NATIONAL INSURANCE COMPANY LIMITED vs. RANJEETBHAI LAXMANBHAI SINDHAV

C/FA/1197/2014 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1197 of 2014 With CIVIL APPLICATION NO. 7497 of 2014 In FIRST APPEAL NO. 1197 of 2014 With CROSS OBJECTION NO. 82 of 2014 In FIRST APPEAL NO. 1197 of 2014

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 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 ? ================================================================ NATIONAL INSURANCE COMPANY LIMITED....Appellant(s) Versus RANJEETBHAI LAXMANBHAI SINDHAV & 2....Defendant(s) ================================================================ Appearance: MR MAULIK J SHELAT, ADVOCATE for the Appellant(s) No. 1 MR. HEMAL SHAH, ADVOCATE for the Defendant(s) No. 1 - 1.3 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and Page 1 of 12

C/FA/1197/2014 CAV JUDGMENT HONOURABLE MR.JUSTICE K.J.THAKER Date : 17/09/2014 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE K.J.THAKER) 1. First Appeal No.1197 of 2014 is preferred by the appellant-the original opponent No.3, Insurance Company, against the judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Rajkot (hereinafter referred to as ‘the Tribunal’ for short), Dated : 15.01.2014, in M.A.C.P. No. 1130 of 2006, whereby, the learned Tribunal directed the original opponent No.2, i.e. the owner of the offending vehicle, and the original opponent No.3-the present appellant, insurer of the offending vehicle, to pay jointly or severally an amount of Rs.17,95,000/- along with 8 per cent interest from the date of filing of the claim petition, till its realization, to the original claimants, i.e. Respondent Nos. 1/1 to 1/3 in the First Appeal. 2. X-objections No.82 of 2014 is filed by the original claimants for enhancement of amount of compensation, being aggrieved and dissatisfied with the judgment and award passed by the learned Tribunal, as referred to in Para-1, herein above. 3. For the sake of convenience, the parties Page 2 of 12

C/FA/1197/2014 CAV JUDGMENT shall be referred to as they stood before the learned Tribunal, i.e. the original claimants and the original opponent Nos. 1, 2, etc.. 4. The brief facts of the case are that on 27.08.2006, the deceased-Ranjitbhai Lakhmanbhai Sindhav along with some of his relatives was proceeding towards Jungadh on feet on a pilgrimage and when they reached near Juni Sakli, Village : Jetalsar, situated on Rajkot-Junagadh National Highway at about 06:00 a.m., the original opponent No.1, who was driving a Jeep Car bearing registration No. GJ-13-V-1127, which was owned by present Respondent No.2-original opponent No.2 and insured by the original opponent No.3-the appellant-Insurance Company, in a rash and negligent manner, came from behind and dashed the deceased and some of his relatives. On account of the alleged accident, the deceased received severe bodily injuries and later on succumbed to the same. Hence, the original claimants preferred the aforesaid claim petition, wherein, the Tribunal passed the impugned judgment and award. Hence, the present First Appeal and X-objections. 5. Shri. M.J. Shelat, learned Advocate appearing on behalf of the appellant-the original opponent No.3, submitted that the Tribunal has materially Page 3 of 12

C/FA/1197/2014 CAV JUDGMENT erred in not accepting the contention of the appellant that the claimants have not suffered actual loss of income from business and it ought not to have assessed the income of the deceased at Rs.10,000/- p.m.. Mr. Shelat, further, submitted that keeping in mind the ratio laid down by the Hon’ble Apex Court in the case of “NEW INDIA ASSURANCE CO. VS. YOGESH DEVI”, 2012 (3) SCC 613, the Tribunal ought to have held that there is no actual loss of income from business to the claimants and it ought to have awarded the just compensation. Shri. Shelat, then, submitted that the Tribunal committed a grave error in considering prospective rise in income of the deceased, especially, in absence of any proof of income. Shri. Shelat lastly submitted that taking into consideration the age of the deceased, i.e. 45 years, the Tribunal erred in considering 50 per cent rise in income and that it ought to have taken 30 per cent rise in income of the deceased. 6. No other submission was made by Shri. Shelat, learned Advocate, appearing on behalf of the original opponent No.3-Insurance Company. 7. On the other hand, Shri. Hemal Shah, learned Advocate appearing on behalf of the original claimants, has strongly opposed the appeal by submitting that while calculating the Page 4 of 12

