Gujarat High Court
New India Assurance Co. Ltd. Vadodara vs Liyakatali Allabax Sheikh on 23 September, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/994/2016 JUDGMENT DATED: 23/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 994 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV sd/-
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE sd/-
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1 Whether Reporters of Local Papers may be NO
allowed 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. VADODARA
Versus
LIYAKATALI ALLABAX SHEIKH & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 5,6
RULE NOT RECD BACK for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 23/09/2024
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. The present appeal is filed by the appellant -Insurance
Company being aggrieved and dissatisfied with the impugned
judgment and award dated 26.2.1996 passed under Section
166 of the Motor Vehicles Act by the learned Motor Accident
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Claims Tribunal (Auxi.), Vadodara in MACP No.2311 of 1999.
By the said judgment and award, the learned Tribunal has
partly allowed the claim petition of the respondents- original
claimants by awarding compensation of an amount of
Rs.29,78,750/- to be realized from the opponent nos. 1 to 3
jointly and severally with running interest at the rate of 9% pa
from the date of petition till its actual realization along with
proportionate costs of the petition. The Tribunal has also
passed appropriate direction with regard to the disbursement
and investment of the award amount.
2. In nutshell, the occurrence of the accident as pleaded by
the original claimants in the claim petition is reproduced
herein under:
2.1. On 29.12.1998, the deceased Binoy Atulbhai Patel along
with his wife- respondent no.3 herein and their friends were
on way traveling from Mount Abu Ambaji to Ahmedabad in
Fiat Car bearing registration No.GJ-07-R-5544. The said Fiat
Car was driven by the deceased Binoy Atulbhai Patel and
when it had reached near village Jagana in the sim of village
Kanodar on National Highway No.8, the respondent no.1
driver driving his Tanker bearing registration No.GJ-01-TT-
4316 in rash and negligent manner came from the opposite
side in very high speed and having lost his control over the
steering of the aforesaid vehicle resulting into accident
between the Tanker and Fiat Car. The aforesaid accident
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caused grievous fatal injuries to Binoy Atulbhai Patel who
later on succumbed to such injuries. Thus, according to
original claimants the accident had occurred due to rash and
negligent driving of the driver of the offending vehicle Tanker.
3. The original claimants which included the widow of the
deceased, the father of the deceased who expired pending the
claim petition (ordered to be deleted), the mother of the
deceased and her sister. The claim petition was preferred
against the driver of the vehicle who was joined as opponent
no.1 and the owner of the vehicle as opponent no.2. The
offending vehicle was covered by the Insurance policy issued
by the opponent no.3- appellant Insurance Company. The clam
petition was preferred seeking compensation of an amount
Rs.18 lakhs with interest and proportionate cost which was
registered as MACP No.2311 of 1999 before the Motor
Accident Claim Tribunal (Auxi.), Vadodara.
4. Before the Tribunal, the summons issued upon the aforesaid
opponents were duly served. The opponent no.3- Insurance
Company being represented by the learned advocate on panel
had submitted written statement at Exh.27. The objections
were raised with regard to age, occupation and income of the
deceased as well as the occurrence of the accident vis-a-vis
the negligence of the opponent no.1. It was contended that in
fact the deceased himself had been negligent in driving a Fiat
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Car as while overtaking one vehicle had gone ahead on wrong
side which had resulted in an accident with the Tanker. So far
as opponent nos.1 and 2 are concerned, initially the summons
could not be served and by substituted mode of service by
publishing summons in the newspaper, the notice was
effected upon the opponents nos. 1 and 2, however no
appearance was entered.
5. Before the Tribunal the specific case was raised by the
original claimants by contending that the deceased was aged
about 27 years at the time of accident and he was in the final
year of Diploma Civil Engineer and had in fact started as an
Apprentice Civil Engineer with one M/s. Yash Developers in
their project named "Vaikunth Township". It was also
contended that he had obtained training in all the concerned
department of civil construction work and had worked with
the aforesaid firm till April, 1996. It was also contended that
he had worked in renovation work of one residential house at
Karamsad thereby had exposure as an independent Civil
Engineer. In September, 1996 along with few partners, he had
started partnership firm in name of Shri Krishna Developers
in which he had 55% stake as partner. It was also contended
that the deceased had also contributed to one project viz.
