ORIENTAL INSURANCE CO. LTD vs. PUSHPALATA SHYAMSUNDER KEJARIWAL

C/FA/1400/2002 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1400 of 2002 With R/CROSS OBJECTION NO. 36 of 2016 In FIRST APPEAL NO. 1400 of 2002

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 ==================================================== ORIENTAL INSURANCE CO. LTD Versus PUSHPALATA SHYAMSUNDER KEJARIWAL ==================================================== Appearance: MR MAULIK J SHELAT(2500) for the PETITIONER(s) No. 1 MR DAKSHESH MEHTA(2430) for the RESPONDENT(s) No. 1,2,4,6 ==================================================== CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 18/02/2019

ORAL JUDGMENT 1. The present appellant, who is the original opponent No. 2 in Page 1 of 17

C/FA/1400/2002 JUDGMENT Motor Accident Claim Petition No. 669 of 1989 filed under Section 166 of the Motor Vehicles Act, 1988 (MV Act) by the legal heirs of the deceased, has filed this appeal challenging the judgment and award dated 08.04.2002 passed by the learned Motor Accident Claims Tribunal (Main), Ahmedabad (Rural) (for brevity, 'the Tribunal'), whereby, the learned Tribunal has passed an award of Rs.8,14,000/- together with proportionate costs and interest @ 12% per annum from the date of petition till realization from the opponents jointly and severally. The present appellant, being dissatisfied with the impugned judgment and award passed by the Tribunal, has preferred this appeal. 2. Short facts of the case on hand may be referred as under: 2.1 As per the contents of the claim petition, the accident had occurred on 12.01.1989 at about 2:00 p.m. near Pirana Toll Naka on Sarkhej – Narol Highway. Deceased Shyamsundar was driving Maruti Car, bearing registration No. GBA-444 on left side of the road from Pirana Toll Naka and at that time, truck bearing registration No. GTJ-7220, being driven by the Page 2 of 17

C/FA/1400/2002 JUDGMENT opponent No. 1 in rash and negligent manner, coming from the opposite direction on wrong side, dashed with the maruti car. As a result, the truck entangled in the bumper of the maruti car and maruti car was dragged up to 50 feet by the truck. Thereafter, the truck came to be stopped. As per the averments made in the claim petition, Shyamsundar sustained severe injuries and succumbed to the same and therefore, his legal heirs and dependents filed the claim petition claiming compensation of Rs.20 lakh under the provisions of Section 166 of the MV Act. 2.2 On receiving the notice from the Tribunal, the opponent No. 1, the driver and owner of the offending truck, appeared before the Tribunal but did not file written statement challenging the petition. The present appellant – original opponent No. 2 – insurer of the said truck filed its written statement vide Exh. 13 denying all the averments and allegations made in the claim petition contending that the accident had occurred on account of negligence on the part of the driver of the maruti car i.e. deceased Shyamsundar. The age and income of the deceased and its liability to pay the compensation to the Page 3 of 17

C/FA/1400/2002 JUDGMENT claimants were not admitted and specifically denied. Eventually, it was prayed to dismiss the claim petition with costs. 3. Similarly, the original claimants have also filed their Cross Objection on the grounds that the award of the Tribunal is illegal, as evidence on record contending the facts of the case were not properly considered by the Tribunal. That, deceased Shyamdunder was driving his maruti car at moderate speed on the left side of the road and the truck being driven by the opponent No. 1 went on the wrong side of the road and dashed with the maruti car. The deceased was dragged for about 50 ft. and as a result of which, the deceased had died. That, income tax returns filed by the deceased were produced at Exhs. 40, 73, 74, 42, 75, 76, 77, 78, 79, 80, 43 and 81 and were not correctly considered by the Tribunal. That, the income of the deceased was not correctly assessed by the Tribunal and therefore, it was requested to enhance the amount of compensation to Rs.19,61,500/- against the award of Rs.8,14,000/- passed by the Tribunal. Page 4 of 17

