Gujarat High Court
Legal Heirs Of Decd. Shabbir Haji ... vs Iqbal Ramzan Sumra (Driver) & 2 on 8 May, 2015
Author: M.R. Shah
Bench: M.R. Shah, G.B.Shah
C/FA/3310/2007 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3310 of 2007
[On note for speaking to minutes of order dated 24/02/2015 in
C/FA/3310/2007 ]
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LEGAL HEIRS OF DECD. SHABBIR HAJI LUKMANJI
BHARMAL....Appellant(s)
Versus
IQBAL RAMZAN SUMRA (DRIVER) & 2....Defendant(s)
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Appearance:
MR PREMAL S RACHH, ADVOCATE for the Appellant(s) No. 1 - 1.3
MR MAKBUL I MANSURI, ADVOCATE for the Defendant(s) No. 1 - 2
MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 08/05/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) In the Oral Judgement and Order dated 24/02/2015 passed by this Court in this appeal, in paragraph Nos.1 and 10 the words "Rs.3,80,000/-" be read as "Rs.3,18.000/-".
Registry is directed to ISSUE FRESH WRIT accordingly. Present Note for Speaking to Minutes stands disposed of.
Sd/-
(M.R.SHAH, J.) Sd/-
(G.B.SHAH, J.) Page 1 of 2 1 of 14 C/FA/3310/2007 ORDER Rafik.
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C/FA/3310/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3310 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE G.B.SHAH sd/
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1. Whether Reporters of Local Papers may be NO allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair copy NO of the judgment ?
4. Whether this case involves a substantial question NO of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? NO ============================================= LEGAL HEIRS OF DECD. SHABBIR HAJI LUKMANJI BHARMAL....Appellant(s) Versus IQBAL RAMZAN SUMRA (DRIVER) & 2....Defendant(s) ============================================= Appearance:
MR PREMAL S RACHH, ADVOCATE for the Appellant(s) No. 1 1.3 MR MAKBUL I MANSURI, ADVOCATE for the Defendant(s) No. 1 2 MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 3 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE G.B.SHAH Date : 24/02/2015 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi), Jamnagar passed in Motor Accident Claim Petition No.967 of 2001, by which, the learned Tribunal has awarded a total Page 1 of 12 3 of 14 C/FA/3310/2007 JUDGMENT sum of Rs.3,80,000/ towards compensation under the different head for the death of deceased Shabbirbhai with interest at the rate of 7.5% from the date application till realization, the appellants - original claimants have preferred present appeal for enhancement of award of compensation.
2.0. The facts leading to the present First Appeal in nutshell are as under:
2.1. That accident, in which, deceased Sabirbhai and one another died occurred on 11.08.2001. That 11.08.2001 the deceased Shabbirbhai, Saifuddinbhai and others were traveling from Jamnagar to Mandvi in Maruti Esteem Car bearing No. _GJ10F2332. That the said Maruti Esteem Car was being driven by the deceased Shabbirbhai. At about 5 p.m, the original opponent no.1 came from opposite side driving his Truck bearing No. GJ12 U - 5269 and dashed with the Maruti Esteem Car and in the said accident the deceased Shabbirbhai and one another Saifuddinbhai died and other cotravelers sustained grievous injuries. Therefore, the original claimants - heirs and legal representatives of the deceased Shabbirbhai filed Claim Petition No.967 of 2001 claiming Rs. 1,31,82,000/ towards compensation under the different head. The heirs and legal representatives of deceased Saifuddin also filed Claim Petition No.968 of 2001. That the injured -
travelers also filed Claim Petition. It was the case on behalf of the original claimants in MACP No.967 of 2001 that the original opponent no.1 - Driver of the Truck involved in the accident was rash and negligent and at an excessive speed and truck dashed with the Maruti Esteem Car. Therefore, it was the specific case on behalf of the original claimants that at the time of accident, deceased was aged about 49 years. He was running a factory of electric goods and cables viz. Odian Industries. That the deceased paid the income tax of Rs. 30 lacs for the Page 2 of 12 4 of 14 C/FA/3310/2007 JUDGMENT block period of assessment year 198687 to 199899 assessing the income of her husband at Rs. 50 lacs. Therefore, it was the case on behalf of the original claimants that income of the deceased at the time of accident was at least Rs.80,000/ per annum and prospective income of the deceased may be assessed at Rs. 1,20,000/ per annum. Therefore, the original claimants claimed a total sum of Rs. 1,35,00,000/ towards compensation under the different head.
2.2. The claim petition was opposed by the Insurance Company
- original opponent no. 3 insurer of the motor vehicle involved in the accident. The Insurance Company denied the case of the claimants in toto and also specifically denied that the original opponent no.1 driver of the Truck involved in the accident was sole negligent. According to the Insurance Company, as such, deceased Shabbirbhai who was driving the Maruti Esteem Car was sole negligent for the accident.
