Gujarat High Court
Mohanbhai Dayabhai Patel Legal Heirs Of ... vs Kalabhai G. Ayar on 21 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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Reserved On : 31/01/2025
Pronounced On : 21/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1444 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
No
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MOHANBHAI DAYABHAI PATEL LEGAL HEIRS OF DECEASED
PRALHADBHAI MOHANBHAI PATEL & ORS.
Versus
KALABHAI G. AYAR & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present First Appeal is preferred by the
appellants - original claimants against the impugned
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judgment and award dated 23.01.2018 passed by the
learned Motor Accident Claims Tribunal (Main), Rajkot in
Motor Accident Claim Petition No.693 of 2023, whereby
the learned Tribunal has partly allowed the claim petition.
2. Heard learned advocate Mr.Hiren Modi for the
appellants-original claimants and learned advocate
Mr.Vibhuti Nanavati for respondent No.3-Insurance
Company.
3. Brief Facts narrated in the present First Appeal
are as under:-
3.1 Prahladbhai Mohanbhai Patel, on 29.05.2003, at
about 1.00 a.m. to 1.15 a.m.(midnight), was heading
towards Chotila in Bolero Jeep bearing registration No.GJ-
13F-1789 on left side of the road in a moderate speed.
When he reached Rajkot-Bhavnagar Highway, near
Sardhar, driver of truck bearing registration No.GJ-12V-
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5171, came from opposite direction in a rash and negligent
manner with a full speed and dashed with the Bolero
Jeep. Prahladbhai Mohanbhai Patel, who was driving the
said Jeep sustained serious injuries and succumbed because
of accidental injuries.
3.2 The heirs of deceased Prahladbhai Mohanbhai
Patel filed Motor Accident Claim Petition No.693 of 2003
before the Motor Accident Claims Tribunal (Main) at
Rajkot claiming compensation of Rs.1,50,00,000/- from the
opponents with interest.
3.3 Though opponent Nos.1 and 2 driver and owner
of the truck were served with the notice, they did not
contest the claim petition.
3.4 Opponent No.3 - Insurance Company of the
truck filed its Written Statement at Ex.17 and denied its
liability to pay compensation. Issues were framed by
learned Tribunal. Claimant No.3 widow of deceased filed
Examination-in-chief at Ex.42 and also examined Mr.Nalin
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D.Raval at Ex.57 and Mr.N.B.Changela at Ex.59. Claimants
produced FIR, Panchnama and other documents such as
Income Tax returns of the deceased for the Assessment
Year 2001-2002, 2002-2003 and 2003-2004, assessment
order of deceased together with revenue records of various
lands wherein claimants claimed to have a share of
deceased in lands. Opponent No.3 produced police
statement of Kalabhai Govindbhai Ahir at Ex.115 and the
copy of policy at Ex.116.
3.5 After considering the oral as well as
documentary evidence, learned Tribunal partly allowed the
claim petition and granted compensation of Rs.20,38,300/-
with proportionate cost and interest at the rate of 9% per
annum from the date of claim petition till realization
against all opponents.
3.6 Being aggrieved and dissatisfied with the
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quantum of compensation, appellants-original claimants
have filed the present appeal for enhancement of
compensation.
4. Learned advocate for the appellants submitted
that the appellants have filed an appeal for enhancement
mainly on the ground of quantum, and more particularly,
that the income of the deceased was not considered
properly by the learned Tribunal. The learned Tribunal
erroneously considered the income of deceased to be only
Rs. 3,000/- per month and disregarded all the evidence
produced on record.
4.1 It is further submitted that deceased was a
partner in different partnership firms, including M/s. Patel
& Company, where his share in the firm was 25%. The
deceased was a leading industrialist and modern
agriculturist. To prove the income of deceased, revenue
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records showing the ownership of land have been
produced at Exhibits 79 to 93.
