BHAVNABEN WD/O PARSOTAMDAS MADHAVDAS LALCHANDANI vs. DRIVER OF THE S T BUS NO

C/FA/1092/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1092 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 ? ============================================= BHAVNABEN WD/O PARSOTAMDAS MADHAVDAS LALCHANDANI & 3....Appellant(s) Versus DRIVER OF THE S T BUS NO & 1....Defendant(s) ============================================= Appearance: MR MEHUL S SHAH, ADVOCATE for the Appellant(s) No. 1 - 4 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 05/05/2014

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 7

C/FA/1092/2014 JUDGMENT 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Axui.), Panchmahals at Godhra dated 25.10.2013 passed in M.A.C.P. No. 535 of 2007 by which the learned Tribunal has awarded a total sum of Rs.9,11,000/- with interest at the rate of 9% per annum from the date of petition till its realization covers compensation for the death of deceased Parsottamdas, who died in a vehicular accident which took place on 08.01.2007, the appellants herein – original claimants have preferred the present first appeal to enhance the amount of compensation awarded by the learned Tribunal. 2. That on 01.01.2007, the deceased Parsottamdas was travelling in the S.T.Bus No. GJ-18-V-8002 which was being driven by opponent No.1 herein in rash and negligent manner and at about 20:00 hrs. when the bus was passing in the Ghata of Fulpari village road, the respondent No.1 herein – driver of the S.T. Bus lost control over the bus and due to the excessive speed, the bus turned turtle resulting in the said Parsottamdas sustained injuries all over his person and he succumbed to the injuries. Therefore, the appellants – original claimants who were claiming to be the legal heirs of the deceased filed the claim petition before the learned Tribunal claiming the compensation of Rs.29,30,000/- under different heads and counts. 3. It was the case on behalf of the claimants that the deceased at the relevant time was aged 39 years. He was running retail and wholesale business of ready made clothes in the name of Gayatri Traders in Godhra city from which he Page 2 of 7

C/FA/1092/2014 JUDGMENT used to earn Rs.12,000/- per month. It was the case on behalf of the claimants that the deceased was an income-tax payer and considering his potentiality and business skills, he would have gone to earn more than Rs.30,000/- per month in future had he not met with the accident. 4. The claim petition was opposed by the original opponent No.2 – Gujarat State Road Transport Corporation by filing the written statement at Exh. 31, inter alia denying the contentions made in the petition, particularly the involvement of the vehicle pertaining to the nature of injuries, subsequent death, age and income of the deceased. 5. That the learned Tribunal framed the issues at Exh.11. 6. On behalf of the claimants – original claimant No.1 – Bhavnaben, widow of Parsottamdas came to be examined at Exh.32. The claimants also produced the following documentary evidence. Ex. 22 Copy of the complaint Ex.23 Copy of Panchnama of the scene of accident Ex.24 Copy of the P.M. Report Ex.25 Copy of the PAN card of the deceased Ex.26 Copy of the rent agreement of shop Ex.27 Copy of the rent receipt Ex.28 Copy of the registration of Gayatri Traders Ex.29 Copy of the travel ticket Ex.33 Copy of registration of Gayatri Traders in Sales-Tax Dept. Ex.34 Copy of application of deceased to Sales-Tax Page 3 of 7

C/FA/1092/2014 JUDGMENT Dept. Ex.35 Copy of the Registration Certificate of Central Sales-Tax Dept. Ex.36 Copy of Income-tax return filed by the deceased. 7. That on appreciation of evidence, the learned Tribunal has held the driver of the S.T.Bus 100% negligent. 8. That on appreciation of evidence and considering the documentary evidence on record and even considering the income-tax return filed for the Assessment Year 2006-2007, the learned Tribunal has assessed the income of the deceased at Rs.5,000/- per month at the time of his death. That considering the age of the deceased at 41 years at the time of his death, considering the age mentioned in the PAN card produced at Exh.25 and considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 6 Supreme Court Cases 121, the learned Tribunal has added 30% towards the future prospective income and thereafter deducting 1/4th towards the personal expenditure of the deceased, the learned Tribunal has considered the dependency available to the original claimants at Rs.4,875/- per month i.e. Rs.58,500/- per annum and applying the multiplier of 14, the learned Tribunal has awarded Rs.8,19,000/- towards the loss of dependency income / future economical loss and thereafter awarding other amount towards conventional amount, by impugned judgment and award, the learned Tribunal has awarded a total sum of Rs.9,11,000/- along with 9% interest per annum from the date of application till realization as under: Page 4 of 7

