THE ORIENTAL INSURANCE COMPANYLTD. vs. HEIRS OF DECD. PRAFULCHANDRA NARBHERAM LADHANI

C/FA/1392/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1392 of 2006

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE B.N. KARIA ==================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not? NO 3 Whether their Lordships wish to see the fair copy of the judgment? NO 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? NO ==================================================== THE ORIENTAL INSURANCE COMPANY LTD. Versus HEIRS OF DECD. PRAFULCHANDRA NARBHERAM LADHANI & 5 other(s) ==================================================== Appearance: MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1 DELETED(20) for the Defendant(s) No. 3,4,6 MR PRATIK Y JASANI(5325) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5,1.6 MR RC KAKKAD(389) for the Defendant(s) No. 5 MS MAMTA R VYAS(994) for the Defendant(s) No. 2 ==================================================== CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 01/05/2019 ORAL JUDGMENT 1. Present appellant, who is the original opponent Nos. 2 and 5 Page 1 of 13

C/FA/1392/2006 JUDGMENT before the Motor Accident Claims Tribunal (Aux.) and 7th Fast Track Court, Rajkot (for brevity, 'the Tribunal') in Motor Accident Claim Petition No. 2240 of 2000 (for brevity, 'the claim petition), has challenged the judgment and award dated 05.01.2006 by preferring this appeal under Section 173 of the Motor Vehicles Act, 1988 (for brevity, 'the Act). 2. Short facts of the case may be summarized as under: 2.1 The original claimants had preferred a claim petition under the provisions of the Act requesting to pass an award for a sum of Rs.8 lakhs only (later amended to Rs.20 lakh). As per the averments made in the claim petition, on 01.04.1991, on Una- Bhavnagar highway, near Samter village of Una taluka, during night hours, Prafulchandra Narbheram Ladhani was returning to Bagsara in an Ambassador Car bearing registration No. GRG-4757, which was being driven by the original opponent No. 1 namely Chetankumar Kotecha. At the place of accident, one public carrier bearing registration No. GTW-3641 was lying in stationary condition on the road, without any tale light or radium reflector on the back side of the same. The driver of Page 2 of 13

C/FA/1392/2006 JUDGMENT the said vehicle started his vehicle and moved on the road. At the same time, one heavy vehicle came from the opposite direction with full lights. The opponent No. 1 did not reduce the speed of the car. As a result of which, he could not see the stationary truck which had no tale lights and due to rash and negligent driving of the opponent No. 1, the car dashed with the said truck from the back side. In the accident, the deceased sustained grievous injuries and ultimately, succumbed to the injuries. As per the averments made in the claim petition, the age of the deceased was 45 years at the time of accident. He was running a proprietary concern in the name and style of Prafulchandra Narbheram & Co. He was also doing wholesale and retail business of fertilizer; he had 6-7 godowns for storage; he was also engaged in number of other businesses as averred in the claim petition and his monthly business income was Rs.30,000/-. That, the mother of the deceased had died at the age of 85 years. The deceased was hale and hearty, having no vices. That, the claimant - applicant No. 1 – wife of the deceased and the claimants - applicant Nos. 2 to 6 – minor children of the deceased had lost their husband/fathers in the accident. They requested to pass an award of Rs.20 Page 3 of 13

C/FA/1392/2006 JUDGMENT lakh (amended) together with interest at the rate of 18% per annum, holding the liability of the opponents therein, jointly and severally. 2.2 On receiving the notice issued by the Tribunal, the opponent No. 2 filed written statement vide exh. 16. The averments made in the claim petition were not admitted by this opponent, except which were specifically admitted. The relation of the applicants – claimants with the deceased, age of the applicants as well as the deceased, the deceased died in the alleged accident, income of the deceased or any other amount per month, were not admitted by this opponent. As per the contention, interest of Chetankumar Kotecha in vehicle bearing registration No. GRG-4757 was covered under an Act policy from 14.03.1991 to 31.03.1992. It was admitted to the extent that the alleged accident had occurred due to rash driving on the part of the opponent No. 3. The rest of the averments were denied by this opponent. It was denied that the applicants were entitled to claim the compensation of Rs.8 lakh or any other amount, with costs and interest, from this opponent. Ultimately, it was requested by this opponent to dismiss the Page 4 of 13

