THE COMMISSIONER OF INCOME TAX-IV vs. MR. V. SOMASHEKAR

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 445 of 2015 With R/FIRST APPEAL NO. 952 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

and HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

========================================================== 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 ? ========================================================== DARPANABEN JIGNESHBHAI PATEL Versus RAFIKBHAI SIDIKBHAI JETHWA & 2 other(s) ========================================================== Appearance: MR EKANT G AHUJA(5323) for the Appellant(s) No. 1 RULE SERVED for the Defendant(s) No. 1,2,3 MR HG MAZMUDAR for Appellant in FA No. 952/15 ========================================================== CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 16/03/2022

ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) Page 1 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 1. Feeling aggrieved and dissatisfied by the judgment and award dated 05.01.2015 passed by Motor Accident Claims Tribunal(Aux), City Civil Court, Ahmedabad, in MACP No. 264 of 2010, the original claimant has preferred First Appeal No. 445 of 2015, whereas the insurance Company has preferred First Appeal No. 952 of 2015 under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act"). 2. The following facts emerge from the record of the appeals- 2.1 That the accident took place on 25.07.2009 at about 8.30 PM. It is the case of the claimant that her husband Jigneshbhai Natvarlal Patel along with his friend Hitesh Chinubhai Patel were traveling in Hyundai Verna car bearing registration no. GJ-1-HN- 3030, with his friend Jigneshbhai N. Patel and they went to Sarangpur for darshan of Lord Hanuman. It is the case of the claimant that at about 8.30 PM, when the said Hyundai car being driven by her husband Jigneshbhai reached Fedra Bagodara Road, one truck bearing registration no. GJ-11X-8872 was found parked in the middle of the road without any indication of rear lights or any reflectors or obstacles and ultimately, the driver of the Hyundai car could not see the truck due to the darkness of the night and dashed with the parked car from behind. As the record unfolds, Jigneshbhai received serious injuries on various parts of her body and he was taken to the Page 2 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 RMS Hospital, Dhandhuka and thereafter to Sterling Hospital, Ahmedabad. He was treated and operated for brain surgery and an iron rod was inserted in left hand and an iron rod was inserted and rice tube for food and catherer was placed. He was discharged from Hospital on 27.08.2009. He sustained severe injuries on left side of the brain - tempro paratile hemorrhage and intro-ventricular hemorrhage and on his left left fractures of radius. An FIR was lodged with Dholera Police Station being I-CR No. 32/09 and the present claim petition was filed by the appellant-original claimant and claimed compensation of Rs. 30,00,000/-. 2.2 It was the case of the original claimant that her husband Jigneshbhai was 38 years old on the date of the accident and was in the business of share market and was earning Rs.2,50,000/- p.a. from it. It was also the case of the original claimant that Jigneshbhai also had ancestral land from which he was earning Rs.50,000/- from agriculture and it was the say of the original claimant in the claim petition that her husband Jigneshbhai was earning approximately Rs.3,00,000/- p.a.. The Claimant also relied upon documentary evidence such as FIR at exhibit 57, panchnama of the place of accident at exhibit 58, copy of the report of Sterling Hospital at exhibit 44, discharge summary of sterling hospital at exhibit 45 and 46, judgment of Judicial Magistrate, Dhandhuka in CC. No. 1400/2010 at exhibit 51, disability certificate issued by Dr. Dhiren S. Zaveri, Dr. Balkishan N. Desai and Dr. Aditya Page 3 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 Upadhyay at exhibit 30, 25 and 31 respectively and medical bills of Sterling Hospital, Krishna Home Health Care Services and other bills along with various other documents. 2.3 The Tribunal after considering the manner in which the accident had occurred in the panchnama at exhibit 58, came to the conclusion that the driver of both the vehicles were negligent in causing the accident and attributed negligence in the ratio of 70:30 between the driver of the truck and driver of Hyundai car. The Tribunal after considering the evidence on record, determined the income of the deceased at Rs.10,000/- per month and considering 40% disability of the body as a whole, and applying multiplier of 15, considering the age of Jigneshbhai to be 39 on the date of the accident. Thus, the Tribunal awarded a sum of Rs. 7,20,000/- towards future loss of income. Over and above the same, the Tribunal also awarded additional compensation of Rs. 30,000/- under different conventional heads, Rs. 6,34,000/- towards medical bills and Rs. 20,000/- towards actual loss of income for 2 months and thus, awarded total compensation of Rs.14,04,000/- and after deducting 30% towards negligence, which partly allowing the claim petition, awarded net compensation of Rs.9,82,000/- and with 9% interest from the date of the claim petition till its realisation. Being aggrieved by the same, as aforesaid, the claimant as well as the insurance company have preferred this cross appeals. Page 4 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 3. Heard Mr. Ekant Ahuja, learned advocate for the original claimant and Mr. H.G. Mazmudar, learned advocate for respondent No.3. Though served, no one appears for the other respondents. 