Commissioner of Income Tax vs. Agricultural Market Committee

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4881 of 2010 With R/FIRST APPEAL NO. 37 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

========================================================== 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 ? ========================================================== UNITED INDIA INSURANCE CO LTD Versus CHAUDHARI AMRUTBHAI MOHANBHAI, THROUGH POA CHAUDHARI HARESH & 2 other(s) ========================================================== Appearance: MR GC MAZMUDAR(1193) for the Appellant(s) No. 1 MR HG MAZMUDAR(1194) for the Appellant(s) No. 1 MR MAYUR RAJGURU(1198) for the Defendant(s) No. 1 MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2 RULE SERVED(64) for the Defendant(s) No. 3 ========================================================== CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 22/12/2021

ORAL JUDGMENT Page 1 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1. Feeling aggrieved and dissatisfied by the judgment and award dated 05.08.2010 passed by the Motor Accident Claims Tribunal (Aux-II), Mehsana in MACP No. 1214 of 2002, the Insurance Company has preferred First Appeal No. 4881 of 2010 and cross appeal is filed by the original claimant being FA No. 37 of 2011 for enhancement and other contentions 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 on 04.02.2002, the claimant was travelling in Uno Car bearing registration no. GJ-1-BP-8865. The said car was being driven by one Manubhai Bhikhabhai Patel and the owner of the said car was Shankarbhai Dungarbhai Chaudhary, who is relative of the claimant. When the said car was going from Anand towards Vadodara Highway road, at that time, at about 11.30 PM, near village Mogar and Sun Temple, one ST bus bearing registration No. GJ-18V-8050 being driven by one Setansinh Devusinh Chauhan came from the opposite direction and driver of the ST bus while overtaking one vehicle, collided the ST bus with the UNO car and caused major accident due to which the claimant sustained grievous injuries. FIR came to be lodged at Vasad Police Station at exhibit 59. Hence, the claim petition under Section 166 of the Act came to be filed by the claimant through his power attorney holder Chaudhari Hareshkumar Lavjibhai and Page 2 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 claimed compensation of Rs. 90,00,000/-. 2.2 The claimant has deposed at exhibit 58. The owner of the ST bus had given his written statement at exhibit 44A. Various documentary evidences were relied upon such as Complaint at exhibit 59, panchnama of the place of accident at exhibit 60, Medical certificate at exhibit 61 and 62, RC book of Maruti Car at exhibit 63, Insurance policy of the Maruti Car at exhibit 64, medical bills at exhibit 65, copy of passport of the applicant at exhibit 72, School Leaving certificate of the applicant at exhibit 77, Birth Certificate at exhibit 78, IT return at exhibit 79 and 80, Degree Certificate at exhibit 81, injury certificate of General Hospital, Anand at exhibit 82, Medical Certificate of Dr. Mukesh Shah at exhibit 83, Medical Bills at exhibit 85 and other documents were relied upon. The claimant had exhibited salary certificate issued by Central Liquor and Grocery Market claiming salary of $ 60,000/- p.a. The income tax return for the year 2000, 2001 and 2002 were produced at exhibit 80 to prove the income. After appreciating the evidence on record, the Tribunal held the income of the claimant at Rs.17,49,960/- p.a. The Tribunal after appreciating the evidence on record had assessed 16% disability of the body as a whole. Considering the School leaving certificate at exhibit 78 and birth certificate at exhibit 79, the Tribunal awarded multiplier of 11 considering the age of the claimant to be 50 years 4 months and 22 days. Page 3 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 3. Heard Mr. H.G. Mazmudar, learned advocate for the insurance company, Mr.Mayur Rajguru, learned advocate for the original claimant and Ms. Neha Kayasth, learned advocate for Ms. Sejal Mandavia for ST Corporation. 4. Mr. Mazmudar, learned advocate for appearing for the appellant insurance company vehemently relied upon the panchnama of the occurrence at Exhibit 60 as well as the deposition of the driver of the ST Bus Shetansinh at Exhibit 68 and contended that the Tribunal has committed an error in considering the negligence of the Uno car. Mr. Majmudar contended that it has come on evidence that at the night hours, at about 11.30 PM, the ST Bus driver tried to overtake, because of which it dashed with the UNO car. Mr. Mazmudar submitted that the driver of the Uno car did not have the opportunity to save himself as the bus came on the wrong side and went into a pit. According to Mr. Mazmudar, the driver of the ST bus was solely negligent. Relying upon the judgment of the Apex Court in the case of United India Insurance Co. Ltd. vs. Patricia Jean Mahajan & Ors. reported in 2002 ACJ 1441 and more particularly paragraph 16 of the said judgment, Mr. Mazmudar contended that in facts of this case, by applying multiplier of 11, the Tribunal has given a fabulous amount of compensation. According to Mr. Mazmudar, the respondent claimant has not at all been affected and on the contrary, his income has increased even after the injuries sustained in the accident. Mr. Mazmudar therefore contended that the claimant is not Page 4 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 entitled for any future loss of income. Mr. Mazmudar further contended that the Tribunal has thereby given an excessive amount of compensation instead of just and adequate compensation. According to Mr. Mazmudar, as per the judgment of the Apex Court in the case of United India Insurance Co. Ltd. (supra), on the contrary, the multiplier should be hardly 5 or 6. On the aforesaid two grounds, Mr. Mazmudar contended that the appeal of the insurance company deserves to be allowed. Mr. Mazmudar further contended that the appeal filed by the claimant is meritless and deserves to be rejected. 5. Per contra Ms Neha Kayasth has supported the impugned award as far as the negligence is concerned. Ms. Kayasth relied upon the very panchnama as well as the deposition of Setansinh at exhibit 68 and contended that on the contrary, the driver of the ST bus was more vigilant because of which any further damage could be averted. According to Ms. Kayasth, the negligence is rightly assessed by the Tribunal and the same does not require any modification. As far as quantum is concerned, Ms. Kayasth contended that this Court may pass appropriate order as no appeal is filed by the ST Corporation. 6. Mr. Mayur Rajguru, learned counsel appearing for the appellant of FA No. 37/11 contended that as far as negligence is concerned, this Court may pass appropriate order. Referring to the grounds raised in the appeal filed by the claimant, Mr. Rajguru Page 5 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 contended that as per the judgment of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680 Sethi, as the age of the deceased was only 46 years, the appropriate multiplier would be that of 13 and not 11. Mr. Rajguru further contended that having appreciated the evidence at exhibit 77, the School Leaving Certificate, the Tribunal has wrongly calculated the age of the claimant to be 50 years 4 months and 22 days. Mr. Rajguru contended that the evidence of birth date is misread and as the claimant was 46 years old on the date of the accident, the appropriate multiplier would be that of 13. Mr.Rajguru further contended that for no fault of the claimant, as the claimant always appeared before the Tribunal through Power of Attorney and as it was objected to, the appellant-claimant came all the way from America and appeared in person and therefore, it was contended that the interest at the rate of 7.5% as granted also should be awarded to the original claimant. 7. No other or further submissions have been made by the learned counsel appearing for the respective parties. 8. Upon re-appreciation of the evidence on record and more particularly considering the panchnama of the scene of occurrence at exhibit 60, it clearly appears that both the vehicles, i.e., ST Bus as well as UNO car are damaged. The extent of damage because of impact of the accident and also considering the Page 6 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 fact that the car was coming from opposite direction and it collided with front driver side bumper of the ST bus, clearly establishes the fact that either of the vehicle tried to overtake and more so the ST bus. Even considering the deposition of the driver who was also the first informant, of FIR at exhibit 59, it clearly establishes the fact that both the vehicles were at excessive speed than required. However, the driver of the ST bus who was driving a heavy vehicle like bus on a State highway should not have tried to overtake, which appears from the evidence on record. As recorded by the Tribunal, the width of the road is 50Ft and it is a State Highway and upon re- appreciation of the evidence on record, the driver of the bus being a heavy vehicle, should have been more careful while driving at night. The conclusion arrived at by the Tribunal that the negligence of the car is also to the extent of 50% is an error and deserves to be modified which is modified to the ratio of 70:30, i.e., driver of the ST Bus is held to be negligent to the extent of 70% whereas the driver of the Uno car is negligent to the extent of 30%. 