4.2 The claimants had Challans of advance tax paid
by deceased for the assessment years 2001-02, 2002-03,
and 2003-04 (Exhibits 103, 104, and 105) showing income
of Rs.4,500/-, Rs.4,400/-, and Rs.22,000/- respectively. The
accident took place on 29.05.2003. The advance tax paid
for the financial year 2002-03 was Rs. 22,000/- because
the deceased was aware that his income for the year 2002-
03 was very good, and he had to pay advance tax
accordingly. He filed the advance tax on 15.03.2003
(before his death), but unfortunately he passed away on
29.05.2003. Subsequently, the widow filed return showing
the income from business as Rs.1,47,006/- and from
agriculture as Rs.3,51,095/-, totaling of Rs.4,98,101/-.
Exhibit 106 shows that the Income Tax authority raised a
query, and ultimately, the Income Tax department
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confirmed that the deceased's income for the financial year
2002-03 was Rs.4,98,101/- by passing an Assessment Order
on 04.01.2006. The tax had already been paid and
adjusted by the Income Tax Department. Therefore, there
is no doubt about the deceased's income of Rs.4,98,101/-
for the financial year 2002-03.
4.3 Learned advocate for the appellants has placed
reliance upon the decision of the Hon'ble Supreme Court
in the case of Anjali & Ors. Vs. Lokendra Rathod & Ors.
reported in (2023) ACJ 637.
5. Per contra, learned advocate for the respondent-
Insurance Company submitted that on scrutinizing the
evidence, it is found that claimants have not produced any
income tax returns but have produced payment of advance
tax receipts vide Exhs.103, 104 and 105. In absence of any
material such as the balance-sheet and other material
establishing the exact income of deceased, learned Tribunal
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has rightly considered the income of deceased at
Rs.3,000/- p.m. In the oral deposition of Shri Nalin D.
Raval at Ex.57, who is a Chartered Accountant of
deceased, he has not stated anything with regard to the
income of deceased for the Assessment Year 2001-02,
2002-03 and 2003-04. The said witness has remained silent
so far as Ex.105 which is a receipt of advance payment of
tax on 15.03.2003. The said witness has not deposed
anything with regard to the income of deceased prior to
the date of accident.
5.1 It is further contended by learned advocate for
the respondent that Ex.106 which is an assessment order
for the Assessment Year 2003-04 (Financial Year 2002-03)
is not helpful to the claim of claimants as the same is of
04.01.2006 and it has been observed in the assessment
order that, widow has reported that her husband has no
agricultural income but the agricultural income belongs to
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HUF of Shri Dahyabhai Somabhai Patel i.e. grandfather of
deceased. It has also been observed by the department that
revised return has not been submitted, hence the claim of
assessee was not entertained in absence of revised return.
5.2 Relying upon Exhs.103 and 104, it is submitted
that in both the receipts, there is no mention about any
PAN number of deceased and it transpires that the
advance tax has been paid of the firm M/s. Patel &
Company. Ex.105 which is a receipt of advance tax paid
also indicates that the amount is paid on 15.03.2003;
however, claimants have not produced any income tax
returns for the Assessment Year 2003-04. By paying an
amount of Rs.22,000/- as advance tax, no presumption can
be drawn regarding the income of deceased in the
particular year. It is submitted that the return for
Assessment Year 2003-04 is submitted on 17.03.2004 and
as per the said return, the income is mentioned as
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Rs.22,000/- comparing the previous two years' income,
there was unusual hike in the income of deceased. As per
the income tax returns of 2001-02, 2002-03, deceased was
having income of Rs.4,500/- and Rs.4,400/- respectively.
This unusual hike in the income is not supported by any
oral or documentary evidence.
5.3 It is submitted that, considering the evidence on
record, learned Tribunal has rightly arrived at a conclusion
that income of deceased was Rs.3,000/- per month. It is
further submitted that in absence of any evidence that
deceased was having 25% share in the partnership firm, no
fault can be found with the observation arrived at by the
learned Tribunal.
