Gujarat High Court
Gopalbhai Jinabhai vs Meenaben Gopalbhai Barot on 11 January, 2023
Bench: Aniruddha P. Mayee
C/FA/2141/2019 JUDGMENT DATED: 11/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2141 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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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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GOPALBHAI JINABHAI
Versus
MEENABEN GOPALBHAI BAROT
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 11/01/2023
ORAL JUDGMENT
1. The present First Appeal arises out of the challenge to
impugned judgment and award dated 30.11.2017 passed in Motor
C/FA/2141/2019 JUDGMENT DATED: 11/01/2023
Accident Claim Petition No.116 of 2014 whereby learned Motor
Accident Claims Tribunal, Surendranagar has awarded a
compensation of Rs.1,61,800/- to the appellant - claimant.
2. The brief facts leading to filing of the present First Appeal
are as follows :-
2.1 That on 04.03.2014, when the appellant was traveling with
his family members by car, an accident occurred at 5.30 pm within
the local limits of Lakhtar Police Station. The accident had
occurred due to loss of control over the car by the driver, as a
result of which, the car dashed with a wall of one rivulet. The
appellant herein sustained injuries in the said accident. The
appellant herein also suffered permanent partial disability of 24.5%
of left upper limb. The appellant herein filed Claim Petition No.116
of 2014 under Section 166 of the Motor Vehicles Act, claiming a
compensation of Rs.3,00,000/-.
2.2 After due notice, the parties appeared and led evidence in
support of their case. In support of his claim for income, the
appellant herein, apart from the oral evidence produced on record,
produced three income-tax returns for the assessment years 2011-
2012, 2012-2013 and 2013-2014. At the time of incident, the
appellant was aged 55 years. It was the case of the appellant that
he was TV Artist and was earning income by way of performing in
concerts. He therefore claimed that he was earning Rs.2,81,000/-
per annum. The respondent - Insurance Company disputed the said
fact.
2.3 After considering the oral as well as documentary evidence,
the learned Tribunal assessed the income of the appellant herein at
C/FA/2141/2019 JUDGMENT DATED: 11/01/2023
Rs.10,000/- per month for computation of compensation. The
learned Tribunal has granted a compensation of Rs.1,61,800/- to
the appellant with the proportionate cost and with interest at the
rate of 9% per annum.
3. Learned advocate Ms. Amrita Ajmera appearing on behalf of
the appellant - claimant submitted that the learned Tribunal has
grossly erred in considering the income of the appellant at
Rs.10,000/- per month when he had produced the income-tax
returns of three years which showed the constant average income
of the appellant at Rs.2,61,000/- per annum. She submitted that
accordingly, the average income of the appellant was Rs.21,750/-
per month. She further submitted that the learned Tribunal has not
taken the same into consideration while assessing the future
income at Rs.10,000/-. She submitted that there was no evidence
available on record to show that in future, the income of the
appellant would decline. She submitted that the learned Tribunal
has assessed considering the annual income of the appellant and
the same ought to be considered at Rs.2,61,000/- being the average
of three income-tax returns which were produced on record. In
view thereof, she submitted that the compensation needs to be
reassessed and the appellant herein is entitled to additional
compensation.
3.1 Learned advocate Ms. Ajmera has relied upon the judgments
of the Hon'ble Supreme Court in case of United India Insurance
Company Limited vs. Indiro Devi [2018(7) SCC 715] and
another in case of Malavizhi vs. United India Insurance
Company Limited [2020(4) SCC 228] wherein the Hon'ble
Supreme Court has held that when statutory document like income-
tax return is produced on record, the determination of income must
C/FA/2141/2019 JUDGMENT DATED: 11/01/2023
proceed on the basis of the said document of income-tax return to
determine the annual income of the deceased.
4. Per contra, learned advocate Ms. Kirti Pathak appearing on
behalf of the respondent - Insurance Company has opposed the
First Appeal. She submitted that in the present case, though the
appellant has produced the documents of three income-tax returns
in support of his income, it has come on record by way of oral
evidence in the cross-examination of the appellant himself that he
has not filed any further income-tax return after the incident. She
submitted that in view thereof, the learned Tribunal was correct in
assessing the income of the appellant at Rs.10,000/- per month for
computation of compensation under the head of future income loss.
She further submitted that the appellant being a TV Artist did not
have any regular source of income and therefore, it could not be
said that he had constant income and therefore also, the learned
Tribunal was correct in assessing the income of the appellant at
50% of the income-tax returns. She therefore submitted that the
First Appeal be dismissed as learned Tribunal has assessed the just
and proper compensation.
5. Heard learned advocates for the respective parties and
perused the documents on record.
6. The Hon'ble Supreme Court in the case of Indiro Devi
(supra) has held that while assessing the income, the income-tax
return cannot be totally ignored. Further, in the case of Malavizhi
(supra), the Hon'ble Supreme Court has held that the
determination of income must proceed on the basis of the income-
tax return and the income-tax return is a statutory document on
which reliance can be placed to determine the annual income of the
deceased.
C/FA/2141/2019 JUDGMENT DATED: 11/01/2023
7. In the present case, the only evidence with respect to the
income of the appellant is three years' income-tax returns which
are produced on record. There is no other document produced with
respect to the income of the appellant. In view thereof, the learned
Tribunal ought to have taken the average income in respect of
three income-tax returns as produced on record to assess the
income of the appellant. In the present case, the average income of
the appellant on the basis of three income-tax returns comes to
Rs.2,61,000/- per annum i. e. Rs.21,750/- per month. Since it has
come on record through oral evidence of the appellant that he has
not filed any further income-tax return, the monthly income of the
appellant can be considered at Rs.20,000/- per month. Accordingly,
the future loss of income would be Rs.22,000/- per month. In the
present case, both the parties have agreed before the Tribunal to
consider 9% permanent partial disability of the appellant.
Considering the age of the appellant, multiplier 11 is to be adopted
and therefore, the future loss of income would be Rs.2,37,600/-.
This Court is of the opinion that the rest of the compensation
awarded under other heads by the learned Tribunal is just and
proper and the same is confirmed. Thus, the appellant - claimant is
entitled to compensation as under :-
Future loss of income Rs.2,37,600-00
Pain, shock and suffering Rs.12,000-00
Social diet, attendance and
transportation Rs.6,000-00
Actual loss of income Rs.20,000-00
Medical expenses Rs.5000-00
Total Rs.2,80,600/-
Therefore, the appellant - claimant is entitled to additional
compensation of Rs.1,18,800/- with interest at the rate of 6% per
annum.
C/FA/2141/2019 JUDGMENT DATED: 11/01/2023
8. The present First Appeal is partly allowed. The impugned
judgment and award passed by the learned Tribunal is modified to
the above extent. The appellant - claimant is entitled to additional
compensation of Rs.1,18,800/- at the rate of 6% per annum from
the date of filing of the claim petition till realization. The additional
amount of compensation along with interest thereon be deposited
with the learned Tribunal within a period of four weeks from the
date of receipt of the order. Upon deposit of the said amount, the
learned Tribunal is directed to release the total amount of
compensation within three weeks thereafter by RTGS or Account
Payee Cheque to the appellant after following due procedure and
proper verification.
The present First Appeal is disposed of accordingly.
(ANIRUDDHA P. MAYEE, J.)
cmk