4. Mr. Ahuja, learned advocate appearing for the appellant-original claimant contended that the Tribunal has wrongly assessed the income of the appellant-original claimant at Rs.10,000/-. Relying upon the income tax return at exhibits 37 and 38 for the year 2006-2007 and 2007-2008, it was contended by Mr. Ahuja that even if the said income tax returns which are prior to the accident are taken into consideration, the income of the husband of the claimant would come to Rs.15,000/-. Relying upon the the deposition of Chullikartley Ayyapan Faijivi, the Income Tax Inspector at exhibit 36, it was contended by Mr. Ahuja that the income as reflected in the Income Tax returns at exhibit 37 and 38 have been proved beyond any doubt. It was also contended that the income tax officer who was examined by the original claimant was cross-examined, however, nothing contrary could be culled out by the Insurance company. Mr. Ahuja further contended that the Tribunal has committed an error in appreciating the oral evidence of Dr. Balkishan N. Desai at exhibit 25, and has wrongly assessed the disability of the body as a whole at 40%. According to Mr. Ahuja, because of the serious injuries sustained by the appellant, he is not in a position to work at all. To buttress the said argument, the learned counsel for the appellant has relied upon the oral evidence Page 5 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 of Dr.Aditya Upadhyay at exhibit 32. Mr. Ahuja further contended that the Tribunal has also committed an error in coming to the conclusion that the driver of Hyundai Verna car was negligent to the extent of 30%. According to Mr. Ahuja, the truck being parked on the middle of the road, that too at night at 8.30 hrs. without any reflectors or any indication and therefore, the driver of the truck is required to be held solely negligent. On the aforesaid grounds, Mr. Ajuha contended that the appeal filed by the claimant deserves to be allowed whereas the appeal filed by the insurance company of the truck deserves to be dismissed. 5. Per contra, Mr.H.G. Mazmudar, learned advocate for the insurance company of the truck contended that as such, there is no loss of income to the original claimant and there is nothing on record to show that because of the injuries sustained in the accident, the claimant is not able to work and his income has lowered down. Mr. Mazmudar further contended that the Tribunal has committed no error in determining the income of the deceased at Rs.10,000/-. Referring to the very evidence of income tax returns at exhibit 37 and 38, it was contended by Mr. Mazmudar, learned counsel appearing for the insurance company of the truck that the Tribunal has rightly assessed the income of the original claimant at Rs.10,000/- and no modification is required. Mr. Mazmudar referred to the panchnama at exhibit 58 and contended that it has come on record by way of the evidence that the truck was not parked on the middle of the road, but was on Page 6 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 the left side and only because no reflectors or indication was there, the manner in which the accident has occurred and more particularly considering the damage to the Hyundai car, which is evident from the panchnama itself, clearly proves that the car was being driven in rash and negligent manner and dashed with the stationary truck from behind. According to Mr. Mazmudar, the driver of the truck and the motor car were equally negligent. Mr. Mazmudar also contended that in fact, even before the Tribunal, the original claimant has admitted the fact that drivers of both the cars were negligent and therefore, the conclusion arrived at by the Tribunal, being erroneous, deserves to be modified by allowing the appeal filed by the insurance company. Mr. Mazmudar submitted that the appeal filed by the claimant deserves to be dismissed whereas the appeal filed by the insurance company deserves to be allowed by modifying the award. 6. No other or further submissions, grounds or contentions have been raised by the learned counsel appearing for the parties. 