The Commissioner of Income Tax - II vs. Shri Shikari Vishwanatam

C/FA/534/2013 ORDER DATED: 24/12/2021 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 534 of 2013 ==================================================== VANDANABEN TARUNKUMAR SHAH Versus ARVINDBHAI BHANABHAI PATEL & 3 other(s) ==================================================== Appearance: MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1 MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3 RULE SERVED(64) for the Defendant(s) No. 1,2,4 ==================================================== CORAM: HONOURABLE MR. JUSTICE NIRAL R. MEHTA

Date : 24/12/2021 ORAL ORDER 1) Being aggrieved and dissatisfied with the judgment and decree dated 03.11.2012 passed by the Motor Accident Claims Tribunal (Aux), at Vadodara in Motor Accident Claims Petition No. 47 of 1994, the appellant-original claimant has preferred this first appeal under Section 173 of the Motor Vehicles Act, 1988 ( “the Act, 1988”, for short). 2) The original claim of the claimant was of Rs.2,00,000/-, however, the Tribunal has awarded sum of Rs.69,200/- and has deducted 20% of the amount as negligence on the part of the claimant, which comes to Rs.13,840/- (20% negligence), and thereby finally awarded Rs.55,360/- under the different heads with 7.5% interest p.a, as under:- Page 1 of 7

C/FA/534/2013 ORDER DATED: 24/12/2021 Sr. No. Particulars Rupess 1 Towards loss of actual income Rs.6,000 2 Towards Mental pain shock and suffering Rs.15,000 3 Towards Medicines Rs.2,000 4 Towards diet and Transportation and Attendant Charges Rs.3,000 5 Towards future loss of income Rs.43,200 Total Rs.69,200 Tribunal awarded (20% deducted as a negligence on the part of the claimant) Rs.55,360/- with interest at the rate of 7.5% 3) As per the case of the claimant, on 29.10.1993 at 12:20 pm, while she was traveling on motorcycle bearing registration number GBP-6400 as a pillion driver with her daughter-Pukhuri and her husband-Tarun Kumar. While passing through Sarabhai Chemicals, one car bearing registration No. GJ-5-A-4967 was being driven in rash and negligent manner and dashed behind the motorcycle. Due to which, all passengers of motorcycle fell down and received multiple injuries. However, the claimant has received serious injuries on her body such as multiple fractures. Considering the above, the claimant has approached the Tribunal by way of filing an application under Section 166 of the Act, 1988, seeking, inter alia, the compensation of Rs.2,00,000/- under the various heads. Page 2 of 7

C/FA/534/2013 ORDER DATED: 24/12/2021 4) Upon service of notice, the original opponents Nos. 1 and 2 (driver and owner of offending vehicle) appeared and filed their joint written statement at exh: 21. The opponent No. 3-Insurance Company has filed its written statement below exh: 16 and contested the claim petition. 5) The opponent No. 4, the driver of the motorcycle also appeared and filed the written statement below exh: 19. The Tribunal, after having considered the evidence produced on record, awarded the compensation of Rs.69,200/- under the various heads. However, the Tribunal also held the driver of the motorcycle as negligent to the extent of 20%. Thus, the final award, which was granted to the present claimant was at Rs.55,360/- with 7.5% interest. 6) Being aggrieved by the aforesaid, the appellant-original claimant is before this Court by way of this first appeal, inter alia, for enhancement of compensation as well as disputing the negligence attributed to the driver of the motorcycle. 7) I have heard Mr. Mohsim Hakim, the learned Counsel appearing for the appellant and Mr. Palak Thakkar, the learned counsel appearing for the respondent No.3-Insurance Company. Page 3 of 7

