MADHUBEN JITENDRA CHAUHAN WD/O DECEASED vs. MOHOMMADIKRAM ABDULGANI MANSURI

C/FA/3816/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 3816 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

========================================================== 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 or any order made thereunder ? ========================================================== MADHUBEN JITENDRA CHAUHAN WD/O DECEASED & 4 other(s) Versus MOHOMMADIKRAM ABDULGANI MANSURI & 2 other(s) ========================================================== Appearance: MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5 MR GC MAZMUDAR(1193) for the Defendant(s) No. 3 MR HG MAZMUDAR(1194) for the Defendant(s) No. 3 RULE NOT RECD BACK(63) for the Defendant(s) No. 1 RULE SERVED(64) for the Defendant(s) No. 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 27/08/2019 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) 1. Feeling aggrieved and and dissatisfied by the judgment and award passed by the Motor Accident Claims Tribunal (Auxiliary), Kheda at Nadiad (hereinafter referred to as the “Tribunal” for the Page 1 of 10

C/FA/3816/2014 JUDGMENT sake of brevity) in M.A.C.P. No.726 of 2010, the appellants – original claimants have preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the “Act” for the sake of brevity). 2. Heard, Mr. Hiren Modi, learned advocate for the appellants – original claimants and Mr. H.G. Mazmudar, learned advocate for the respondent No.3 – Insurance Company. 3. The following facts emerge from the record of the First Appeal – 3.1 The accident took place on 29.3.2010 at about 11 p.m.. It is the case of the appellants – original claimants that the deceased Jitendrabhai Rashikbhai Chauhan, who was working as a Police Constable, was driving his motorcycle bearing Registration No.GJ-7AK-5675 on the correct side of the road with moderate speed and when he reached near Nadiad Lakshmi Cinema, a Truck/Tempo bearing registration No.GJ-9Y-9967 came from behind being driven in full speed and dashed with the motorcycle of the deceased. The deceased sustained serious bodily injuries and after some medical treatments, succumbed to the same. 3.2 The First Information Report (FIR) was lodged with the jurisdictional police station. The appellants – original claimants preferred the claim petition under Section 166 of the Act and claimed Page 2 of 10

C/FA/3816/2014 JUDGMENT compensation of Rs.35,00,000/-. 3.3 It was the case of the appellants – original claimants that the deceased was working as a Police Constable and had a salary of Rs.16,869/- per month. It was further the case of the appellants – original claimants that the accident has occurred solely because of negligence of the driver of the Tempo. The original claimants relied upon the documentary evidence, such as certified copy of the FIR at Exh.25, Panchnama of the scheme of occurrence at Exh.26, Inquest Panchnama at Exh.27, original Driving License at Exh.28, P.M. Note at Exh.29, Chargesheet at Exh.38 filed by the police. Over and above the same, the original claimants also produced pay-slips of the deceased as well as the copy of income-tax return of the Assessment Year 2009 – 2010. 3.4 The original claimants also examined Madhuben Jitendrabhai Chauhan, wife of the deceased at Exh.23 to buttress the contention raised in the claim petition. The original claimants also examined one Asubhai Jerambhai as witness at Exh.35, who was working in the same police station where the deceased worked. The original claimants also relied upon the medical bills for the treatment which was given to the deceased immediately after the accident at Exh.39 at Shree Krishna Hospital & Medical Research Centre, Karamsad. Page 3 of 10

C/FA/3816/2014 JUDGMENT 3.5 The Tribunal, after considering the evidence on record, by the impugned judgment and award, considered the income of the deceased at Rs.13,870/- per month and considered the increase of income to the extent of 30% and applied 14 as suitable multiplier as the deceased was 42 years old as per the P.M. note and awarded a sum of Rs.30,29,040/- as compensation under the head of future loss of income, and after deducting 1/4th towards personal expenses, awarded a sum of Rs.22,71,780/- under the head of loss of dependency and also awarded Rs.2,500/- towards loss of estate, Rs.15,000/- under the head of consortium, Rs.7,120/- as medical expenses and Rs.5,000/- as transportation and funeral expense. 4. Mr. Modi, learned advocate for the appellant relying upon the copy of the income-tax return on record, contended that the Tribunal has committed error in considering the income based upon the pay- slips which were brought on record by the appellants. Mr. Modi, learned advocate contended that as the deceased was a Police Constable, was having additional income by way of overtime charges and special duty. Mr. Modi contended that in order to determine the correct income of the deceased, the Tribunal ought to have relied upon the copy of the income-tax return which was brought on record, which reflects the income for the Assessment Year 2009-2010. Mr. Modi contended that the Tribunal has also committed an error in taking base of the pay- slips instead of income-tax return while Page 4 of 10

C/FA/3816/2014 JUDGMENT determining the income. 5. According to Mr. Modi, the income deserves to be re-determined by this court based upon the income-tax return which reflects the correct and true income which was derived by the deceased atleast during the year of the accident. Mr. Modi further contended that the Tribunal has committed an error in granting only Rs.25,000/- as compensation under the conventional head, which should be enhanced to Rs.70,000/- as per the judgment of the Apex Court in the case of National Insurance Company Ltd. vs Pranay Sethi, reported in (2017)16 SCC 680. 6. Mr. Modi further contended that considering the panchnama at Exh.27 and the manner in which the accident has occurred and the evidence, it clearly shows that the deceased was driving his motorcycle on correct side at a moderate speed. Mr. Modi further contended that the Tribunal has committed an error in assessing the negligence to the tune of 10% of the deceased. Mr. Modi further contended that the accident has occurred because of sole negligence of the driver of the Tempo. 7. It was also further contended by Mr. Modi that the Tribunal has wrongly exercised the discretion and even though the date of accident was 29.3.2010, the Tribunal has awarded only 7.5 % interest, which deserves to be enhanced to 12%. Page 5 of 10

C/FA/3816/2014 JUDGMENT 8. With the aforesaid grounds, Mr. Modi learned advocate for the appellants – original claimants contended that the impugned award deserves to be modified by allowing the First Appeal. 9. Per contra Mr. Mazmudar, learned advocate appearing for the respondent No.3 – Insurance Company has supported the impugned award. 10. Mr. Mazmudar contended that in case of a Government servant, pay-slip is the base document to determine the income. According to Mr. Mazmudar, therefore, the Tribunal has committed no error in determining the income of the deceased based upon the pay-slip. 11. Mr. Mazmudar contended that as far as the negligence is concerned, the Tribunal has rightly appreciated the evidence on record and has come to the conclusion that even the deceased, as driver of the of the motorcycle, was negligent to the extent of 10%. 12. Mr. Mazmudar relying upon the P.M. note at Exh.38 contended that the Tribunal has, in fact, correctly appreciated the manner in which the accident has occurred and the motorcycle was found almost on the middle of the road. It was therefore, contended by Mr. Mazmudar that no modification or alteration is required as far as the aspect of negligence is concerned. 13. Mr. Mazmudar further candidly submitted that Page 6 of 10

C/FA/3816/2014 JUDGMENT as far as the amount under conventional head is concerned, the same may be granted by this court following the judgment of the Apex Court in the case of Pranay Sethi (supra). Mr. Mazmudar contended that the Tribunal has committed no error in exercising its discretion by granting interest at the rate of 7.5 %. Mr. Mazmudar contended that the bank rate in the year 2010 was 7.5 % and therefore, no further rate of interest deserves to be enhanced. Mr. Mazmudar submitted that as the appeal being meritless, it deserves to be dismissed. 14. No other or further submissions have been made by the learned counsel appearing for the respective parties. 15. Upon considering the submissions made and upon perusing the original record and proceedings as well as the contentions raised by learned counsel for the parties, it is an admitted position that the deceased was working as a Police Constable. Considering the deposition of the witness – Asubhai Jerambhai, who worked as Police Constable with the deceased as well as the deposition of the wife of the deceased, it is a matter of fact that the deceased was working as a Police Constable and received further amount over and above the monthly salary. Upon re-appreciating the monthly pay-slips on record, the same reflects the pay as per the pay-band of the deceased who was working as a Police Constable. However, upon re-appreciation of Page 7 of 10

