BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LIMITED vs. SALMABIBI MOHAMMADAALI MANSURI

C/FA/1898/2014 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1898 of 2014 With CIVIL APPLICATION NO. 8087 of 2014 In FIRST APPEAL NO. 1898 of 2014

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH Sd/- and HONOURABLE MR.JUSTICE K.J.THAKER Sd/- ================================================================ 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 ? ================================================================ BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LIMITED....Appellant(s) Versus SALMABIBI MOHAMMADAALI MANSURI & 4....Defendant(s) ================================================================ Appearance: MR MAULIK J SHELAT, ADVOCATE for the Appellant(s) No. 1 MR HA SEJPAL, ADVOCATE for the Defendant(s) No. 1 - 3 MR RA SEJPAL, ADVOCATE for the Defendant(s) No. 1 - 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Page 1 of 10

C/FA/1898/2014 CAV JUDGMENT and HONOURABLE MR.JUSTICE K.J.THAKER

Date : 25/08/2014

CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Feeling aggrieved and dissatisfied with the impugned judgement and award dated 21/1/2014 passed by the learned Motor Accident Claims Tribunal, Ahmedabad Rural at Mirzapur in Motor Accident Claim Petition No. 1368 of 2009, by which the learned tribunal has partly allowed the said claim petition by awarding Rs.24,21,600/- to the original claimants as compensation for the death of deceased Mohammadali Mansuri who died in a vehicular accident which took place on 17/3/2009, with interest at the rate of 9% per annum from the date of claim petition till realisation, appellant – Insurance Company has preferred the present First Appeal. 2.00. That the deceased Mohammadali Mansuri died in a vehicular accident which took place on 17/3/2009 while he was going on his Activa bearing registration No.GY-1-LB-3160 along with his son at Nadiad. That on account of the accident, the deceased fell down on the road and sustained grievous injuries and he was admitted in the Medi-Surge Hospital, where he was operated for major surgery. However, during the operation and treatment he succumbed to the injuries and died. That the original claimants – widow and his two sons (one major and another minor at the relevant time) filed claim petition before the learned tribunal claiming Rs.40/- Lacs as compensation. That at the relevant time, the deceased was Page 2 of 10

C/FA/1898/2014 CAV JUDGMENT aged 54 years and according to the claimants, the deceased was doing business in the name and style of Castle Rock Textile Engineering Company at Ahmedabad and thereby earning Rs.10,32,780/- in a year. That the claim petition was opposed by the Insurance Company by filing Written Statement at Ex.18. It was contended on behalf of the Insurance Company that the accident was the result of the rash and negligent driving of the deceased himself and therefore, the Insurance Company cannot be held liable to pay compensation to the claimants. Alternatively, the Insurance Company also pleaded contributory negligence to the great extent on the part of the deceased. That the claim petition was proceeded ex-parte against the original opponent Nos.1 and 2. That the learned tribunal framed Issues at Ex.21. 2.01. That on behalf of the claimants, original claimant No.3 came to be examined at Ex.24. The claimants produced the following documentary evidences in support of their claim :- Sr.No. Particulars Ex.No. 1 Complaint 25 2 Panchnama of the place of accident 26 3 Statement of the petitioner No.3 27 4 Inquest Panchnama of the deceased 28 5 PM Report of the deceased 29 6 Death Certificate of the Deceased 30 7 Discharge summary of the deceased issued by the Medi-Surge Hospital. 31 8 Death summary of the deceased issued by the Medi-Surge Hospital. 32 9 X-ray Report 33 10 Medical Bills of Rs.79,448/- Page 3 of 10

C/FA/1898/2014 CAV JUDGMENT 11 Medical Bills of Rs.1,39,731/- 12 Income Tax Return of the deceased for the year 2007-2008. 37 13 Income Tax Return of the deceased for the year 2008-2009. 38 14 Original HGC Certificate of Medi-surge Hospital amounting to Rs.1,39,731. 36 2.02. That on appreciation of evidence and considering the income of the deceased at Rs.1,57,850/-/- for the Assessment Year 2007-2008 (Ex.37) and at Rs.4,37,633/- for the Assessment Year 2008-2009 (Ex.38) and dividing the same by two, the learned tribunal assessed the income of the deceased at Rs.2,95,000/- per annum i.e. Rs.24,583/- per month. That thereafter, further adding 10% towards future prospective income, the learned tribunal has considered the loss of dependency at Rs.27,000/- per month and thereafter deducting 1/3rd towards personal expenditure of the deceased and applying multiplier of 11, the learned tribunal has awarded Rs.23,76,000/- towards loss of dependency. That thereafter,the learned

tribunal has further awarded Rs.1,50,000/- for consortium, loss to estate and loss of love and affection; Rs.1,39,700/- for medical expenses and Rs.25,000/- for funeral expenses and has awarded total sum of Rs.26,90,700/-. As the deceased himself was held to be contributory negligent to the extent of 10%, deducting the same, by the impugned judgement and award, the learned tribunal has directed the appellant Insurance Company to pay total sum of Rs.24,21,600/- with interest at the rate of 9% from the date of filing of the claim petition till realisation. Feeling aggrieved and dissatisfied with the impugned judgement and award passed by the learned tribunal, the appellant Insurance Company has preferred the present First Appeal. Page 4 of 10

C/FA/1898/2014 CAV JUDGMENT 3.00. Mr.Maulik Shelat, learned advocate appearing on behalf of the appellant – Insurance Company has vehemently submitted that the learned tribunal has materially erred in awarding future economical loss, dependency considering the monthly income of the deceased at Rs.24,583/-. It is submitted that the learned tribunal has materially erred in not computing annual average of the deceased by not deducting income tax paid by the deceased. It is submitted that the learned tribunal has also considered the income of the deceased for Assessment Year 2008-2009 at Rs.4,37,633/- It is submitted that as such, the aforesaid amount of Rs.4,37,633/- was inclusive of the inclusive of the income received by the deceased from Long Term Capital Gain. It is submitted that if the amount of income received from Long Term Capital Gain would have been excluded, in that case, annual income of the deceased for the Assessment Year 2008-2009 would come to Rs.2,57,856/- (Rs.2,64,819/- gross income – Rs.6963/- income tax paid. It is submitted that therefore, average of the income of the Assessment Year 2007-2008 and 2008-2009 would come to Rs.2,05,578/- per annum instead of Rs.2,95,000/- as held and calculated by the learned tribunal. It is submitted that therefore, the learned tribunal ought to have added future economical loss considering the early income of the deceased at Rs.2,05,578/-. It is further submitted by Mr.Shelat, learned advocate appearing on behalf of the appellant - Insurance Company that the learned tribunal has materially erred in awarding Rs.1,30,000/- under the head of consortium, loss to estate and loss of love and affection. It is further submitted by Mr.Shelat, learned advocate appearing on behalf of the appellant that the learned tribunal has materially erred in Page 5 of 10

C/FA/1898/2014 CAV JUDGMENT awarding Rs.25,000/- for funeral expenses. It is submitted that the learned tribunal ought to have awarded Rs.10,000 towards funeral expenses and Rs.50,000/- towards consortium, loss to estate and loss of love and affection. He has also tried to submit that the learned tribunal has materially erred in holding the deceased contributory negligent to the extent of 10% only. However, thereafter, he has not seriously pressed for the same. As such he is also not in a position to satisfy how the finding recorded by the learned tribunal holding the deceased contributory negligent to the extent of 10% can be said to be erroneous and/or contrary to the evidence on record. 4.00. Mr.R.A. Sejpal, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute and as such not disputing that the learned tribunal has materially erred in considering the income of the deceased at Rs.4,37,633/- for the Assessment Year 2008-2009. He is also not disputing that the aforesaid amount of Rs.4,37,633/- in the Assessment Year 2008-20098 was inclusive of an amount of Rs.1,79,7877/- was the income received by the assessee from Long Term Capital Gain. Under the circumstances as such Mr.Sejpal, learned advocate appearing on behalf of the original claimants has fairly conceded that the income of the deceased for the Assessment Year 2008-2009 can be considered at Rs.2,57,856/- excluding Rs.2,64,819/- gross income – Rs.6963/- income tax paid). He has requested to award future economical loss accordingly. 4.01. Now, so far as the contention on behalf of the appellant that the learned tribunal has materially erred in Page 6 of 10