C/FA/534/2013 ORDER DATED: 24/12/2021 8) Mr. Hakim, mainly submitted that the Tribunal has committed serious error in awarding compensation on a lower side without appreciating the evidence in its true perspective. 9) Mr. Hakim, has sought to rely upon the Income Tax Returns (ITRs) so as to contend that the Tribunal should have granted the compensation on the basis of considering the income as per the ITRs. 10) Mr. Hakim, further submitted that the Tribunal should not have held the driver of the motorcycle as negligent to the extent of 20%, more particularly, when the driver of the car i.e. GJ-5-A-4967 has not been examined. Mr.Hakim, therefore, urged this Court to enhance the compensation suitably and further requested to exonerate the respondent No. 4-driver of the motorcycle from 20% negligence. 11) Per contra, Mr. Palak Thakkar, the learned counsel appearing for the Insurance Company has vehemently opposed the first appeal and has contended that the Tribunal was well justified in awarding the compensation as well as in holding the contributory negligence between two offending vehicular.

12) Mr. Thakkar, submitted that so far as quantum is concerned, the claimant has not produced any ITRs as sought to be relied upon by the Tribunal and at this stage cannot be looked into. Mr. Thakkar, submitted Page 4 of 7

C/FA/534/2013 ORDER DATED: 24/12/2021 that looking to the FIR and the panchnama, the Tribunal was justified in holding both the drivers for the accident as contributory negligent to the extent of 80% and 20%. Mr. Thkkar, lastly submitted that in view of the aforesaid this appeal does not require any interference by this Court and prayed to dismiss the same. 13) I have heard the learned counsel appearing for the respective parties. No other submissions have been made by the respective parties. 14) Having gone through the evidence on record, in my considered opinion, so far as the question with regard to the quantum is concerned, no infirmities or illegality committed by the Tribunal as the Tribunal has rightly assessed the income of the claimant at Rs.18,000/- p.a. in absence of any evidence that was produced on record and the same is found to be in consonance with schedule of daily-wages parameter at the time of accident. 15) I am of the further opinion that the ITRs, which was sought to be relied upon by the learned counsel during the hearing of this first appeal would not be appropriate to be considered and therefore cannot find fault with the Tribunal. Even otherwise, looking to the date of the accident, the Tribunal has assessed Rs.18,000/- p.a. as a national income, according to me justified and requires no interference as being just and proper. Page 5 of 7

C/FA/534/2013 ORDER DATED: 24/12/2021 Looking to the injury certificate as well as medical evidence, the compensation under the head of pain, shock and sufferings at Rs.15,000/- appears to be justified and thus does not require any interference. So far as the aspect of quantum of contributory negligence is concerned, in my view, the Tribunal has committed an error in holding the driver of the motorcycle as negligent to the extent of 20%. More so, when the driver of the other offending vehicle being GJ-5-A-4967 was not at all examined and therefore, in my view, the Tribunal should not have, on presumption, held the driver of the motorcycle as negligent about the accident. As per the settled law, in absence of any evidence of the driver of the offending vehicle, adverse inference requires to be drawn. Thus, according to me, when the driver of the motorcycle has deposed that the car bearing GJ-5- A-4967 dashed behind the motorcycle and was duly cross-examined, the Tribunal should not have ignored the oral evidence of the respondent No.4 i.e. the driver of the motorcycle. Accordingly, in my considered opinion, the Tribunal has erred in holding the driver of the motorcycle as negligent to the extent of 20%. Thus, looking to the oral evidence, I am of the firm belief that the entire negligence should have been attributed to the driver of the car (i.e. registration No. GJ-5-A-4967). 16) In view of the aforesaid discussion, the award of the Tribunal deserves to be modified to the extent as stated above. Accordingly, I hold Page 6 of 7

C/FA/534/2013 ORDER DATED: 24/12/2021 the driver of the car (i.e. registration No. GJ-5-A-4967) as a sole responsible. For the reasons stated herein above, the appeal is allowed partly. The Insurance Company is hereby directed to deposit sum of Rs.13,840/- with the interest at the rate of 7.5% within the period of eight weeks from the date of receipt of the order of this Court before the Tribunal concerned and the Tribunal shall disburse the same to the original claimant by paying account payee cheque after due and proper verification. Record and Proceedings be sent to the Tribunal concerned. (NIRAL R. MEHTA,J) VISHAL MISHRA Page 7 of 7