Commissioner of Income Tax-II, Visakhapatnam. vs. Navya Wines, Rajam,

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 353 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-

========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? No ========================================================== SHANTUBHAI KARSHANBHAI RAJGOR Versus JAGDISHBHAI GIRDHARBHAI MARTHAK & 2 other(s) ========================================================== Appearance: MR AM PAREKH(562) for the Appellant(s) No. 1 for the Defendant(s) No. 3 MR ANAL S SHAH(3988) for the Defendant(s) No. 3 MS MEGHA JANI(1028) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 18/10/2022

ORAL JUDGMENT Page 1 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 7.7.2005 passed by the learned Motor Accident Claims Tribunal (Aux.), 8th Fast Track Court, Rajkot in Motor Accident Claims Petition No.82 of 1996, the appellant has preferred present First Appeal for enhancement of the compensation amount awarded by the learned Tribunal. 2. The brief facts giving rise to present first appeal are as under:- 2.1 On 3.1.1996 at about 17.15 hours, the appellant was driving the vehicle being Luna Moped bearing registration No.GJ-3-L-8659. When he reached Sant Kabir Road, Rajkot at that time, from the wrong side, the opponent No.1 came with the vehicle being Luna Moped bearing registration No. GJ-3-B-1343 in rash and negligent manner and dashed with the Luna Moped of the appellant. 2.2 As a result of which, the appellant has sustained Page 2 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 severe injuries on his body. Firstly he was taken to the Government Hospital Rajkot and thereafter, he was shifted to Private Hospital Rajkot, whereby he was taken treatment as an indoor patient and he was also undergone for various treatments. He was hospitalized for a period of 21 days. 2.3 In view of the above, facts the appellant has filed Motor Accident Claims Petition No.82 of 1996 before the Motor Accident Claims Tribunal (Aux.), 8th Fast Track Court, Rajkot for the compensation to the tune of Rs.4,00,000/-. 2.4 The learned Tribunal after evaluating the evidence placed on record and after taking into account the material available on record has passed the impugned judgment and award dated 7.7.2005 and awarded Rs.1,06,134/- towards compensation to the present appellant. 2.5 Being aggrieved and dissatisfied with the amount of Page 3 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 compensation awarded by the learned Tribunal, the appellant has filed present First Appeal for enhancement of the compensation amount. 3. Learned advocate for the appellant has submitted that the learned Tribunal has not properly determined the income of the present appellant while awarding the compensation. He further submitted that the learned Tribunal has also committed an error by not awarding just and adequate compensation. He submitted that the learned Tribunal has considered 1/3rd negligency on the part of the present appellant – original claimant and 2/3rd on the part of the other vehicle involved in the accident, which is not proper. He therefore, submitted that the present appeal may be allowed and the compensation awarded by the learned Tribunal may be enhanced. 4. On the other hand, learned Counsel appearing for the respondent has supported the impugned judgment and award passed by the learned Tribunal. He has submitted that after taking into account all the relevant aspects and Page 4 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 after evaluating all the evidence in proper manner, the learned Tribunal has passed the impugned judgment and award. He has further submitted that after applying its mind in proper manner, the learned Tribunal has passed the impugned judgment and award. He has submitted that looking to the facts and circumstances of the case, there is no need to interfere with the impugned judgment and award passed by the learned Tribunal. Hence, present First Appeal may be dismissed. 5. I have heard the learned Counsels appearing for both the sides and also perused the material available on record of the First Appeal and the impugned judgment and award passed by the learned Tribunal. 6. Looking to the facts and circumstances of the case, it appears that the amount which is awarded under the head of pain shock and suffering is not in consonance with the evidence on record. 7. In view of the above and in view of the recent judgments of Hon’ble Apex Court in case of Sarla Page 5 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680, the learned Tribunal has to award the just and adequate compensation. Therefore, just and adequate compensation is required to be awarded. 8. The appellant original claimant was running a Matador in the milk produce cooperative society and he was doing transportation work in the milk produce cooperative society. 