9. As far as quantum is concerned, we find that the Tribunal has committed an error in determining the age of the claimant. The claimant was born in the year 1956 and his date of birth was 28.08.1956 and the accident has occurred on 04.03.2002 and hence, on the date of the accident, admittedly, the original claimant was 46 years old. The Hon'ble Apex Court in the case of United India Insurance Co Ltd. (supra) Page 7 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 has observed thus - "16. In the present case we find that the parents of the deceased were 69/ 73 years. Two daughters were aged 17 and 19 years. Main question, which strikes to us in this case is that in the given circumstances the amount of multiplicant also assumes relevance. The total amount of dependency as found by the learned Single Judge and also rightly upheld by the Division Bench comes to 226297 Dollars. Applying multiplier of 10, the amount with interest and the conversion rate of Rs. 47 comes to Rs. 10.38 crores and with multiplier of 13 at the conversion rate of Rs. 30 the amount came to Rs. 16.12 crores with interest. These amounts are huge indeed. Looking to the Indian economy, fiscal and financial situation, the amount is certainly a fabulous amount though in the background of American conditions it may not be so. Therefore, where there is so much of disparity in the economic conditions and affluence of the two places viz. the place to which the victim belongs and the place where the compensation is to be paid, a golden balance must be struck somewhere, to arrive at a reasonable and fair mesne. Looking by the Indian standards they may not be much too overcompensated and similarly not very much under compensated as well, in the background of the country where most of the dependent beneficiaries reside. Two of the dependants namely, parents aged 69/73 years live in India, but four of them are in the United States. Shri Soli J. Sorabjee submitted that the amount of multiplicand shall surely be relevant and in case it is a high amount, a lower mulitplier can appropriately be applied. We find force in this submission. Considering all the facts and factors as indicated above, to us it appears that application of multiplier of 7 is definitely on the lower side. Some deviation in the figure of multiplier would not mean that there may be a wide difference between the multiplier applied and the scheduled multiplier Page 8 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 which in this case is 13. The difference between 7 and 13 is too wide. As observed earlier, looking to the high amount of multiplicand and the ages of the dependants and the fact that parents are residing in India in our view application of multiplier of 10 would be reasonable and would provide a fair compensation i.e. purchase factor of 10 years, We accordingly hold that multiplier of 10 as applied by the learned Single Judge should be restored instead of multiplier of 13 as applied by the Division Bench, We find no force in the submission made on behalf of the claimants that in no circumstances the amount of multiplicand would be a relevant consideration for application of appropriate multiplier. We have already given our reasons in the discussion held above." 10. In the case on hand also, the compensation as computed by the Tribunal is based on the income of the original claimant derived in dollars and not in Indian rupees. As held by the Apex Court in the case of United India Insurance Co. Ltd. (supra), considering the economic condition and affluence of two places, in facts of this case, we can have a departure from the usual applicable multiplier. However, we find that as the age was 46 years, the appropriate multiplier would be that of 13 and not 11. Even following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), as the multiplier applied by the Tribunal is 11, in facts of this case, we deem it proper even following the judgment of the Apex Court in the case of United India Insurance Co. Ltd. (supra). As far as the contention of interest is concerned, we have gone through the original rojkam from the Record & Page 9 of 10

C/FA/4881/2010 JUDGMENT DATED: 22/12/2021 Proceedings right from 27.03.2008 onward, which was one of the date on which the proceeding of claim petition were there and we find that during the period which is considered by the Tribunal, more often the matter was kept for evidence of the original claimant. In light of the aforesaid, the discretion exercised by the Tribunal in not granting interest from 19.01.2007 to 28.05.2010 does not require any interference. Having come to the aforesaid conclusion, the appellant United Insurance Co. Ltd. would be liable for 30% of the amount awarded whereas the respondent no.2 ST Corporation would be liable for 70%. The respondent no.2 ST Corporation shall deposit the difference of amount of compensation as per this judgment and order within a period of eight weeks from the date of the receipt of this judgment and order. Resultantly, the appeal filed by the insurance company being First Appeal No. 4881/10 is partly allowed to the aforesaid extent. However, the appeal filed by the claimant being First Appeal No. 37 of 2011 stands dismissed. The impugned judgment and award stands modified to the aforesaid extent. However there shall be no order as to costs in these appeals. The R and P be transmitted back to the Tribunal forthwith. (R.M.CHHAYA,J) (MAUNA M. BHATT,J) BIJOY B. PILLAI Page 10 of 10