JASHWANTBHAI ARVINDBHAI SOLANKI vs. CHATURBHAI DANABHAI

C/FA/4398/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4398 of 2006 With R/FIRST APPEAL NO. 4399 of 2006 With R/FIRST APPEAL NO. 4402 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE B.N. KARIA ========================================================== 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 ? ========================================================== SHANTILAL DAHYABHAI VALA Versus CHATURBHAI DANABHAI ========================================================== Appearance: MR MA PAREKH(1088) for the PETITIONER(s) No. 1,2,3 ADVOCATE NAME DELETED(26) for the RESPONDENT(s) No. 3 MR AJAY R MEHTA(453) for the RESPONDENT(s) No. 3 MR DAKSHESH MEHTA(2430) for the RESPONDENT(s) No. 5 RULE SERVED(64) for the RESPONDENT(s) No. 1,2,4 ========================================================== CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 04/02/2019

ORAL JUDGMENT All these three appeals are arise from a common Page 1 of 18

C/FA/4398/2006 JUDGMENT judgment and order dated 7th May 2005 passed by the learned M.A.C.T. (Aux.) Ahmedabad (Rural), Ahmedabad in M.A.C.P. Nos. 1195/1994, 1104/1994 and 1140/1994. Brief facts of these appeals are as under: Legal representative of the deceased Mehul Shantilal Vala, deceased Chetan Dashrathbhai Patel as well as injured Jashwantbhai Arvindbhai Solanki preferred different claim petitioners under Section 166 of the Motor Accident Act for getting compensation for the amount as claimed in their respective petitions in connection with the vehicular accident, which occurred on 8th July 1994 between the truck, bearing registration No. GJ-13-T-5462 and Metador, bearing registration No. GJ-1-T-3796. Deceased and the injured were returning to Ahmedabad from Chotila after completing pooja darshan. As per the averments made in the respective claim petitions, the said Metador driver, being the driver of deceased Mehul, was driving his metador carefully and on the correct side of the road. When the said Metador was passing from near village Sukhli situated on Surendranagar-Ahmedabad road, one truck, bearing registration No. GJ-13-T-5462 came from the opposite direction in full speed rashly and negligently and Page 2 of 18

C/FA/4398/2006 JUDGMENT dashed with the Metador. As a result of this accident, Mehul and his eight friends and the driver of the Medator died on account of serious injuries, while two persons had sustained serious injuries. The claimants, in their petitions, stated the income, age, injury received by the deceased/injured, expenses incurred in medical treatment, pain, shock, agony, suffered by them and on other heads requested to pass an award in their favour as prayed in their respective claim petitions. On issuing notice by the learned Tribunal, the respondent no.1-driver of the truck and respondent no.2 -owner of the truck, though served with the notice, were not appeared before the learned Tribunal or through their advocates. The tribunal was pleased to pass an order to proceed ex-parte the claim petitions against them. The respondent No.3-Insurance Company of the offending vehicle-truck, bearing registration No. GJ-13-T-5462, appeared through its learned advocate and filed its written statement contending that the claims petitions preferred by the claimants were totally false and denied the negligence on the part of the respondent no.1 ie., truck driver of the vehicle. It was further submitted that the claimants were Page 3 of 18

C/FA/4398/2006 JUDGMENT not entitled to get any amount of compensation on account of the alleged negligence on the part of the truck driver or the accident occurred. Other facts averred in the claim petitioners by the claimants were also denied in respect of income, age, medical treatment expenses, pain, shock and agony sufferred by them. As per the contentions of the Insurance Company, the claim of the claimants were exorbitant, and therefore, no compensation as claimed by the claimant can be granted. The respondent no.5-Insurance Company of the offending vehicle was duly served with the notice and appeared through its advocate and filed its written statement contending that all the claim petitions were totally false and denied the contentions that because of negligence on the part of the driver of Metador, accident was occurred. As per the contentions, none of the claimants were entitled to get any amount of compensation. The respondent no.5 denied the contentions of the claim petition in toto and declaring them false, as alleged in the claim petitions. As per the contentions, the claim amount of compensation was exorbitant and excessive. Ultimately it was requested to dismiss the claim petition. The driver of the Metador was died in the accident, Page 4 of 18