C/FA/3816/2014 JUDGMENT the evidence in form of the income-tax return for the Assessment Year 2009-2010, which is proximate to the date of the accident, which clearly shows that the gross income of the deceased was Rs.1,90,276/- and the only deduction was to the extent of Rs.2,000/- and thereby, net income of the deceased was Rs.1,88,276/- per annum. Thus, we are of the opinion that the income of the deceased deserves to be determined based upon the income-tax return as the same reflects total income of the deceased and not the pay as per the pay-band. 16. Having come to the aforesaid conclusion, therefore, the monthly income of the deceased would come to Rs.15,690/-. Following the judgment of the Apex Court in the case of Pranay Sethi (supra), as the deceased was 42 years old on the date of accident and was a Government employee, the appellants would be entitled to prospective income by way of increase to the tune of 30% which comes to Rs.4,707/- and thus, the total monthly income would come to Rs.20,397/-, which is rounded off to Rs.20,400/- per month. Thus, the yearly income of the deceased would come to Rs.2,44,800/-. The record indicates that there were more than four dependents and hence, 1/4th is required to be deducted towards personal expenses of the deceased. Having come to the aforesaid conclusion, the appellants would be entitled to compensation under the loss of dependency by applying 14 as suitable multiplier, as under:- Page 8 of 10

C/FA/3816/2014 JUDGMENT Rs. 15,690/- Income per month + Rs. 4,707/- 30% Prospective Income. = Rs. 20,397/- (Rounded off to Rs.20,400/-) Income per month -Rs. 5,100/- One fourth towards personal expenses of the deceased = Rs. 15,300/- Income per month X 12 Yearly = Rs. 1,83,600/- Yearly Income X 14 Multiplier = Rs. 25,70,400/- Total Compensation 17. Over and above the same, the appellants would be entitled to Rs.70,000/- as compensation under different conventional heads as per the judgment of the Apex Court in the case of Pranay Sethi (supra) and shall be entitled to Rs.7,120/- towards medical reimbursement as granted by the Tribunal. 18. Upon re-appreciating the evidence in form of Panchnama at Exh.26 as well as the FIR at Exh.25, the Tribunal has committed no error in coming to the conclusion that the deceased was also negligent to the extent of 10% as the position of the motorcycle as can be seen from the Panchnama, also indicates that the deceased could have avoided the accident if he would have been careful and hence, the contention raised by learned counsel for the appellants that the Tribunal has committed an error in considering the negligence of the deceased to the extent of 10%, deserves to be negated. As far Page 9 of 10

C/FA/3816/2014 JUDGMENT as the rate of interest is concerned, in facts of the case and considering the year of accident, the Tribunal has rightly exercised the discretion, which does not require any modification. Considering the fact that this court has enhanced the award as above, the appellants are granted just and fair compensation and therefore, the discretion of grant of 7.5 % interest, also does not require any modification. 19. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified as above. The appellants would be entitled to additional amount of Rs.3,11,508/- with 7.5 % interest per annum from the date of the filing of the claim petition till its realization. The award stands modified accordingly. The respondent No.3 – Insurance Company shall deposit the additional amount as awarded by this court within a period of three months from the date of receipt of copy of this judgment. However, there shall be no order as to costs. 20. Registry is directed to transmit the record and proceedings back to the concerned Tribunal. (R.M.CHHAYA, J) (SANGEETA K. VISHEN,J) BINOY B PILLAI Page 10 of 10