UNITED INDIA INSURANCE CO. LTD. vs. NAGINBHAI FOGATBHAI PATEL

C/FA/1881/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1881 of 2007 TO FIRST APPEAL NO. 1882 of 2007 With FIRST APPEAL NO. 3174 of 2007

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 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 5 Whether it is to be circulated to the civil judge ? No ================================================================ UNITED INDIA INSURANCE CO. LTD.....Appellant(s) Versus NAGINBHAI FOGATBHAI PATEL & 3....Defendant(s) ================================================================ Appearance: In FIRST APPEAL Nos.1881 and 1882 of 2007 MR RAJNI H MEHTA, ADVOCATE for the Appellant(s) No. 1 MR.HIREN M MODI, ADVOCATE for the Defendant(s) No. 1 - 2 RULE SERVED BY DS for the Defendant(s) No. 3 - 4 Page 1 of 9

C/FA/1881/2007 JUDGMENT In FIRST APPEAL No.3174 of 2007 MR.HIREN M MODI, ADVOCATE for the Appellant(s) No. 1 - 2 MS AMEE YAJNIK , ADVOCATE for the Defendant(s) No. 3 RULE NOT RECD BACK for the Defendant(s) No.1 – 2 NOTICE SERVED for the Defendant(s) No.4 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

Date : 24/09/2014

COMMON ORAL JUDGMENT These three First Appeals were taken up together as these appeals have been filed against a common judgment dated 25th July 2006 passed by the Motor Accident Claims Tribunal (Aux.) Vadodara disposing of two Motor Accident Claim Petitions being MAC Petition Nos.1685 of 2004 and 1686 of 2004 by partly allowing those applications and awarding a sum of Rs.7,35,000/- and Rs.3,11,000/- respectively with interest at the rate of 9% per annum from the date of filing of the applications till realisation. Being dissatisfied, First Appeal No.1881 of 2007 has been filed by the Insurance Company against the award passed in MAC Petition No.1685 of 2004 for reducing the claim. On the other hand, First Appeal No.1882 of 2007 has been filed by the Insurance Company for reducing the award passed in MAC Petition No.1686 of 2004 while First Appeal No.3174 of 2007 has been filed by the claimants for enhancement of the award passed in MAC Petition No.1686 of 2004. Page 2 of 9

C/FA/1881/2007 JUDGMENT The following facts are not disputed : On 29th September 2004, one Umaben and her daughter Hiralben were travelling in their Indica car bearing registration No.GJ- 6-AB-4698 when the same was dashed by a truck bearing registration No.GJ-17-X-2618 resulting in the death of both the mother and the daughter. MAC Petition No.1685 of 2004 relates to the death of the mother which was filed by the husband and the son of the deceased while MAC Petition No.1686 of 2004 was filed claiming compensation for the death of the daughter and such application was filed by the father and the brother of the deceased. As indicated earlier, both the applications were analogously dealt with by the Tribunal. In both the matters, the Tribunal, on consideration of the materials on record, came to the conclusion that it was due to 100% negligence of the driver of the truck that the accident had occurred. In MAC Petition No.1685 of 2004 the Tribunal awarded Rs.7,35,000/- with interest at the rate of 9% per annum for the death of the mother and in MAC Petition No.1686 of 2004, the Tribunal awarded a sum of Rs.3,11,000/- with interest at the rate of 9% per annum for the death of the daughter. Page 3 of 9

C/FA/1881/2007 JUDGMENT First, I propose to take up First Appeal No.1881 of 2007 filed by the Insurance Company. In this appeal, there has been no cross objection or separate appeal by the claimants. Mr Mehta, the learned advocate appearing on behalf of the appellant has challenged the finding of the Tribunal on the question of negligence and also on the question of quantum. So far the question of negligence is concerned, I am of the view that the Tribunal rightly accepted 100% negligence on the part of the driver of the truck inasmuch as in spite of being made a party neither the truck owner nor the truck driver contested the proceeding or appeared as witness. The Insurance Company took leave under section 170 of the Motor Vehicles Act but did not endeavour to summon either of them. The driver of the truck was the best witness who could explain whether there was any contributory negligence on the part of the driver of the Indica car. In such circumstances, in my view, the Tribunal below was quite justified in holding that there was 100% negligence on the part of the driver of the truck. The next question is as regards the quantum. It appears that the deceased was aged 44 years. She was an income-tax payee and it appears from the last assessment year , namely 2003-2004 before her death, she disclosed her gross income to be Rs.50,794/- out of which Rs.37,844/- was from business and Rs.12,950/- from other Page 4 of 9

