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/08/2023
COMMON ORAL JUDGMENT
1. Challenge in these appeals is to the common judgment and
award dated 05.04.2022 passed in Motor Accident Claim Petition
Nos. 53 and 54 of 2019, arising out of the same accident, by learned
Motor Accident Claims Tribunal (Auxiliary), Bhavnagar at Mahuva.
Motor Accident Claim Petition No. 53 of 2019 was filed by the heirs
of the deceased, whereas, Motor Accident Claim Petition No. 54 of
2019 was filed by the injured - claimant.
2. The facts of the case, as were urged before the learned
Tribunal, are that on 02.05.2019, at about 6:00 p.m. deceased
Sureshbhai Chaturbhai Jani (deceased) and Rameshbhai Jerambhai
Baladhiya (injured pillion rider), were going on motorcycle bearing
registration No. GJ-1-JP-6397 and proceeding from Village: Chhapri
of Mahuva Taluka and when they reached on the road between
Village: Sandhida and Hotel Sadguru, opponent No. 1, the driver of
Eeco Car, bearing registration No. GJ-8-BN-840 came on the wrong
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side, in rash and negligent manner, in excessive speed, endangering
human life and dashed with the motorcycle and because of the
accident, Sureshbhai Chaturbhai Jani died during the treatment,
while Rameshbhai Jerambhai Baladhiya sustained serious injuries.
The Tribunal, while appreciating the evidence on record on the issue
of negligence, has held the driver of Eeco car solely negligent for the
accident.
3. First Appeal No. 2878 of 2022 has been filed on the ground
that the learned Tribunal has committed an error in not appreciating
the Income Tax Returns (ITRs) of the deceased. Learned advocate
Mr. Bhalodi for the appellants submitted that the deceased was aged
54 years at the time of accident and was working as Priest and was a
tax payer. Relevant ITRs of Assessment Year 2018-2019 and 2019-
2020, which were placed on record vide exh. 57. The learned
Tribunal has recorded the income of Rs.2,81,905/- for the
Assessment Year 2018-2019. The accident had occurred on
02.05.2019. The ITR for the Assessment Year 2019-2020 was filed
after the death of the deceased, which reflects annual income of the
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deceased of Rs.2,96,186/-.
3.1 Mr. Bhalodi, the learned advocate for the appellants, relying
on the decision of the Hon'ble Supreme Court in Malarvizhi and
Others v. United India Insurance Co. Ltd. and Another, 2020 ACJ
526 submitted that the Tribunal ought to have placed reliance on the
ITRs to consider the income and future prospective rise in income
ought to have been granted accordingly. Mr. Bhalodi further stated
that the Tribunal could have relied on the income assessed for the
Assessment Year 2018-2019 as per the ITR for granting just
compensation.
3.2 While countering the arguments, learned advocate Mr.
Tanmay Karia for the respondent - insurance company stated that the
ITRs for the Assessment Year 2019-2020 was filed after the death of
the deceased and therefore, no reliance could be placed on it as the
veracity of the income would be questionable and therefore, stated
that the learned Tribunal has rightly assessed the monthly income of
the deceased as Rs.7,000/-.
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4. In Malarvizhi and Others (supra), the Hon'ble Supreme Court
has observed as under:
"10. The Tribunal proceeded to determine the agricultural
income arising from 36.76 acres of land on the basis of two
judgments of the High Court. The Tribunal arrived at two
different figures by applying the decisions and proceeded to
determine the agricultural income on an average of the two
amounts. The Tribunal superimposed a possible value of
income from agricultural land despite a clear indication in the
income tax returns of the income from agricultural land. The
method adopted by the Tribunal is not sustainable in law. On
the other hand, the High Court has proceeded on the basis of
the income reflected in the income tax returns for the
assessment year 1997-1998. The relevant portion of the return
reads:
"Income from House property - Rs. 1,920
Business profit (other than 14.b) - Rs. 1,21,071
Net Agricultural income - Rs. 88,140"
The tax return indicates an annual income of Rs 2,11,131 in
the relevant assessment year. Mr Jayanth Muth Raj, learned
Senior Counsel appearing on behalf of the appellant
contended that other documents were marked which reflected
the income of the deceased. We are in agreement with the
High Court that the determination must proceed on the basis
of the income tax return, where available. The income tax
return is a statutory document on which reliance may be
placed to determine the annual income of the deceased. To the
benefit of the appellants, the High Court has proceeded on the
basis of the income tax return for the assessment year 1997-
1998 and not 1999-2000 and 2000-2001 which reflected a
reduction in the annual income of the deceased."
