Gujarat High Court

The New India Assurance Company Ltd vs Satendra Subhash Shrimurliram Aabekar on 11 September, 2024

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                               C/FA/2955/2024                             ORDER DATED: 11/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 2955 of 2024
                                                             With
                                         CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                                              In R/FIRST APPEAL NO. 2955 of 2024
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                                      THE NEW INDIA ASSURANCE COMPANY LTD
                                                      Versus
                                  SATENDRA SUBHASH SHRIMURLIRAM AABEKAR & ORS.
                       ==========================================================
                       Appearance:
                       MASUMI V NANAVATY(9321) for the Appellant(s) No. 1
                       MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                      Date : 11/09/2024

                                                       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 10.5.2024 passed by the Motor Accident

Claims Tribunal, Court No.4, Ahmedabad in Motor Accident

Claim Petition No. 419 of 2014 by which the Tribunal has

awarded compensation of Rs.59,25,000/- with 8% per annum

interest to the claimant/s, holding opponents liable jointly and

severally.

2. Brief facts of the case are as under:

2.1 The claimants filed the claim petition stating that on

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8.7.2014 at 5.45 p.m., in the evening, the deceased Rajnikant

was going from Gandhinagar to Vadodara on his motorcycle,

at that time, the truck bearing registration no.GJ.12AU.9851

came in excessive speed, rashly and negligently manner and

endangering human life, all of a sudden overtook the

motorcycle of deceased and the front side of the truck dashed

with motorcycle of deceased and alleged accident occurred,

due to which the deceased suffered serious injuries and he

died during the treatment. Therefore, the claim petition was

filed by the claimants for compensation.

2.2 Notices were served to the opponents. Opponents

appeared through their learned advocates and filed their

written statement denying the contents of the claim petition.

The Tribunal has framed the issues. The oral as well as

documentary evidence were led by the rival parties before the

Tribunal. After considering the 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.

2.3 Being aggrieved and dissatisfied with the impugned

judgment and award passed by the Tribunal, the present

appeal is preferred by the appellant-insurance company.

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3. Learned advocate for the appellant-insurance company

has assailed the impugned judgment and award mainly on

the ground on quantum and the only contention raised by

the learned advocate for the appellant is that the income tax

return is considered by the learned Tribunal for assessing the

compensation but it was considered without deducting the

income tax paid by the deceased and therefore the learned

Tribunal has erred in awarding the compensation at a higher

rate, which is required to be reduced. No other ground or

submission is made by learned advocate for the appellant-

insurance company.

4. I have considered the submissions made at the bar and

also gone through the material produced on record, including

the impugned judgment and award.

5. It transpires from the impugned judgment and award

that the learned Tribunal has discussed the issue of quantum

in paragraphs 8.1 to 8.8, more particularly, the age and

monthly income is discussed in paragraph 8.1 to 8.3, wherein

it is observed that considering the income tax returns

produced by the claimants and the decision of the Hon'ble

High Court in the case of Vinodbhai Hasmukhbhai Patel and

another V/s Hiren Kantibhai Bhavsar and others decided in

First Appeal No.601 of 2018, the learned Tribunal has

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considered the IT return of the deceased for the assessment

year 2013-14 produced at Exh.60 wherein gross income of the

deceased is mentioned and income from interest is also

mentioned and the figure is also mentioned as self

assessment tax. The learned Tribunal has deducted the

amount of interest as well as the amount of tax from the

total amount and then considered the monthly income of the

deceased.

6. The ratio on the point of income on the basis of income

tax return is laid down by the Hon'ble Apex Court in the

case of Sangita Arya V/s Oriental Insurance Co.Ltd. reported

in 2020(0) AIJEL-SC 66313, wherein it is observed in

paragraphs 5,7 and 9 as under:

"5. Aggrieved by the aforesaid Award, the Insurance

Company filed Appeal from Order No. 117 of 2010 before

the High Court of Uttarakhand at Nainital.

The learned Single Judge of the High Court vide the

impugned judgment dated 22.07.2016 erroneously assumed

that the deceased was a Government servant, and observed

that he was running a parallel business by plying taxis.

There is no basis for finding that the deceased was a

Government employee. We do not know as to on what basis

the learned Single Judge has arrived at this factually

incorrect conclusion, and made it the basis for awarding

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compensation.

The High Court further held that the ITRs for the

years 2002-03, 2003-04 and 2004-05 showed that the average

income of the deceased for these three years was Rs. 52,635

p.a. The ITR for the year 2006-07 revealed an income of Rs.