C/FA/1881/2007 JUDGMENT sources, namely, interest. In such circumstances, it appears that the Tribunal treated her income to be Rs.4000/- a month and thereafter added 50% to the said amount to arrive at a figure of prospective income. I find substance in the contention of Mr Mehta that in the last return she herself having disclosed her business income to be Rs.37,844/- per annum, it was a fit case where Rs.3000/- a month or Rs.36,000/- per annum should be treated to be the appropriate amount of income of the deceased from her profession. In case of a professional man, as rightly contended by Mr Mehta, generally last three years’ income is added and a mean figure is taken. Therefore, in the facts of the present case, Rs.36,000/- per annum should be treated to be the annual income of the victim. On that basis, since the victim was above 40 years of age, if I apply the principles laid down by the Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, Rs.900/- should be added to Rs.3000/- and the total figure will be Rs.3900/- from which one-third amount, namely, Rs.1300/- should be deducted and the monthly loss of future prospect would be Rs.2600/-. If we multiply it by 12 to arrive at an annual figure and thereafter apply the multiplier of 14, the amount will come to Rs.4,36,800/- . To the said amount, a further sum of Rs.25,000/- should be awarded under the conventional heading and the total amount will come to Rs.4,61,800/-, whereas the Tribunal awarded Rs.7,35,000/-. Thus, in Page 5 of 9

C/FA/1881/2007 JUDGMENT my opinion, the awarded amount should be reduced by Rs.2,73,200/-. The rate of interest awarded by the Tribunal is proper and I do not interfere with the same. I, thus, partly allow First Appeal No.1881 of 2007 by setting aside the award and granting an award of Rs.4,61,800/- with interest at the rate of 9% per annum from the date of filing of the application till realisation. It appears that as a condition of stay of execution of the award, a learned Single Judge of this Court by order dated 26th December 2007 permitted withdrawal of Rs.3,35,000/- and balance Rs.4,00,000/- was ordered to be kept in Fixed Deposit. Now that this appeal has been partly allowed by reducing the awarded sum to Rs.4,61,800/-, the Tribunal below is directed to release the balance amount in favour of the claimants with proportionate interest and the remaining amount of Rs.4 lakh should be refunded to the Insurance Company with proportionate interest accrued thereon. If the amount of Rs.25,000/- deposited by the appellant before this Court has not yet been sent to the Tribunal, the same may be sent down to the Tribunal immediately. Registry is directed to return the Record and Proceedings to the Tribunal immediately. Now so far the other two appeals being First Appeal No.1882 and 3174 of 2007 against the award passed in MAC Petition No.1686 Page 6 of 9

C/FA/1881/2007 JUDGMENT of 2004 are concerned, I have already pointed that the Tribunal has awarded Rs.3,11,000/- with interest at the rate of 9% per annum from the date of filing of the application till realisation. First Appeal No.1882 of 2007 is by the Insurance Company for reducing the amount while First Appeal No.3174 of 2007 is by the claimants for enhancement. Although Mr Mehta appearing on behalf of the Insurance company took the plea of contributory negligence, in view of my finding in the earlier appeal, I find no substance in this plea in these appeals also. In this case, the daughter, namely, Hiralben was aged 26 years and was a M.Sc. Part II student. The Tribunal considered her income to be Rs.3000/- a month, added 50% to that amount for arriving at a figure of prospective income and thereafter, deducted two-third towards personal expenses and applied the multiplier of 17 to arrive at the figure of Rs.3,06,000/- toward future loss of income . To the said amount, the Tribunal added further amount of Rs.5000/- towards funeral expenses and thus, the total amount came to Rs.3,11,000/-. I find that according to the principles laid down by the Supreme Court in the case of Sarla Verma (supra), the Tribunal should have deducted half towards personal expenditure and not two-third and the victim being aged 26 years, multiplier of 17 is the appropriate Page 7 of 9

C/FA/1881/2007 JUDGMENT multiplier. Therefore, in the other two appeals arising out of death of Hiralben considering her income to be Rs.3000/- and adding 50% to that amount, the amount will come to Rs.4500/- from which half should be deducted towards her personal expenditure. Thus, the monthly amount of loss of future prospective income will come to Rs.2250/- or Rs.27,000/- per annum. Applying the multiplier of 17, the amount will come to Rs.4,59,000/-. To the aforesaid amount, a further sum of Rs.25,000/- should be added under the conventional heading and thus, the total amount should be Rs.4,84,000/-. Thus, in this case, the award should be enhanced by Rs.1,73,000/- with interest at the rate of 9% per annum from the date of filing of the application till realisation. The Insurance Company is directed to deposit the additional amount of Rs.1,73,000/- with interest at the rate of 9% per annum from the date of filing of the application till realisation within two months from today before the Tribunal below. On deposit of the amount, the Tribunal will release the amount in favour of the claimants by account payee cheque on proper verification. Thus, First Appeal No.1882 of 2007 by the Insurance Company is dismissed and First Appeal No.3174 of 2007 filed by the claimants is allowed. Registry is directed to return the Record and Proceedings to the Tribunal immediately. Page 8 of 9

C/FA/1881/2007 JUDGMENT (BHASKAR BHATTACHARYA, CJ.) zgs Page 9 of 9