SHAKUNTALABEN JASHWANTLAL JAIN vs. KANUBHAI CHUNILAL CHAUHAN (DRIVER)

C/FA/882/2008 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 882 of 2008 ========================================================== SHAKUNTALABEN JASHWANTLAL JAIN & 5 other(s) Versus KANUBHAI CHUNILAL CHAUHAN (DRIVER) & 4 other(s) ========================================================== Appearance: MR NIRAL R MEHTA(3001) for the Appellant(s) No. 1,2,3,4,5,6 DS AFF.NOT FILED (R)(71) for the Defendant(s) No. 1,2,4 MR GC MAZMUDAR(1193) for the Defendant(s) No. 3 MR HG MAZMUDAR(1194) for the Defendant(s) No. 3 MS LILU K BHAYA(1705) for the Defendant(s) No. 5 MS MEGHA JANI(1028) for the Defendant(s) No. 5 ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE V. B. MAYANI

Date : 28/02/2019

ORAL ORDER

(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)

Feeling aggrieved by and dissatisfied with the judgment and award dated 17.05.2006 passed by learned Motor Accident Claims Tribunal (Main), Dahod (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.690/2004 below Exh:130, the appellants – original claimants preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short);

C/FA/882/2008 ORDER 3. In light of the aforesaid facts and at the request of learned counsel for the appellants and both insurance companies, present appeal is taken up for its final disposal. Learned counsel for the parties have also provided the copies of evidence adduced before the Tribunal for perusal of this Court. 4. The following noteworthy facts emerge from the record of the appeal:- 4.1 That the accident occurred on 31.03.1993 when the deceased Jashwantlal Hiralal Jain was travelling in Ambassador car bearing registration No.GJ-17-9239, owned by his friend from Dahod to Vadodara. According to the claimants, Shantibhai Maganlal Mali was driving the said ambassador car and when the said car reached near Chanchelav village at about 01:00 a.m on Dahod-Godhara Highway, at that time, one motor tanker bearing registration No.GJ-17-T-4215 came from opposite side with rash and negligent manner and dashed with the Ambassador car, because of which, Jashwantlal Hiralal Jain and Shantilal Maganlal Mali sustained serious injuries and died on the spot. 4.2 Pursuant to the said accident, First Information Report (FIR) came to be lodged being C.R.No.I-28/1993 with Godhara Taluka Police Station, Dist. Panchmahals. 4.3 Therefore, the appellants being the heirs of deceased Jashwantlal Hiralal Jain filed claim petition before the Tribunal under Section 166 of the Act and claimed compensation of Rs.20,11,000/- along with 9 % interest on various grounds, wherein the Tribunal partly allowed the claim petition and awarded compensation of Rs.11,12,000/- along with interest @ 9 % p.a. from the date of filing of claim petition till its realization. 4.4 It was the case of the appellants that the deceased Jashwantlal Hiralal Jain was 46 years old on the date of accident and was doing business of transport and earning Page 2 of 7

C/FA/882/2008 ORDER Rs.25,000/- p.m. Appellant No.1 herein came to be examined at Exh:39. The appellants also adduced further documentary evidence such as bank accounts at Exhs:41 to 46 and R.T.O certificates at Exhs:102 to 105. Upon reappreciation of the evidence on record, the Tribunal determined the income of the deceased at Rs.6,000/- p.m and deducted 1/3rd towards his personal expenses and awarded Rs.10,80,000/- under the head of family dependency loss. Further, Rs.20,000/- awarded under the head of expectation of life and loss of consortium, Rs.10,000/- awarded under the head of love and affection to the children and Rs.2,000/- under the head of funeral expenses. 4.5 The Tribunal however came to the conclusion that the driver of tanker was negligent to the extent of 80 % and thus, it awarded Rs.11,20,000/- as total compensation along with interest @ 9 % p.a from the date of filing of claim petition till its realization. 4.6 Being dissatisfied with the said compensation, the appellants have filed present appeal for enhancement of compensation. 5. Learned counsel for the appellants contended as under: (i) That the Tribunal has erred in determining the income of the deceased. (ii) Relying upon the judgment of the Apex Court in the case of Shyamwati Sharma & Ors. Vs. Karam Singh & Ors. [(2010) 2 SCC 378], it was contended that while determining the income of the deceased, the amount paid towards G.P.F, life insurance, repayment of loan etc. cannot be deducted and according to learned counsel for the appellants, the Tribunal has erred in deducting such amount while determining the income of the deceased at Rs.6,000/- p.m only. Page 3 of 7

C/FA/882/2008 ORDER (iii) That the Tribunal has erred in awarding only Rs.20,000/- under the head of expectation of life and loss of consortium, Rs.10,000/- under the head of love and affection and Rs.2,000/- under the head of funeral expenses, which deserve to be suitably modified. (iv) Relying upon the panchnama of scene of accident at Exh:98 and the FIR at Exh:99 and the manner in which the accident has taken place, the Tribunal has committed an error in coming to the conclusion that the driver of tanker was negligent to the extent of 80 % and driver of ambassador car was negligent to the extent of 20 %.

