Commissioner of Income Tax, vs. Agricultural Market Committee,

C/FA/237/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 237 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE B.N. KARIA 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 ========================================================== JAYPRAKASH JIBHAI BRAHMBHATT ( SINCE DECD. THRO' HIS LRS ) Versus KALUJI KESHAJI THAKOR ========================================================== Appearance: MR JIGAR G GADHAVI(5613) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4 MR MAULIK J SHELAT(2500) for the RESPONDENT(s) No. 5 RULE SERVED(64) for the RESPONDENT(s) No. 2.1,2.2,2.3,2.4,2.5,3,4 SERVED BY AFFIX. (R)(67) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 06/02/2019

ORAL JUDGMENT 1. The present applicants, who are the legal heirs of the deceased appellant – original claimant – Jayprakash Jibhai Page 1 of 14

C/FA/237/2011 JUDGMENT Brahmbhatt have preferred this appeal against the judgment and award dated 30th November, 2010 passed by the Motor Accident Claims Tribunal, Patan in Motor Accident Claims Petition No.1262 of 2002 (old No.177 of 1994) dismissing the claim petition preferred by the deceased claimant. 2. Short facts of the present case may be referred as under: 2.1 That, deceased Jayprakash Jibhai Brahmbhatt along with one Shaileshkumar Natwarlal Brahmbhatt were going to Patan on a motorcycle. That, on 13th August, 1993, at about 06:30 in the evening, one Shaileshkumar Natwarlal Brahmbhatt was driving the motorcycle and deceased was sitting as a pillion rider on the said motorcycle. That, one tractor trolley was lying stationary on the middle part of the road without any reflectors or putting any signboard of repairing work of the tractor trolley. The said motorcycle of the deceased dashed with the tractor trolley from behind, which was lying stationary on the middle part of the road, as the driver of the motorcycle could not see it properly, as his eyes were flashed by the lights of the oncoming truck from the opposite side. As a result, the driver of the motorcycle dashed with the stationary tractor trolley and sustained minor injuries, whereas the claimant, who was sitting as a pillion Page 2 of 14

C/FA/237/2011 JUDGMENT rider fell down from the motorcycle and sustained serious injuries. He was immediately shifted to Bharti Hospital at Patan and was admitted as an indoor patient. As per the averments made in the petition, at the time of accident, he was aged 42 years and was hale and hearty and earning Rs.13,000/- per month from the business of agricultural products. That, he had completely lost vision in his right eye and had sustained fractures on his wrist and nasal bone. That, due to the complete loss of vision in his right eye, he was not in a position to continue his activity in agriculture and perform his family liability. As per the averments made in the petition, he had spent huge expenditure in his treatment, therefore, he requested to pass an award to the tune of Rs.9,00,000/- by way of compensation holding the liability of the opponents. Thereafter, the claim amount was enhanced by the claimant to the extent of Rs.20,00,000/-. 2.2 The Tribunal Judge, after recording evidence of the claimant as well as respondents was pleased to dismiss the petition preferred by the claimant holding that there was complete negligence on the part of the driver of the motorcycle and as original claimant was the owner of the motorcycle, the insurance company would not be liable to pay the compensation as he himself was a pillion rider on the Page 3 of 14

C/FA/237/2011 JUDGMENT scooter. 2.3 Being dissatisfied by the judgment and award dated 30th November, 2010 passed by the learned Tribunal, this appeal is preferred by legal heirs of the original claimant who died on 25th March, 2015 during the pendency of this appeal. 3. Heard Mr.Jigar G. Gadhvi, learned Counsel for the appellants and Mr.Maulik J. Shelat, learned Counsel for the respondent Nos.3 and 5. 4. No argument was made on behalf of the respondent No.4. 5. It was submitted by the learned Counsel for the appellant that original claimant was a pillion rider of the motorcycle and it was driven by respondent No.4. That, the name of respondent No.4- Shaileshkumar Natwarlal Brahmbhatt was clearly shown in the charge-sheet filed after completing the investigation by the Investigation Agency, and was acquitted in the Criminal Case No.3716 of 1993 in connection with this accident. It was further submitted that it was clearly established from the Panchnama of the place of offence that the said tractor trolley was lying stationary on the middle part of the road without any reflectors or signboard, to avoid the accident. That, it was clearly a negligency on the Page 4 of 14

C/FA/237/2011 JUDGMENT part of the driver and owner of the tractor trolley as the said vehicle was lying stationary and was under repairing. The Tribunal has committed grave error by not considering the injuries sustained by the claimant as he had lost his right eye, disfigurement of nose and fracture in his wrist due to the said accident. That, two disability certificates were issued by different Doctors showing 35% disability in the nasal part as well as upper limb while 100% disability on account of loosing the vision in right eye. This part was not considered by the Tribunal. It is further submitted that the income-tax returns of different 3 years were also produced on record by the claimant to establish the income. That, average income of the claimant was clearly more than Rs.1,10,000/- p.a., however, the Tribunal has not considered this part in the entire judgment. Hence, it was requested by the learned Counsel for the appellants to quash and set aside the impugned judgment and award passed by the Tribunal dismissing the claim petition filed by the claimant and allow this appeal. In alternative, it was requested that contributory negligence on the part of driver of the motorcycle i.e. respondent No.4 to some extent may be considered by this Court. That, the deceased/appellants are entitled to claim compensation from the Insurance company of the tractor/trolley, however Page 5 of 14

C/FA/237/2011 JUDGMENT Tribunal has dismissed the petition, which is clearly grave error. 6. Per contra, learned Counsel for the respondent Nos.3 and 5 supported the reasoning and findings of the Tribunal contending that the driver of the motorcycle - respondent No.4 was so negligent in driving the motorcycle, as the motorcycle had dashed with two persons who were repairing the tractor trolley at the time of the accident and they sustained injuries. That, there was no mark of applying brake by the respondent No.4 at the place of accident which is clearly established from the Panchnama. That, the driver of the motorcycle ran away immediately after the accident leaving the motorcycle. It was further submitted that in the Criminal Case, the claimant was never examined as a witness, however, he was an eye-witness. That, Tribunal has committed no error in dismissing the claim petition preferred by the claimant holding that driver of the motorcycle was sole negligent for causing this accident. It is further submitted that no sufficient and cogent evidence was produced by the claimant before the Tribunal for proving his income as argued by learned Counsel for the appellants. It was further submitted that for proving the disability, no expert Doctors were examined as witnesses before the Tribunal. That, there Page 6 of 14

C/FA/237/2011 JUDGMENT was no age proof placed before the Tribunal to show the correct age of the claimant. That, to prove the medical expenses, no witness was examined by the claimant to prove the expenditure on account of medical treatment. The Tribunal has rightly considered this aspect while dismissing the claim petition. That, there was no question of considering contributory negligence of the driver of tractor trolley. Ultimately, it was requested by the learned Counsel for the respondent Nos.3 and 5 to dismiss the appeal. 7. Having considered the facts of the case, the submissions made by the learned Counsels for the respective parties, undisputedly, as per the averments made in the petition, this accident was occurred on 13th August, 1993. The claimant along with one Shaileshkumar Natwarlal Brahmbhatt started their journey at about 06.30 p.m. towards Patan on a motorcycle. The claimant was a pillion rider on the motorcycle. While they were proceeding to Patan between the village Adhar and Kimbuva, one tractor trolley was lying stationary on the middle part of the road without any reflectors or signboard. As per the averments made in the petition, the driver of the motorcycle could not see it properly, as his eyes were flashed by the lights of the oncoming truck from the opposite side and therefore, driver of the motorcycle Page 7 of 14