5.4 Learned advocate for the respondent has relied
upon the following decisions:-
(i) V.Subbulakshmi Vs. S.Lakshmi reported in
2008(0) GLHEL-SC 40452;
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(ii) Arunkumar Kasturlal Shah Vs. Gokulsinghji
Kishorsinghji Rajput reported in 2007(0)AIJ-GJ
220931.
6. In rejoinder, learned advocate for the appellants-
claimants submitted that deceased was a partner in M/s
Patel & Company. It is further submitted that M/s. Patel &
Company has PAN No.AAPPP4780M, while deceased had
PAN No.AGPPP9731Q. Ex.105 reflects the PAN number of
deceased.
7. We have considered the submissions canvassed
by the learned advocates for the respective parties and
perused the record and proceedings. It transpires that
reliance is placed upon Exhs.103, 104, and 105 which are
receipts of payment of advance tax. Undisputedly,
Exhs.103 and 104, do not bear any PAN number and both
receipts are prior to the date of accident. Though, the
claimants have examined the Chartered Accountant at
Ex.57, he has remained silent with regard to the income of
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deceased for the Assessment Years 2001-02, 2002-03 and
2003-04. When best available evidence is with the
claimants and claimants chose not to produce material
evidence, for determining average of the income, income
preceding the date of accident has to be considered. As
observed by the learned Tribunal, the income of the
deceased as per returns, for the year 2001-02, 2002-03 is
Rs.4,500/- and Rs.4,400/- respectively. The average of the
above income should be taken as the income of the
deceased. Payment of advance of tax to the tune of
Rs.22,000/- before the date of accident, cannot be
considered while determining the income as payment of
advance tax is on the assumption of the income and not
on the basis of calculation of exact income. The claim of
income of agriculture at Rs.3,51,095/- by the claimants,
cannot be accepted for the reason that before the income
tax authority, claimants revealed that the deceased has no
agricultural income and the assessee has not filed any
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revised return as contemplated under the Income Tax Act.
Even the business income of Rs.1,47,006/- claimed by the
claimants is not supported by any convincing material.
8. The decision of Anjali (supra), which has been
relied upon by the learned advocate for the appellants is
not helpful to the case of appellants for the reason that in
the said decision deceased has died as a result of motor
accident on 15.08.2010, and the Income Tax return was
filed by deceased on 28.05.2010, which was not considered
by the learned Tribunal. In the present case, the claimants
has not produced any Income Tax return for the
Assessment Year 2003-04. Therefore, the question of
considering the receipt of advance payment of tax at
Ex.105 is uncalled for.
9. In the case of V.Subbulakshmi (supra), in
paragraph Nos.20 and 21, the Apex Court has observed as
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under:-
"20. The accident took place on 7.5.1997. Income
tax returns were filed on 23.06.1997.
21. The Income Tax Returns (Exp. P-14), therefore,
have rightly not been relied upon."
10. In the case of Arunkumar Kasturlal Shah (supra),
in paragraph No.12, this Hon'ble Court has observed as
under:-
"12. In support of their claim, the claimants in
Claim Petition No. 903 of 2000 have produced
substantial evidence to establish the income of the
deceased-Hiren Shah. It is not in dispute that at the
time of his death, the said Hiren Shah was 37 years
of age; that he possessed a Degree in Engineering;
that he had served with Crompton Greaves Limited,
as averred. His having his own business of trading in
engineering products is also not in dispute. The
question is what was his income at the time of his
death and how it would have increased in future. As
disclosed by the statement of income returned by the
said Hiren Shah, his income from business or
profession for the A.Y 1998-1999 was Rs. 1,20,000/=;
his income from business/profession for the A.Y
1999- 2000 was around Rs. 1,14,000/= and his
income for the A.Y. 2000-2001 i.e., till 12th July,
2000, the date on which he died, was Rs.
