Gujarat High Court

Babubhai Bhailal Thakkar vs Babulal Durgaram Mali on 23 June, 2025

                                                                                                                 NEUTRAL CITATION




                            C/FA/2710/2022                                     JUDGMENT DATED: 23/06/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 2710 of 2022

                       FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MS. JUSTICE NISHA M. THAKORE

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                                    Approved for Reporting                     Yes           No
                                                                                             No
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                                                  BABUBHAI BHAILAL THAKKAR
                                                            Versus
                                                BABULAL DURGARAM MALI & ANR.
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                      Appearance:
                      MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
                      RULE SERVED for the Defendant(s) No. 2
                      RULE UNSERVED for the Defendant(s) No. 1
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                           CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                                          Date : 23/06/2025

                                                          ORAL JUDGMENT

1. Heard Mr. Vishal Mehta, learned advocate on record for the

appellant and learned advocate Ms. Kirti Pathak appearing for the

respondent no.2- Insurance Company. Pursuant to the instructions

received, she has confirmed her appearance and she shall file her

Vakalatnama before the Registry. Registry to accept her Vakalatnama.

2. Looking to the nature of the claim involved, the appeal is taken

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up for hearing with the assistance of learned advocates for the

respective parties.

3. The present appeal is filed under Section 173 of the Motor

Vehicles Act, 1988, at the instance of the original claimant, being

aggrieved and dissatisfied with the judgment and award dated

03.03.2018 passed by the Motor Accident Claims Tribunal (Auxi),

District- Banaskantha at Deesa in M.A.C.P. No. 3089 of 2009.

3.1 By the said impugned judgment and award, the Tribunal has

partly allowed the claim petition, holding the respondents jointly and

severally liable to pay an amount of Rs.5,000/- with costs and simple

interest at the rate of 7.5% per annum from the date of filing of the

claim petition till its actual realization, as against the amount of

compensation claimed to the tune of Rs.1 Lakh.

4. Learned advocate for the appellant, at the outset, has invited

my attention to the order dated 09.09.2022 passed by the Co-ordinate

Bench, at the stage of admission of the appeal. While referring to the

decision of the Hon'ble Supreme Court in the case of Rajkumar vs.

Ajay Kumar reported in (2011) 1 SCC 343, learned advocate has

submitted that at the stage of admission hearing, the issue of

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assessment of disability was pressed for. However, at this stage, the

present appeal is confined on the aspect of loss of future income,

while considering 5% permanent disability, being agreed by the

respective parties before the Tribunal. He has further pointed out that

the claimant has been able to establish that his monthly income at the

time of the accident, was Rs.8000/- per month. In this regard, the

Tribunal has taken into consideration the income tax returns of three

years, which is produced at Exh. 20. However, according to the learned

advocate, the Tribunal committed gross error in arriving at a

conclusion that no proof of age of the claimant, has been brought on

record. In this regard, the learned advocate heavily relied upon the

aforesaid income tax returns at Exh. 20, wherein it has clearly

transpired that the date of birth of the claimant is 01.06.1962.

Learned advocate has, therefore, submitted that the claimant was

aged about 43 years at the time of the accident.

4.1 By referring to the aforesaid dates, learned advocate has

submitted that the compensation towards future loss of income, thus,

is required to be reconsidered as Rs.67,200/- by applying the

multiplier of 14. Despite aforesaid material being brought on record,

the Tribunal proceeded to award lump sum compensation to the tune

of Rs.10,000/- only, whereby 50% of the award amount was directed

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to be deducted towards contributory negligence of the claimant

himself. Learned advocate has, therefore, urged this Court to allow

the appeal and to enhance the amount of compensation with interest.

5. Learned advocate Ms. Kirti Pathak, appearing for respondent

no. 2 - Insurance Company, has vehemently objected to the aforesaid

submissions of learned advocate for the appellant. She has invited my

attention to the findings and reasons assigned by the Tribunal.

According to learned advocate, in absence of any proof of age being

brought on record, no error can be found with the approach of the

Tribunal, in awarding lump sum compensation. Learned advocate has,

therefore, urged this Court to not entertain the present appeal.