"Param Apartment" at Vallabh Vidyanagar which comprised
14 apartments and the said project was completed around
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January, 1999 just before he expired. The claimants had also
contended that in November, 1997 the deceased had formed
one company "Rudrax Construction Company" along with
other friends and was engaged in development and
construction of a 60 apartments scheme known as Shivangan
at Vidyanagar - Karamsad Road. The aforesaid scheme was
launched just before the death of the deceased. The reference
was also made to one scheme with his family member at Gotri
Road. Hence, the claimants have come forward with a case
that the deceased was a promising young man with a future as
a successful businessman.
6. The reliance was placed on the ITR for the AY 1997-98
reflecting the income of the deceased as Rs.1,12,060/- at mark
32/12, also ITR for the AY 1998-99 reflecting the income of
deceased as Rs.1,61,620/- at mark 32/15 and the income tax
return for the year 1999-2000 reflecting income as
Rs.2,55,270/- at Exh.47. The original challan of deposit of
income tax against AY 1999-2000 has also been produced on
record at Exh.48. Before the Tribunal, the claimants have also
examined witnesses viz. Vinodbhai Jasbhai Amin- Chartered
Accountant at Exh.54 and one Paresh Ghanshyambhai Amin at
Exh.55 who was one of the partners.
7. The Tribunal upon appreciation of the aforesaid evidence
though noticed that the income tax returns produced on
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record of AY 1997-98 and 1998-99 at mark 32/12 and 32/15
are the xerox copies and were not admitted as an evidence,
however the same has been referred to and relied upon while
considering the annual income of the deceased at the time of
accident. The Tribunal has also taken into consideration the
income tax return for the AY 1999-2000 produced at Exh.47
and the challan produced at Exh.48 which otherwise were
filed after the death of the deceased, through his father. The
Tribunal has also noted that the claimants have not produced
the books of account or any other evidence to prove the
annual income of the deceased. However, noticing the fact
that the deceased was pursuing the professional course of
Civil Engineering and was engaged in the various projects of
construction has taken into consideration the average income
of the deceased as Rs. 1,50,000/- pa. The Tribunal has further
considered the principle laid down by the Hon'ble Supreme
Court in the case of Rajesh & Others vs. Rajbir Singh and
others reported in 2013 ACJ 1403 and applied addition of
50% to determine future prospective income of the deceased
as Rs.2,25,000/- per annum (Rs.1,50,000/- +75,000/-). The
deduction towards the personal expenses was considered
1/4th of the total income in light of the principle laid down by
the Hon'ble Supreme Court in the case of Sarla Verma and
ors. vs. Delhi Transport Corporation and Anr. reported in
(2009) 6 SCC 121 and dependency loss was accordingly
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determined as Rs.1,68,750/- per annum (Rs.2,25,000/- minus
Rs.56,250/- (1/4th) of the total income). Considering the age
of the deceased as 27 years 5 months at the time of accident,
the Tribunal has applied a multiplier of 17 and accodingly has
determined total loss of dependency as Rs.28,68,750/-
(Rs.1,68,750/- x 17). Under the conventional head, the
Tribunal has awarded Rs.1 lakhs whereas Rs.10,000/- was
awarded against the funeral expenses. Thus, the Tribunal has
held the claimants entitled to get the amount of compensation
essentially under the three heads as under:
Particulars Amount (Rs.)
Loss of dependency 28,68,750/-
Conventional amount 1,00,000/-
Funeral Expenses 10,000/-
Total amount of compensation 8,78,750/-
8. The appellant Insurance Company being aggrieved and
dissatisfied with the aforesaid approach of the Tribunal being
adopted in determining the quantum of compensation
essentially under the head of loss of dependency benefit has
approached this Court by way of present appeal.
9. This Court by order dated 22.6.2016 had granted the ad-
interim relief staying the execution, implementation and
operation of the impugned judgment and award till the next
date of hearing. Later on, as recorded in the order dated
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14.7.2016 while disposing of the application for stay, this
Court directed the applicant- Insurance Company to deposit
the award amount with proportionate costs and interest
within a period of 6 weeks thereafter. The Court further
directed the payment of 10% of the aforesaid amount with
proportionate interest and costs to be paid to respondent no.5
by account payee cheque, whereas, the balance amount of
90% with proportionate costs and interest was disbursed by
further direction of 50% of 90% to be invested in any
Nationalized Bank in cumulative Fixed Deposits initially for a
period of five years in the name of Nazir and rest of the 50%
of such 90% amount was directed to invested in Fixed
Deposits with any Nationalized Bank in the name of Nazir for
a period of five years, on which, respondent no.5 was
permitted to withdraw periodical interest. Thus, the
substantial amount of award as on the date is lying in the
Fixed Deposit Receipts.