2.3. That the learned Tribunal framed the issues.
2.4. That the original claimants led the following oral as well as documentary evidence.
Oral evidence: affidavit of Hasinaben original claimant no.1 at Exh.193.
Documentary Evidence:
Exh.No. Particulars
30 FIR.
31 Panchnama of scene of accident.
108 Certificate of Madhapar Gram Panchayat.
109 Registration Certificate of Sales Tax Department.
110112 Passports of the deceased
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C/FA/3310/2007 JUDGMENT
196 Order passed by the Income Tax Department for
the block period of Assessment Year 198687 to 199899.
197 Notice issued by the Income Tax Department. 198 Copy of CIT order/ 199 to 200 Life Insurance Policies.
203 State of Vijya Bank.
403 Certificate issued by the Vijya Bank 2.5. That on appreciation of evidence, more particularly, panchnama of the place of accident Exh.31 and manner in which, accident took placed and having found that there was head on collusion between Truck and Maruti Esteem Car and that the Truck was on the left side of the road and the Maruti Esteem Car was found on the wrong side of the road and accident had occurred on the slope of hill, the learned Tribunal has held the deceased Shabbirbhai contributory negligent to the extent of 70% and the original opponent no.1 driver of the Truck involved in the accident contributory negligent to the extent of 30%.
2.6. That on appreciation of evidence and in absence of any Income Tax Return place on record of the last three years, from the date of accident, however considering the income tax return for the assessment year 1987 to 1998 and volume of transactions in the bank, the learned Tribunal assessed the income of the deceased at the time of accident at Rs.80,000/ p.a and had considered the prospective income of the deceased at Rs.1,20,000/ pa. That thereafter, deducting 1/3 towards personal expenses of the deceased, the learned Tribunal has considered the loss of dependency at Rs.80,000/ p.a and thereafter applied multiplier of 13 and has awarded Rs.10,40,000/ towards loss of dependency and awarding a further sum of Rs. 20,000/ towards compensation under the conventional head, funeral expenses etc., the Page 4 of 12 6 of 14 C/FA/3310/2007 JUDGMENT learned Tribunal has awarded a total sum of Rs.10,60,000/ and after deducting 70% contributory negligent on the part of deceased as awarded Rs.3,18,000/ with interest at the rate of 7.5% from the date of claim petition till realization.
2.7. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal, the appellants herein - original claimants have preferred present First Appeal to enhance the amount of compensation.
3.0. Shri Premal Rachh, learned advocate for the appellants original claimants have vehemently submitted that the learned Tribunal has materially erred in awarding future economic loss / loss of dependency assessing income of deceased at the time of accident at Rs.80,000/ per month.
3.1. Shri Rachh, learned advocate for the appellants original claimants has vehemently submitted that the learned Tribunal has materially erred in holding the deceased Shabbirbhai contributory negligent to the accident of 70% and the original opponent no.1 - Driver of the Truck involved in the accident contributory negligent to the extent of 30% only.
3.2. It is submitted by Shri Rachh, learned advocate for the original claimants that considering the voluminous record available on record, on the basis of which, the income of deceased at the time of accident could have been assessed, the learned Tribunal has erred in not properly appreciating the same. It is submitted that considering the documentary evidence on record, more particularly, the order passed by the Income Tax Department for the block period of assessment year Page 5 of 12 7 of 14 C/FA/3310/2007 JUDGMENT 198687 to 199899 assessed the income of the deceased at Rs. 50 lacs and fact that, in fact, the deceased paid Rs. 41,71,490/ towards tax for the aforesaid block period and the fact that even the deceased was paying LIC premium of Rs.54,344/ p.a. and the business transaction reflected from the bank account of the deceased in the Vijya Bank produced at Exh.203, the learned Tribunal ought to have assessed the income of the deceased / prospective income at least at Rs.20,000/ per month i.e. Rs.2,40,000/ p.a. It is submitted that therefore, if the loss of dependency is considered at Rs.20,000/ per month deducting 1/3 towards personal expenses of the deceased, the loss of dependency would come to Rs.13,334/ per month and applying multiplier of 13, the claimants shall be entitled to Rs.20,80,100/ towards loss of dependency.
3.3. It is further submitted that the learned Tribunal has materially erred in awarding Rs. 20,000/ only towards compensation under the conventional head and funeral expenses etc. It is submitted that the learned Tribunal ought to have awarded at least Rs.10,000/ towards compensation under the conventional head, loss of estate, loss of love and affection and loss of consortium and Rs.5000/ towards funeral expenses.