C/FA/4398/2006 JUDGMENT and therefore, the legal heirs of he deceased driver were joined by the claimants as opponent no.4 and served the notice. The respondent no.4 appeared through his learned advocate to contest the petition. Various issues were framed by the tribunal. After recording the evidence by the respective parties, hearing learned advocates for the respective parties, the tribunal was pleased to grant award in the respective claim petitioners partly allowing the claim petitions. Being dissatisfied with the impugned judgment and award passed by the learned Tribunal on 7th May 2005, present appeals are preferred by the respective appellants. Heard leaned advocates for the respective parties of these appeals. While arguing in First Appeal No. 4398/2006, it was submitted by learned counsel for the appellant that tribunal has committed grave error in considering the income of the deceased as Rs. 2000/- per month. That, deceased Mehulbhai was the driver and was earning lump-sum amount. As observed by the tribunal, he had also kept one person, and therefore, the financial condition of the deceased Mehulbhai Page 5 of 18

C/FA/4398/2006 JUDGMENT was so sound. That, considering the income of Rs. 2,000/- per month, without taking into consideration the documentary evidence as well as oral evidence was erroneous on the part of the Tribunal. It is further submitted that income of the deceased was required to be considered as Rs. 4,000/=- per month, which is recorded vide Ex. 66. That, Chartered Accountant had prepared the document Ex. 122 as well as income certificate issued by him was produced vide Ex. 135. After verifying the books of account, he had issued the certificate regarding the income of the deceased. That, claimant had also deposed stating the income of the deceased as Rs. 4000/- per month. However, tribunal has committed an error in not considering the income of the deceased as Rs. 4000/- and admittedly, the age of the deceased was 19 years at the time of accident and adopting multiplier of 15 years was also not correct. Hence, it was requested by learned advocate for the appellant to allow the appeal by modifying the impugned order. While arguing in First Appeal No. 4399 of 2006, it was submitted that it was the case of injury and the injured claimant was doing tailoring and embroidery work. But, due to Page 6 of 18

C/FA/4398/2006 JUDGMENT accidental injury, his income was reduced to the tune of Rs. 1500/- per month. That, the claimant has deposed on oath vide Ex.54 stating that he was aged about 23 years at the time of accident and certificate to that effect was produced vide Ex. 86. He was earning Rs. 3000/- per month, and however, without any cogent reasons, income of the claimant was reduced to the tune of Rs. 1500/- per month. That, he had permanent disablement of 56.6% body as a whole and had examined his witness Dr. Shantibhai G. Patel. That, disability certificate was produced vide Ex. 76. That, awarding multiplier of 16 years by the tribunal, however the age of the claimant was 23 years at the time of accident, is erroneous and not proper. He was entitled to claim multiplier of 18 years as per settled position of law. He further submitted that income of the claimant as Rs. 3000/- would require to be considered and amount of compensation be calculated on this aspect by applying multiplier of 18 years. He further requested to allow this appeal by modifying the impugned judgment and award. While arguing in First Appeal No. 4402 of 2006, learned advocate for the appellants submitted that it is the fatal case wherein the deceased was aged about 20 years at the time of Page 7 of 18

C/FA/4398/2006 JUDGMENT accident. That, he was a labour contractor since 1992 and earning monthly income of Rs. 5000/-. That, one witness Manubhai Patel, Architect (Ex. 74) was examined to support the income of the deceased. As per his statement, the income of the deceased was Rs. 5000/- per month. That, future prospective income of the deceased should be considered as Rs. 7500/-. That, the tribunal has committed an error in considering the income of the deceased as Rs. 1500/- per month as well as in applying multiplier of 16 years. That, the award passed by the tribunal was very less and against the prayer of the claimants. That, conveyance amount granted to the claimants was also not as per the settled legal position and it was requested by learned advocate for the appellant to allow this appeal modifying the impugned award. Learned advocate for the appellants has limited his arguments to the extent of enhancement of the compensation amount and no other issues were argued by learned advocate for the appellants. From the other side, learned advocate for the respondent no.3-Insurance Company supported the reasons and findings arrived at by the Tribunal and submitted that no error is Page 8 of 18

C/FA/4398/2006 JUDGMENT apparently committed by the tribunal in passing the award in favour of the respective claimants. That, no sufficient proof of income was produced by the respective claimants. That, no income tax documents were produced by any of the claimants before the tribunal. In absence of any cogent evidence of income of the deceased/injured, the tribunal has rightly considered the income of the deceased/injured in respect of claim petitions. This factual aspect cannot be disturbed by this Court, as the claimants were required to strictly prove an income of the deceased/injured. That, relying upon the depositions of the witness, income of the deceased/injured cannot be proved by the claimants or can be considered by the Tribunal as actual income. That, tribunal has rightly assessed the reasons in not considering the income of the deceased/injured as prayed by the claimants in their respective claim petitions. That, whatever the evidence led by the claimants in respect of the income was rightly considered, and therefore, it was requested by learned advocate for the respondent no.3 to dismiss all these three appeals and confirm the judgment and order passed by the tribunal. Page 9 of 18