C/FA/1392/2006 JUDGMENT claim petition. 2.3 The learned Tribunal, after considering the pleadings of the parties, framed the Issues and after recording the evidence led by the parties before it, was pleased to partly allow the claim petition holding the liability of the opponent Nos. 1, 2, 3, 5 and 7 jointly and severally to pay the compensation of Rs.11,78,000/- along with interest at the rate of 9% per annum from the date of application i.e. 30.09.1991 till realization. The present appellant, being dissatisfied with the impugned judgment and award passed by the Tribunal, has preferred this appeal. 3. Heard, the learned counsel Mr. Maulik J. Shelat for the appellant and learned counsel Mr. Pratik Y. Jasani for the respondent Nos. 1.1 to 1.6 and Ms. Mamta Vyas, learned counsel for the respondent No. 2. 3.1 The respondent No. 1.1 – Smt. Hansagauri Prafulchandra Ladhani has expired during the pendency of this appeal and hence, a request is made to delete the respondent No. 1.1 as Page 5 of 13

C/FA/1392/2006 JUDGMENT her legal heirs are already on record. Request to delete respondent No. 1.1 is accepted. 3.2 The learned counsel for the appellant - Oriental Insurance Co. Ltd. has restricted his arguments to the quantum part only. It was submitted that there was no proof of fixed income of the deceased and the Tribunal has committed an error in assessing the income of the deceased at Rs.7,000/- per month. There was no question of considering the future income by giving notional rise in the income at 50%. The Tribunal has committed an error in granting such a huge compensation to the claimants without any proof of income. That, for income from other firm namely Ladhani Trading Co., no proof or evidence was produced by the applicants and in the cross- examination, the applicant - claimant No. 6 has admitted the said fact and therefore, the income from alleged firm ought not to have considered by the Tribunal in absence of any proof. That, so far as agricultural income and agency commission from selling land etc. are concerned, no convincing evidence was led by the claimants and hence, the Tribunal has committed an error in considering such income while granting the compensation. That, the age of the deceased was 52 Page 6 of 13

C/FA/1392/2006 JUDGMENT years at the time of accident. That, the Tribunal has committed an error in directing to deduct 1/6th portion as expenses of deceased as the daughters of the deceased were married and thus, the Tribunal ought to have directed to deduct 1/4th portion towards expenses of the deceased. Ultimately, it was requested by the learned counsel for the appellant - insurance company to allow the present appeal and modify the impugned judgment and award passed by the Tribunal by reducing the amount of compensation, more particularly, the future prospective income which is considered at 50% and also by directing deduction at 1/4th towards expenses of the deceased. 4. From the other side, the learned counsel Mr. Jasani for the original claimants i.e. the respondent Nos. 1.2 to 1.6 supported the impugned judgment and award passed by the Tribunal. He submitted that the Tribunal has rightly considered the income of the deceased as he was engaged in various businesses. That, the witnesses examined from the claimants' side have clearly stated on oath in their depositions as to in which business, the deceased was engaged and of course, the income of the deceased. That, no error has been committed Page 7 of 13

C/FA/1392/2006 JUDGMENT by the Tribunal in assessing the income of the deceased at Rs.7,000/- per month as sufficient evidence with respect to income of the deceased was produced on record. That, receipt of income was produced on record by the claimants. That, deduction of 1/6th portion towards expenses of the deceased cannot be said to be illegal or perverse. That, the Tribunal has rightly considered the prospective income of the deceased at 50% considering the age and other income from different sources. That, the award passed by the Tribunal is just and reasonable and cannot be questioned by the present appellant before this Court in an appeal. Hence, he requested to dismiss the present appeal and to confirm the impugned judgment and award passed by the Tribunal. 5. The learned counsel for the respondent No. 2 supported the arguments advanced by the appellant and requested to modify the impugned award passed by the Tribunal considering the facts of the case as no cogent evidence of income was produced by the claimants. 6. Perused the record of the Tribunal and considered the Page 8 of 13

C/FA/1392/2006 JUDGMENT submissions advanced by the learned counsel for the respective parties. The negligence part of the motor vehicles involved in the accident is not in dispute in the present appeal and it is the quantum part, which is disputed by the present appellant in this appeal. It appears from the record that Naresh Prafulchandra Ladhani has filed his affidavit vide exh. 85 before the Tribunal. So far as income of the deceased is concerned, this witness has stated in detail as to engagement of the deceased in different proprietary concerns in various part of the State. He has also stated on oath that monthly income of the deceased was Rs.30,000/-; age of the deceased at the time of accident was 51 years and the mother of the deceased had expired at the age of 85 years. He has produced the birth certificate of the deceased as well as the other family members. A detailed affidavit consisting twelve page was filed by this witness. If we consider the cross-examination of this witness, he has admitted that his father was running his business in the name of Prafulchandra Narbheram & Co. and he was a partner in Ladhani Trading Corporation Co. He has not produced any documents to show that his father was one of the partners in Ladhani Trading Co. He has also admitted that Page 9 of 13