3.4. It is further submitted that the learned Tribunal has also materially erred in awarding interest at the rate of 7.5% p.a. It is submitted that as the accident took place in the year 2001 and considering rate prevailing at the relevant time and even considering the catena of decisions of the Hon'ble Supreme Court as well as this Court, the claimants shall be entitled to interest at the rate of 9% p.a. Making above submissions, it is requested to allow the present Page 6 of 12 8 of 14 C/FA/3310/2007 JUDGMENT appeal. No other submissions have been made.
4.0. Present appeal is opposed by Shri Palak Thakker learned advocate appearing on behalf of the Insurance Company insurer of the motor Truck involved in the accident.
4.1. It is vehemently submitted by Shri Thakker, learned advocate for the Insurance Company that finding recorded by the learned Tribunal on contributory negligent and holding the deceased Shabbirbhai contributory negligent to the extent of 70% and original opponent no.1 Driver of the Truck contributory negligent to the extent of 30% is on appreciation of evidence and the said finding is neither perverse nor contrary to the evidence on record and therefore, it is requested not to interfere with the said findings.
4.2. It is submitted that the manner in which, accident took place and both the vehicles were found negligent and it was found that as such Maruti Esteem Car came on the wrong side and dashed with the truck which was coming from the opposite side and which was found to be of its right side and more particularly, when the left side of the Maruti Esteem Car dashed with the Truck, no error has been committed by the learned Tribunal in holding deceased contributory negligent to the extent of 70%. It is submitted that even finding recorded by the learned Tribunal holding the deceased Shabbirbhai contributory negligent to the extent of 70% is on lower side. It is submitted that as such learned Tribunal ought to have held the deceased Shabbirbhai drive of the Maruti Esteem Car sole negligent for the accident.
4.3. Now, so far as quantum of compensation awarded by the learned Tribunal is concerned, Shri Thakker, learned advocate for the Page 7 of 12 9 of 14 C/FA/3310/2007 JUDGMENT Insurance Company has submitted that as the income tax return of the last three years from the date of accident were not produced on record and the income tax return / order of the Income Tax Department placed on record was for the block period of 198687 to 199899, as such learned Tribunal has rightly refused to consider the income tax return / order passed by the Income Tax Department for the block period of 198687 to 199899. It is submitted that still the learned Tribunal has assessed the income of the deceased at the time of accident of Rs. 80,000/ p.a and considered the prospective income at Rs.1,20,000/ p.a. It is submitted that therefore, no error has been committed by the learned Tribunal in awarding Rs.10,40,000/ towards compensation under the head of loss of dependency.
4.4. However, Shri Thakker, learned advocate for the Insurance Company is not in a position to justify awarding Rs.20,000/ in all towards compensation under the conventional head and funeral expenses. He is also not in a position to justify awarding interest at the rate of 7.5% p.a. Making above submissions, it is requested to dismiss the present appeal.
5.0. Heard the learned advocates for the respective parties at length. We have perused and considered the impugned judgment and award passed by the learned Tribunal. We have scanned / reappreciated the entire evidence on record from the Record and Proceedings received from the learned Tribunal. Now, so far as finding recorded by the learned Tribunal holding the deceased Shabbirbhai - Driver of the Maruti Esteem Car contributory negligent to the extent of 70% and the driver of the truck contributory negligent to the extent of 30% is Page 8 of 12 10 of 14 C/FA/3310/2007 JUDGMENT concerned, on reappreciation of evidence on record, more particularly, considering the panchnama of place of accident Exh.31, we are satisfied that the learned Tribunal has not committed any error in holding deceased Shabbirbhai - driver of the Maruti Esteem Car contributory negligent to the extent of 70% and driver of the Truck contributory negligent to the extent of 30%. From the panchnama of place of accident, it appears that the left side of the Maruti Esteem Car dashed on the left side of the truck which was coming from opposite direction. The Truck was on his absolutely right side. Therefore, as such the driver of Maruti Esteem Car - deceased Shabbirbhai was absolutely on wrong side. However, considering the fact that it was a hilly road and therefore, the driver of the truck was also required to take some more care, the learned Tribunal has not committed any error in holding the deceased Shabbirbhai contributory negligent to the extent of 70% and driver of the truck contributory negligent to the extent of 30%. The findings recorded by the learned Tribunal are absolutely on appreciation of evidence, which are neither perverse nor contrary to the evidence on record. Under the circumstances, we confirmed the finding recorded by the learned Tribunal holding the deceased Shabbirbhai - driver of Maruti Esteem Car contributory negligent to the extent of 70%.
