Gujarat High Court
The New India Assurance Co. Ltd vs Krishnaben Dhirendrabhai Sanghani on 13 June, 2024
NEUTRAL CITATION
C/FA/2177/2024 ORDER DATED: 13/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2177 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 2177 of 2024
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THE NEW INDIA ASSURANCE CO. LTD.
Versus
KRISHNABEN DHIRENDRABHAI SANGHANI & ORS.
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Appearance:
MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/06/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of
Motor Vehicles Act, 1988, is preferred by the appellant -
Insurance Company, being aggrieved and dissatisfied with
the judgment and award dated 04.01.2024 passed by the
th
Motor Accident Claims Tribunal (Special), and 6 Addl.
District Judge, Rajkot in Motor Accident Claim Petition
No.855 of 2019, by which the Tribunal has awarded
compensation of Rs.44,92,117/- with 9% per annum
interest to the claimant(s), holding Opponents i.e. owner,
and insurance company liable, jointly and severally.
2. Brief facts of the case are as under:
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2.1. On 28.05.2019, deceased Dhirendrabhai Meghjibhai
Sanghani was going to his Factory riding his Bullet
Motorcycle bearing Registration No.GJ-3-HG-132 on
Rajkot Morbi Road in moderate speed, that too on the
correct side of the road and when he reached near
Village Jabalpur, at that time, the driver of Truck
bearing Registration No. GJ-11Z-8361 came by driving his
vehicle rashly and negligently, endangering the human
life and that too, on the wrong side of the road and
dashed with the motorcycle of deceased from opposite
direction. Due to the said accident, deceased
Dhirendrabhai Meghjibhai Sanghani has sustained
injuries as shown in P.M. Report and succumbed to the
said accidental injuries. It is the case of the claimants
that the accident took place due to sole negligence on
the part of driver of truck, for which, the offence being
No.I- 43/2019 has been registered against the driver of
Truck No. GJ-112-8361. It is the case of the claimants
that; at the time of accident, deceased was aged about
27 years and earning Rs.5,00,000/- p.a. by doing
business. Therefore, the claim petition is filed by the
claimant(s) to get the compensation of Rs.70,00,000/-
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lakhs with interest.
2.2. Notices were served to the opponents. Only
opponent No.2 - insurance company has chosen to
appear and file its written statement at Exh.13 by
disputing all the averments made by the claimant(s) in
the claim petition.
2.3. The Tribunal has framed the issues at Exh..15. The
oral as well as documentary evidence were led by the
rival parties before the Tribunal. After considering the
various documentary as well as oral evidence and
submissions made at the bar, the Tribunal has partly
allowed the claim petition by awarding compensation as
noted above.
2.4. Hence, the present appeal by the insurance
company.
3. Learned advocate Mr. Rituraj M. Meena for the
appellant - insurance company has submitted that the
Tribunal has not properly considered the aspect of loss
incurred to the concerned firm of the deceased, who was
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carrying the business activity and, therefore, the
assessment is based on such income tax return, which is
filed prior to death of the deceased without considering
the aspect of law, which is improper and the Tribunal
has committed error in law in considering this aspect.
He has drawn my attention towards the discussion of
the Tribunal in the impugned judgment and award on
this issue, more particularly, in para 16 to 19 of the
impugned judgment and award and has further
submitted that when the cross-appeal i.e. First Appeal
No.1336 of 2024 is also filed by the claimants, which is
also admitted, the present appeal may be admitted for
this issue. He has not raised any other contention except
the above-mentioned, and has prayed that in view of the
above, appropriate relief may be granted in Civil
Application also.
4.1. I have heard learned advocate Mr. Rituraj M.
Meena for the appellant - insurance company at length. I
have also perused impugned judgment and award. It
transpires that the Tribunal has considered Income-tax
Returns, which was filed prior to death of the deceased,
but the Tribunal has not considered the Income-tax
Return, which was filed after the death of the deceased.
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The claimant has already filed the appeal before this
Court i.e. First Appeal No.1336 of 2024, whereby, while
admitting the appeal on 08.04.2024, the Co-ordinate
Bench of this Court has passed following order:
"Over and above the other grounds, learned advocate
for the appellants states that 10% negligence attributed is
not in accordance to the evidence on record. Further states
that income was proved by the I.T.R. but that has not been
considered, and consortium loss has not been granted to the
claimants as per Magma General Insurance Company Ltd.
Vs. Nanu Ram Alias Chuhru Ram & Ors., reported in
(2018) SCC 130 [2018 ACJ 2782].
Considering the submissions and the grounds raised
in memo, Admit."
4.2. Keeping this factum in mind, while scrutinizing the
findings of the Tribunal, more particularly, given in
paragraph 16 to 19 of the impugned judgment, whereby
it transpires that the Tribunal has considered this
aspect, which is now tried to point out by the learned
advocate for the appellant. Para 16 to 19 of the
impugned judgment are as under:
"Income of deceased:
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16. In her examination-in-chief at Exh.19, the Claimant
No.1 has deposed that; at the time of accident deceased
Dhirendrabhai was having 15% partnership in Lex Polytex
Industries. Further, the claimants have stated that; the said
Factory was under expansion at the time of accident.