C/FA/1197/2014 CAV JUDGMENT income of the deceased, the learned Tribunal ought to have taken into account the income of the deceased from agricultural land, which gets support from the documentary evidence in the form of extracts of 7/12 and 8/a, which were produced by the original claimants at Exhibits-39 and 40. Shri. Shah submitted that in view of the R.C. Book of the Borewell Truck bearing registration No. GJ-6-AB-8492, produced by the original claimants at Exhibit-41, the Tribunal ought to have taken into account the income of the deceased from the business of digging bore-wells. Mr. Shah, further, submitted that while awarding the compensation, the Tribunal ought to have taken into consideration the huge amounts spent by the deceased towards the education of his children, which is evident from Exhibits-46 and 47, which are the Bank Pass Books of the deceased, and Exhibits-58 to 64, which are the receipts issued by the schools in which the children of the deceased were studying, and therefore, the Tribunal ought to have taken the monthly income of the deceased at Rs.20,000/- as against Rs.10,000/- taken by it. Mr. Shah submitted that in view of the latest decision of the Apex Court in “ANJANI SINGH VS. SALAUDDIN & ORS.”, rendered in Civil Appeal No. 4647 of 2009, Dated : 25.04.2014, the Tribunal ought to have awarded Rs.1,00,000/- towards the loss of love Page 5 of 12

C/FA/1197/2014 CAV JUDGMENT and affection of a father to his children. 8. No other submission was made by Shri. Shah, learned Advocate, appearing on behalf of the original claimants. 9. In order to prove that on the date of the alleged accident the original opponent No.1 drove the Jeep Car bearing registration No. GJ- 13-V-1127, which was owned by original opponent No.2 and insured by original opponent No.3, in a rash and negligent manner and dashed from behind the deceased and others, who were proceeding towards Junagadh on a pilgrimage on feet, which resulted into death of the deceased-Ranjitbhai, the claimants examined the son of the deceased, Jaideep Ranjitbhai Sindhav, at Exhibit-24, wherein, this witness stated that on the date of the alleged accident, while the deceased and others were proceeding towards Junagadh on feet, the original opponent No.1 came from behind driving a Jeep Car in a rash and negligent manner and caused the accident. The evidence of this witness remains unchallenged on the aspect of manner in which the alleged accident took place. The case of the original claimants also gets support from the documentary evidences in the form of the complaint of the alleged accident (Exhibit-25), Panchnama of the place of accident Page 6 of 12

C/FA/1197/2014 CAV JUDGMENT (Exhibit-26), Inquest Panchnama (Exhibit-28) and P.M. note of the deceased (Exhibit-28). The original opponent No.1 did not enter the witness box, whereas, the original opponent Nos. 2 and 3 did not lead any evidence, much less any documentary evidence, to dislodge the claim of the original claimants with regard to negligence, and therefore, we are of the opinion that the Tribunal committed no error in holding that the deceased died because of the injuries sustained by him, when he was dashed by a vehicle driven in a rash and negligent manner by the original opponent No.1 and owned by original opponent No.2 and insured by original opponent No.3. 10. Insofar as the aspect of quantum of compensation is concerned, it was the case on behalf of the original claimants that the deceased was owning two trucks bearing registration Nos. GJ-3-L-2830 and GJ-6-AV-8492 and he used to do business in the name and style ‘Sahjanand Boreing Works’. It was also the case on behalf of the original claimants that apart from the above business, the deceased was also having agricultural land from which he used to earn about Rs.1,50,000/- per annum. In support of their say, as above, the original claimants produced the driving license of the deceased (Exhibit-34),

documents

pertaining

to Page 7 of 12

C/FA/1197/2014 CAV JUDGMENT agricultural activities (Exhibit-38), R.C. Book of the boreing truck (Exhibit-39), documents pertaining to the agricultural income (Exhibits- 40 to 43), RTO certificate of the truck bearing registration No. GJ-3-L-2830 and photographs of boreing machine (Exhibit-45). However, during the course of cross-examination, the witness examined by the original claimants submitted that the deceased was neither paying income-tax nor having any Pan Card, and therefore, taking into consideration the agricultural land held by the deceased as well as the boreing trucks, the Tribunal assessed the income of the deceased at Rs.10,000/- p.m.. Further, the Tribunal observed that looking to the nature of business of the deceased, there are fair chances of increase in his income from the business and thereby, added 50 per cent towards prospective income, i.e. Rs.5,000/-, and determined the monthly income of the deceased at Rs.15,000/- p.m.. However, while doing so the Tribunal failed to appreciate the fact that the original claimants have not produced any documentary evidence, showing the actual income of the deceased. Moreover, the absence of income-tax returns and Pan Card also suggest that the income of the deceased must have been well below the taxable limit. It is an admitted position that the deceased was not having any permanent employment, and therefore, Page 8 of 12

