BHARVIBEN WD/O MAHESHKUMAR KANUBHAI MODI vs. C BASKARAM CHOKALINGAM

C/FA/869/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 869 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH

and HONOURABLE MR.JUSTICE R.P.DHOLARIA

============================================= 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 ? ============================================= BHARVIBEN WD/O MAHESHKUMAR KANUBHAI MODI & 4....Appellant(s) Versus C BASKARAM CHOKALINGAM & 2....Defendant(s) ============================================= Appearance: MR.HIREN M MODI, ADVOCATE for the Appellant(s) No. 1 - 5 MR GC MAZMUDAR, ADVOCATE for the Defendant(s) No. 3 MR HG MAZMUDAR, ADVOCATE for the Defendant(s) No. 3 NOTICE NOT RECD BACK for the Defendant(s) No. 1 - 2 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 29/04/2014

ORAL JUDGMENT Page 1 of 8

C/FA/869/2014 JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) 1. Admit. Shri GC Mazmudar, learned advocate for respondent No.3 – insurance company waives service of notice of admission on behalf of respondent No.3 – insurance company, the main contesting party. Even the learned Tribunal passed the award ex-parte against respondent Nos. 1 and 2 and therefore, for the purpose of deciding the controversy involved in present appeal, they need not be heard. 2. In the facts and circumstances of the case and as the learned advocates appearing on behalf of the respective parties have produced necessary documentary evidence on record and the present appeal is in a very narrow compass as observed in our earlier order dated 27.03.2014, present appeal is taken up for final hearing today. 3. By way of preferring present appeal, the appellants herein – original claimants seek to challenge the impugned judgment and award dated 27th February 2013 passed by the learned Motor Accident Claims Tribunal (Main), Tapi - Vyara (hereinafter referred to as the Tribunal) in Motor Accident Claim Petition No. 1136 of 2001, by which, the learned Tribunal has awarded to the appellants herein – original claimants a sum of Rs.8,94,400/- along with interest @ 9% per annum from the date of claim petition till its realization fastening 50% liability upon respondent No. 3 – original opponent No. 3 – insurance company as well as 50% liability upon the deceased himself and thereby sliced down 50% amount of compensation. Thus, the Tribunal has awarded a total sum of Rs.4,47,200/- to the appellants herein – original Page 2 of 8

C/FA/869/2014 JUDGMENT claimants. 4. The facts in nutshell are as under: 4.1. That on 30.10.2001, the deceased Maheshbhai Kanubhai Modi was coming to his home from Songadh to Vyara by driving his Maruti Van bearing No.GJ-19-A-376. At that time, opponent No.1 dashed his truck bearing No.TN-23-B-7888 while driving it rashly and negligently, as a result of which, the deceased suffered grievous injuries and died during treatment. Thereafter, the appellants – original claimants have preferred a claim petition seeking compensation of Rs.50,00,000/- for unexpected death of the deceased. 5. Feeling aggrieved by and dissatisfied with the impugned judgment and order, the appellants herein have preferred present appeal seeking enhancement of the compensation. 6. Shri Hiren Modi, learned advocate appearing on behalf of the appellants – original claimants has submitted that the learned Tribunal has committed an error in awarding 30% prospective income instead of 50% as held in the decision of Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 6 Supreme Court Cases 121. He has also submitted that the learned Tribunal has also committed an error in deducting 1/3rd of his income for his personal and living expenditure instead of 1/4th as there were total five claimants. Shri Modi has also argued that considering the ratio laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Supra), the learned Tribunal has committed an error in applying the multiplier of 15 and Page 3 of 8

C/FA/869/2014 JUDGMENT therefore also the judgment and award passed by the learned Tribunal is required to be modified. 7. On the other hand, Shri GC Mazmudar, learned advocate appearing on behalf of respondent No.3 – original opponent No.3 – insurance company of the offending truck has submitted that the learned Tribunal has not committed any error and thereby he has supported the judgment and award passed by the learned Tribunal. 8. Heard the learned advocates appearing on behalf of the respective parties at length. We have also gone through the impugned judgment and award as well as the material which was made available to us during the course of hearing of present appeal. 9. On the point of negligence, the evidence on record clearly indicates the collision between the Maruti Van bearing No.GJ-19-A-376, which came to be driven by the deceased and the truck bearing No.TN-23-B-7888, which came to be driven by opponent No.1. Indisputably, both the vehicles were proceeding in opposite direction to each other. Indisputably, there was a head on collision between the aforesaid both the vehicles involved in the accident and the Panchnama of scene of incident clearly indicates the total damage on the front portion of both the vehicles. In that view of the matter, the learned Tribunal, after appreciation of evidence on the record, clearly recorded the finding of contributory negligence on the part of both the vehicles and was pleased to apportion 50% upon the drivers of each vehicle. On our perusal of the evidence on record, we have also noticed the same scenario Page 4 of 8

