BHARTIBEN BIPINBHAI SONI vs. MANAJI AMTHAJI THAKOR

C/FA/1009/2014 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1009 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH

and HONOURABLE MR.JUSTICE R.P.DHOLARIA

====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== BHARTIBEN BIPINBHAI SONI & 2....Appellant(s) Versus MANAJI AMTHAJI THAKOR & 2....Respondent(s) ====================================== Appearance: MR ZUBIN F BHARDA, ADVOCATE for the Appellant(s) No. 1 - 3 MR GC MAZMUDAR, ADVOCATE for the Respondent(s) No. 3 MR HG MAZMUDAR, ADVOCATE for the Respondent(s) No. 3 MR.O K BAROT, ADVOCATE for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 1 NOTICE UNSERVED for the Respondent(s) No. 2 ====================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA Page 1 of 12

C/FA/1009/2014 CAV JUDGMENT

Date : 05/05/2014

CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Being aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claims Tribunal (Auxiliary) and Additional District Judge, Banaskantha, Palanpur (hereinafter referred to as the ‘tribunal’) dated 10/10/2012 in M.A.C.P No. 188/2002 by which the learned tribunal has awarded at total sum of Rs.9,07,170/- to the appellants-original claimants towards compensation for the death of the deceased-Shri Bipinbhai Chimanlal Soni, the appellants herein-original claimants have preferred the present First Appeal to enhance the amount of compensation. 2. In a vehicular accident, which took place on 23/12/2001 between the ‘Moped’ driven by the deceased Shri Bipinbhai Chimanlal Soni and one Jeep bearing No. GJ 1 BP 5826 driven by respondent no. 1-original opponent no. 1, owned by respondent no. 2-original opponent no. 2 and insured with respondent no. 3-original opponent no. 3-United India Insurance Company Ltd., the deceased sustained serious injuries and thereafter succumbed to injuries after a week. The deceased, at the relevant time, was doing the tuition work was aged 36 years. The appellants-original claimants filed the claim petition before the tribunal, being M.A.C.P. No.188/2002 for getting Rs.50 lakhs towards compensation under different heads for the death of the deceased-Shri Bipinbhai Chimanlal Shah. It was the case on behalf of the appellants-original claimants that the driver of the jeep, involved in the accident, was rash and negligent due to which the accident took place Page 2 of 12

C/FA/1009/2014 CAV JUDGMENT and the deceased died. It was also the case on behalf of the appellants-original claimants that from the coaching class since last two years, the income of deceased was Rs.60,000/- per annum and the same has been increased periodically and for the Assessment Year 2001-02 his income was more than Rs.1,00,000/-. It was also the case on behalf of the appellants- original claimants that for treatment they incurred the expenditure of Rs.1,25,000/- and, therefore, it was requested to award the compensation of Rs.50,00,000/- under different heads. 2.1. Though served, nobody appears on behalf of original respondents nos. 1 and 2-original opponents nos. 1 and 2. Respondent no. 3-original opponent no. 3-Insurance Company appeared through his advocate and opposed the claim petition by filing the claim at Exh.41. It was specifically denied that respondent no. 1-original opponent no. 1-driver of the jeep was solely responsible for the accident. It was the case on behalf of respondent no. 3-original opponent no. 3-Insurance Company that in fact the deceased died due to his own negligence and he was driving the motorcycle rashly and negligently. The tribunal framed the relevant issues. 2.2. On behalf of appellant no. 1-original claimant-Shri Bhartiben Bipinbhai Soni came to be examined at Exh. 20. On behalf of the appellants-original claimants one Shri Dharmendra Hasmukhlal Modi came to be examined at Exh.21. On behalf of the appellants-original claimants the following documentary evidences came to be produced. 1. The copy of the FIR, Exh.21 Page 3 of 12