C/FA/1400/2002 JUDGMENT 4. Heard, learned counsel Mr. Maulik Shelat for the appellant in first appeal and Mr. Rushang Mehta, learned counsel for the applicants in Cross Objection and respondents in the appeal. 4.1 It was submitted by the learned counsel for the appellant that the impugned judgment and award passed by the Tribunal is illegal, erroneous and against the law and evidence on record. It was further submitted that a complaint was filed by the driver of the truck wherein, it was clearly established that the deceased was driving the maruti car on the wrong side as he wanted to overtake the tractor and he collided with the truck coming from the opposite side. That, the panchnama of scene of accident clearly shows that there were no marks of applying brakes by the driver of the maruti car on the road and there were no other marks to suggest that the maruti car was dragged by the truck for about 50 ft. That, story of eye-witness was not in conformity with the panchnama prepared by the police. That, story of eye-witness was not supported by any other independent documentary and/or oral evidence. That, the average income of the deceased of Rs.55,000- per annum and over and above, including Rs.15,000/- per annum as family Page 5 of 17

C/FA/1400/2002 JUDGMENT trust income was not correctly and properly assessed by the Tribunal. That, the income of the deceased for last six years prior to the accident as considered by the Tribunal was not legal and proper. That, in fact, average income of the deceased, prior to the accident, was only Rs.30,000/- per annum including the income of the family trust. That, from the income tax returns of the deceased, the business income of the deceased was in negative and he had incurred loss in his business every year but due to the family trust income, the average income comes to Rs.30,000/- per annum, however, the Tribunal has considered the average income of the deceased at Rs.1 lakh per annum, which is contrary to the evidence on record. That, awarding interest of 12% per annum, now a days, is on a very higher side and that, the Tribunal has committed an error in awarding the interest @ 12% instead of 9% per annum. Hence, it was requested by the learned counsel for the appellant to allow the present appeal and suitably modify the impugned judgment and award. 5. On the other side, the learned counsel for the original claimants and applicants of Cross Objection has submitted that the Page 6 of 17

C/FA/1400/2002 JUDGMENT deceased was driving the maruti car in moderate speed on left side of the road. That, the driver of the truck, the opponent No. 1, came from the opposite direction and went on the wrong side of the road and dashed with the maruti car dragging the maruti car for about 50 ft. That, the accident had occurred at about 2:00 p.m. near Pirana Toll Naka on Sarkhej Narol highway. That, eye-witnesses namely, Shri Abdul Gulam Rasul Momin, who is examined at Exh. 66 and Shri Rupchand Jaychand, who is examined at Exh. 139, had been examined by the petitioners - claimants so as to prove that the opponent No. 1 was negligent and the deceased was on the correct side of the road, however, the liability of the deceased was wrongly fixed by the Tribunal to the extent of 20% and the liability of the driver of the truck was fixed to 80%. It was further submitted that the driver of the truck, the opponent No. 1, was sole negligent for causing the accident and dashed his truck with the maruti car on wrong side and dragged the maruti car about 50 ft.

5.1 While coming to the next issue of income, the learned counsel has submitted that the income tax returns of the deceased Page 7 of 17

C/FA/1400/2002 JUDGMENT were produced by the claimants before the Tribunal, however, they were not correctly considered by the Tribunal while assessing the income of the deceased. That, the deceased was getting income from his family trust and was one of the beneficiaries of 30% and remaining 70% of the income was distributed amongst the minor children of Shri Kejrival. That, for the year 1986-87, Exh. 79, the gross income of the deceased was Rs.51,982/-. That, income tax return of HUF, Exh. 92 shows the gross income of Rs.76,375/-. The monthly income of the deceased was Rs.10,700/- only. The age of the deceased was 39 years and therefore, 15 multiplier would be appropriate. That, the claimants were entitled to claim of Rs.19,61,500/- by adding the amount of consortium, loss of expectations of life, etc. Hence, it was requested by the learned counsel for the claimants to dismiss the appeal and allow the cross objections by enhancing the amount of award to Rs.19,61,500/- in favour of the claimants. 6. Having perused the record of the Tribunal and the submissions made by the learned counsel of the respective parties, it appears that to prove the aspect of negligence of the driver of Page 8 of 17

