Commissioner of Income Tax, vs. Agriculture Market Committee,

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 14 of 2010 With R/CROSS OBJECTION NO. 68 of 2011 In FIRST APPEAL NO. 14 of 2010

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 ? 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 ========================================================== NEW INDIA ASSURANCE CO.LTD Versus JAYABA JAYVIRSINH JHALA & 6 other(s) ========================================================== Appearance: MS LILU K BHAYA(1705) for the Appellant(s) No. 1 DECEASED LITIGANT for the Defendant(s) No. 6 MR VH KANARA(1881) for the Defendant(s) No. 1,3,4 MR.MANAN BHATT(6535) for the Defendant(s) No. 6.1,6.2 RULE SERVED for the Defendant(s) No. 2,5,7 ========================================================== CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 04/02/2022 Page 1 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022

ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 29.04.2009 passed by the Motor Accident Claims Tribunal (Auxi.), Jamnagar in MACP No. 23 of 2008, the Insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’). 2. It is the case of the claimants that deceased- Jayvirsinh Gajubha Jhala was on duty as ASI in traffic branch of Jamnagar Police near by-pass four cross road at Jamnagar at about 6:40 p.m. on 22.05.2007. It is further the case of the claimants that while on duty, a truck bearing registration No. GJ-11-T-9703 was being driven by the driver from Lalpur Chaukari side in a rash and negligent manner and while the deceased was on duty of the security of the His Excellency, the Governor of the Gujarat at the place of the accident, ran over the deceased, because of which the deceased sustained serious injuries and was admitted to J.J. Hospital at Jamnagar and ultimately succumbed to death. The FIR was lodged with ‘B’ Division Police Station, Jamnagar being CR-I No. 87 of 2007 and the present claimants had filed the claim petition under Section 166 of the Motor Vehicles Act and claimed compensation of Rs. 25 lakh. It was the case of the deceased that the deceased was aged about 47 years and was working in the police department and was earning Rs. 10,000/- in aggregate by way of salary as well as agriculture income of Rs. 82,000 -90,000/- per year and one of the claimant - wife of the deceased was examined at Ext 53 and also relied upon one Mr. Yasinmohammed Hussain Page 2 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 Bhatti, the junior clerk of the DSP office, Jamnagar at Exh. 56 and also relied upon the documentary evidence such as page Nos. 4 & 5 of the impugned judgment and award: (I) FIR Exh. 46 (ii) Statement of the Police (witness) Exh. 34 to 42 (iii) Panchnama Exh. 47 (iv) Charge-sheet Exh. 48 (v) Form No. 54 Exh. 43 (vi) Paper relating to Police Bandobast Exh. 44 & 45 (vii) RC book of the truck Exh. 51 (viii) Insurance receipt of the truck Exh. 52 (ix) Inquest Panchnama Exh. 49 (x) Post-mortem report Exh. 50 (xi) birth certificate of the deceased Exh. 28 (xii) last salary slip of the deceased Exh. 29 (xiii) revenue record of the agriculture land of the deceased Exh. 30 to 33 (xiv) document indicating and calculation of leave pay Exh. 57 3. The Tribunal having appreciated the evidence of Panchnama at Exh. 47, charge-sheet at Exh. 48 came to the conclusion that the driver of the truck was solely negligent. While computing the income of the deceased, the Tribunal appreciated the evidence in form of pay slip at Exh. 29 and the revenue records at Exh. 32 and 33 and came to the conclusion that monthly income of the deceased from salary was Rs. 9,415/- and also considered Rs. 1500/- as supervisory loss of agriculture land and thus determined the income of the deceased at Rs. 10,915/- per month and after deducting 1/3 Page 3 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 towards personal expenses and applying multiplier of 13, awarded a sum of Rs. 11,35,056/- as compensation under the dependency loss and also awarded Rs. 25,000/- as loss of love and affection, Rs. 15,000/-as consortium, Rs. 3,000/- as funeral expenses and thus awarded total compensation of Rs. 12,15,316/- with 9% interest from the date of filing of the claim petition. 4. Being aggrieved by the same the Insurance Company has preferred the present appeal and the original claimants have preferred Cross Objection for enhancement of the claim. 5. Heard Mr. Ankit Patel for Ms. Lilu K. Bhaya, learned advocate for the appellant – Insurance Company, Mr. Kaash Thakkar for Mr. V. H. Kanara, learned advocate for the original claimants and Manan Bhatt, learned advocate appearing for respondents No. 6 to 6.2. Though served, none appears for the other respondents and have also perused the original record and proceedings. 