C/FA/1898/2014 CAV JUDGMENT awarding Rs.1,50,000/- under the heard of consortium, loss to estate and loss of love and affection is concerned, he has requested to pass appropriate order. However, has submitted that the claimants shall be entitled to at least Rs.50,000/- under the aforesaid three heads. 5.00. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned judgement and award passed by the learned tribunal and considered the entire evidence on record produced by the learned advocate appearing on behalf of the appellant produced before the Court for the perusal. At the outset, it is required to be noted that at the relevant time the deceased was aged aged 54 years. Under the circumstances, as such as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 : AIR 2009 S.C. 3104, nothing was required to be added towards prospective income. It has come on the record that the total income of the deceased for the Assessment Year 2007-2008 was Rs.1,58,850/- and Rs.2,57,856/- for the Assessment Year 2008-2009. At this stage it is required to be noted that the learned tribunal has considered the income of the deceased for the Assessment Year 2008-2009 at Rs.4,37,633/-. However, it is required to be noted that in the Assessment Year 2008-2009, deceased received Rs.1,79,077/- from Long Term Capital Gain and therefore the same cannot be included in the business income of the deceased in the relevant year. Under the circumstances and even as conceded by the learned advocate appearing on behalf of the claimants, the income of the deceased for the Assessment Year 2008- Page 7 of 10

C/FA/1898/2014 CAV JUDGMENT 2009 can be considered at Rs.2,57,856/-. Therefore, considering the average of both these years, the income of the deceased would come to Rs.2,05,578/-. Therefore, the income of the deceased after rounding off can be considered at Rs.2,10,000/- per month instead of Rs.2,95,000/- considered by the learned tribunal. Thus, the monthly income of the deceased would come to Rs.1,17,500/-. Thereafter, deducting 1/3rd towards personal expenditure of the deceased and applying multiplier of 11, claimants shall be entitled to Rs.15,40,000/- under the head of loss of dependency. Thus, the learned tribunal has materially erred in adding 10% towards future prospective income and thus, awarding Rs.23,76,000/- under the head of loss of dependency. As held hereinabove, the claimants shall be entitled to a total sum of Rs.15,40,000/- under the head of loss of dependency. 5.01. The tribunal has awarded a sum of Rs.1,50,000/- for consortium, loss to estate and loss of love and affection. We are of the opinion that in the facts of the case the learned tribunal has materially erred in awarding Rs.1,50,000/- for consortium, loss to estate and loss of love and affection. The learned tribunal ought to have awarded a sum of Rs.50,000/- only for consortium, loss to estate and loss of love and affection. Thus, the claimants shall be entitled to Rs.50,000/- for consortium, loss to estate and loss of love and affection instead of Rs.1,50,000/- as awarded by the learned tribunal. The learned tribunal has further erred in awarding Rs.25,000/- towards funeral expenses. We are of the opinion that if Rs.10,000 is awarded towards funeral expenses, it would be just and fair. The learned tribunal has not committed any error in awarding Rs.1,39,700/- for medical expenses. Thus, Page 8 of 10

C/FA/1898/2014 CAV JUDGMENT the claimants shall be entitled to Rs.17,39,700/-. However, as the deceased is held to be contributory negligent to the extent of 10%, deducting 10%, the claimants shall be entitled to Rs.15,65,730/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its realisation. Thus, to the aforesaid extent, the impugned judgement and award passed by the learned tribunal is required to be modified and consequently, present appeal is required to be allowed partly to the aforesaid extent. 6.00. In view of the above and for the reasons stated above, present appeal is partly allowed. The impugned judgement and award dated 21/1/2014 passed by the Motor Accident Claims Tribunal, Ahmedabad Rural at Mirzapur in Motor Accident Claim Petition No. 1368 of 2009 is hereby modified to the extent and holding that the original claimants shall be entitled to total sum of Rs.15,65,730/- as compensation with interest at the rate of 9% per annum from the date of claim petition till its realisation. Present appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. In view of disposal of the main appeal, no order in the Civil Application No.8087 of 2014 and the same stands disposed of accordingly. Sd/- (M.R.SHAH, J.) Sd/- (K.J.THAKER, J) Rafik. Page 9 of 10

C/FA/1898/2014 CAV JUDGMENT Page 10 of 10