C/FA/1009/2014 CAV JUDGMENT 2. Panchnama of the place of the accident, Exh.22 3. Copy of the Post-Mortem report, Exh.23 4. Marksheet of MA Part II of the deceased, Exh.24 5. Certificate of Hindi Examination, Exh.25 6. Certificate of Sanskrit Examination, Exh. 26 7. Medical Bills prescription and other medical papers, Exh.27 8. Form No.49A and the Income Tax Return of the year 1997-98, Exh. 33 9. The Income Tax Return of the year 1998-99, Exh. 34 10. The Income Tax Return of the year 1999-00, Exh.35 11. The Income Tax Return of the year 2000-01, Exh. 36 12. The Income Tax Return of the year 2001-02, Exh.37 13. Certificate of Shri Shah Coaching Class, Exh. 38 2.3. On behalf of the respondents-original opponents, no evidence was led. 2.4. On appreciation of evidence and considering the panchnama of the place of the accident, the FIR and the map prepared on the basis of the panchnama of the place of the accident, the tribunal has held the driver of the jeep negligent to the extent of 80% and the deceased-driver of the ‘Moped’ to the extent of 20%. On appreciation of evidence and considering the income of the deceased at the time of the accident at Rs.60,600/- (Rs.62,000/- as per the Income Tax Return of the year 2000-01 minus Rs.1,400/- towards the Income Tax already paid) and thereafter adding 50% to the same towards the future prospects as per the decision of Sarla Page 4 of 12

C/FA/1009/2014 CAV JUDGMENT Verma (Smt) and Ors Vs. Delhi Transport Corporation and Anr. reported in 2009 (6) SCC 121, and thereafter deducting ¼th towards personal expenditure of the deceased, the tribunal has considered the dependency at Rs.68,175/- and thereafter applying the multiplier of 15, the tribunal has awarded Rs.10,22,625/- under the head of future economic loss and considering the medical bills produced on record for Rs.73,337/-, the tribunal has awarded Rs.73,337/- under the head of medical expenses, Rs.10,000/- towards the pain, shock and suffering, Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of consortium and Rs.8000/- towards transportation and funeral expenses and, therefore, in all the tribunal has awarded a total sum of Rs.11,33,962/-. However deducting 20% towards negligence of the deceased, the tribunal has awarded the sum of Rs.9,07,170/- with 8.5% interest per annum from the date of the application till realization. Being aggrieved and dissatisfied with the impugned judgment and award passed by the tribunal, the appellants-original claimants have preferred the present First Appeal to enhance the amount of compensation. 3. Shri Zubin Bharda, learned advocate appearing on behalf of the appellants-original claimants has vehemently submitted that the tribunal has materially erred in holding the deceased negligent to the extent of 20%. It is submitted that considering the fact that the driver and the owner of the jeep did not contest the claim petition and the driver of the jeep, who can be said to be the best witness to explain the accident, did not step into the witness box, the tribunal ought to have drawn adverse inference and, thereafter, ought to have held the driver of the jeep-respondent no. 1-original opponent no. 1 Page 5 of 12

C/FA/1009/2014 CAV JUDGMENT sole negligent. It is further submitted that the tribunal has materially erred in awarding Rs.9,07,170/- towards compensation for the death of the deceased. It is submitted that despite the fact that in the year 2001-02 the income of the deceased has increased to Rs.1,05,250/- the tribunal has materially erred in considering the income of the deceased at Rs.60,600/- per annum. It is submitted that right from 1997- 98, it can be said that the income of the deceased has been increased periodically and, therefore, the tribunal has materially erred in considering the income of the deceased at Rs.60,600/- (Rs.62,000/- as per the Income Tax Return of the year 2000-01 minus Rs.1,400/- towards the Income Tax already paid). 3.1. It is further submitted by Shri Bharda, learned advocate appearing on behalf of the appellants-original claimants that in the facts and circumstances of the case and looking to the injuries sustained by the deceased and as the deceased survived for seven days, the tribunal has materially erred in awarding Rs.10,000/- only under the head of pain, shock and suffering. It is submitted that in the facts and circumstances of the case, the tribunal ought to have awarded atleast Rs.25,000/- to Rs.30,000/- under the head of pain, shock and suffering. 3.2. It is submitted that the tribunal has also materially erred in awarding Rs.73,337/- towards the medical expenses as the amount incurred actually towards the medical expenditure was Rs.1,25,000/-. 3.2. Making the above submissions, it is requested to allow Page 6 of 12

