Gujarat High Court
Vijyaben Damjibhai Bladha vs Dilubha Dosalbhai Boricha on 9 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3598 of 2024
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VIJYABEN DAMJIBHAI BLADHA & ANR.
Versus
DILUBHA DOSALBHAI BORICHA & ANR.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
MR. M. H. PAREKH(16428) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 09/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellants - original
claimants being aggrieved and dissatisfied with the judgment
and award dated 10.02.2024 passed by the Motor Accident
Claims Tribunal, Rajkot in Motor Accident Claim Petition
No.1465 of 2018.
2. Brief facts of the case are as under:
2.1 On 24.11.2018, while Sagarbhai (deceased) was riding his
motorcycle in moderate speed on correct side of road, at about
11.00 am, when he reached at the place of accident, driver of
Car No.GJ-03-EC-7088 came in rash and negligent manner with
excessive speed and caused accident with motorcycle from
behind. On accident, deceased sustained fatal injuries and later
on died.
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3. Learned advocate Mr.Bhalodi for the appellant submitted
that at the time of accident, deceased was working as Assistant
Professor in Mechanical Engineer Department of Dr.Subhash
Technical Campus, Junagadh. It is submitted that deceased was
salarized person and paying income tax. He would submit that
salary of the deceased on on rise, yet learned Tribunal took up
average income considering income tax return at Exh.37 to 39
instead of taking last income tax return for the purpose of
assessing loss of dependency as well as future prospects.
Secondly, it is submitted that learned Tribunal has erred, in the
case on hand car driver fled from the spot of accident and
therefore, action on the part of the car driver itself is suggestive
that car driver was more negligent then what is assessed by the
learned Tribunal. He submitted that car driver be held 85%
negligent in causing road accident and deceased may be held
15% negligent, as it is case of head on collusion manner.
3.1. Lastly, it is submitted that compensation under non
pecuniary heads granted by learned Tribunal is on lower side.
On this counts, learned advocate for the appellant submitted to
allow the appeal.
4. On the other hand, learned advocate Mr.Thakkar for the
Insurance Company submitted that claimant has said wrong
facts in the claim petition. Claimant came out with the case that
car dashed motorcycle from behind, however, evidence on record
indicates that car was coming from opposite side and dashed
with motorcycle. It is submitted that in case of head on
collusion, learned Tribunal has rightly assessed contributory
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negligence of the deceased to 20%. There is no need to reduce
contributory negligence of the deceased and enhance
compensation. So far as enhancement of compensation is
concerned, learned advocate Mr.Thakkar submitted that learned
Tribunal has granted just and fair compensation considering
safe and appropriate approach by taking average of three income
tax returns. Looking to all this aspects, he submits to dismiss
the appeal.
5. Having heard learned advocates for both the sides and
considering evidence produced by parties on record, it is to be
noted that deceased at the time of accident was 27 years old
bachelor and lost his life in the road accident, being top killer in
the country. He was salarized person. Claimants being parents
of the deceased have place on record degree certificate of
deceased which demonstrate that deceased completed Masters in
Mechanical Engineering. Salary certificate of the deceased issued
by Dr. Subhash Technical Campus, Junagadh is produced at
Exh.42. Income tax return filed by the deceased for the yea
2016-17, 2017-18 and 2018-19 are produced on record at
Exh.37 to 39. Perusal of the salary certificate and Income tax
returns indicates that there is steep rise in the income of the
deceased. Learned advocate Mr.Thakkar for the Insurance
Company submits that learned Tribunal has taken safe
approach to take average income of the deceased from last three
income tax returns, but since there is rise in the income of the
deceased, salary certificate in last income tax return is required
to be taken as income of the deceased.
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6. In Sangita Arya and others vs. Oriental Insurance
Company Limited and others - 2020 (5) SCC 327, the Hon'ble
Supreme Court deprecated the approach of the tribunal to take
average of the income of the deceased on the basis of ITR filed for
last three or four years. Para 12.2, 13 and 14 thereof reads as
under :
"12.2 Second, the High Court determined the
income of the deceased by taking the average of the
ITRs filed for the years 200203 at Rs. 54,000 p.a.,
200304 at Rs. 52,405 p.a., and 200405 at Rs.
51,500 p.a. The learned Single Judge disregarded
the ITR for the year 200607, 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.
13. 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 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.
14. On a perusal of the documentary evidence on
record i.e. the ITRs for the assessment years 2005-
06 and 2006-07, filed prior to the death of the
deceased, which reflect the income of
approximately Rs. 1,00,000 p.a. (as assessed by
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the MACT in its Award dated 22.12.2009), we make
this the basis for computing the compensation
payable to the Claimants. We find that the Courts
below have not awarded any amount towards
future prospects, as mandated by the judgment of
the Constitution Bench in National Insurance
Company Limited v. Pranay Sethi & Ors.
Accordingly, we award future prospects @40% of
the income of the deceased."
7. In earlier judgment in case of Shashikala vs.
Gangalakshmamma - 2015 (9) SCC 150, the Hon'ble Apex Court
observed that in case of rise of income, last income tax return
can be safely relied upon to take base. Relevant para 20 is
reproduced here under :
"20. The deceased was aged 45 years and was
doing transport business. Though the claimants
have filed income tax returns for two assessment
years 2005-06 and 2006-07, as per the income tax
returns for the year 2006-07, the income of the
assessee was Rs.2,02,911/-. Tribunal did not take
the income of the deceased for the assessment year
2006-07 on the ground that only xerox copy was
filed and the claimants have failed to examine
income-tax authorities to prove the same. Instead
of taking the income of the deceased as per the
assessment year 2006-07, the High Court has
chosen to calculate the average of the income for
two assessment years 2005-06 and 2006-07.