Moreover, deceased was also doing Marketing Work and by
doing job work and commission work earning yearly income
of Rs.5,00,000/-. Further, they have stated that, deceased
was very talented at the young age and having good future
prospectus. To establish the income of deceased, the
claimants have produced the copies of Original Certificate
issued by Kiritkumar N. Chaudhary (Adv.) regarding I.T.
Returns filed by deceased at Exgh.23, Copies of L.T.
Returns filed by deceased of A.Y. 2015-2016 to 2019-2020 at
Exh.23 to 27, copy of Partnership Deed dtd. 25/7/2016 of
Lex Poly Tex Industries at Exh.28.
The Claimant No.1 has been cross-examined by Ld. Adv. for
the Opponent No.2 Ins. Co., wherein she has stated that
her husband was partner Lex Polytex Industries. She has
denied that, he has been inserted as partner in the
partnership firm after the death of her husband. She has
denied that, after the death of her husband, she has not be
given 15% capital amount or profit by the partnership firm.
She has stated that she is not filing any I.T. Return in her
name. She has stated, it is true that, when her husband
was alive, the partnership firm was paying Rs.15,000/- per
month. She has stated that, her father- in-law i.e. Claimant
No.3 is doing agricultural work. She has stated that, she
got remarried and at present she is at her matrimonial
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home. The claimant No.2, who is her minor daughter is
residing with her. She has stated that, she has no idea
whether the claimant No.3 has been inserted in partnership
firm as partner or not. She has denied that no financial
loss caused to them after the death of her husband.
17. Rely upon the cross-examination of the Claimant No.1,
the Ld. Adv. for the Opponent No.2 Ins. Co., vehemently
argued and submitted that; the I.T. Return filed after the
date of accident cannot be taken into consideration for
assessment of income of deceased. He has further submitted
that; during the course of her cross-examination the
Claimant No.1 has admitted that, after the death of her
husband, the other member of the family has been inserted
as partner in the firm. Moreover, the income of interest,
claimants are also getting as on date. Therefore, considering
the fact that other family member of deceased inserted in
firm and claimants are getting interest amount from the
firm, under the circumstances, there is loss of Rs.6,000/-only
to the claimants. Hence, monthly loss of income should not
be assessed more than Rs.6,000/- per month. In support of
his submission he has relied upon the judgment of Hon'ble
The High Court of Gujarat in case of New India Assurance
Co. Ltd.(Supra), wherein it has been held that; "The record
clearly establishes the fact that the income from other
sources has remained as it is as the estate of the deceased
has devolved in favour of the original claimants, i.e. wife,
daughter, son and parents and therefore, considering the
fact that the deceased was a salaried Director, only income
from the salary can be considered to be the base of the
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income".
18. As against this, Ld. Adv. for the claimants Mr.
Trivedi vehemently argued and submitted that; mere fact
that deceased's share of ownership in business ventures was
transferred to the deceased's dependents is not sufficient to
conclude that the benefits of business continue to accrue to
his dependents. In support of his submissions, he relied
upon the judgment 2022LiveLaw (SC) 816 in case of K.
Ramya & Ors. (Supra) delivered on 30/09/2022, wherein
Hon'ble Supreme Court of India has observed in para-17
that;
"The mere fact that the Deceased's share of ownership in
these businesses ventures was transferred to the Deceased's
minor children just before his death or to the dependents
after his death is not a sufficient justification to conclude
that the benefits of these businesses continue to accrued to
his dependents. On the contrary, it has come on record that
the Deceased was actively involved in the day-to-day
administration of these businesses from their stage of
infancy, had undergone specialized training to administer his
business and that the audit reports neatly delineate
Deceased's share of income from the businesses. These facts
necessitate that the entire amount from the business
ventures is treated as income. Similarly, the amount earned
from the Bank interest and remaining investments must
also be included as income"."
4.3. Considering the fact that the Tribunal has
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considered this aspect in detail, the view taken by the
Tribunal while considering the Income-tax Returns as it
is, is found just and reasonable and also in accordance
with law, as such, there is no error committed by the
Tribunal. Even in the case of no documentary evidence
produced by the claimants, the Tribunal can grant
compensation by doing some guess work on the basis of
the facts and circumstances of each case. In the present
case, the Tribunal has considered the documentary
evidence, like Income-tax Return in appropriate manner.
No reason is found to interfere with the impugned
judgment and award in the present appeal, which is
filed by the appellant - insurance company. Considering
the other aspect of the judgment, it, prima facie, found
that the Tribunal has given proper findings while
passing the impugned judgment and award on various
aspects. On the contrary, considering the fact that the
Tribunal has taken very conservative approach while
granting the amount of compensation and considering the
documentary evidence, more particularly, Income-tax
Return. The Tribunal has only taken into consideration
the Income-tax Return, which was filed prior to death of
the deceased and has not taken into consideration the
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Income-tax Return, which was filed after the death of
the deceased - claimant. Hence, the claimant has already
filed an appeal i.e. First Appeal No.1336 by challenging
the same, which is admitted. Keeping this contention in
mind, I found no reason to interfere with the impugned
judgment and award under Section 173 of the Motor
Vehicles Act.
5. For the reasons recorded above, the following order is
passed.
5.1 The present appeal is dismissed, with no order as to
costs.
5.2 The appellant - insurance company shall deposit the
awarded amount to comply with the impugned judgment
and award, as expeditiously as possible.
5.3 Civil Application is disposed of accordingly.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