9. Further, in the deposition of the witness at Exhs. 75 and 76 it has been clearly deposed before the learned Tribunal that the appellant was Manager in the milk produce cooperative society and he is managing the affairs of the cooperative society for the year 1995-1996. It also reveals from the record that the appellant original claimant was working for the milk produce co-operative society and after deducting the income tax and necessary Page 6 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 deduction under the head of standard deduction, he was paid Rs. 1,55,869/- for the year 1995. Though, there is clear evidence come on record before the learned Tribunal, the learned Tribunal has ignored the fact mainly on the ground that the income tax return was not produced and has considered only Rs.3,000/- towards the monthly income of the appellant, which is erroneous and incorrect. 10. It is appropriate to consider Rs.5,000/- towards the monthly income and the permanent partial disablement caused to the original claimant @ 18%. Further, the future prospective income was also not considered properly by the learned Tribunal and that is also required to be considered. As per the settled principle of law by the Hon’ble Apex in the case of recent judgment of Hon’ble Apex Court in case of Sarla Verma (supra) and Pranay Sethi (supra), 40% rise in the future prospective income is to be considered in the present case. As the appellant was sustained permanent partial disablement on his left leg, therefore, now he is not able to drive the Page 7 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 vehicle due to his physical disablement. Therefore, the present First Appeal deserves to be allowed in part. 11. It is also relevant to note herein that the F.I.R. was registered against the driver of the offending vehicle involved in the accident. There was collision between two Luna Mopeds. 12. Further, learned Tribunal has also committed an error by considering 1/3rd negligency on the part of the appellant, though it was recorded that the moped of the present appellant was found on the left side of the road and the road was 60 feet and therefore, it seems that the offending vehicle coming from the opposite side has without taking any proper caution and care has dashed with the Luna Moped of the present appellant. Therefore, the learned Tribunal has committed an error by considering 1/3rd negligency i.e. 35% on the part of the appellant. The learned Tribunal has also committed an error by evaluating the evidence of the panchnama, which was on record. Therefore, considering the overall aspects, Page 8 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 present appellant is entitled to get additional compensation 13. Considering the fact that the negligency considered by the learned Tribunal @ 35% on the part of the present appellant original claimant and also considering the discussions made in paragraph No.8, more particularly the exh.50, the panchnama of the place of accident, the learn Tribunal has committed an error and therefore, this Court is of the opinion that instead of 35%, 25% negligency is to be considered on the part of the appellant. 14. Therefore, on overall view of the matter, I am of the opinion that the claimant is entitled for the following compensation: Rs. 5,000 (Income) + Rs. 2,000 (prospective 40%) -------------- = Rs. 7,000 -------------- 1,260 18% Disability x 12 Months -------------- Rs. 15,120 x 15 Multiplier Page 9 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 ------------------- Rs. 2,26,800 + Rs. 50,000 Pain, shock and suffering + Rs. 50,000 Medical treatment ------------------- Rs. 3,26,800 Rs. 1,06,134 Awarded by the learned Tribunal ------------------- Rs. 2,20,666/- Enhanced Compensation for claimant. 15. Hence, in view of the aforesaid discussion, the claimant is entitled to receive the enhanced compensation to the tune of Rs. 2,20,666/- with 6% interest from the date of application till realization. 16. Therefore, the present appeal is partly allowed to the aforesaid extent. The impugned judgment and award dated 7.7.2005 passed by the learned Motor Accident Claims Tribunal (Aux.), 8th Fast Track Court, Rajkot in Motor Accident Claims Petition No.82 of 1996 is hereby modified to the aforesaid extent. 17. The insurance company is hereby directed to deposit the enhanced amount of compensation of Rs. 2,20,666/- with 6% interest within period 8 weeks from the date of Page 10 of 11

C/FA/353/2006 JUDGMENT DATED: 18/10/2022 receipt of certified copy of present order. 18. After the amount of enhanced compensation is deposited by the insurance company, the learned Tribunal is directed to disburse the enhanced compensation in favour of the claimant after verifying bank details of the claimant through R.T.G.S. only. If any deficit Court Fees is required to be paid by the claimant, the same may be deducted from the enhanced compensation. 19. The present First Appeal stands disposed of accordingly. No order as to costs. 20. Record and proceedings be sent back to the concerned Tribunal forthwith. Sd/- (HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 11 of 11