To commissioner of income tax vs. M/s.Lakshmi Finance AND Industrial

C/FA/165/2003 ORDER DATED: 14/12/2021 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 165 of 2003 ================================================================ BHARATBHAI NATWARLAL GOR & 1 other(s) Versus SHAMBHURAMJI C RATHOD & 2 other(s) ================================================================ Appearance: DELETED(20) for the Appellant(s) No. 2 MR AM PAREKH(562) for the Appellant(s) No. 1 DISPENSED WITH for the Defendant(s) No. 1 MR AJAY R MEHTA(453) for the Defendant(s) No. 3 MR HN BRAHMBHATT(200) for the Defendant(s) No. 2 ================================================================ CORAM: HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 14/12/2021

ORAL ORDER 1. The present appeal is claimant appeal filed for the enhancement of the compensation. The appellants are the legal heirs and representative of the deceased Paragbhai who died in the vehicular accident in 25.04.1998. For the compensation of his deceased son the present appellants have preferred the Motor Accident Claim Petition No. 615 of 1998 before the learned Motor Accident Claims Tribunal, Ahmedabad. 2. After considering the oral and documentary evidence and arguments advanced by both the sides the Tribunal partly allowed the petition by awarding a sum of Rs. 3,34,000/- at the rate of 12%. Subsequently the rate of interest was brought down at the rate of 9% by filing purses. 3. The brief facts giving rise to the present appeal are as under: Page 1 of 6

C/FA/165/2003 ORDER DATED: 14/12/2021 3.1 The deceased was aged about 23 years at the time of accident and running his own toy shop. The deceased Paragbhai died in an accident on 25.04.1998 at about 10:30 PM while riding a scooter bearing registration No. GJ-1-A-4319 when he was proceeding from Naranpura vilalge to Naranpura cross roads and hit by a truck driver with his truck bearing registration No. GJ-1-U- 3390 on the back side of the scooter. It is alleged that the truck came from behind the deceased’s scooter in a rash and negligent manner at an excessive speed and hit him at his back, with the result, the deceased’s was knocked down and sustained serious head injuries to which he succumbed. It is alleged that after causing the above accident, the truck driver proceeded further in a rash and negligent manner and caused an accident with one Maruti car driver as also Maruti Zen and caused injuries to the occupants therein. It is alleged that he further caused accidental injuries to eight cyclists and then dashed with the pole at Naranpura railway crossing and thereafter dashed with the wall and turned turtle. 4. Heard learned advocates for the respective parties and perused the materials on record. 5. Learned advocate for the appellant submitted that the Tribunal, though held that the deceased Paragbhai was the victim of rash and negligent driving of the Truck bearing Registration No. GJ-01-U-3390 on 25.04.1998, erred in law and on facts in awarding only Rs. 3,34,000/- as compensation to the appellant and, thus, slicing down the claim to the tune of Rs. 11,66,000/-. He Page 2 of 6

C/FA/165/2003 ORDER DATED: 14/12/2021 has further submitted that the Tribunal did not appreciate and consider the evidence of the claimant No. 1 at Exh.32, read with Books of Accounts at Exh.35, in their proper perspective. 5.1 He has further submitted that the findings recorded in Para- 16 of the impugned judgment with the notice of the Income Tax Department at Exh-142 and that the closing down the business of krishna Toys which was carried on by the deceased Paragbhai, are extraneous and irrelevant, inasmuch as the income of the deceased Paragbhai and payment of Income Tax are duly proved and if the service of the notice of Income Tax Department is not explained by the father of deceased, it cannot be assumed that there was no income as per the evidence at Exh.33 and Record at Exh.35. 5.2 Tribunal based its findings while reducing the claim of the appellants on conjectures and surmises and did not appreciate the evidence of Shri Kanubhai Joshi, a Chartered Accountant at Exh.38, in its proper perspective. 5.3 He has further submitted that the Tribunal erred in law in confusing the paying of Income Tax by filing Income Tax Return with regard to the business of the deceased Parag and failed to examine the credibility of the business income of the deceased Parag and the books of Accounts at Ex. 35. He has further submitted that the Tribunal omitted to read and/or misread the material pleadings and evidence. on record and erred in reducing the claim of the claimant to the tune of Rs. 3,34,000/- only. The Tribunal erred in holding that there was variation in the profits in the business of the deceased Paragbhai inasmuch as there may Page 3 of 6

C/FA/165/2003 ORDER DATED: 14/12/2021 be fluctuations in business. 5.4 He has further submitted that the Tribunal erred in holding that the accounts were prepared wrongly with a view to claim higher compensation and erred in denying due compensation on the basis of alleged wrongful or doubtful accounts. He has submitted that the Tribunal gravely erred on facts and in law in assessing the income of the deceased at only Rs. 2,000/- per month. The Tribunal erred in law in assessing the income of the deceased at Rs. 3000/- per month and deducting one half therefrom and assessing to Rs. 1500/- as dependency loss per month are erroneous, unjust and contrary to the pleadings and evidence on record. The Tribunal erred in law in awarding only Rs. 10,000/- towards expectation of life. He has submitted that the Tribunal erred in law in not awarding anything on the count of shock, sufferings and pains of the appellants inasmuch as the deceased Paragbhai was the only son of the appellants, who died in the accident at the age of 23 years. 6. Learned advocates for the defendant have submitted that the Tribunal has not committed any error while passing the impugned award. He has prayed for dismissal of the appeal. 7. I have heard the advocates appeared for the respective parties and the present case is required consideration, and thus the impugned order is required to be substituted as under: Future loss of income Rs. 4000 X 40% = Rs. 1600 Rs. 4000 + Rs. 1600 = Rs. 5600 Rs. 5600 X 50% = Rs. 2800 Rs. 6,04,800/- Page 4 of 6

C/FA/165/2003 ORDER DATED: 14/12/2021 Rs. 2800 X 12 = Rs. 33,600 Rs. 33,600 X 18 = Medical expenses, special diet & attendant charges etc. Rs. 70,000/- Rs. 3,74,800/- Tribunal awarded the compensation Rs. 3,34,000/- Remaining amount Rs. 3,40,800/- 8. Accordingly a sum of Rs. 3,40,800/- requires to be awarded towards future loss of income which is just and reasonable compensation and same is awarded in substituted award by the Tribunal. 9. For reasons aforestated, I proceed to pass following order. (i) First appeal is partly allowed. The amount of compensation is hereby enhanced to the tune of Rs. 3,40,800/-. The Insurance Company is directed to deposit enhanced amount with interest at the rate of 6% from the date of application till realization of the amount expeditiously at any rate within an outer limit of two months from the date of receipt of certified copy of this order. (ii) The Tribunal is directed to pay 30% of the enhanced amount of compensation to the father of the deceased Paragbhai by way of issuing account payee cheque and remaining 70% of the enhanced amount of compensation to be invested in Fixed Deposit for further period of three years in any Nationalized Bank and the interest accrued thereon to be paid to the appellant on every quarterly. (iii) The Court fees on enhanced compensation amount to be Page 5 of 6

C/FA/165/2003 ORDER DATED: 14/12/2021 paid by the appellant before the Tribunal at the time of disbursement and withdrawal of the amount. (iv) The award is modified to the aforesaid extent. Record and proceedings be sent back to the concerned Tribunal forthwith. (HEMANT M. PRACHCHHAK,J) T. J. Bharwad Page 6 of 6