C/FA/1392/2006 JUDGMENT year wise accounts books were regularly maintained of the partnership firm and at present, the business was closed and the firm was not working. After the death of his father, the partnership firm namely Ladhani Trading Co. was closed. He has also admitted that to show about the closure of the Prafulchandra Narbheram & Co., a partnership firm, no documents such as income-tax returns, books of accounts were produced by him. In the same way, to show closure of the partnership firm namely Ladhani Trading Co. no documents were produced by this witness. He has admitted that the books of accounts, bills of purchase of goods by Prafulchandra Narbheram & Co. might be available and if found, he would produce the same. However, thereafter, as it appear, no such documents were produced by this witness or the claimants. The land shown in the document at mark 84/30 was not available and was sold out time to time during the lifetime of his father. The probate certificate was received from the Court after the death of his father but not produced on record. He had also undertaken to produce the same before the Court but thereafter, it was not produced. To show the existence of the partnership firm namely Ladhani Trading Co. no partnership Page 10 of 13

C/FA/1392/2006 JUDGMENT deed was produced by the claimants. Other documents such as Income-tax returns, Profit and Loss Account of the said firm etc. were not produced by the claimants. He has admitted that whatever statements were made by him in his affidavit at page 7, para 10 to 14, no documents were produced by him related to them. It appears that, considering the evidence of the claimants, as the deceased was engaged in number of businesses, income of the deceased was assessed at Rs.7,000/- per month only. This Court is of the view that considering the business, documents produced on record by the claimants, proof of the income of the deceased, the income of the deceased assessed at Rs.7,000/- per month can be said to be excessive. However, the prospective income considered by the Tribunal at Rs.14,000/- appears to be erroneous and thereafter, the average income is considered at Rs.10,500/- per month only. Admittedly, the age of the deceased was 51 years and his birth certificate was also produced on record. At the relevant point of time, 10% income by way of income tax would be required to be deducted towards income tax and therefore, if we deduct Rs.700/- from the income of Rs.7,000/- of the deceased, as assessed by the Tribunal at Rs.7,000/-, the Page 11 of 13

C/FA/1392/2006 JUDGMENT amount would come to Rs.6,300/- As per the ratio laid down by the Hon'ble Apex Court in National Insurance Company Ltd. V. Pranay Sethi and Others, reported in 2017 (3) GLH 536, 10% rise would be required to be considered and that would come to Rs.630/- and thus, the net income would come to Rs.6,930/- (Rs.6,300+630), which can be rounded off to Rs.7,000/-. Considering the dependency of the deceased, 1/4th amount is required to be deducted towards expenses of the deceased which would come to Rs.1,750/- and after deducting the same from Rs.7,000/-, the remaining amount would be Rs.5,250/- which can be considered as monthly dependency. The said amount if multiplied by 12, the yearly dependency would come to Rs.63,000/- and if multiplied by 11 multiplier, the claimants shall be entitled to Rs.6,93,000/-. The Tribunal has awarded a sum of Rs.23,000/- under the conventional heads. This Court is of the view that this amount should be increased to Rs.70,000/- as per the settled position of law and accordingly, granting such amount, the total amount would come to Rs.7,63,000/-. The Tribunal has awarded Rs.11,78,000/- and accordingly, the differential amount of Rs.4,15,000/- would be required to be refunded to the present Page 12 of 13

C/FA/1392/2006 JUDGMENT appellant. It is reported that vide order dated 12.10.2006, this Court had permitted the original claimant Nos. 2 to 6 to withdraw 30% of the awarded amount and rest amount to be invested in FDR. 7. In view of the above, present appeal succeeds in part and the impugned judgment and award passed by the Tribunal is modified to the aforesaid extent and it is held that the original claimants shall be entitled to Rs.7,63,000/- towards compensation. The appellant shall be entitled to get back the differential amount of Rs.4,15,000/- together with the proportionate costs and interest, if any. Registry to return the R&P to the concerned Tribunal forthwith. [ B. N. Karia, J. ] hiren Page 13 of 13