98,500 p.a., which was almost double the income of the

preceding three years. The High Court held that the ITR for

the year 2006-07 could not be taken into consideration.

The learned Single Judge further held that the income

which may have been generated from the two taxis, could

not be taken into consideration for determining the income

of the deceased. Accordingly, the High Court took the

average of the ITRs for years 2002-03, 2003-04 and 2004-05,

for determining the income of the deceased at Rs. 52,635

p.a. The Court deducted 1/3rd of the income towards

personal expenses, and applied the multiplier of 16. The loss

of dependency was assessed at Rs. 5,61,440.

The consortium payable to the widow was reduced by

the High Court from Rs. 20,000 (as awarded by the MACT)

to Rs. 10,000; the amount awarded towards loss of love and

affection to the minor daughters was reduced from Rs.

10,000 to Rs. 5,000. However, the amount of Rs. 5,000

awarded by the MACT towards funeral expenses was

maintained.

The total compensation awarded to the Claimants

was reduced from Rs. 12,55,000 to Rs. 5,81,440.

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7. We have heard the learned counsel for the parties and

perused the material on record. We find that the impugned

order passed by the High Court bristles with serious factual

inaccuracies :- first, the learned Single Judge wrongly

assumed that the deceased Harish Singh Arya was a

Government employee. This has nowhere been averred by the

Claimants in any of their pleadings. The entire basis of the

judgment is hence misconceived.

On the basis of the aforesaid erroneous assumption,

the High Court has erroneously observed that the deceased

was running a parallel business by plying two taxis, and

held that the income derived from the same could not be

taken into consideration for assessing the compensation.

These findings being based on a completely erroneous

assumption, are liable to be set aside.

Second, the High Court determined the income of the

deceased by taking the average of the ITRs filed for the

years 2002-03 at Rs. 54,000 p.a., 2003-04 at Rs. 52,405 p.a.,

and 2004-05 at Rs. 51,500 p.a. The learned Single Judge

disregarded the ITR for the year 2006-07, wherein the

income of the deceased was shown as Rs. 98,500 p.a. on the

ground that it was allegedly filed almost one year after the

death of the deceased. This finding also is factually incorrect.

A photocopy of the original ITR for the year 2006-07

was filed before this Court, bearing the rubber stamp of the

Income Tax Department. It shows that the date of filing the

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ITR was 20.04.2007, which is prior to the death of the

deceased which occurred on 18.06.2007. Hence, the High

Court was not justified in disregarding the ITR for the year

2006-07 while assessing the income of the deceased.

The Appellants have also placed on record a copy of

the ITR for the year 2005-06, which bears the rubber stamp

of the Income Tax Department, and reveals the income of

the deceased at Rs. 98,100 p.a. during the previous

assessment year.

As a consequence, the impugned judgment dated

22.07.2016 passed by the High Court is hereby set aside.

9. Even though the Claimants/Appellants herein did not

file an Appeal against the Award dated 22.12.2009 passed by

the MACT before the High Court, we deem it appropriate to

enhance the compensation by exercising our jurisdiction

under Article 142 of the Constitution of India in order to do

complete justice between the parties."

In view of the above, there seems no substance in the

argument advanced by learned advocate for the appellant-

insurance company.

7. On the contrary, on perusing the further discussion on

the point of quantum, it seems that the compensation should

have been some more awarded under the head of loss of

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consortium, loss of estate and funeral expenses in view of the

judgments of the Hon'ble Apex Court in the cases of

National Insurance Company Ltd. V/s Pranay Sethi & Ors. reported in (2017)16 SCC 680, Sarla Verma V/s Delhi Transport Corporation reported in (2009)6 SCC 121, Magma General Insurance Company Ltd. V/s Nanu Ram and Others reported in (2018)18 SCC 130 and United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780. However, this Court is not entering into that point as the claimants have not filed any appeal for

enhancement of compensation.

8. It is noteworthy to mention that the provisions of the

Motor Vehicles Act, 1988 which gives paramount importance

to the concept of `just and fair' compensation. It is a

beneficial legislation which has been framed with the object

of providing relief to the victims or their families. Section

168 of the Motor Vehicles Act deals with the concept of `just

compensation' which ought to be determined on the

foundation of fairness, reasonableness and equitability. It also

endeavours to make good the human suffering to the extent

possible and to also save families which have lost their

breadwinners from being pushed to wandering. Although such