10. Mr. Vibhuti Nanavati, learned advocate has appeared for
the appellant- Insurance Company and Mr. Mohsin Hakim,
learned advocate has appeared on behalf of respondent nos. 5
& 6 i.e. mother and sister of the deceased. Though, rule has
been duly served upon the widow of the deceased i.e.
respondent no.3- she has chosen not to enter her appearance
and contest the present appeal.
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11. Considering the joint request made by learned advocates
on record for the respective parties with regard to limited
challenge being made by the appellant Insurance Company,
on the aspect of quantum of loss of dependency and
reconsideration of the aspect of quantum under the head of
loss of consortium in view of the judgment of the Hon'ble
Supreme Court in the case of National Insurance Company
Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC
680, we had taken up this matter which was otherwise
notified for final hearing before us. At the outset, learned
advocates have placed on record the joint calculation and
have urged before us to modify the impugned judgment and
award passed by the Tribunal in the aforesaid terms.
12. We have heard the learned advocates for the respective
parties and have given thoughtful consideration to the joint
calculation being placed on record by the learned advocate for
the appellant- Insurance Company as well as learned advocate
for the respondent nos. 5 and 6- original claimants. This Court
is therefore, required to reconsider the amount under the
head of loss of dependency benefits mainly on the ground that
only evidence available before the Tribunal for consideration
the annual income of the deceased at the time of accident was
the income tax return filed for the AY 1999-2000 which is
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produced on record and has been admitted in evidence at
Exh.47 and the challan acknowledging the payment of income
tax paid of Rs.53,839/- for the aforesaid AY produced at
Exh.48. From the perusal of the record, it is evident that
income tax returns for AY 1997-98 and for AY 1998-99, though
are produced on record at mark 32/12 and 32/15, however
they are xerox copies and not original documents. Looking at
the joint calculation provided by the learned advocates for the
respective parties, what is suggested before us is to consider
the annual income of the deceased as Rs.1,20,000/- per
annum instead of Rs.1,50,000/- as determined by the Tribunal.
In other words, the learned advocates have suggested
considering the annual income of the deceased for AY 1998-
99. The xerox copy of the ITR is produced at mark 32/15. The
appreciation of the ITR of AY 1999-2000 produced at Exh.47
clearly goes to suggest that the income of the deceased for
the aforesaid financial year was to end on 31.3.1999, whereas
the deceased had died approximately three months prior to
such filing of ITR i.e. 3.12.1998. Thus, the amount of income
of Rs.2,55,270/- was the income for a period of 9 months viz.
till the deceased was alive. It is also an undisputed fact that
ITR's of the three financial years were filed by the father of
the deceased after the death of his son in the accident. It is
also an undisputed fact that no books of account or any other
evidence have been produced. Even, on close reading of the
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evidence of the Chartered Accountant indicates that the ITR's
have been filed based on the inputs given by the father of the
deceased. In such circumstances, we are inclined to accept
the income reflected in the ITR of AY 1998-99 to be the annual
income of the deceased for the purpose of determining the
loss of dependency benefits. The reading of the ITR of AY
1998-99 produced at mark 32/15 suggests taxable income as
Rs.1,61,620/- as against that the amount of Rs.39,079/- has
been paid towards income tax. The annual income of the
deceased is therefore, determined as Rs.1,22,541/- as against
the suggested amount of Rs.1,20,000/- by the learned
advocates for the respective parties.