1,20,000/=. Though Mr. Nanavati has vehemently
argued that the latest return filed after the death of
the deceased should govern the computation of
compensation, we are not inclined to accept it. As it
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is evident that last of the returns shows sharp
increase in the income of the deceased from less than
Rs. 10,000/= per month to Rs. 40,000/= per month.
Considering his monthly income of less than Rs.
10,000/= and in view of his professional
qualification, we are inclined to hold that his average
monthly income can safely be estimated at Rs.
20,000/=. Out of the said amount, a sum of Rs.
6,000/= would have been spent for maintenance and
personal expenses of the deceased, leaving a sum of
Rs. 14,000/= as dependency loss to the family. We
are of the opinion that 15 years' multiplier adopted
by the Tribunal is appropriate. Neither the said
multiplier is required to be reduced, as submitted by
Mr. Parikh nor it is required to be increased, as
submitted by Mr. Nanavati. We are also of the
opinion that the compensation in the sum of Rs.
48,000/= for loss of consortium, etc. also does not
warrant interference. In view of the above discussion,
we hold that the claimants in the Claim Petition No.
903 of 2000 were entitled to compensation as
under :-
Rs. 25,20,000=00 Future loss of Income
Rs. 48,000=00 Conventional amount
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Rs. 25,68,000=00
11. Looking to the facts and circumstances of the
case, we are of the view that learned Tribunal has faulted
in determining the income of deceased for the purpose of
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compensation, instead of income of Rs.3,000/- per month
which has been determined by the learned Tribunal as
income of deceased. We hold that, taking average income
of two years, (namely 2001-02 and 2002-03) the income of
deceased comes to Rs.4,450/- per month (Rs.4500 +
Rs.4400 = 8900/2 =Rs.4,450).
12. The age of the deceased at the time of accident
was 29 years. Following the proposition laid down in the
case of National Insurance Company Limited Vs. Pranay Sethi
& Ors, reported in (2017) 16 SCC 680, 40% prospective rise
in income to be considered. Considering the age of
deceased, multiplier 17 has to be applied.
13. In view of this, the judgment and award of
learned Tribunal is modified to the following extent.
Sl.No. Head Compensation in Rs.
1 Monthly Income 4,450/-
Prospective income 40% 1,780/-
(Rs.4,450 x 40%)
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Total monthly income 6,230/-
(Rs.4,450/- + Rs.1,780/- =
6,230)
Income per annum 74,760/-
(Rs.6,230 x 12 )
2 Deduction of towards personal 56,070/-
expenses.
1/4th.
(Rs.74,760-
18,690=Rs.56,070/-)
3 Future loss of income 9,53,190/-
(Rs.56070/- X 17 )
4 Loss of Consortium 1,93,600/-
Spouse (Rs.48,400/-) +
Filial Rs.48,00/- x 2 =
Rs.96,800/-) +
Parental (Rs.48,400/-) =
(Mother)
5 Loss of Estate 18,150/-
6 Loss of Funeral expenses 18,150/-
7 Pain shock and suffering 25,000/-
8 Medical expenses 12,90,700/-
9 Transportation 10,000/-
Grand Total 25,08,790/-
7 Less Awarded amount of 20,38,300/-
compensation by Tribunal
8 Enhanced amount 4,70,490/-
(Rs.25,08,790 - Rs.20,38,300)
10 Interest @ 7.5%
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14. For the reasons recorded hereinabove, following
order is passed:
14.1 The appellant-original claimant/s are entitled to
enhanced amount of compensation of Rs.4,70,490/- at the
rate of 7.5% interest per annum from the date of claim
petition till realization from Insurance Company;
14.2 The Insurance Company is directed to deposit
the enhanced amount of compensation with interest as
above within a period of Six Weeks from the date of
receipt of this order.
14.3 The present First Appeal is partly allowed. The
impugned judgment and award dated 23.01.2018 passed by
the learned Motor Accident Claims Tribunal (Main), Rajkot,
is modified to the aforesaid extent. Record and proceedings
be sent back to the concerned Court/Tribunal.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
MANOJ