6. Mr. Ankit Patel, learned advocate for the appellant- Insurance Company has contended that though in the written statement the contention was taken that the driver of the truck did not possess a valid and effective licence, the said contention has not been considered. According to Mr. Patel, in absence of any valid licence, the Insurance Company is not liable. It was next contended that while considering the income, the Tribunal has not considered the benefit of gratuity which was derived by the heirs, which according to Mr. Patel, should be deducted from both the total income of the deceased, while computing the compensation under the head Page 4 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 of loss of dependency. Mr Patel, learned advocate also contended that the age of the deceased was 46 years at the time of the accident. It is submitted that the Tribunal has committed an error by applying 13 multiplier. According to Mr. Patel, the appropriate multiplier would be that of 11 and not 13. On the aforesaid ground, Mr. Patel asserted that the appeal deserves to be allowed and the impugned judgment and award deserves to be modified. It is further contended that the Tribunal has rightly considered the income based upon the pay slip at Exh. 29 and the revenue records. Mr. Patel, learned advocate has contended that it is an admitted position that the agriculture land has remained with the original claimants i.e. family members of the deceased and there is no actual loss of income and therefore, even supervisory loss should not be granted. Mr. Patel, learned advocate for the appellant also contended that the Tribunal has otherwise considered the income except the gratuity amongst the income determined by the Tribunal, is proper and no enhancement is necessary. According to Mr. Patel, learned advocate for the appellant the appeal filed by the Insurance Company deserves to be allowed and the cross objection filed by the original claimants are meritless and deserves to be dismissed. 7. Mr. Manan Bhatt, learned advocate appearing for the other private respondents has submitted that this Court may pass appropriate order. 8. Mr. Kaash Thakkar, learned advocate appearing for the original claimants has submitted that the Tribunal has not committed any error in applying multiplier of 13. Relying upon the judgment of the Hon’ble Apex Court in the case of Sarla Page 5 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 1211, it is contended by the Mr. Thakkar that the appropriate multiplier would be 13. Mr. Thakkar also further submitted that except that fact that there was denial that the driver of the truck had no valid license, no evidence is adduced by the Insurance Company, nor that point is effectively raised before the Tribunal and therefore, the contention raised by the appellant predominantly in the appeal that the driver did not possess valid licence deserves to be negatived. It is further contended that any other financial benefit by way of benefits from service received by the original claimants cannot be deducted or be treated as part of the compensation under Motor Vehicles Act. It is submitted that the said contention deserves to be negatived. Referring to the grounds raised in the cross objection, Mr. Thakkar has contended that the Tribunal has assessed very less amount of Rs. 1500/- as supervisory loss. It is contended that the evidence shows that the deceased had very large chunk of agricultural lands which were being tilled through the contractor/ labourers and the yield used to be distributed, from which the deceased had seizable income of Rs. 82,000/- to 90,000/- per year as averred in the claim petition. Mr. Thakkar, learned advocate for the original claimants has contended that the Tribunal has committed an error in deducting 1/3 toward personal expeness as admittedly there were 5 dependents of the deceased. Mr. Thakkar has submitted that the Tribunal has committed an error in not granting any prospective income and has relied upon the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680. On the aforesaid contentions, it is submitted by the Mr. Kaash Thakkar Page 6 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 that the appeal filed by the Insurance Company is meritless and the same deserves to be dismissed, while cross objection filed by the original claimants deserves to be allowed and the impugned judgment and award deserves to be modified. 9. No other and further submissions, contentions or grounds have been raised by the learned advocates appearing for the respective parties. 