KRUPA ASHISHKUMAR SHAH vs. IQBALBHAI IBRAHIMBHAI VORA

C/FA/145/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 145 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 ? ================================================================ KRUPA ASHISHKUMAR SHAH & 3 Versus IQBALBHAI IBRAHIMBHAI VORA & 2 ================================================================ Appearance: MR PARESH M DARJI, ADVOCATE for the Appellants MR R G DWIVEDI, ADVOCATE for the Respondent No. 3 NOTICE SERVED for the Respondent No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and Page 1 of 8

C/FA/145/2014 JUDGMENT HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 15/04/2014

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) [1] The appellants – original claimants by preferring the present appeal under section 173 of the Motor Vehicles Act, 1988, seek enhancement of compensation awarded by the learned Motor Accident Claims Tribunal (Aux.) and Additional District Judge, Kheda at Nadiad, vide judgment and award dated 25.09.2013 passed in Motor Accident Claim Petition No.1673 of 2005, whereby the learned Tribunal has awarded a total sum of Rs.5,94,2000/- as compensation to the heirs and legal representatives of deceased Ashishkumar Manubhai Shah, who died in a vehicular accident. [2] The brief facts of the case may be stated as under:- [2.1] That on 15.10.2004 at about 10.30 morning hours, near Padgol Village Bus Stand on Nadiad – Petlad Road, the deceased Ashishkumar and his brother Divyangbhai were proceeding on Scooter No.GJ-7-AK-8712 from Mahalav to Nadiad. The deceased was driving the said scooter in moderate speed on the correct side of the road, and when they reached at the place of incident, at that time the opponent No.1 came behind them by driving a Truck bearing No.GJ-7- T-9196 in rash and negligent manner, with the excess speed and dashed with the scooter of deceased forcefully, thereby an accident Page 2 of 8

C/FA/145/2014 JUDGMENT took place in which the deceased sustained serious injuries and died on the spot, whereas his brother Divyangbhai received grievous injuries and for the aforesaid incident, the offence came to be registered as I-C.R.No.90/2004 at Mahalav Police Station, against driver of aforesaid truck. [2.2] The heirs and legal representatives of the deceased, initially, claimed compensation of Rs.20,00,000/- which subsequently, amended and enhanced pending petition to Rs.40,00,000/- from all the opponents. [2.3] After the conclusion of the trial, the learned Tribunal was pleased to award a total sum of Rs.5,94,000/- as compensation under various heads along with interest and proportionate costs. [2.4] Being aggrieved by and dissatisfied with the aforesaid judgment and award passed by the learned Tribunal, the appellants have preferred the present appeal challenging the impugned judgment and award passed by the learned Tribunal. [3] Mr.Paresh M. Darji, learned advocate appearing on behalf of the appellants – original claimants has submitted that the learned Tribunal has committed grave error in fixing the notional income of the deceased to meagre amount of Rs.2,500/- per month and also committed an error in considering 30% rise in the prospective income Page 3 of 8

C/FA/145/2014 JUDGMENT of the deceased. He has also submitted that the learned Tribunal has materially erred in not relying upon the ratio laid down by the Hon’ble Supreme Court in the celebrated decision of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors., reported in (2009) 6 SCC 121. He has further submitted that the age of the deceased is proved to be 30 years and, therefore, 50% rise as prospective income is required to be considered in the present case. Learned advocate appearing on behalf of the appellants has also submitted that the amount of compensation awarded to the legal heirs of deceased is on lower side. [4] As against the aforesaid arguments, Mr.R. G, Dwivedi, learned advocate appearing on behalf of the respondent No.3 – Insurance Company has supported the judgment and award passed by the learned Tribunal. He has further submitted that the learned Tribunal has awarded the just compensation and, therefore, no interference is called for by this Court. He has, therefore, urged to dismiss the present appeal. [5] We have heard learned advocates appearing on behalf of the respective parties. We have gone through the impugned judgment and award, as well as material available on record. [6] It is required to be noted that while determining the amount of compensation, the learned Tribunal determined the age of the Page 4 of 8