C/FA/1400/2002 JUDGMENT the motor vehicles involved in the accident, the claimants have examined Shri Abdul Gulam Rasul Momin, vide Exh. 66, who is alleged to be an eye-witness of the incident in question. As per his deposition, on 12.01.1989 at about 1:45 p.m. when he was going to his home in Juhapura on his scooter and while, passing near Pirana Toll Naka on Sarkhej road, the offending truck came in a high speed from his back side and overtook his scooter. Thereafter, the driver of the said truck dashed the truck with the maruti car coming from the opposite direction. The truck went into wrong side, as a result of which, the bumper of the maruti car entangled in the truck and therefore, the maruti car was dragged with the truck for 45 to 50 ft. He has further stated in his deposition that this accident was informed by him to the Ellisbridge Police Station on telephone. The petitioners – claimants have also produced the vardhi vide Exh. 69, entered by the Kagdapith Police Station upon the say of Laljibhai, Police Constable of Ellisbridge Police Station as he had received the telephonic message from this witness. The petitioners – claimants have also produced another vardhi, vide Exh. 70, entered by PSO, Vatva Police Station. These vardhies were produced through Ashabhai, Crime Writer of Page 9 of 17

C/FA/1400/2002 JUDGMENT Vatva Police Station. Of course, both these vardhies were entered immediately after the accident. The Post Mortem Note of the deceased is produced at Exh. 30 to prove that the deceased had died on account of accidental injuries. Here, this Court would like to refer the complaint as well as the panchnama of place of accident, produced vide Exhs. 128 and 149 respectively. It appears from the complaint Exh. 128 that it was filed by the opponent No. 1 – Vithalbhai Naranbhai before Vatva Police Station. It is clearly stated in the said complaint that when he was driving his truck crossing Narol cross-roads towards Sarkhej at about 1:00 p.m., one tractor was coming from opposite direction and behind the said tractor, one maruti car, bearing registration No. GBA-444 was coming. The driver of the maruti car overtook the tractor and came on wrong side and thereafter, dashed with his truck and died on the spot. Here, if we consider the contents of the panchnama of the place of accident, Exh. 149, it appears that the place of accident was shown to the panchas by PSI of Kagdapith Police Station, which was on Narol – Sarkhej Highway road, ahead of Pirana Toll Naka. From the panchnama, the road was found east–west, having Narol circle towards east and Sarkhej Page 10 of 17

C/FA/1400/2002 JUDGMENT towards west. The width of the road was 22 ft. The truck bearing registration No. GTJ-7220 was standing facing west. Distance between the place of accident and left side rear wheel of the truck was 5.2 ft. where the vehicle dashed and marks were found. The pieces of glass and iron of maruti car were lying scattered. The distance between the southern edge of the road and place of accident was 6.11 ft. and below the front bonnet of the truck inside the bumper, one red coloured maruti car facing east was entangled. It appears from the place of accident that the truck was found on the correct side of the road. From this panchnama, it can be said that the observations of the Tribunal that the first impact between the vehicle might have been happened when the vehicles were being driven very nearer to the divider of the road or it might have happened on the correct side of the car, were not true or correct. From the contents of the complaint lodged by the opponent No. 1 driver and owner of the truck, it clearly established that the deceased was driving the maruti car on the wrong side and he wanted to overtake the tractor and thereby, collided with the truck in question coming from the opposite direction. The panchnama clearly shows that there were no Page 11 of 17

C/FA/1400/2002 JUDGMENT other marks to suggest that the maruti car was dragged by the truck about 50 ft. The deposition of eye-witness – Rupchand Jaychand, Exh. 139 supports the case of the petitioners – claimants that he had seen the accident when he was passing from there on his scooter; he saw the mob and asked as to what had happened, one maruti car and truck involved in the accident were found. Further, as per the deposition of this witness, maruti car was facing Narol side and the truck was standing facing Sarkhej side; driver and conductor of the offending truck were not present etc. This Court is of the view that, in fact, he is not an eye-witness to the accident as he had inquired with somebody else asking as to what had happened. The panchnama clearly established some negligence of the driver of the maruti car in causing the accident. The Tribunal has held 20% negligence of the driver of the maruti car and 80% of the driver of the truck. Considering the situation of place of accident and the panchnama, it clearly established to come to conclusion that the driver of the maruti car was also somewhat more negligent in causing the accident and therefore, his negligence would be considered at 25% as well as the negligence of the driver of the truck would be considered Page 12 of 17

