Rajasthan High Court - Jodhpur

Mohd. Riyaz vs Akbar Shah And Ors on 25 March, 2021

Bench: Vinit Kumar Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1234/2017

Mohd. Riyaz S/o Shri Kalu Khan, Age about 29 years, R/o 13 Bhopalwadi, At Present Savina, Tehsil Girwa, Distt. Udaipur (Raj.).

----Appellant/Claimant Versus

1. Akbar Shah S/o Shri Ramzan Shah, R/o Jamnagar, P.s.

Jamnagar Dist. Bikaner (Raj.).

--- Driver

2. Sukhlal S/o Shri Shivratan Suthar, R/o Bhinasara, Distt.

Bikaner (Raj.).

--- Owner

3. National Insurance Company Ltd., Registered Office At 3, Midalton Street, Post Box No. 922, Kolkata Branch Office At - Dehli Gate, Udaipur (Raj.)

--- Insurer

----Respondents Connected With S.B. Civil Misc. Appeal No. 1033/2017

1. Smt. Zarina Begum W/o Late Mohd. Abdul Wahid, Aged 45 years,

2. Asif Javed S/o Late Mohd. Abdul Wahid, Aged 24 years,

3. Miss Bushra D/o Late Mohd. Abdul Wahid, Aged 22 years,

4. Adi Javed S/o Late Mohd. Abdul Wahid, Aged 20 years,

5. Rashid Javed S/o Late Mohd. Abdul Wahid, Aged 18 years, All Are R/o Gaj Singh Ji Ki Badi, Sajjan Singh Road, Udaipur.

----Appellants/Claimants Versus

1. National Insurance Co. Ltd., Registered Address 3, Middleton Street, Post Box No. 922, Kolkatta, Branch Office- Delhi Gate Udaipur.

---Insurer

2. Sukh Lal S/o Shiv Ratan Suthar, R/o. Bhinasara, District -

Bikaner.

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                                                                        --- Owner

3. Akbar Shah S/o Ramjan Shah Musalman, R/o Jamnagar, Police Station Jamnagar, Disrict- Bikaner.

                                                                         ---Driver
                                                                ----Respondents


For Appellant(s)         :     Mr. Arun Dadhich
                               Mr. R. S. Mankad
For Respondent(s)        :     Mr. Santosh Choudhary, for the
                               Insurance Company

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

25/03/2021 With the consent of the learned counsel for the parties, the

matters are being heard and disposed of finally.

S.B. Civil Misc. Appeal No. 1234/2017:-

The present appeal has been preferred by the appellant-

claimant against the judgment and award dated 13.01.2017

passed by Motor Accident Claims Tribunal No.1, Udaipur in M.A.C.

Case No. 965/2015, whereby the Tribunal awarded a sum of

Rs.5,17,700/- to the appellant-claimant on account of the injuries

suffered by him in the accident which occurred on 19.02.2015.

The learned Tribunal, after framing the issues, evaluating the

evidence on record and hearing learned counsel for the parties

decided the claim petition of the claimant-appellant.

Learned counsel for the appellant-claimant submits that the

finding of the Tribunal recorded on Issue No.3 with respect to the

consideration of the permanent disability is incorrect. He submits

that the Medical Board gave the certificate of disability of the

injured to the extent of 42%, whereas, the Tribunal took into

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consideration permanent disability to the extent of 20% only. He

further submits that there were three fractures on the body of the

injured-appellant and, therefore, the assessment of the

permanent disability of the whole body to the extent of 20% only,

is on the lower side. He submits that the loss of income

towards future prospects is also wrongly assessed by the Tribunal

and the same is required to be re-assessed in the light of the

judgments of Hon'ble the Supreme Court in the case of Sanjay

Verma V/s Haryana Roadways reported in AIR 2014 SC 995

& Pappu Deo Yadav V/s Naresh Kumar & Ors. reported in

AIR 2020 SC 4424.