C/FA/145/2014 JUDGMENT deceased Ashishkumar to be 30 years relying upon the documentary evidence produced at Exh.32 and 34 by the claimants. Therefore, the age of the deceased is proved to be 30 years. The deceased was doing business of tobacco along with his father. Thus, the learned Tribunal has considered Rs.2,500/- as monthly income of the deceased and added 30% rise which comes to Rs.3,250/- (Rs.2,500/- + Rs.750/-) as monthly prospective income and Rs.39,000/- per annum (Rs.3250/- x 12) and deducted 1/3rd personal expenses i.e. Rs.13,000/- from the aforesaid amount of Rs.39,000/-, which comes to Rs.26,000/-. The Tribunal has applied multiplier of 17 and awarded Rs.4,42,000/- towards dependency benefits and thereafter also awarded Rs.12,000/- towards loss of estate, Rs.25,000/- towards funeral expenses, Rs.50,000/- for loss of care and guidance for minor child and Rs.65,000/- towards loss of consortium. In all, the learned Tribunal has awarded Rs.5,94,000/- as compensation under the aforesaid heads. [7] While considering the notional income of deceased, the learned Tribunal has not considered income tax returns produced by the claimants which came to be filed after the death of deceased i.e. after the incident, in order to prove the income of deceased. In view of the ratio laid down by the Hon’ble Supreme Court in the case of V. Subbulakshmi and others Vs. S. Lakshami and another, reported in (2008) 4 SCC 224, the Income Tax Returns filed subsequent to the accident cannot be counted. In the result, the Page 5 of 8

C/FA/145/2014 JUDGMENT income of the deceased at the time of accident is required to be fixed as the learned Tribunal has not rightly considered the income as reflected in the income tax returns. [8] To arrive at a just compensation, the evidence on the record indicates the date of birth of deceased is reflecting from the income tax returns as well as birth certificate as 20.12.1974 and the date of incident is 15.10.2004. Consequently, the age of deceased is proved to be 30 years. It is undisputed fact that the deceased was doing the business of tobacco along with his father and that fact is established. Considering this aspect, it clearly reflects that the learned Tribunal has committed an error on the point of prevalent minimum wage at the time of accident and the income of the deceased is required to be considered at Rs.3,500/- per month as the deceased was doing the business of tobacco along with his father. [9] As per the ratio laid down by the Hon’ble Supreme Court in the case of Smt. Sarla Verma and others (supra) and as the deceased had a child, widow and parents, 1/4th is required to be deducted as personal expenses. [10] Considering the decision of the Hon’ble Supreme Court in the case of Smt. Sarla Verma and others (supra), 50% future prospective income is required to be added in the aforesaid income of Rs.3,500/- per month, therefore, the prospective income would come to Page 6 of 8

C/FA/145/2014 JUDGMENT Rs.5,250/- per month. The deceased had a child, widow and parents, therefore, the aspect of dependency is required to be considered in this case. Therefore, as per the ratio laid down by the Hon’ble Supreme Court in case of Smt. Sarla Verma (supra), 1/4th share is required to be deducted towards personal expenses of the deceased from the aforesaid income of Rs.5,250/- which comes to Rs.3,937/- per month. The aforesaid monthly dependency benefits at the rate of Rs.3,937/-, if we multiply by 12 then Rs.47,244/- per annum would come as dependency benefits awardable to the claimants. As per the ratio laid down by the Hon’ble Supreme Court in the case of Smt. Sarla Verma (supra), 17 multiplier would be applicable. If we apply 17 multiplier to Rs.47,244/-, then the amount comes to Rs.8,03,148/- as dependency benefits. Over and above the amount of Rs.8,03,148/- as dependency benefits, the claimants shall also be entitled to Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of consortium and Rs.5,000/- towards funeral expenses. Thus, the claimants are entitled to get total amount of Rs.8,28,148/- as compensation. [11] In view of the aforesaid reasons and findings recorded by us, the claimants are entitled to Rs.8,28,148/- as compensation instead of Rs.5,94,000/- as awarded by the learned Tribunal. The impugned judgment and award passed by the learned Tribunal in the aforesaid Motor Accident Claims Petition is modified to the aforesaid extent holding that the claimants shall be entitled to a sum of Rs.8,28,148/- Page 7 of 8

C/FA/145/2014 JUDGMENT as compensation instead of Rs.5,94,000/- as awarded by the learned Tribunal with interest at the rate of 9% per annum thereon from the date of application till realization. [12] For the reasons recorded hereinabove, the appeal is partly allowed. The judgment and award dated 25.09.2013 passed by learned Motor Accident Claims Tribunal (Aux.) and Additional District Judge, Kheda at Nadiad, in Motor Accident Claim Petition No.1673 of 2005 is hereby modified to the aforesaid extent. (M.R.SHAH, J.) (R.P.DHOLARIA,J.) vijay Page 8 of 8