6. Considering the aforesaid submissions of learned advocates for

the respective parties, in light of the findings and reasons assigned by

the learned Judge, the only issue which falls for consideration of this

Court in the present appeal, is with regard to the amount of

compensation towards future loss of income being determined by the

Tribunal.

7. I have closely considered the findings and reasons assigned by

the Tribunal, in light of the submissions made by learned advocate for

the appellant. Indisputably, there is no challenge to the aforesaid

findings and reasons assigned by the Tribunal at the instance of

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respondent no. 2 - Insurance Company. Thus, the monthly income of

the claimant assessed as Rs.8000/- per month at the time of the

accident, has remained uncontroverted. As rightly pointed out by

learned advocate for the appellant, the permanent disability of the

claimant in reference to the body as a whole, has been agreed to be

considered as 5%. However, in absence of direct evidence about age

of claimant, Tribunal has refused to determine claim and has

proceeded to award lump sum compensation. This brings me to the

issue of proof of age, in order to determine the correct multiplier, to

be applied in the facts of the case. The reliance is placed on income

tax returns. The income tax returns of three years of the claimant

which have been brought on record at Exh.20. While income tax

returns are considered as reliable document for assessing income in

motor accident claim cases, the question arises whether the same can

be considered as proof of age. Generally, in cases where other

documents like Birth Certificate, School Leaving Certificate and

Government issued identification cards are available, the reference to

IT records may not be substantive proof of age. However, in absence

of aforesaid document on record, and in absence of any contradictions

of date of birth being brought on record, the same being statutory

document can always be considered as evidence for the purpose of

determination of age of the claimant. In fact, from the findings and

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reasons assigned by the Tribunal, it is evident that the aforesaid

document has been appreciated and accepted as an evidence or proof

of income of the claimant. The Tribunal, thus, having satisfied itself

with regard to the evidentiary value to be attached to the aforesaid

document, in the opinion of this Court, ought to have considered it as

an evidence of the age of proof, more particularly, when the date of

birth has been reflected in the aforesaid document.

8. For the aforesaid reasons, this Court is of the view that the

Tribunal has committed serious error in arriving at a conclusion that no

proof of age of the claimant, was brought on record.

9. Having held so, for the purpose of determination of future loss

of income, considering the judgment of the Hon'ble Supreme Court in

the case of Sarla Verma & Ors vs Delhi Transport Corp.& Anr

reported in (2009) 2 ACJ 1298, appropriate would be to apply the

multiplier of 14, looking at the age of the claimant at the time of

accident, which has been considered as 43 years. As regards future

prospect is concerned, considering the age of the claimant as 43 years,

as held by the Hon'ble Supreme Court in the case of National

Insurance Company Ltd. vs. Pranay Sethi and Others reported in

(2017) 16 SCC 680, the 25% addition to his income assessed is to be

considered. Hence, the future loss of income is determined as:

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Rs.8,000 × 5% disability = Rs.400/- per month

Rs. 400 × 12 months = Rs. 4,800/- per annum

Rs.4800 x25% = Rs.1200/- per annum

Rs.6000/- (Rs.4800 +Rs.1200)x 14 = Rs. 84,000/-

10. For the foregoing reasons, the appeal stands partly allowed.

The total amount of compensation is modified from Rs.10,000/- to Rs.

84,000/-. In the present appeal, learned advocate for the claimant has

not disputed the negligency of the claimant being determined as 50%

towards accident. The impugned judgment and award dated

03.03.2018 passed by the Motor Accident Claims Tribunal (Auxi),

District- Banaskantha at Deesa in M.A.C.P. No. 3089 of 2009, is hereby

modified. Respondents are held responsible to pay the enhanced

amount of compensation to the tune of Rs.37,000/- (Rs.84,000-Rs.

10,000= Rs.74,000 x 50%) with interest at the rate of 7.5% per annum

from the date of filing of the claim petition till its realization.

11. The respondent- Insurance Company is directed to deposit the