C/FA/1197/2014 CAV JUDGMENT as laid down by the Hon’ble Apex Court in the case of “SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANR.”, (2009) 6 SCC 121, the Tribunal ought not to have considered the rise in prospective income of the deceased at 50 per cent and instead ought to have assessed the prospective rise in income at 30 per cent. However, at the same time, there is no reason to disbelieve that the deceased was not earning Rs.10,000/- p.m., keeping in mind the agricultural land and the bore-well trucks owned by the deceased. Therefore, considering the prospective rise in income of the deceased at 30%, i.e. Rs.3,000/-, the Tribunal ought to have assessed the income of the deceased at Rs.13,000/- p.m. and after deducting 1/3 amount from the same, i.e. 13,000 X 1/3 =Rs.4333.33, it ought to have assessed the monthly income of the deceased at Rs. (13000 – 4333.33)= Rs.8666.67/- and on rounding off it would come to Rs.8670/-. Thus, the per annum loss of dependency to the original claimants would come to (Rs.8670 X 12)= Rs.1,04,040/- 11. According to the original claimants, at the time of his death, the deceased was aged about 43 years and in support of the same, they produced the School Leaving Certificate of the deceased vide Exhibit-33, wherein, the date of Page 9 of 12

C/FA/1197/2014 CAV JUDGMENT birth of the deceased is stated to be 22.05.1963. Thus, looking to the age of the deceased at the time of accident, the multiplier of 14 applied by the Tribunal appears to be just and proper. Therefore, now, applying the multiplier of 14 and taking the prospective loss of income / loss of dependency at Rs.1,04,040/- per annum, the total dependency loss of the original claimants

would come

to (Rs.104040

X 14)=Rs.14,56,560/-. The Tribunal has awarded a sum of Rs.16,80,000/- under the aforesaid head. 12. So far as the amounts awarded by the Tribunal under the other heads are concerned, same appear to be just and proper and require no interference at the hands of this Court. 13. Under the circumstances, the impugned judgment and award passed by the learned Tribunal is required to be modified to the aforesaid extent and the present appeal is required to be allowed partly. 14. As regards the judgment, in the case of “NEW INDIA ASSURANCE CO. VS. YOGESH DEVI” (Supra), relied on by Shri. Shelat, learned Advocate appearing on behalf of the original opponent No.3-Insurance Company, in support of his Page 10 of 12

C/FA/1197/2014 CAV JUDGMENT contention that the Tribunal ought to have held that there was no loss of income from the business is concerned, the Tribunal recorded a finding, which remains uncontroverted, that there is no material on record to show that the business was going on, even after the death of the deceased-Ranjitbhi, and hence, the aforesaid decision would not apply to the facts of the present case. 15 As regards the decision relied on by Shri. Shah, learned Advocate appearing on behalf of the original claimants, in the case of “ANJANI SINGH” (Supra) in support of his contention that the Tribunal ought to have awarded Rs.1,00,000/- towards loss of love and affection to the children is concerned, the Tribunal has already awarded a sum of Rs.15,000/- towards funeral expenses and another Rs.1,00,000/- towards loss of estate, loss of consortium etc., meaning thereby, the aforesaid amount includes the amount towards loss of love and affection to the minor children, and therefore, there is no need to award any amount separately under the aforesaid head and the judgment relied on by the learned Advocate for the original claimants shall not help the original claimants. 16. In the result, the present First Appeal Page 11 of 12

C/FA/1197/2014 CAV JUDGMENT succeeds IN PART. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Rajkot, Dated : 15.01.2014, in M.A.C.P. No. 1130 of 2006, is hereby MODIFIED to the extent and it is held that the claimants shall be entitled to a total sum of Rs.15,71,560/- along with interest at the rate of 9(NINE)% per annum, from the date of filing of the claim petition till its realization. Consequently, if, the appellant-Insurance Company has deposited any amount IN EXCESS, same shall be returned / refunded to it in view of the order passed, as above, in the First Appeal. 17. The cross-objections filed by the original claimants shall not survive and the same deserve to be dismissed and is accordingly, DISMISSED. 18. In view of the order passed in the main matter, Civil Application shall not survive and it stands DISPOSED OF, accordingly. (M.R.SHAH, J.) (K.J.THAKER, J) UMESH Page 12 of 12