C/FA/1009/2014 CAV JUDGMENT the present First Appeal and to enhance the amount of compensation accordingly. 4. The present First Appeal is opposed by Shri G.C. Mazmudar, learned advocate appearing on behalf of respondent no. 3-original opponent no. 3-Insurance Company. 4.1. It is submitted that in the facts and circumstances of the case and considering the panchnama of the place of the accident and when on appreciation of evidence the tribunal has held the deceased negligent to the extent of 20% by observing that to some extent the deceased was also on wrong side, no error has been committed by the tribunal in holding the deceased negligent to the extent of 20%. It is submitted that as such the finding given by the tribunal is on appreciation of evidence, which is not required to be interfered with. 4.2. It is further submitted that as the Income Tax Return for the Assessment Year 2001-02 was filed after the accident and the death of the deceased and when there was substantial rise shown in the income from Rs.62,000 to Rs.1,05,240/- , the tribunal has rightly not considered the income mentioned in the Income Tax Return for the Assessment Year 2001-02. It is submitted that therefore considering the income as per the Income Tax Return of the year 2000-01 when the tribunal has held and/or considered the income of the deceased at Rs.62,000/- I.e. after deducting Rs.1400/- towards the income tax when the learned Judge has considered the income of the deceased at Rs.60,600/-, no error has been committed by the learned Judge in awarding Rs.10,22,625/- under the head of future of economic loss. It is submitted that in any case, the Page 7 of 12

C/FA/1009/2014 CAV JUDGMENT impugned judgment and award passed by the tribunal awarding Rs.9,07,170/- is just and fair compensation, which is not required to be interfered with by this Court. Making the above submissions, it is requested to dismiss the present First Appeal. 5. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned judgment and award passed by the tribunal and appreciated / re-appreciated the entire evidence on record. 5.1. At the outset, it is required to be noted that on appreciation of evidence and considering the panchnama of the place of the accident, the tribunal has held the deceased negligent to the extent of 20% and the driver of the jeep i.e respondent no. 1-original opponent no. 1 negligent to the extent of 80%. It is the case on behalf of the appellants- original claimants that as the respondent no. 1-original opponent no. 1, driver of the jeep, who can be said to be the best witness and who could have explained the accident, did not step into the witness box, the tribunal ought to have drawn adverse inference and ought to have held the driver of the jeep 100% negligent is concerned, under normal circumstances, the aforesaid can be accepted. However, the aforesaid is not the absolute rule. If, looking to the other evidence on record, if it can be culled out how the accident had taken place and who is responsible for the negligence can be found out from other documentary evidence, solely on the ground that the respondent no. 1-original opponent no. 1-driver is not examined and/or has not stepped into the witness box by drawing adverse inference, respondent no. 1-original opponent Page 8 of 12

C/FA/1009/2014 CAV JUDGMENT no. 1 cannot be held 100% negligent. In the present case, it can be seen from the panchnama of the place of the accident and it is found that that to some extent the deceased also was on the wrong side and thereby the accident had taken place and, therefore, no error has been committed by the learned Judge in holding the deceased negligent to the extent of 20%. Under the circumstances, the finding recorded by the tribunal holding the deceased 20% negligent is not required to the interfered with. 5.2. Now so far as the quantum of compensation is concerned, the learned Judge has awarded Rs.10,22,625/- under the head of future economic loss considering the income of the deceased at the relevant time at Rs.60,600/- after deducting the Income Tax and considering the Income Tax Return of the deceased for the Assessment Year 2000-01. However, it is the case on behalf of the appellants-original claimants that the income of the deceased was Rs.1,05,240/- as per the Income Tax Return of the Assessment Year 2001-02 and, therefore, the tribunal ought to have considered the income of the deceased accordingly. However, it is required to be noted that the Income Tax Return for the Assessment Year 2001-02 is admittedly filed after the death of the deceased. It is also required to be noted that there is substantial increase shown in the income of the deceased between 2000-01 and 2001-02. In the Income Tax Return for the Assessment Year 2000-01 the income of the deceased mentioned is Rs.62,500/- per annum and, therefore, the learned Judge has not committed an error in not considering the income of the deceased as mentioned in the Income Tax Return for the Assessment Year 2001-02. However, it is required to be noted Page 9 of 12