C/FA/1092/2014 JUDGMENT Rs.8,19,000/- Towards loss of dependency income Rs. 25,000/- Loss of estate Rs. 25,000/- Loss of consortium Rs. 25,000/- Loss of care & guidance for minor children Rs. 15,000/- Funeral Expenses Rs. 2,000/- Transportation Expenses. ---------------------- Rs. 9,11,000/- Total Compensation ---------------------- 9. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal, the appellants herein – original claimants have preferred the present first appeal to enhance the amount of compensation. 9. Shri Vishal Mehta, learned advocate has appeared for Mr. Mehul S. Shah, learned advocate appearing on behalf of the appellants – original claimants. Shri Mehta, learned advocate appearing on behalf of the appellants – original claimants has vehemently submitted that the learned Tribunal has materially erred in considering the income of the deceased at the time of his death at Rs.5,000/- per month. It is submitted that despite the income-tax return for the AY 2006- 2007 produced at Exh.36 showing the total income of the deceased at Rs.1,08,763/- per annum, the learned Judge has materially erred in not considering the same and in not considering the income of the deceased as per the income mentioned in the said income-tax return. Therefore, it is requested to modify the impugned judgment and award Page 5 of 7

C/FA/1092/2014 JUDGMENT passed by the learned Tribunal and to enhance the amount of compensation under the head of future economical loss accordingly. No other submissions have been made. 10. We have heard Shri Vishal Mehta, learned advocate appearing on behalf of the appellants at length and we have gone through the impugned judgment and award passed by the learned Tribunal as well as we have also appreciated/re- appreciated the entire evidence on record from the Record & Proceedings received from the learned Tribunal. At the outset, it is required to be noted that the deceased, at the time of accident, was aged 41 years of age and even as per the age mentioned in the PAN Card produced on record. It is also required to be noted that as such the accident took place on 08.01.2007 and the income-tax return produced at Exh.36 by the claimants was filed after the death of the deceased. Under the circumstances, as such, the learned Tribunal has rightly not considered the income mentioned in the said income-tax return, which is filed subsequent to the death of the deceased. At this stage, it is required to be noted that admittedly the claimants have not produced the income-tax returns of the immediate preceding years from the date of death of the deceased i.e. for the AY 2005-2006, 2004-2005 etc. Shri Mehta, learned advocate appearing on behalf of the appellants is not in a position to satisfy the reason for not producing the income-tax return of the preceding years. Therefore, as such, the adverse inference is required to be drawn against the appellants. If the claimants would have produced the income-tax returns of the immediate preceding years, in that case, the learned Tribunal could have considered the same while considering the income of the Page 6 of 7

C/FA/1092/2014 JUDGMENT deceased at the time of his death. Under the circumstances, in the facts and circumstances of the case and in absence of any other evidence, the learned Tribunal has not committed any error in considering the income of the deceased at Rs.5,000/- per month and accordingly awarding the future economical loss. In the facts and circumstances of the case, we are of the opinion that the amount awarded by the learned Tribunal towards the compensation i.e. Rs.9,11,000/- cannot be said to be on lower side. It is required to be noted that as such on other heads the learned Tribunal has awarded the amount which can be said to be in excess to some extent. However, as the S.T.Corporation has not challenged the judgment and award, we are not considering the same further. In any case, the impugned judgment and award passed by the learned Tribunal is not required to be interfered with by this Court in an appeal preferred by the appellants – original claimants as the amount awarded by the learned Tribunal cannot be said to be on lower side. 11. Considering the aforesaid overall facts and circumstances of the case, we see no reason to interfere with the impugned judgment and award passed by the learned Tribunal and the appeal deserves to be dismissed and is accordingly dismissed.

(M.R.SHAH, J.) (R.P.DHOLARIA,J.) Jani Page 7 of 7