6.0. Now, so far as quantum of compensation awarded by the learned Tribunal is concerned, the learned Tribunal has awarded a sum of Rs.10,40,000/ towards loss of dependency, assessing the income of the deceased at Rs.80,000/ p.a. and assessed the prospective income at Rs.1,20,000/ p.a.. From the impugned judgment and award passed by the learned Tribunal, it appears that the learned Tribunal has assessed the income of the deceased at the time of accident at Rs.80,000/ p.a. by observing that the income tax return of the last three years from the date of accident are not on record and the income tax return / order of the Page 9 of 12 11 of 14 C/FA/3310/2007 JUDGMENT Income Tax Department is for the block period of assessment year 1987 to 1998 and therefore, the same cannot be considered. However, on considering the income mentioned in the income tax return for the assessment year 1987 to 1998 and business transaction reflected in the bank account of the deceased in Vijya Bank, the learned Tribunal has assessed the income of the deceased at the time of accident at Rs.80,000/ p.a and thereafter has assessed the prospective income at Rs.1,20,000/ p.a. However, it is required to be noted that the learned Tribunal has not properly appreciated the fact that as such the deceased was paid Rs.54,344/ p.a towards LIC premium which can be confirmed from the Life Insurance Policy produced at Exh. 199 and 200. The learned Tribunal has also not properly appreciated the fact that in fact tax department has assessed the income of the deceased for the block period of 1987 to 1998 at 50 lacs and even deceased also paid (before accident) Rs.41,71,490/ towards income tax for the block period of 1987 to 1998. The order passed by the Income Tax Department for the block period of 1987 to 1998, Rs.50 lacs has assessed as income of the deceased, notice issued by the Income Tax Department with respect to liability of Rs.41,71,490/, challan of payment of Rs. 41,71,490/ towards income tax are produced on record and are exhibited. It also appears that even the order passed by the Income Tax Department for the block of assessment period 1987 to 1998 determining the tax liability at Rs.41,71,490/ came to be further revised by the Commissioner, CIT(A), Rajkot under Section 231 of the Income Tax Act and by order dated 31.3.2001 Rs. 42,13,800/ was directed to be further added as undisclosed income, for which, deletion was made by the Assessing Officer while passing the assessment order for the block period. Even considering the business transaction, which is reflected in the bank account of the deceased in the Vijya Bank, income of the deceased at the time of accident can safely be assessed / determined at Rs.20,000/ per Page 10 of 12 12 of 14 C/FA/3310/2007 JUDGMENT month. It is true that the income tax return for the last three years from the date of accident are not placed on record. However, at the same time, other overwhelming documentary evidence, on the basis of which, the income of the deceased at the time of accident can be assessed, cannot be ignored. Under the circumstances, income of the deceased at the time of accident can safely be assessed at Rs.20,000/ per month. Considering, number of dependents, 1/3 is required to be deducted towards personal expenses of the deceased and deducting the same, loss of dependency would come to Rs.13,331/ and after applying multiplier 13 (considering the age of the deceased at 49 years), total loss of dependency would come to Rs. 20,80,104/ and after rounding at Rs.20,80,100/.
7.0. The learned Tribunal has also further materially erred in awarding Rs.20,000/ only towards compensation under the conventional head and funeral expenses etc. As the accident took place in the year 2001, claimants shall be entitled to a sum of Rs.1 lacs in all towards loss of consortium, loss of love and affection and loss of estate. The claimants shall also be entitled to Rs.5000/ towards funeral expenses.
8.0. Considering the fact that accident took place in the year 2001, the learned Tribunal has erred in awarding interest at the rate of 7.5% p.a.. Considering the catena of decisions of the Hon'ble Supreme Court as well as this Court for the accident which occurred in 2001, the learned Tribunal ought to have awarded interest at the rate of 9% p.a. 9.0. To the aforesaid extent, present appeal is required to be partly allowed and impugned judgment and award passed by the learned Tribunal is required to be modified to the aforesaid extent.
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10. In view of the above and for the reasons stated above, present appeal is partly allowed. The impugned judgment and award passed by the learned Tribunal is hereby modified to the extent and it is held that the claimants shall be entitled to Rs. 21,85,100/ towards compensation under the different heads and after deducting 70% towards contributory negligent of the deceased, claimants shall be entitled to Rs.6,55,530/ with 9% interest thereon from the date of application till realization from all the opponents instead of Rs. 3,80,000/ awarded by the learned Tribunal. Present appeal is partly allowed to the aforesaid extent. No costs. Now, all the opponents including the Insurance Company to deposit balance enhance amount of compensation as per the present order with the learned Tribunal within a period of 8 weeks from today. With this, present appeal is allowed.
sd/ (M.R.SHAH, J.) sd/ (G.B.SHAH, J.) Kaushik Page 12 of 12 14 of 14