CHITRANGAN JAYANTILAL PARIKH vs. HAMIDKHAN MUMTAJKHAN PATHAN (OWNER)

C/FA/1169/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1169 of 2007

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA =========================================================== 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 ? ================================================================ CHITRANGAN JAYANTILAL PARIKH & 2....Appellant(s) Versus HAMIDKHAN MUMTAJKHAN PATHAN (OWNER) & 5....Defendant(s) ================================================================ Appearance: MR MTM HAKIM, ADVOCATE for the Appellant(s) No. 1 - 3 MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 6 MS AMEE YAJNIK, ADVOCATE for the Defendant(s) No. 3 NOTICE SERVED for the Defendant(s) No. 4 - 5 SERVED BY AFFIX(N) for the Defendant(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA Page 1 of 4

C/FA/1169/2007 JUDGMENT

Date : 02/09/2014

ORAL JUDGMENT This appeal under section 173 of the Motor Vehicles Act is at the instance of the claimants in a proceeding under section 166 of the Act and is directed against an award dated 30th April 1999, passed by Motor Accident Claims Tribunal [Auxi], 2nd Court, Bharuch in M.A.C.P. No. 830 of 1988, thereby partly allowing the application under section 166 of the Act by awarding a sum of Rs. 1,50,000/- with interest at the rate of 12% per annum from the date of filing of the application till the actual payment. Being dissatisfied, the claimants have come up with the present appeal. It appears from the record that on 24th December 1986, in a motor accident, the deceased, a pedestrian, died. At the time of death, he was aged 65 years. According to the claimants, the victim was highly educated and after coming from Nigeria, he started his own business, but production of the business could not commence. The total amount of claim made in the application was Rs. 6 Lac. The learned Tribunal below, on consideration of the materials on record, came to a conclusion that the claimants failed to prove the actual income of the victim at the time of the accident, nonetheless, treated the monthly income of the victim to be Rs.3000/- and after deducting 1/3rd for personal expenditure, applied the multiplier of 5 and came to a figure of Rs. 1.00 Lac. In addition to that, a sum of Rs. 15,000/- was awarded towards the loss of estate and Rs. 15,000/- towards consortium, and ultimately arrived at a figure of Rs. 1,50,000/-. Page 2 of 4

C/FA/1169/2007 JUDGMENT Mr. Hakim, the learned advocate, appearing on behalf of the claimants, at the very outset, submitted that the learned Tribunal below committed substantial error in not awarding any amount towards the funeral expenses. After hearing the learned counsel for the parties and after going through the materials on record, I find that the accident having occurred in the year 1986, it was the duty of the claimants to produce the income-tax return showing his actual income. No such document has been produced to substantiate the actual income of the victim at the relevant point of time. Mr. Hakim contends that the victim being 65 years of age, appropriate multiplier should have been applied as held by the Supreme Court in the case of Sarla Verma vs. D.T.C. and another, reported in [2009] 6 SCC 121. It appears that even in the case of Sarla Verma, the conventional amount was restricted to Rs. 25,000/- whereas in the case before us, the learned Tribunal below granted Rs. 33,000/-. Moreover, having regard to the fact that no income-tax return has been produced to show the actual income, I do not find any reason to interfere with the finding of the Tribunal below that the income was Rs. 3000/- a month, when the Insurance Company or owner of the vehicle have not filed any appeal against the award impugned. As regards the contention of the claimants about the application of appropriate multiplier, it appears from the post-mortem report that the victim was aged 70 years and thus, there is no question of enhancing the multiplier. I find that in the facts of the present case, a sum of Rs. 2,000/- should be awarded as funeral expenses. I, thus, enhance the amount Page 3 of 4

C/FA/1169/2007 JUDGMENT of award by Rs.2,000/- with interest at the rate of 12% per annum from the date of filing of the application till realization. The respondent no.3 is directed to pay the enhanced amount within two months from today. The appeal is allowed to the aforesaid extent. No costs. The Registry is directed to send the record and proceedings immediately to the Tribunal below. (BHASKAR BHATTACHARYA, CJ.) pirzada Page 4 of 4