Gujarat High Court
Bhavnaben Shaileshbhai Rank vs Mahmadmkhan Mahmadjallaudinkhan ... on 6 December, 2021
Bench: Aravind Kumar, Ashutosh J. Shastri
C/FA/3508/2021 ORDER DATED: 06/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3508 of 2021
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BHAVNABEN SHAILESHBHAI RANK
Versus
MAHMADMKHAN MAHMADJALLAUDINKHAN PATHAN
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 1,2,4,6
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 5
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 06/12/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. This is a claimants' appeal challenging the legality and correctness of the judgment and award passed by the Motor Accident Claims Tribunal (Special), 9th Additional District Judge, Rajkot in Motor Accident Claims Petition No.60 of 2007 dated 16.1.2018 whereunder claim petition filed by the appellants under Section 166 of the Motor Vehicles Act, 1988 has been allowed in part and a total compensation of Rs.34,16,364/- with interest @ 9% per annum has been awarded from the date of petition till realisation and has held that on account of negligence of driver of Innova Car (in which the deceased was travelling), to the extent of 50% and deceased being the owner Page 1 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 of Innova Car, to that extent, the insurer of other two vehicles have been exonerated from indemnifying the award. Hence, this appeal for enhancement and for setting aside the finding of the Tribunal insofar as holding driver of Innova vehicle being negligent.
2. We have heard Mr. Tushar L. Sheth, learned counsel appearing for the appellants, Mr. Rathin P. Raval, learned counsel appearing for the respondent No.3-The Oriental Insurance Company Ltd. and Ms. Sejal K. Mandavia, learned counsel appearing for the respondent No.5-ST Corporation and perused the records.
3. Mr. Tushar Sheth, learned counsel appearing for the appellants has made available copies of depositions of witnesses and exhibits as laid before the Tribunal. Taking into consideration that accident is of the year 2006, namely, which occurred on 7.6.2006 and 15 years have lapsed, this appeal is taken up for final disposal at the stage of admission itself.
4. It is the contention of learned counsel appearing for the appellants that Tribunal committed a serious error in construing the income of the deceased based on average income, namely, by Page 2 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 taking into consideration the average of the Income Tax Returns filed for the Assessment Years 2001-02 to 2005-06 and Tribunal ought to have taken the income of the deceased as per the last assessment year preceding his death, namely, the Income Tax Return of the Assessment Year 2005-06 as per Exh.73. He would also contend that deceased had not completed 31 years and as such, the Tribunal ought to have adopted the multiplier of 17 instead of 16 and, as such, loss of income requires to be recomputed. He would further contend that Tribunal has not awarded any amount towards pain and suffering by ignoring the evidence available on record, namely, the fact that deceased was alive for 16 days and, as such, it ought to have awarded compensation under the heard "Pain and Suffering". He would further submit that filial and parental compensation has not been awarded to the child and parents of the deceased. Hence, he prays for award of compensation to the child as well as to the father of the deceased as parental and filial consortium. He prays for appeal being allowed by modifying the judgment and award passed by the Tribunal. He would also contend that Tribunal committed a serious error in arriving at a conclusion that driver of Innova Car in which the deceased was driving had contributed 50% negligence to the accident and Tribunal failed to take into Page 3 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 consideration that it was a case of composite negligence in which three vehicles were involved and, as such, it ought to have absolved the driver of the Innova vehicle or alternatively reduced the negligence attributed to the driver of Innova vehicle to an extent of 25%. Hence, he prays for suitable modification of the award. In support of his submissions, he has relied upon the following judgments:
(i) 2020 ACJ 1865 in the case of M.H.Uma
Maheshwari and others Vs. United India
Insurance Co.Ltd.;
(ii) 2020 ACJ 2528 in the case of Bhartiben
Mansukhbhai Desai and others Vs. Bhikhubhai Kurjibhai Desai and another;
(iii) 2015 ACJ 1239 in the case of Shashikala and others Vs. Gangalakshmamma and another;
(iv) 2018 ACJ 1029 in the case of Vijay Kumar Rastogi Vs. U.P. State Road Transport Corporation;
(v) 2018 SAR (Civil) 922 in the case of United India Insurance Co.Ltd. Vs. Indiro Devi & Ors.;
(vi) 2020 ACJ 526 in the case of Malarvizhi and others Vs. United India Insurance Co.Ltd.;
(vii) 2019 ACJ 704 in the case of Legal heirs of deceased Shaileshbhai Baldevbhai Patel and others Vs. Parmar Pravinsinh Chedusinh and others;
(viii)2016 ACJ 1 in the case Kamlesh and others Vs. Attar Singh and others.
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5. Per contra, Mr. Rathin P. Raval, learned counsel appearing for the insurer would support the judgment and award passed by the Tribunal and would contend that what has been awarded by the Tribunal is just and reasonable and it would not call for any interference. He would also submit that issue relating to contributory negligence has been rightly dealt with by the Tribunal and as such, has prayed for dismissal of the appeal. In support of his submissions, he has relied upon the judgment of the Hon'ble Apex Court in the case of ICCI Lombard General Insurance Company Limited Vs. Ajay Kumar Mohanty and Another reported in (2018)3 SCC page 686.
6. Having heard the learned advocates appearing for the parties, we are of the considered view that following two points would arise for our consideration:
(1) Whether Tribunal was correct in arriving at a conclusion that 50% negligence is attributable to driver of Innova vehicle? or Apportioning contributory negligence to the drivers of the bus and truck in the ratio of 25:25% only?
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(2) