TARABEN VASANJI BALDANIYA vs. THE UNITED INDIA INSURANCE COMPANY LTD.

C/FA/2744/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2744 of 2006 With CROSS OBJECTION NO. 92 of 2008 In FIRST APPEAL NO. 2744 of 2006

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 ? ================================================================ THE UNITED INDIA INSURANCE COMPANY LTD Versus TARABEN VASANJI BALDANIYA & 7 ================================================================ Appearance: MR MAULIK J SHELAT, ADVOCATE for the Appellant MR CH VORA, ADVOCATE for the Respondents ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Page 1 of 9

C/FA/2744/2006 JUDGMENT and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 28/01/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) Page 2 of 9

C/FA/2744/2006 JUDGMENT [1] By way of this appeal, the appellant – Insurance Company has challenged the judgment and award dated 06.08.2005 passed by learned Motor Accident Claims Tribunal, Kutch at Bhuj in Motor Accident Claims Petition No.733 of 1999, wherein the Tribunal has awarded compensation of Rs.20,60,000/- along with interest at the rate of 9% per annum from the date of application till realization from original opponents No.1 and 2. [2] Facts leading to filing of the case are that on 28.03.1995 deceased Visanjibhai Valjibhai Baldania was coming from Gandhinagar toward his native place Adipur by driving a jeep No.GJ-9- B-1132. At that time, at about 16.00 hours, when he reached near Samaliyali Railway Crossing, a tanker No.GQY-4177 came from opposite direction in excessive speed due to which the tanker collided with the jeep being driven by the deceased. The driver of the tanker was driving the said tanker recklessly and negligently and due to which vehicular accident took place, as a result of which, Visanjibhai sustained grievous injuries and he succumbed to injuries. Therefore, the claimants being legal heirs and representative of deceased have filed the aforesaid petition under Section 166 of the Motor Vehicles Act. [3] The Tribunal after hearing learned advocates for the parties and after perusing the record, decided the said claim petition and passed the judgment and award as stated hereinabove, against which the present appeal is preferred by the appellant-Insurance Company, questioning decision as regard to the point of negligence as well as quantum of compensation awarded to the Claimants. [4] Learned advocate appearing on behalf of the Insurance Company has questioned the judgment and award passed by the learned Tribunal on two points namely; firstly that the learned Tribunal has failed to fix the contributory negligence on the part of the victim himself who was also driving the Jeep No.GJ-9-B-1132 at Page 3 of 9

C/FA/2744/2006 JUDGMENT the relevant time which has caused head on collision and secondly, the learned Tribunal has wrongly taken into consideration the income of the deceased more particularly while the Income Tax Returns produced at Exh.47 came to be filed before the Income Tax Authority after one year from the date of accident. He has contended that the learned Tribunal has also wrongly applied multiplier of 17 as the deceased was not aged about 33 years, but his age is proved to be 36 years at the time of accident. He has placed reliance on the decision of the Hon’ble Supreme Court in the case of (2008) 4 SCC 224 reported in V. Subbulakshmi and others Vs. S. Lakshmi and another and argued that the Income Tax Returns filed before the Income Tax Authority after one year from the date of accident, cannot be considered. [5] As against the aforesaid arguments, learned advocate appearing on behalf of the respondents – original claimants has supported the judgment and award passed by the learned Tribunal. He has further argued that in the cases of compensation while considering the income of the deceased some guesswork is required to be made for fixation of the income of deceased and the learned Tribunal has rightly awarded the compensation and, therefore, no interference is called for by this Court. He, therefore, urged to dismiss the present appeal. He has contended that the claimants have also preferred Cross Objection No.92 of 2008 for enhancement of compensation and claimed to award additional compensation of Rs.1,07,65,000/- in their favour. [6] We have heard learned advocates appearing on behalf of the respective parties. We have gone through the impugned judgment and award, Record and Proceedings as well as depositions of material witnesses made available to us. Page 4 of 9

C/FA/2744/2006 JUDGMENT [7] Now on the point of negligence, the question that arises for consideration by this Court is whether there was any contributory negligence on the part of the deceased, while driving his jeep at the time of accident. Regarding the negligence, the widow of deceased - Taraben Visani Badlaniya has been examined at Exh.31 as well as Bhikhubhai Naranbhai Sorathiya has been examined at Ex.52. Both these witnesses have imputed negligence on the part of the driver of the tanker bearing No.GQY-4177. On going through the oral evidence of aforesaid witnesses, admittedly, it appears that the widow of the deceased - Taraben is not an eye witness of the incident. Consequently, the only available oral evidence is of Bhikhubhai Naranbhai Sorathiya, who has visited the scene of incident soon after the accident and who has deposed upon information that he has gathered by viewing incident and the position of the vehicle as well as place of incident. Neither, the learned advocate for the claimants and owner nor learned advocate for the Insurance Company has challenged his version in the evidence. [8] Over-and-above the aforesaid oral evidence, the claimants have also tendered the documentary evidence in the nature of FIR Exh.44, panchnama of scene of incident Exh.50 as well as judgment of Summary Case No.661 of 1995 Exh.46. [9] On overall appreciation of aforesaid documentary evidence, it clearly reveals that at the time of accident, the deceased was driving his jeep on its extreme left side whereas the driver of tanker came in a very hectic speed from opposite direction and he took his tanker on wrong side, as a result of which the accident took place. Therefore, the charge-sheet was filed after the conclusion of the investigation against the driver of tanker. Thereafter, the trial was also commenced against him as he claimed to be tried in the aforesaid offence before the learned Judicial Magistrate, First Class, Bhachau wherein vide judgment and order dated 07.06.1997, the driver of the tanker namely Bhikhubhai Naranbhai Sorathiya came to be convicted. Page 5 of 9

C/FA/2744/2006 JUDGMENT [10] Against the aforesaid evidence on record, neither the driver and owner nor the Insurance Company has led any evidence in order to rebut the aforesaid evidence on record. Therefore, in absence of rebuttal evidence on record, the evidence on record clearly reveals the negligence on the part of the driver of the tanker bearing No.GQY- 4177. In the result, sole negligence on the part of the driver of the tanker proved before the Tribunal and, therefore, question does not arise for consideration of any contributory negligence on the part of the deceased. Therefore, the argument advanced by the learned advocate appearing on behalf of the Insurance Company for fixation of contributory negligence on the part of the deceased is not acceptable. [11] Now on the point of quantum of compensation as well as proper applicability of appropriate multiplier is concerned, the age of deceased is required to be ascertained. In order to prove the age of deceased, the claimants have produced the school leaving certificate of the deceased at Ex.53 which discloses his date of birth to be 17.11.1959 and the date of accident is 28.03.1995. Consequently, the age of the deceased is proved to be 35 years and 4 months. That means the deceased was in the age group of 35 – 40 years. [12] In the case of Smt.Sarla Verma and others Vs. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121, the Hon’ble Supreme Court in para-42 has observed as under. “We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for Page 6 of 9

C/FA/2744/2006 JUDGMENT 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” [13] In order to prove the income of the deceased as narrated above, the learned advocate appearing on behalf of the Insurance Company has vehemently contended that the Income Tax Returns produced vide Exh.47 should not be considered. In support of his argument, he has relied upon the decision of the Hon’be Supreme Court in the case of V. Subbulakshmi and others (supra). In view of the aforesaid decision, Income Tax Returns filed subsequent to the accident cannot be counted. In the result, the arguments advanced by the learned advocate appearing on behalf of the appellant requires consideration. [14] Over-and-above the aforesaid Income Tax Returns, the claimants, in order to prove the income of the deceased, the statement of income of deceased is also produced vide Exh.55 disclosing his annual income of Rs.96,800/-. That statement is also duly supported by the certificate issued by the Chartered Accountant which is at Exh.47, which also precisely discloses the income of deceased to be Rs.96,800/- per annum. In view of the aforesaid documentary evidence available on record, it is prudent to accept the income of deceased at the time of accident. That income is also subject to deduction of taxes. If income tax of Rs.1,368/- is deducted from the income of Rs.96,800/- then the amount comes to Rs.95, 432/-. That amount of Rs.95,432/- is rounded off which comes to Rs.96,000/- per annum. [15] In view of the ratio laid down by the Hon’ble Supreme Court in the series of decisions, the future prospective income is also required to be considered and, therefore, considering his young age of 36 Page 7 of 9

C/FA/2744/2006 JUDGMENT years, as laid down in the decision of the Hon’ble Supreme Court in the case of Smt.Sarla Verma and others (supra), 50% future prospective income is required to be added in the aforesaid income. Consequently, therefore, the annual income inclusive of future prospective would come to Rs.96,000/- + Rs.48,000/- = Rs.1,44,000/-. The deceased had two children, widow and parents, therefore, the aspect of dependency is required to be considered. Therefore, as per the ratio laid down by the Hon’ble Supreme Court in the case of Smt.Sarla Verma and others (supra), 1/4th is required to be deducted as his personal expenses from the aforesaid annual income which comes to Rs.1,44,000/- - Rs.36,000/- = Rs.1,08,000/- i.e. dependency benefits. As per the ratio laid down by the Hon’ble Supreme Court in the case of Smt.Sarla Verma and others (supra), 15 multiplier would be applicable. If we apply 15 multiplier to Rs.1,08,000/-, then the amount comes to Rs.16,20,000/- as dependency benefits. Over and above the amount of Rs.16,20,000/- as dependency benefits, the claimants are also entitled to Rs.20,000/- as loss of estate and consortium and Rs.5,000/- as funeral expenses. Thus, the claimants are entitled to get total amount of Rs.16,20,000 + Rs.20,000/- + Rs.5,000/- = Rs.16,45,000/- whereas the learned Tribunal has committed an error in considering the income of the deceased, which is on the higher side, by wrongly relying upon the Income Tax Returns which was filed subsequent to the date of accident and also adopted multiplier of 17. In view of the aforesaid reasons and findings recorded by us, the amount of compensation of Rs.20,60,000/- awarded by the learned Tribunal is required to be reduced to Rs.16,45,000/-. [16] For the reasons recorded herein above, the appeal is partly allowed. The amount of compensation of Rs.20,60,000/- awarded by the learned Tribunal is reduced / modified to the extent of Rs.16,45,000/-. Rest of the judgment and award passed by the learned Tribunal regarding disbursement and apportionment is Page 8 of 9

C/FA/2744/2006 JUDGMENT hereby confirmed. Record and Proceedings to be transmitted back to the concerned trial Court forthwith. [17] In view of the order passed in aforesaid First Appeal No.2744 of 2006, the Cross Objection No.92 of 2008 stands dismissed. (M.R.SHAH, J.) (R.P.DHOLARIA,J.)

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