12.1. This brings us to the determination of the future
prospective income to be considered in light of the principle
laid down by the Hon'ble Supreme Court in the case of
Pranay Sethi (supra) as observed by the Hon'ble Supreme
Court in para 59.1 and 59.2. Considering the fact that the
deceased was less than 30 years i.e. aged about 27 years and
5 months at the time of accident and was pursuing profession
as independent Civil Engineer, he would be entitled to further
addition of 40% of future prospective rise as against his actual
income. Thus, the future prospective rise of the deceased is
accepted as Rs.1,22,541/- x 40% = Rs.49,016/-. Thus, the
claimants would be entitled to Rs.1,71,557/- (Rs.1,22,541/- +
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Rs.49,016/- (40% prospective income). Considering the age of
the deceased and number of family members surviving after
the death of the deceased in the accident, we find no error
with the reasons assigned by the Tribunal of applying
deduction towards personal expenses as 1/4th of the total
income which is in conformity of the principle laid down by
the Hon'ble Supreme Court in the case of Sarla Verma
(supra). Thus, after deducting 1/4th of total income of
Rs.1,71,557/- which comes to Rs.42,889/-, the dependency
loss comes to Rs.1,28,668/- per annum. The multiplier of 17
has rightly been applied by the Tribunal. Hence, Total loss of
dependency comes to Rs.21,87,356/- (Rs.1,28,668 X 17
(multiplier)).
13. Having held so, on the aspect of entitlement of enhance
amount of loss of consortium is concerned, in view of the
consensus prevailing among the parties and the subsequent
landmark decisions of the Hon'ble Supreme Court in the case
of Pranay Sethi ( supra) as well as Magma ( supra), the
original claimants are held entitled to compensation towards
loss of consortium which is quantified as Rs. 1,45,200/-.
14. On the entitlement of compensation under other
conventional heads are concerned, the parties having agreed
to such quantification of the amount, the compensation
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awarded under the head of loss of Estate is reduced from Rs.
50,000/- to Rs. 18,150/- whereas the amount towards Funeral
expense is awarded as Rs. 18,150 instead of Rs. 10,000/- as
awarded by the Tribunal.
15. In view of the aforesaid determination of the amount of
compensation under different heads, the total amount of
compensation is redetermined as hereunder:
Compensation Award amount ( in Rupees )
1. Dependency benefit
(i) Actual Salary income Rs.1,22,541/-
Rs. 49,016/- ( Rs.1,22,541/- x
(ii) Future Prospective rise
40%)
Rs. 1,71, 557/-
Deduction of amount spent by Rs. 42,889/- ( ¼ th of Rs.
deceased on himself 1,71,557/- )
Rs.1,28,668/- (Rs. 1,71,557/-
Dependency benefit
- Rs. 42,889/- )
loss of dependency benefit Rs. 21,87,356/-
Conventional amount for loss
Rs.18,150/-
of Estate
Conventional amount for loss
Rs.1,45,200 /-
of consortium
Funeral expense Rs.18,150/-
Total compensation Rs.23,68,856/-
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Interest rate 9%
16. For the foregoing reasons, the appeal preferred by the
Appellant Insurance company is partly allowed. The impugned
Judgment and award dated 29.12.1998 passed by the Motor
Accident Claim Tribunal , Vadodara in MACP no. 2311 of 1999
is hereby modified in terms of the amount quantified. The
original claimants are hereby held entitled to a total amount
of compensation of Rs.23,68,856/- with interest at the rate of
9% per annum, from the date of filing of claim petition till its
actual realization.
17. In view of the order dated 14.07.2016 since the award
amount with proportionate cost and interest has been
directed to be deposited in the FDR's in the name of nazir, the
same are permitted to be released. Let the amount of award
as quantified by this order be calculated. The original
claimants which includes the widow (respondent no.3) and the
mother (respondent no.5) and the sister (respondent no.6) of
the deceased, let the concerned Tribunal disburse the
quantified award amount to their share and disburse the same
in the ratio of 40% : 40% : 20% respectively. In case of
remaining of the amount, the same shall be refunded to the
Appellant Insurance company. Let such exercise be
undertaken within a period of six weeks from the date of
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receipt of this order. We have been informed by the learned
advocate for the original claimants that respondent no.3 has
remarried. Since, the respondent no.3 had chosen not to
appear, we have requested learned counsel for the details of
her address. The same has been furnished on record which
reads as under :
" Hema Anishbhai Patel
having address at
8, Adarsh Nagar Society,
Alkapuri, College Road,
Nadiad, Dist. Kheda.387001."
17.1 The Tribunal is therefore requested to serve the copy of
the writ of this order upon respondent no.3 at her address and
to disburse the award amount to the respective shares of
claimants accordingly.
17.2. With these observations, the First appeal stands
disposed.
sd/-
(BIREN VAISHNAV, J)
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