C/FA/869/2014 JUDGMENT which is emerging out from the evidence on the record and the learned advocates appearing on behalf of the respective parties have also not disputed the finding recorded by the learned Tribunal so far as the contributory negligence is concerned. Therefore, this point is not required to be dealt with. 10. We may now proceed to determine as to whether the compensation awarded by the learned Tribunal under various heads is just and fair compensation within the meaning of Section 168 of the Motor Vehicles Act, 1988 as well as the compensation is in consonance with the rule of thumb laid down by the Hon'ble Supreme Court in the decision of Sarla Verma (Supra). With broad consensus of the learned advocates appearing on behalf of the respective parties and as the main issue involved in the present appeal is with regard to quantum only and there is no dispute with regard to the negligence much less contributory negligence and as the learned advocates appearing on behalf of the respective parties have not challenged the finding with regard to the negligence, the only question which arise before this Court is as to whether the learned Tribunal has committed any error in awarding 30% prospective income instead of 50% and also the learned Tribunal has committed an error in deducting 1/3rd share of his income instead of 1/4th for his personal and living expenditure and also in adopting the multiplier considering the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Supra) ? 11. The learned Tribunal, while arriving at the finding with regard to the age of the deceased, has relied upon the Page 5 of 8

C/FA/869/2014 JUDGMENT documentary evidence in the nature of income-tax returns as well as the approximate age mentioned in the inquest panchnama as well as P.M. Report. The aforesaid documentary evidences disclosed the age of the deceased to be 32 years. The learned advocate appearing for the insurance company has not disputed this fact and consequently, therefore, the learned Tribunal has rightly recorded the finding as regard the age of deceased to be 32 years. The evidence in the nature of return of income-tax came to be produced on record during the course of adducing the evidence which, as observed by the learned Tribunal, indicates his income to be Rs.5,000/- per month. In that view of the matter, the income of deceased is proved to be Rs.5,000/- per month month and Rs.60,000/- per annum. It appears that the learned Tribunal has, while assessing the dependency benefit, fallen in error in considering the prospective income at 30% instead of 50% as laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Supra) as the deceased was aged about 32 years at the time of his death. In that view of the matter, 50% of the aforesaid monthly income of Rs.5,000/- is required to be added, which comes to Rs.7,500/- per month as the prospective income (Rs.5,000 + Rs.2,500 = Rs.7,500/-). Out of the aforesaid prospective income, the personal and living expenditure of the deceased is required to be deducted. If the deceased would have alive, he would have spent nearly 1/4th of his income as laid down in the aforesaid decision of Sarla Verma (Supra) as there were five claimants. If 1/4th share from his income is deducted, the annual dependency income of the deceased comes to Rs.67,500/- (Rs.7,500/- minus Rs.1,875/- = Rs.5,625/- x 12 = Rs.67,500/-). As the deceased was aged 32 years at the Page 6 of 8

C/FA/869/2014 JUDGMENT time of accident, as per the decision of Sarla Verma (Supra), the multiplier of 16 is required to be applied. Thus, the amount of dependency would come to Rs.10,80,000/- (Rs.67,500/- x 16 = Rs.10,80,000/-). 12. Over and above the aforesaid amount of pecuniary damages, the original claimants are entitled to the non- pecuniary damages such as loss of consortium at Rs.10,000/-, loss of estate at Rs.10,000/- and Rs.5,000/- for funeral expenses. The judgment and award of the learned Tribunal is modified to that extent also. Thus, the claimants are entitled to the compensation of Rs. 11,05,000/- instead of Rs.8,94,400/- as awarded by the learned Tribunal and considering the contributory negligence of the deceased himself to the extent of 50%, the amount of compensation is required to be sliced down to that extent. Thus, the appellants – original claimants are entitled to the compensation of Rs.5,52,500/-. 13. For the reasons recorded hereinabove, the appeal is partly allowed. The judgment and award dated 27th February 2013 passed by the learned Tribunal in Motor Accident Claim Petition No.1136 of 2001 is hereby modified to the extent of enhancing the total amount of compensation from Rs. 4,47,200/- (Rupees Four Lakhs Forty-seven Thousand Two Hundred only) to Rs.5,52,500/- (Rupees Five Lakhs Fifty-two Thousand Five Hundred only). The rest of the judgment and award passed by the learned Tribunal is hereby confirmed. 14. The insurance company is directed to deposit the enhanced amount of compensation within a period of 30 days Page 7 of 8

C/FA/869/2014 JUDGMENT from today before the learned Tribunal. On such deposit, the learned Tribunal is directed to invest and disburse the said amount in terms of the award passed by it. (M.R.SHAH, J.) (R.P.DHOLARIA,J.) Jani Page 8 of 8