Considering the age of the deceased and the nature
of business he was doing, in my considered view,
the High Court was not justified in so taking the
average of income of the two assessment years. The
deceased was aged 45 years and doing business.
Admittedly, he was also owning agricultural lands.
Even though agricultural income was not shown in
the income tax return, it emerges from the evidence
that the deceased was also doing agricultural
work."
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8. In Rupali Kailas Mamode vs. National Insurance Company
Limited - 2023 ACJ 327, the Hon'ble Supreme Court accepted to
take up last income tax return as yardstick to award
compensation. Para 3 of the said judgment reads as under :
"3. The High Court while reducing the
compensation has arrived at the conclusion that
the income as indicated in the last returns would
not be justified and the average of three years is
taken and therefore has reduced the compensation.
Though learned counsel for the respondent
Insurance Company seeks to contend that the High
Court having taken note of the decisions rendered
by this Court has arrived at such conclusion, we
are of the opinion that in the present facts of the
case, in any event such conclusion by the High
Court was not justified. This is for the reason that
as noted the deceased was an architect and he was
doing contract work, the income-tax returns which
he had filed from the period 2004- 2005 onwards
indicated that there was a steep increase in his
income as compared to a sum of Rs.89,964/-
declared in the year 2004-2005 and that benefit
cannot be denied. If this aspect of the matter is
kept in perspective, the income was bound to
increase many folds if he had survived and such
income which is denied to the family is the loss of
dependency which was required to be determined."
9. In view of above, while calculating just and fair
compensation, learned Tribunal was required to take last income
of the deceased from Income tax return which comes to Rs.
5,94,566/-. Deceased was salarized person, there is rise in come
of deceased. Therefore, in view of judgment of National Insurance
Company Ltd. v/s. Pranay Sethi [2017 (16) SCC 680], 50% rise
in income is to be considered for loss of future dependency.
Deceased was 27 years old, which can be seen from School
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Leaving Certificate at Exh.34. Thus, multiplier of 17 would be
applied. Since deceased was bachelor, 1/2 is to be deducted
towards personal expenses. Under the head of loss of
consortium, both parents are entitled for Rs.48,400/- each and
Rs.18,150/- each under loss of estate as well as funeral
expenses.
10. Next question arise, whether learned Tribunal committed
error in attributing 20% negligence to the deceased. Apt to note
that claimant filed claim petition with averments that deceased
was riding motorcycle on Vavdi Road. He wa dashed from behind
by car No.GJ-03-EC07088. FIR of the accident has been
registered with Chalala Police Station against car driver. Father
of the deceased entered into witness box at Exh.22 to prove
contention raised in the claim petition, but he was not eye
witness to road accident. Therefore, his deposition would not be
much relevant to decide the issue of contributory negligence.
Insurance company could not avert filing of FIR against car
driver as also charge-sheet after thorough investigation.
Insurance company mainly relied on deposition of driver of car
who entered into witness box to say that motorcycle came on
wrong side and dashed with car. Learned Tribunal while
deciding contributory negligence referred to evidence of driver of
car, in back ground of documentary evidence on record,
assessed negligence of deceased to 20% and car driver to 805. It
is relevant to note that car driver has not filed written statement
before the learned Tribunal, despite he was served. He was
called by insurance company to give deposition. Deposition of
car driver seems to be deposition of person who is interested in
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resolving the dispute and this, it cannot be considered as gospel
truth. Panchnama has been drawn post accident has been
vividly appreciated by the learned Tribunal and found that
santro car was on wrong side of road. In juxtaposition of such
aspects, claimants have pleaded false fact that deceased was
dashed from behind. Place of car which is shown in the
panchanama drawn post accident was on its correct side.
Appreciating all these aspects, according to this Court learned
Tribunal ought to have apportioned liability in the ratio between
deceased and car driver to the extent of 15% and 85%
respectively. I fix the same accordingly. Therefore, the claimants
are entitled for compensation less of 15% from the total
compensation.
11. Therefore, total compensation would be as under, which
the claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 75,80,640/-
Rs.5,94,566 + 50%= Rs.8,91,840/- divide by
2 = Rs.4,45,920/- and applying 17
multiplier, the total amount would be
Rs.75,80640/-
loss of Consortium 96,800/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Total... 77,13,740/-
Less : 15% self negligency of deceased 11,57,061/-
Less: compensation to be awarded by 57,55,387/-
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Tribunal
Additional amount which is awarded 8,01,292/-
12. Therefore, I hold that the claimantss are entitled to get the
enhanced compensation of Rs.8,01,292/- with 9% p.a. interest
from the date of filing the claim petition till its realisation, which
would meet the ends of justice. Rest of the direction(s) of the
Tribunal remain same.
13. For the reasons recorded above, the following order is
passed.
13.1 The present appeal is partly allowed.
13.2 The Insurance Company is directed to deposit the
enhanced amount with interest as stated herein above within a
period of six weeks from the date of receipt of this order.
13.3 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, to the claimants, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
13.4 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law. Record
and proceedings be sent back to the concerned Tribunal,
forthwith.
(J. C. DOSHI,J)
SATISH