C/FA/4398/2006 JUDGMENT Learned advocate for the respondent no.5 supported the judgment and findings arrived at by the learned Tribunal stating that there was no liability of respondent no.5 fixed by the tribunal. Hence, it was requested by learned advocate for the respondent no.5 to dismiss all these appeals. Respondents No. 1 and 2, however duly served with the notice, have not contested these appeals or defended before the Court. FIRST APPEAL NO. 4398/2006 Having considered the facts of the case, submissions made by learned advocates for the respective parties and from the original record of the tribunal, it appears that as per the deposition of the witness examined before the tribunal, deceased Mehulbhai was his son, who was owing his own Metador and had kept one driver and he was paying Rs. 2000/- to his driver as against the salary. Before the tribunal, balance sheet for the year 1992 vide Ex. 123, profit and loss certificate for the year 1991-92 vide Ex. 124, summary for expenses, P&L etc., for the year 1991-92 to 1994-95 were produced on record vide Ex. 127 to 133 respectively. The Chartered Accountant, who had prepared the document, was Page 10 of 18

C/FA/4398/2006 JUDGMENT examined vide Ex. 122 and the income certificate issued by him is produced vide Ex. 135 after verifying the books of account. As per the deposition of the witness, deceased was earning Rs. 4000/- per month. It appears from the record that witness examined by the claimants was cross-examined by the respondents, wherein it was admitted that income of the deceased shown in the P &L column produced on record vide Ex. 135 was Rs. 83212/- for four years. This witness has also admitted in his cross examination that he had not made any inquiry whether the deceased was having any bank account or not and even how many servants were being serving with him. He has also admitted that no income tax return was filed by the deceased during his life time. The father of the deceased contended him in the month of February 2002 with books of account and he had not made any inquiry to the father of the deceased regarding the business of Mehulkumar. He had not seen the RTO permit. Deceased was never asking to prepare account for the year 1991-92. The tribunal has rightly found that the documents had been prepared afterthought with an intention to decide the income of the deceased only. Therefore, they cannot be considered in evidence. However, as per the Page 11 of 18

C/FA/4398/2006 JUDGMENT observations made by the tribunal, deceased had kept a driver and paying some amount by way of salary, deceased was earning handsome amount so that he had kept one paid person. As per the opinion of the tribunal, income of the deceased was considered Rs. 2000/- per month and deducted 1/3rd amount, as the claimants were entitled for 15 years multiplier. It appears that prospective income of the deceased was never considered by the tribunal. If we consider the income of the deceased Mehulkumar at Rs. 2000/- per month, added of Rs. 1500/-,. Prospective income would come to Rs. 3500/- per month. While deducting further Rs. 1500/-, dependency loss would come to Rs. 1500/- and while multiplying it with 12, it would come to Rs. 18,000/- per annum. As per schedule in the case of Sarla Verma (Supra), multiplier of 18 years would require to be considered inspite of 15 years. If we apply this multiplier, the total amount would come to Rs. 3,24,000/-. The Tribunal has awarded Rs. 10,000/- towards loss of expectation of life and Rs. 3,000/- towards funeral expenses. This Court is of the view that this amount would enhance to Rs. 30,000/- as conveyance amount and in all, the claimants would be entitled to claim total Page 12 of 18

C/FA/4398/2006 JUDGMENT amount of Rs. 3,54,000/- from the respondent Insurance company. The tribunal has awarded Rs. 2,53,120/- to the claimants and thus while deducting this amount, remaining difference amount of Rs. 1,00,880/- would be paid to the claimants by the respondent no.3 Insurance Company. FIRST APPEAL NO. 4399 OF 2006 As per the deposition of the claimant Ex. 54, at the time of accident, he was aged about 23 years and certificate to that effect was produced vide Ex. 86. As per his deposition he was doing tailoring and embroidary work and earning Rs. 3000/- per month. Due to accidental injury, his income was reduced to Rs. 1500/- per month. He had permanent disability of 56.6% body as a whole. In support of his contention, he has examined his witness Dr. Shantibhai G. Patel, who issued disability certificate produced vide Ex. 76. As per his deposition, various operations were performed and screw and plates inserted and bone granting was also done. His treatment was continued for six months, and thereafter, for four months as outdoor patient. To prove his income another witness Devkaranbhai, the owner of Gurukrupa Store was examined vide Ex. 73. Learned tribunal, after considering the evidence, Page 13 of 18