7. Upon considering the submissions made and the original record and proceedings, the following questions for arise for determination in these appeals - 1) Whether the Tribunal has committed any error in assessing the disability of the appellant at 40% of the body as a whole? Page 7 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 2) Whether the Tribunal has committed any error in determining the income of the original claimant at Rs.10,000/- or not? 3) Whether the Tribunal has committed any error in coming to the conclusion that the drive of the truck was negligent to the extent of 70% whereas the driver of the Hyundai car involved in the accident was negligent to the extent of 30% or not? 4) Whether the Tribunal has correctly assessed the compensation under the head of pain, shock and suffering or not? 8. Upon re-appreciation of the evidence of Dr. Balkishan N. Desai at exhibit 25 and Dr. Dhiren S. Zaveri at exhibit 30 as well as the oral deposition of Dr. Aditya Upadhyay at exhibit 32, it clearly appears that because of the injuries sustained in the accident, the upper limb of the body of the original claimant is affected. We find that the Tribunal has correctly assessed the permanent disability of the body as a whole at 40%, which does not require any modification. Hence, the contention raised by the learned counsel for the original claimant on the aspect of disability deserves to be negatived. 9. Upon re-appreciation of the evidence at exhibit 37, which pertains to the assessment year 2006-2007, it clearly shows that the taxable income is Rs.1,21,140/- whereas as per the income tax return at exhibit 38, which pertains to assessment year 2007- Page 8 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 2008, the annual taxable income is Rs.131,030/-. Upon re-appreciation of the evidence on record and considering the statement of income and mean of two years is taken into consideration, the same comes to Rs. 1,81,821/-. Hence, the average income can safely be assessed at Rs.15,000/- per month. The contention raised by Mr. Mazmudar that there is no loss of income is contrary to the record of the appeal. Even considering the cross-examination of the original claimant as well as cross-examination of the income tax officer, nothing contrary is found and therefore, the contention raised by Mr. Mazmudar that there is no loss of income at all the to the original claimant is without any basis and the same deserves to be negatived. 10. We find that the Tribunal has upon correct appreciation of the evidence on record, granted compensation under medical bills reimbursement. However, considering the excessive treatment, which was required by the appellant, we find that the Tribunal has awarded less amount under the head of pain, shock and suffering and upon re-appreciation of the evidence on record, we deem it fit to increase it to Rs.25,000/- from Rs.15,000/- to arrive at just and adequate compensation. 12. Upon appreciation of the manner in which the accident has occurred, it is proved beyond doubt that the truck was parked on the highway, that too at night hours at about 8.30 hrs. without any sign, reflector or obstacle because of which the accident Page 9 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 occurred. However, considering the panchamana of the scene of the accident at exhibit 58, and the FIR at exhibit 57, considering the damage caused to the Hyundai car, it clearly bornes out that the Hyundai car was also being driven at higher speed because of which before the car could be stopped, it dashed with the stationary truck and therefore, the conclusion arrived at by the Tribunal that the drivers of both the vehicles, i.e., truck and hyundai car are negligent is correct. However, upon re-appreciation of the evidence on record, we deem it fit to hold that the driver of the truck was more negligent to the extent of 80% whereas the driver of the hyundai car was negligent to the extent of 20%. The questions for determination raised in these appeal are answered accordingly. 11. Having come to the aforesaid conclusion therefore, the appellant-original claimant would be entitled to compensation under the head of future loss of income as under - Rs.15,000/- (income) X 40% disability = Rs. 6,000/- X 12 X 15 (multiplier) = Rs. 10,80,000/- The appellant-original claimant would be entitled to compensation as under - Future Loss of Income - Rs.10,80,000/- Pain shock and suffering - Rs. 25,000/- Special diet, transportation- Rs. 15,000/- Medical Bills - Rs.6,34,000/- Actual Loss of income - Rs. 30,000/- -------------- Page 10 of 11

C/FA/445/2015 JUDGMENT DATED: 16/03/2022 Rs.17,84,000/- - 20% Self negligence Rs. 3,56,800/- -------------- Rs.14,27,200/- ============== 12. Thus, the original claimant would be entitled to compensation of Rs.14,27,200/-. As the Tribunal has awarded Rs. 9,82,800/- the original claimant would be entitled to additional compensation of Rs.4,44,400/-. However, such additional amount of compensation shall bear interest at the rate of 6% p.a. from the date of filing of the claim petition till its realisation. The Insurance Company shall deposit the additional amount as awarded by this Court along with interest and proportionate cost with the Tribunal within a period of eight weeks from the date of receipt of this judgment and order. Thus, the appeal being First Appeal No.445 of 2015 filed by the original claimant stands allowed and the appeal being First Appeal No. 952 of 2015 filed by the insurance company of the truck is dismissed. The impugned judgment and award is modified accordingly. However, there shall be no order as to costs in these appeals. Record and proceedings be transmitted back to the Tribunal forthwith. (R.M.CHHAYA,J) (HEMANT M. PRACHCHHAK,J) BIJOY B. PILLAI Page 11 of 11