C/FA/237/2011 JUDGMENT got dashed with the stationary tractor trolley and sustained minor injuries; whereas the claimant received serious injuries and became unconscious. 8. It appears from the record that, one Chaganji Lilaji Thakor lodged a complaint on 13th August, 1993 before the police, produced vide Exhibit 17, stating that his cousin brother Thakor Kaluji Kushaji was driving tractor bearing Registration No.GJ-85 owned by Patel Shankarbhai Kashiram. That, he was returning from village Kimbuva to Patan, meanwhile on middle part of the highway road from village Adhar to Kimbuva, hub-bolt of the trolley was damaged and therefore, by stopping the tractor, they were trying to open the tyre of the trolley by applying jack, at that time, one Scooter bearing Registration No.GJ-2-J-9095 being driven by its driver in great speed came from Deesa side and thereafter, dashed with the trolley from backside. As a result of which, he himself and driver Thakor Kaluji Kushaji, who were trying to insert the jack, received injuries. The driver of the motorcycle ran away from the place of the offence leaving his motorcycle. This accident occurred at about 07.30 p.m. 9. Panchnama of the place of offence was produced vide Exhibit 18. It appears from the contents of the Panchnama Page 8 of 14

C/FA/237/2011 JUDGMENT that the place of offence was middle part of the highway road from village Kimbuva to Adhar. One Scooter bearing Registration No.GJ-2-C-9095 was lying towards Patan. There was no damage on the middle part of the body as well as back part of the motorcycle; light meter in the front portion was broken as it was dashed from front part with the trolley; leaving 2 feet from the motorcycle one tractor trolley was lying in a stationary condition loaded with bricks; right side bolt of the back side of trolley was broken and therefore, it was not in an operative condition. There was no damage found from the back portion. There were no reflectors on the back side of the trolley. No signboard was found to warn the drivers of oncoming vehicles. Some sign of bleeding on the place of offence was found. The trolley was handed over to one Thakor Keshaji Malaji in the presence of Panchas. 10. An affidavit was filed by the claimant vide Exhibit 15 before the Tribunal. The same story was averred in his chief examination causing of accident and sustaining of injuries by the claimant. It also appears that criminal complaint was lodged against respondent No.4 and it was tried before the Criminal Court and after recording the evidence, the Criminal Court came to the conclusion to acquit the accused by its judgment dated 27th May, 2005. The copy of the judgment was Page 9 of 14

C/FA/237/2011 JUDGMENT produced vide Exhibit 44. From the record, it appears that the accident occurred at about 07.30 p.m. As observed by the learned Judge of the Tribunal that this accident was occurred at around 06.30 p.m. was not correct. That, at 07.30 p.m., there would be no availability of light. The averments made by the claimant cannot be completely denied by the Tribunal. We cannot forget the fact that the complainant himself and driver Thakor Kaluji Kushaji were also injured on account of the accident. The speed of the motorcycle can be said to be excessive as on highway road, it dashed on the back portion of the trolley. The negligency of the driver of the motorcycle as well as driver of the tractor trolley would be required to be considered considering the facts and circumstances of the case, as there were no reflectors in the tractor trolley or any sign board covering that area of tractor trolley. The tractor trolley was lying in a stationary condition on the middle part of the highway road without any reflectors or sign board as it was under repairing. Considering the evidence available with this Court, this Court is of the opinion that negligency to the extent of 60% is required to be consider on the part of the driver of tractor trolley and 40% on the part of the respondent No.4. Hence, the issue No.1 would be decided accordingly, holding the negligency of the driver of tractor trolley at 60% Page 10 of 14

C/FA/237/2011 JUDGMENT and negligency of the respondent No.4 at 40% for causing the accident. The findings of the Tribunal shows that the claimant was a pillion rider and the owner of the motorcycle. If we consider the averments made by the claimant in the petition that he was a pillion rider of the motorcycle, the criminal case was lodged against respondent No.4 – driver of the motorcycle and therefore, it transpires from the record that the claimant was a pillion rider of the motorcycle. The claimant being owner of the motorcycle and his driver was involved in the accident, negligency on his part would be reduced from the amount of compensation. 11. Now, the issue of compensation would also be required to be considered by this Court. As per the affidavit filed by the claimant before the Tribunal, he was aged 42 years when he met with the accident and was hale and hearty and his yearly income from agriculture was Rs.1,50,000/- and other income from dividend interest. That, he had lost his vision of right eye and had a fracture on wrist of his right hand as well as in nasal part. It was further submitted that he had made an expenditure of Rs.60,000/- for his medical treatment and the figure of expenditure would be increased to Rs.1,00,000/-. There was no possibility of getting vision in his eye as per the Page 11 of 14