C/FA/1400/2002 JUDGMENT at 75%. Thus, the answer to issue No. 1 as framed by the Tribunal vide Exh. 14 would be, ‘to the extent 25% of the driver of the maruti car and 75% of the driver of the truck’. 6.1 If we consider the issue of income of the deceased, it appears from the reasoning part of the impugned judgment and award that the Tribunal has considered the average income of the deceased at Rs.55,000/- per annum and over and above, has included Rs.15,000/- per annum as family trust income. The income tax returns of the deceased of last more than six years i.e. 1982-83 to 1989-90 were produced on record. The average net income of the deceased of last six years prior to the accident was Rs.30,000/- including the income of family trust. The Tribunal has considered the average income of the deceased at Rs.55,000/- per annum and over and above, added Rs.15,000/- per annum towards family trust income. From the record if we minutely consider these documents produced by the petitioners – claimants to prove the income of the deceased, it appears that in an individual income tax return of the deceased, the income earned by him from the family trust was also incorporated. The Tribunal has committed an Page 13 of 17

C/FA/1400/2002 JUDGMENT error in assessing separate income from the family trust income in addition to the individual income from his income tax return. It appears that in the year 1985-86, the individual income including the income from family trust was Rs.48,401/- and in the next year i.e. 1986-87, it was reduced to Rs.45,089/-. If we consider the next year’s income i.e. of 1987- 88, the income shown was Rs.52,900/- only and thereafter, in the year 1988-89, individual income of the deceased was Rs.25,229/-. If we consider the average individual income of last three years, it would come to Rs.41,062/-. Here, if we consider other documents showing the income of the deceased from HUF of last four years as discussed on account of individual income starting from 1985-86 to 1988-89 of Rs.26,045/-, Rs.52,185/- and Rs.17,385/-, the average income would come to Rs.32,071/- per annum. The total individual income + HUF income would come to Rs.73,133/-. The Tribunal has considered the prospective rise in the income in the present case. If we consider the age of the deceased 38 years in 1989, as per the decision of the Hon'ble Apex Court in National Insurance Company Ltd. V. Pranay Sethi and Others, reported in 2017 (3) GLH 536, 40% prospective rise in the Page 14 of 17

C/FA/1400/2002 JUDGMENT income would be required to be considered. Accordingly, considering the same, that amount (40%) would come to Rs.29,253/- only. Therefore, the loss of income of the petitioners – claimants would be considered to Rs.1,02,386/- per annum. Deducting 1/4th amount towards personal expenses i.e. Rs.25,596/-, the future loss would come to Rs.76,800/- (rounded off) per annum, which if multiplied by 15 multiplier, the amount would come to Rs.11,52,000/- only, to which, Rs.70,000/- if added towards conventional amount, the claimants would be entitled to claim Rs.12,22,000/- only. As discussed herein above, the negligence of the deceased is held to be 25% and hence, that portion is required to be deducted from the aforesaid amount. Accordingly, an amount of Rs.3,05,500/- would be deducted towards 25% negligence on the part of the deceased himself and therefore, the petitioners – claimants would be entitled to claim an amount of Rs.9,16,500/- towards compensation from the respondent No. 2. 6.2 The Tribunal has awarded interest @ 12% per annum. The accident in question had occurred in the year 1989. As per the Page 15 of 17

C/FA/1400/2002 JUDGMENT observations made by the Hon’ble Apex Court in the decision in the case of Jitendra Khimshankar Trivedi and Others, V. Kasam Daud Kumbhar and Others, reported in (2015) 4 SCC 237, this Court is of the view that the rate of interest, as awarded by the Tribunal at 12% is required to be reduced to 9% per annum. Accordingly, the petitioners – claimants would be entitled to 9% interest per annum on the aforesaid amount of compensation, from the date of petition till realization.

C/FA/1400/2002 JUDGMENT aforesaid. R&P be sent back to the Tribunal forthwith. [ B. N. Karia, J. ] hiren Page 17 of 17