Per contra, learned counsel for the Insurance Company

submits that in view of the evidence produced by the appellant in

support of his claim petition, the Tribunal correctly awarded the

amount of compensation in the present case. He submits that the

finding of the Tribunal on Issue No.3 does not suffer from any

infirmity as the Medical Board assessed the disability of the

injured only on the particular parts of the body which suffered

injuries and not of the whole body. He is not in a position to

controvert the submissions of the learned counsel on the point of

non-payment of the amount on account of loss of future prospects

in the light of the judgments relied upon by the learned counsel

for the appellant-claimant.

I have considered the submissions made at the Bar and have

gone through the judgment and award dated 13.01.2017 as well

as other relevant record of the case.

The appellant-injured suffered three fractures of left femur

bone, left clavicle and right fibula respectively and the Certificate

Ex.31 issued by the Medical Board shows the disability to the

extent of 42%. Considering the fact that the appellant-claimant

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suffered three fractures in the accident, this Court feels that the

ends of justice will be met, if the disability of the whole body is

taken to be 30%. Thus, the finding of the Tribunal on Issue No.3

is modified and it is held that the disability of the injured-appellant

is taken as 30% instead of 20% while computing the award.

Further, in view of the judgment of Hon'ble Supreme Court in

the case of Sanjay Verma V/s Haryana Roadways (Supra) and

Pappu Deo Yadav V/s Naresh Kumar & Ors. (Supra), 40% amount

towards the loss of future prospects is required to be taken into

consideration while recomputing the award in the present case.

The joint re-computation of the award submitted by the learned

counsel for the parties is as under : -

Income of the claimant- Rs. 90,000/- P.A.

appellant Towards Loss of Future 90,000 x40/100 =Rs. 36,000/-

Prospects 40% Total Rs.1,26,000/-

Permanent Disability 30% 1,26,000 X 30/100

=Rs. 37,800/-

                                          37,800 x 16=               Rs.6,04,800/-
Other heads                                                          Rs.2,29,700/-
                                                           Total Rs.8,34,500/-
Amount awarded by the Tribunal vide                                  Rs.5,17,700/-
award dated 13.01.2017
                                     Enhanced Amount Rs.3,16,800/-

Thus, in view of the discussions made above, the present

appeal is partly allowed and the amount of Rs.3,16,800/-

(Rupees: Three Lac Sixteen Thousand Eight Hundred Only) is

enhanced and the respondent-Insurance Company is directed to

pay the enhanced amount in addition to the amount already

awarded by the Tribunal vide judgment and award dated

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13.01.2017 within a period of six weeks from today. The

enhanced amount shall carry an interest @ 7.5% from filing of the

claim petition and till the same is paid.

S.B. Civil Misc. Appeal No. 1033/2017:-

The instant appeal has been preferred by the appellants-

claimants against the judgment and award dated 13.01.2017

passed by Motor Accident Claims Tribunal No.1, Udaipur in M.A.C.

Case No. 416/2015, whereby the Tribunal awarded a sum of

Rs.9,62,336/- to the appellants-claimants on account of the death

of Mohd. Abdul Wahid in the accident which occurred on

19.02.2015.

Learned counsel for the appellants submits that the finding

of the Tribunal on Issue No.3 suffers from gross and palpable

errors. He submits that the Tribunal despite there being Income

Tax Returns produced on record showing the income of the

deceased did not take into consideration the entire income and

considerably reduced the same on the ground that no evidence

was produced as to whether the appellants are receiving the same

amount as was received by the deceased from M/s. M.A.

Handloom Enterprises, Udaipur or not. Learned counsel contended

that despite there being conclusive proof of the income, while

computing the award the same was not taken into consideration.

Learned counsel further submits that there are four dependents in

the family, therefore, the deduction towards personal expenditure

is required to be 1/4th instead of 1/3rd. He, therefore, prays that

the amount is required to be recomputed in the light of the

judgment of Hon'ble the Supreme Court in the case of National

Insurance Company Ltd. V/s. Pranay Sethi reported in

(2017) SC 5157.