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4.1 In Smt. Anjali & Ors. v. Lokendra Rathod & Ors., 2023 (3)
GLR 1617, the Hon'ble Apex Court has relied upon the decision in
Malarvizhi and Others (supra), and has reiterated the observation
affirming that ITR is a statutory document and hence, it should be
relied upon. The Apex Court in Malarvizhi and Others (supra), in
agreement with the High Court, has observed that determination of
the income must proceed on the basis of the ITR where available as
ITR is a statutory document on which reliance may be placed to
determine the annual income of the deceased. Here, on record, the
ITRs of both the Assessment Years viz. 2018-2019 and 2019-2020,
were placed on record vide exh. 57. The learned Tribunal was
required to rely on ITR assessment instead of imposing its own
figures while observing that the claimants were not able to prove the
definite and regular source of monthly income of the deceased. The
assumption made by the learned Tribunal of the income was
unwarranted since the statutory document was on record in the form
of ITR and reliance was to be placed on it to determine the annual
income of the deceased as assessed. Here, in this case, the learned
Tribunal could have relied on the ITR of the Assessment Year 2018-
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2019 to consider the income of the deceased, to avert any scope of
doubt, as subsequent ITR was not filed by the deceased. As
observed by the learned Tribunal, as per the ITR for the Assessment
Year 2018-2019, the gross income of the deceased was Rs.2,81,905/-
and the actual net income, after the deduction, was Rs.2,80,680/-.
The claimants are entitled for the compensation on the basis of the
ITR, assessed for the Assessment Year 2018-2019. 10% prospective
rise in income is required to be added keeping in mind the age of the
deceased as 54 years at the time of accident. From that, 1/4th
amount is to be deducted towards personal expenses of the deceased
and a multiplier of 11 is to be applied. Accordingly, the amount
towards dependency loss would be Rs.25,47,171/- (Rs.2,80,680 +
10% = 3,08,748 - 77,187 (1/4th) x 11).
4.2 The widow would be entitled to an amount of Rs.40,000/-
under the head of loss of consortium, Rs.15,000/- under the head of
loss of estate and Rs.15,000/- towards funeral expenses. Thus, the
computation of compensation would be as under:
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Head Award of (Rs.)
Dependency loss 25,47,171/-
Loss of Estate 15,000/-
Loss of consortium 40,000/-
Funeral Charges 15,000/-
Total 26,17,171/-
Tribunal's Award 8,32,500/-
Difference 17,84,671/-
4.3 So far as First Appeal No. 2880 of 2022 is concerned, the
injured pillion rider was engaged in agriculture work. The accident
had occurred on 02.05.2019. The learned Tribunal, considering his
age as 35, has assessed his income as Rs.5,000/- per month. Placing
reliance on the Minimum Wage Schedule, considering him as
unskilled labourer, the minimum wage per month, as per the material
supplied, in accordance with the Notification of the Government, his
income would be Rs.8,118/-.
4.4 The disability for the body as a whole has been agreed by both
the parties as 19%. Applying the multiplier of 15, the annual future
loss of income would come to Rs.2,77,636/- (Rs.8,118 x 19% x 12 x
15). Under the head of Pain, Shock and Suffering, the learned
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Tribunal has granted Rs.5,000/- but taking into consideration the
physical disability and the time for treatment and medical expenses,
this Court deems it fit to grant Rs.20,000/- under the said head. In
view of disability, the injured would not have been in a position to
work for about three months and thus, under the head of actual loss
of income, Rs.24,354/- is to be assessed. The medical bills have
been proved as Rs.1,34,550/- and thus, in corroboration of evidence
on record, Rs.15,000/- is required to be granted under the head of
Special Diet, Attendant Charges and Transportation Charges. Thus,
the computation would be as under:
Head Award of (Rs.)
Future loss of income 2,77,636/-
Pain, Shock and Suffering 20,000/-
Actual loss of income 24,354/
Medical expenses 1,34,550/-
Special Diet, Attendant Charges and 15,000/-
Transportation Charges
Total 4,71,540/-
Tribunal's Award 3,20,550/-
Difference 1,50,990/-
5. In view of the above, both appeals succeed and are
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accordingly, allowed in part. The impugned judgment and award of
the Tribunal, is hereby modified to the aforesaid extent. The
difference amount shall be deposited within a period of 06 (six)
weeks. The respective appellants - claimants shall be entitled to
interest at the rate of 7.5% per annum on such enhanced amount of
compensation, from the date of petition till realization. R&P be sent
back forthwith.
[ Gita Gopi, J. ]
hiren
/77-78