C/FA/237/2011 JUDGMENT opinion of the Doctor. If we consider the documents produced on record, it appears from Exhibit 28 before the Tribunal that certain documents relating to village Form of 7/12, village Form No.6 were produced by the claimant. These documents show that the claimant was an agriculturist having agricultural lands of Survey No.330; Survey No.286 paiki; Survey No.274/1/1; Survey No.273 etc. The documents would certainly support the statement of the claimant that he was engaged in a business of agriculture. The claimant has also produced his income-tax returns vide Exhibit 29; 30; 31 and 32. If we consider all these documents, it appears that the income shown in 3 different income-tax returns filed by the claimant was more than Rs.1,00,000/- p.a. to Rs.1,21,000/- p.a. If we consider the average income from these 3 different income tax returns prior to the accident, we may take an average income of the claimant at Rs.1,10,000/- p.a. Dr.Rahul N. Gandhi, M.S. Ophth., has issued a certificate in favour of the claimant, produced vide Exhibit 33, stating that the patient was examined by him, and in his right eye he had lost complete vision. He was operated by this Doctor in the year 1993. That, the patient has 100% functional loss. Another certificate was produced vide Exhibit 34 issued by Navdeep Orthopaedic Hospital under the signature of Dr.Pragnesh Page 12 of 14

C/FA/237/2011 JUDGMENT S.Patel assessing permanent partial disability as nasal part at 20% and right upper limb at 15%. If we consider the disability of right upper limb at 15% and right eye functional loss at 100%, it would come to 1 ½ body as a whole. However, for the sake of convenience and looking to the facts of the case, this disability caused to the claimant on different parts of his body and functional loss of 100% in his right eye, the functional disability would be considered at 50% body as a whole. 12. Considering the disability at 50% body as a whole, the net annual income would come to Rs.55,000/-. As the age of the claimant was 42 years at the time of accident as stated by him, multiplier of 14 years would be applied in the present case. The amount then comes to Rs.7,70,000/-. Of course, the claimant had produced some medical vouchers/bills before the Tribunal amounting Rs.12,000/-, but, considering the treatment taken by the claimant and further treatment required as stated by him in his affidavit, this court is of the view that this amount is required to be considered at Rs.35,000/-; adding Rs.20,000/- on account of attendant, transportation etc.; the amount would come to Rs.8,25,000/-. As this Court has held negligency of the driver of the motorcycle at 40%, the amount of Rs.3,30,000/- is required to be deducted and thereafter, the total amount of compensation Page 13 of 14

C/FA/237/2011 JUDGMENT would come to Rs.4,95,000/-. Therefore, The claimant is entitled to compensation under different heads as per the below mentioned statement: - Entitlement under different Heads Amount payable to the claimant Annual Income of the claimant Rs.55,000 x 14= Rs.7,70,000/- Future loss of Income Medical expenses + Rs.35,000/- Attendant, transportation etc. + Rs.20,000/- Total amount payable to petitioner Rs.8,25,000/- (less) 40% Negligency on the part of the driver of motorcycle (-) Rs.3,30,000/- Difference amount to be payable to the claimant Rs.4,95,000/- 13. The claimant shall be entitled to claim an amount of Rs.4,95,000/- as compensation @9% p.a. from the date of filing of the petition till realization of the amount. The respondent No.3 shall pay the amount along with interest within a period of eight weeks from the date of receipt of the certified copy of the order. 14. The present appeal is hereby allowed. The impugned judgment and award dated 30th November, 2010 passed by the learned Motor Accident Claims Tribunal, Patan in Motor Accident Claims Petition No.1262 of 2002 (old No.177 of 1994) is hereby ordered to be quashed and set aside. R & P be sent back to the Trial Court by the Registry, forthwith. Sd/- (B.N. KARIA, J) RAVI PATEL Page 14 of 14