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Per contra, learned counsel for the Insurance Company

submits that the finding recorded by the Tribunal on Issue No.3

does not suffer from any infirmity as the appellant failed to

disclose the source of income as projected in the Income Tax

Returns. He further submits that nowhere in the pleadings made

before the Tribunal or in the claim petition, the claimants showed

the business as a source of income. Learned counsel emphatically

argued that the Tribunal correctly discarded the income whichwas

stated to be received by the claimants from M/s. M.A. Handloom

Enterprises, Udaipur on the ground that no documentary evidence

was placed on record to show that in what capacity the deceased

was working in the M/s. M.A. Handloom Enterprises, Udaipur.

Learned counsel, therefore, submits that while assessing the

income of the deceased, entire income as projected in the Income

Tax Returns should not be taken into consideration. Learned

counsel also submits that no documentary evidence was produced

in support of the source of income before the Tribunal. He,

therefore, prays that in view of the detailed discussions made by

the Tribunal, no interference in the award impugned is warranted.

However, he is not in a position to dispute the re-computation of

the award in the light of the judgment of Hon'ble Supreme Court

in the case of National Insurance Company Ltd. vs. Pranay

Sethi(Supra).

I have considered the submissions made at the Bar and have

gone through the judgment and award dated 13.01.2017 as well

as other relevant record of the case.

The finding of the Tribunal on Issue No.3 that the source of

income of the deceased was not disclosed and, therefore, while

computing the income, certain amount which was being received

by the deceased from M/s. M.A. Handloom Enterprises, Udaipur

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cannot be taken into consideration, is not correct on the ground

that the Insurance Company failed to bring on record the fact that

the income which was being received by the deceased will not be

received any further by the claimants in the event of the death of

the deceased - Mohd. Abdul Wahid. Once, the Income Tax Return

was filed before the Tribunal and pleaded in para No.6 of the claim

petition that the deceased was earning Rs.17,000/- per month the

same gets corroborated by the Income Tax Return of 2014-15.

Merely, because the source of income is not disclosed in the claim

petition, the Income Tax Return for the assessment year 2014-15

cannot be discarded. Further, non-disclosure of the source of

income also does not disentitle the appellants-claimants from

assessing the monthly income of the deceased. Thus, the finding

recorded by the Tribunal on Issue No.3 is not correct and it is held

that income as projected in the Income Tax Return of the

assessment year 2014-15 is required to be taken into

consideration while computing the award which is Rs.1,84,046/-.

Admittedly, there are four dependents in the family of the

deceased, therefore, the Tribunal wrongly deducted 1/3 rd amount

from the income of the deceased towards personal expenditure.

Thus, the deduction should have been 1/4th instead of 1/3rd of the

income.

The Tribunal committed an error while taking into

consideration 15% of amount towards the loss of future prospects.

Since, the age of the deceased was 57 years, therefore, only 10%

of the amount is required to be taken into consideration as the

loss of income towards the future prospects. A joint calculation

submitted by learned counsel for the parties for re-computation of

the award is as under : -

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                                   For                 future 10%                         of Rs. 18,405/-
                                   prospects :-               Rs.1,84,046/-
                                                              (Yearly Income              of
                                                              deceased)
                                   Rs. 1,84,046/- + Rs. 18,405/-                               Rs. 2,02,451/-

Amount to be deducted as Rs. 2,02,451/- / 1/4 = spent on himself yearly. Rs. 50,613/-

                                   Dependence Amount                                           Rs.2,02,451 -
                                                                                               Rs.50,613 = Rs.
                                                                                               1,51,838/-

The age of deceased was 57 years and, therefore, a multiplier of

9 will be used.

(I) Compensation due to 1,51,838/- x 9 Rs. 13,66,542/-

death

(II) Other conventional heads Rs. 70,000/-

Total Rs. 14,36,542/-

Amount awarded by the Tribunal vide award Rs. 9,62,336/- dated 13.01.2017

Enhanced amount Rs. 4,74,206/-

Thus, in view of the discussions made above, the present

appeal is partly allowed and the amount of Rs.4,74,206/-

(Rupees: Four Lac Seventy Four Thousand Two Hundred Six Only)

is enhanced and the respondent-Insurance Company is directed to