C/FA/1009/2014 CAV JUDGMENT that there is periodical increase in the income of the deceased right from 1997-98 till 2000-01. For the Assessment Year 1997-98, the income of the deceased was Rs.39,545/-, for the Assessment Year 1998-99 the income was Rs.43,797/-, for the Assessment Year 1999-00 his income was Rs.60,250/-, for the Assessment Year 2000-01 his income was Rs.62,500/- and as per the last Income Tax Return for the Assessment Year 2001- 02, his income is shown at Rs.1,05,240/- and, therefore, considering the mean of the income for the last five years, the income of the deceased would come to Rs.62,266/- (rounded off to Rs.63,000/- per annum). Thereafter adding 50% towards future prospects, as per the decision of the Hon’ble Supreme Court in the case of Sarla Verma (Smt) and Ors. (Supra) Rs.31,500/-, it would come to Rs.94,500/- and after deducting ¼th towards personal expenditure of the deceased dependency, it would come to Rs.70,875/- and thereafter applying the multiplier of 15, the appellants-original claimants would be entitled to Rs.10,63,125/- under the head of future economic loss. 5.3. Now so far as the amount of Rs.73,337/- awarded towards medical expenditure is concerned, it is required to be noted that though the appellants-original claimants claimed Rs.1,25,000/- towards the actual medical expenditure, however, the appellants-original claimants, produced the medical bills of Rs.73,337/- only. Under the circumstances, no error has been committed by the tribunal in awarding Rs.73,337/- towards the actual medical expenses. 5.4. Now so far as the amount awarded at Rs.10,000/- towards pain, shock and suffering is concerned, we are of the Page 10 of 12

C/FA/1009/2014 CAV JUDGMENT opinion that the tribunal has committed an error in awarding Rs.10,000/- only towards pain, shock and suffering. It is required to be noted that the deceased survived for seven days and had sustained serious injuries and thereafter succumbed to injuries after seven days. Considering the aforesaid facts and circumstances of the case, we are of the opinion that the appellants-original claimants shall be entitled to Rs.30,000/- towards pain, shock and suffering. 5.5. Thus, in the facts and circumstances of the case, the appellants-original claimants shall be entitled to compensation as under; Rs.10,63,125/- towards future economic loss; Rs. 73,337/- towards medical expenses; Rs. 8,000/- towards transportation and funeral expenses; Rs. 10,000/- towards loss of consortium; Rs. 10,000/- towards loss of estate. Rs. 30,000/- towards pain, shock and suffering ------------------ Total Rs.11,94,462/- 5.6. As the deceased is held negligent to the extent of 20% deducting the sum of Rs.2,38,892/- the appellants-original claimants shall be entitled to a total sum of Rs.9,55,570/- with 9% interest from the date of the application till realization. 6. In view of the above and for the reasons stated hereinabove, the present First Appeal succeeds in part. The impugned judgment and award passed by the learned Motor Page 11 of 12

C/FA/1009/2014 CAV JUDGMENT Accidents Claims Tribunal (Auxiliary) and Additional District Judge, Banaskantha, Palanpur (hereinafter referred to as the ‘tribunal’) dated 10/10/2012 in M.A.C.P No. 188/2002 is hereby modified to the extent that the appellant-original claimant shall be entitled to a total sum of Rs.9,55,570/- with 9% interest per annum from the date of the application till realization. The present appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. (M.R.SHAH, J.) (R.P.DHOLARIA,J.) Siji Page 12 of 12