C/FA/4398/2006 JUDGMENT was pleased to consider the income of the injured claimant as Rs. 1500/- per month and adopt 16 multiplier for the future loss of income. Here also, if we consider the nature of work of the claimants ie. doing tailoring and embroidery work, prayer was made by the claimant to consider his income as Rs. 4000/-. This accident was occurred in the year 1994. it appears that claimant was a skilled tailor and was engaged in such business and due to accidental injuries received by him, his income was reduced to the tune of Rs. 1500/- per month. This Court is of the view that income of the claimant would require to be considered as Rs. 2000/- per month. Undisputedly, he had received 56.6% permanent disability body as a whole. He has also examined Dr. Shantibhai Patel, who had issued disability certificate Ex. 76. If we consider the income of the claimant as Rs. 2000/- and his permanent disability as 56.6%, the entitlement would come to Rs. 1120/- per month and while multiplying 12, it would come to Rs. 13420/- per annum. Here also, the multiplier was adopted as 16 years by the tribunal for considering the future loss of income and as discussed above, as per the settled legal position in the case of Page 14 of 18

C/FA/4398/2006 JUDGMENT Sarla Verma (Supra), multiplier of 18 years would be applied. While applying this multiplier of 18 years, the amount would come to Rs. 2,41,920/-. The tribunal has awarded Rs. 5000/- under the head of transportation and special diet thus, this amount would be confirmed. The tribunal has also granted Rs. 40,000/- under the head of pain, shock and suffering by the claimant which also requires to be confirmed. On the head of medical treatment, the tribunal has awarded Rs. 20,000/- as against the medical bills worth Rs. 19,069/- which was produced on record vide Ex. 85, and therefore, said amount would be confirmed by this Court. The actual loss for the period of 10 months at Rs. 15,000/- was awarded to the claimant and this Court deemed it fit not to make any interference in the amount awarded to the claimant on the different heads. Considering the multiplier of 18 years and permanent disability as 56.6 % body as a whole, the claimant would be entitled to recover Rs. 3,21,920/- instead of Rs. 2,41,280/- awarded by the tribunal and the difference amount of Rs. 80,640/- would be paid by the respondent no.3 Insurance Company to the original claimant. Page 15 of 18

C/FA/4398/2006 JUDGMENT FIRST APPEAL NO. 4402/2006: In this fatal case, witness was examined by the claimants vide Ex. 61 to prove the quantum as prayed by the claimants. AS per the deposition Ex. 61, age of the deceased was 20 years at the time of accident and he was heal and hearty. He was serving with Aakar Firm of Architect as labour contractor since the year 1992 and his monthly income was Rs. 5000/-. Another witness Manubhai Patel, Architect was examined vide Ex. 74 to prove the income of the deceased as Rs. 5,000/-. The tribunal considered the monthly prospective income of the deceased as Rs. 1500/- and while considering his age, the tribunal has adopted 16 years multiplier and deducted 1/3rd amount. If we consider the evidence of the witness Ex. 74- Manubhai Patel, Architect, he has admitted in his cross examination that the deceased was not paying anything directly but through channel ie., third party was paying to the deceased. It appears that tribunal has considered the income of the deceased as Rs. 1500/- per month but has not considered the prospective income. The issue requires consideration by this Court. If the prospective income of the deceased would be Page 16 of 18

C/FA/4398/2006 JUDGMENT considered at Rs. 85/- per day the net monthly income would come to Rs. 2250/-. The deceased was bachelor and parents have claimed the compensation. Thus, ½ deduction of his personal expenses would be deducted. Thus, dependency would come to Rs. 1125/- per month and by multiplying 12, it would come to Rs. 13,500/- per annum. The tribunal has erred in adopting 16 multiplier, however, the age of the deceased was 20 years as deposed by the witness vide Ex. 61. No further evidence was led by the respondent no.3 challenging the age of the deceased as stated by the witness. Hence, as per the settled legal position and schedule framed in the case of Sarla Verma (Supra), multiplier of 18 years would apply in the present case. While applying this multiplier 18 years, the total loss of income would come to Rs. 2,43,000/-. Thereafter, while adding Rs. 30,000/- towards conveyance amount, the claimants shall be entitled to recover Rs. 2,73,000/- from the respondent no.3 . The tribunal has awarded Rs. 2,05,000/- , therefore, the Insurance company- respondent no.3 shall pay the difference amount of Rs. 68,000/- to the claimants. Rest of the award passed by the learned tribunal would Page 17 of 18

C/FA/4398/2006 JUDGMENT not require to be changed or disturbed. Hence, accordingly these appeals are partly allowed. The respondent No.3 is directed to pay the difference amount as awarded by this Court to the respective claimants of respective appeals within a period of four weeks from the date of receipt of this order alongwith the interest as awarded by the Tribunal till realization of the amount. Accordingly these appeals stand disposed of. R&P be sent back to the Tribunal by the Registry. (B.N. KARIA, J) ksdarji Page 18 of 18