10. Upon considering the evidence as a whole, it clearly transpires that the age of the deceased was 47 years at the time of the accident. Useful reference can be made to the document at Exh. 28, which is a birth certificate of the deceased which indicates that the date of birth of the deceased was 05.11.1959 and thus on the date of the accident, the deceased was aged 47 years old. Following judgment of the Hon’ble Court in the case of Sarla Verma (supra) the appropriate multiplier would be 13. 11. As far as the contention of the licence raised by the learned advocate for the appellant – Insurance Company is concerned, except the bare denial in the written statement at Exh.16 more particularly in Para-3 thereof, there is nothing on evidence to show that the driver of the truck did not posses a valid licence and it is an admitted position that the driver of the truck has expired, however, the appellant – Insurance Company could have examined any other witness, more particularly any officer from the transport department. When such a contention is raised, the same is to be proved and in absence of any evidence, it cannot be said that the driver of the truck involved in the accident, did not possess valid and Page 7 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 legal licence at the time of the accident. As far as the third contention regarding benefits of gratuity received by the claimants is also of no avail to appellant as benefits accrued and received from service of the deceased, cannot be deducted from the compensation, otherwise, available under provisions of the Motor Vehicles Act. 12. Upon re-appreciating the evidence in the form of pay slip at Ext. 29, the same indicates the salary of the deceased as ASI in Traffic Branch of Jamnagar City ‘B’ Division Police Station for the months of April, 2007. The total salary of the deceased was Rs. 9715/- and the professional tax of Rs. 60/- was deducted and hence, the net income from salary would come to Rs. 9655/- (9715-60) i.e. gross income - tax. As far as supervisory charge is concerned upon re-appreciating the evidence on record, it is no doubt true that the agricultural land had remained with the claimants and the fact remains that deceased as Karta, head of the family, used to supervise the agricultural operations and in absence of the same, the claimants have suffered supervisory loss. The Tribunal has awarded only Rs. 1500/- as supervisory loss. Upon re- appreciating the evidence on record, we deem it fit to enhance it by some reasonable figure so as to arrive at a dictum figure of total income of the deceased from both the sources. Accordingly, we deem it fit to determine the income of the deceased per month at Rs. 12,000/- (Rs. 9655/- salary income + Rs. 2345/- income from agriculture supervision per month). Following ratio laid down by the Hon’ble Apex Court in the case Pranay Sethi (supra), the claimants would be entitled to prospective income to the extent of 30%. Page 8 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 13. As the dependents were five in number, following the ratio laid down by the Apex Court in the case of Sarla Verma (supra) as well as Pranay Sethi (supra), the deduction towards personal expenses would be 1/4 and not 1/3 as calculated by the Tribunal. 14. As observed hereinabove the appropriate multiplier would be 13. The original claimants would be entitled compensation under the head of loss of dependency as under: Rs. 12,000/- (income)+ Rs. 3,000/- (30% prospective income) = Rs. 15,000/- - Rs. 3,900/- (1/4 deduction towards personal expenses) = 11,700x12x13 (multiplier) = Rs. 18,25,200/- (towards of dependency). 15. Over and above the same, the claimants would also be entitled to additional compensation of Rs. 70,000/- under different conventional heads including funeral expenses, consortium and loss of estate and thus the claimants would be entitled to total compensation of Rs. 18,95,200/-. As the Tribunal has awarded Rs. 12,15,316/-, the original claimants would be entitled to additional compensation of Rs. 6,79,884/-. 16. In view of above, first appeal No. 14 of 2010 filed by the Insurance Company stands dismissed. 17. The Cross Objection filed by the original claimants stands allowed. The impugned judgment and award dated 29.04.2009 passed by the Motor Accident Claims Tribunal (Auxi.), Jamnagar in MACP No. 23 of 2008 is modified to the aforesaid extent the original claimants would be entitled total compensation of Rs. Page 9 of 10

C/FA/14/2010 JUDGMENT DATED: 04/02/2022 18,95,200/-. As the Tribunal has awarded Rs. 12,15,316/-, the original claimants would be entitled to an additional compensation of Rs. 6,79,884/-. However, such additional amount would bear interest at the rate of 6% per annum from the date of filing the claim petition till its realization.