Mainly on the aforementioned grounds, learned counsel for the appellants has submitted that on erroneous determination of income of the deceased, megre amount of compensation awarded under the conventional heads and therefore, the impugned judgment and award be modified by allowing present appeal, as prayed for. 6. Per contra, learned counsel for respondent Nos.3 and 5 – insurance companies respectively have supported the impugned judgment and award and submitted that, the Tribunal has rightly appreciated the evidence on record, more particularly Exhs:40 to 46 and the Tribunal has rightly come to the conclusion that in absence of any other supportive evidence, such as income tax returns and so also the oral deposition of witness of the appellants namely Ramanbhai Kacharabhai Mali at Exh:95, the Tribunal has rightly assessed the income of the deceased at Rs.6,000/- p.m. It was also contended that, even if, the age of the deceased is considered as 46 years on the date of accident, the appellants would be entitled to multiplier of only 13 instead of 15, as taken into consideration by the Tribunal. It was also contended that the date of accident being 31.03.1993, the Tribunal has rightly granted Rs.32,000/- under different conventional heads, which does not require any alteration and therefore, present appeal Page 4 of 7

C/FA/882/2008 ORDER being meritless deserves to be dismissed. No other or further submissions have been made by learned counsel for the respective parties. 7. Having considered the submissions made by learned counsel for the respective parties and on perusal of the record and proceedings as well as very observations of the Tribunal in paragraphs 24 to 26 and upon reappreciation of the documentary evidence at Exhs:43 and 44, as it is found that the Tribunal having assessed the income of the deceased at Rs.17,000/-, has deducted Rs.11,000/-, which was being paid by the deceased as monthly installment towards his loan to the bank. 8. Following the ratio laid down by the Apex Court in the cases of Shyamwati Sharma & Ors. (supra) as well as National Insurance Company Ltd. Vs. Pranay Sethi, [2017 (16) SCC 680], the income would be a gross income. The evidence on record clearly establishes the fact that the deceased was owner of two trucks and was engaged in transport business and only because no income tax return was produced on record and only because appellant No.1 in her deposition stated that she does not pay any income tax, cannot be considered to be a reason or a vital factor to even deduct Rs.11,000/- which was being paid towards installment of loan. 9. Upon reappreciation of the evidence as a whole, which was adduced by the appellants to prove the income of the deceased, in opinion of this Court, the income of the deceased would be determined at Rs.17,000/- p.m. As held by the Apex Court in the case of Shyamwati Sharma & Ors. (supra), appropriate amount towards income tax returns has to be deducted from the said income. 10. Having come to the aforesaid conclusion, the appellants would be entitled to compensation under the head of loss of dependency as under: Page 5 of 7

C/FA/882/2008 ORDER Rs.17,000/- Income P.M X 12 Months ------------- Rs.2,04,000/- Income P.A. – Rs. 68,320/- Income tax and surcharge, as calculated at the rate prevailing at the relevant time ------------- Rs.1,35,680/- P.A 11. Following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), considering the fact that the deceased was 46 years old on the date of accident and he had his own private business, the appellants would be entitled to prospective income to the tune of 25 % on net yearly income, which comes to Rs.33,920/- and thereby, yearly income would come to Rs.1,69,600/-. 12. Record further indicates that the deceased has six dependents and therefore, following the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121], there has to be deduction of 1/5th of the income towards his personal expenses and thus, the same would come to Rs.1,35,680/-. The Tribunal has applied multiplier of 15, however, considering the age of the deceased as 46 years on the date of accident and as per the judgment of the Apex Court in the case of Sarla Verma (supra), in the instant case the appellants would be entitled multiplier of 13 and thus, total dependency comes to Rs.17,63,840/-. Over and above that, the appellants would also be entitled to get additional amount of Rs.70,000/- towards conventional heads following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra). Thus, the appellants would be entitled to total compensation of Rs.18,33,840/-. 13. As the Tribunal has awarded Rs.11,12,000/-, the appellants would be entitled to get additional amount of Rs.7,21,840/- and interest at the rate of 9 % p.a. from the date of filing of claim petition till its realization. Page 6 of 7

C/FA/882/2008 ORDER 14. Hence, present appeal is thus partly allowed. The judgment and award dated 17.05.2006 passed by learned Motor Accident Claims Tribunal (Main), Dahod, in Motor Accident Claim Petition No.690/2004 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. It is clarified that respondent No.3 – The Oriental Insurance Company Ltd. and respondent No.5-National Insurance Company Ltd. are directed to deposit additional amount of Rs.7,21,840/-

before

the

Tribunal

per

share decided/determined by the Tribunal within a period of four months from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith. (R.M.CHHAYA, J) (V. B. MAYANI, J) S U C H I T (P.S) Page 7 of 7