SHIRISHKUMAR KALIDAS RAJGURU (DECD. THRO LEGAL HERIS) vs. HARISINH SANKERSINH RATHOD

C/FA/1537/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1537 of 2006

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 ? ============================================= ================= SHIRISHKUMAR KALIDAS RAJGURU (DECD. THRO LEGAL HERIS)....Appellant(s) Versus HARISINH SANKERSINH RATHOD & 2....Defendant(s) ============================================= ================= Appearance: MR PANKAJ R DESAI, ADVOCATE for the Appellant(s) No. 1 - 1.4 MS AMEE YAJNIK, ADVOCATE for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1 - 2 ============================================= ================= CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

Date : 12/09/2014

ORAL JUDGMENT Page 1 of 4

C/FA/1537/2006 JUDGMENT 1. It is stated by Mr.Desai, the learned advocate appearing on behalf of the appellants that during the pendency of the appeal, minor appellant no.2 – Dampi Shirishkumar Rajguru has died on 01st May, 2011 and his heirs are already on record. Mr.Desai proposes to file formal application for recording the death of appellant no.2 in course of this day. On undertaking to file such application, I propose to take up this appeal. 2. 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 Motor Vehicles Act and is directed against the award dated 31st December, 2004 passed by the Motor Accident Claims Tribunal (Auxi.), Fast Track Court No.3, Gandhinagar in M.A.C.P.No.1651 of 1992 thereby awarding a sum of Rs.4,75,000/- as compensation for the death of the victim with interest at the rate of 9% per annum from the date of filing of the petition till realization. 3. Being dissatisfied the claimants have come up with the present appeal. 4. During the pendency of the appeal, appellant no.2 – minor son of the victim has died on 01st May, 2011 living his mother appellant no.1 as heir and legal representative, who is already on record. 5. Mr.Desai, the learned advocate appearing on behalf of the claimants has advanced threefold submissions in support of this appeal. First, according to Mr. Desai the victim having died at the age of 30 years, the Tribunal below Page 2 of 4

C/FA/1537/2006 JUDGMENT committed serious error of law in applying multiplier of 15 instead of 17 as held by the Hon'ble Supreme Court in the case of Salra Verma v/s. Delhi Transport Corporation reported in (2009) 6 SCC 121. 6. Secondly, according to Mr.Desai the Tribunal below committed further error in calculating future loss by treating income of the victim to Rs.2400/- a month which he used to earn while he was in service of National Insurance Company prior to the year 1988 as Development Officer. 7. Mr. Desai, points out that the victim had left the said job and started his own business as reflected from the income tax return for three different years i.e. of 1990 – 1991, 1991-1992 and 1992 and 1993 which are Exh.28, 30 and 31. According to Mr.Desai, the Tribunal should have fixed the monthly income of the victim taking into consideration the income as reflected in the income tax return submitted by the deceased. Mr.Desai submits that for the last three years prior to death of the deceased, income tax return reflects yearly income of the victim to be Rs.60,000/-, Rs.34,520/- and Rs.21,705/- respectively. If we take the mean income of last three years, as appearing from the income tax return, the amount will come to Rs.38,741/-. If 1/3rd of the said amount is deducted for personal expenditure, the amount will come to Rs.25,827/-. 50% of the aforesaid amount should be added namely Rs.25,827 + Rs.12,913/- for the purpose of calculating prospective future loss and the figure will come to Rs.38,741/-. As laid down by the Hon'ble Supreme Court in the case of Sarla Verma (supra), the appropriate multiplier should be 17 and thus the total amount will come to Rs.6,58,597/- (Rs.38741/- x Page 3 of 4

C/FA/1537/2006 JUDGMENT 17) towards future loss. In addition to the said amount, further sum of Rs.20,000/- should be added under the head of conventional charges and thus, the total figure will come to Rs.6,78,597/-. 8. I also find substance in the third contention of Mr.Desai having regard to the fact that the accident occurred in the year 1992, the rate of interest should have been 12% per annum from the date of filing of the application till 31st December, 1999 and thereafter, at the rate of 9% per annum till realization. 9. On consideration of entire materials on record, I set aside the award impugned and enhance the award to Rs.6,78,597/- with interest at the rate of 12 % per annum from the date of filing of the application till 31st December, 1999 and thereafter, at the rate of 9% per annum from 01st January, 2000 till realization. There being further increase of Rs.2,03,597/- (Rs.6,78,597/- minus Rs.4,75,000/- awarded by the Tribunal), the insurance company is directed to deposit the balance amount with interest as specified above within two months before the Tribunal. The Tribunal is directed to release the amount, after deposit, in favour of the claimants. The appeal is allowed to the extent indicated above. (BHASKAR BHATTACHARYA, CJ.) satish Page 4 of 4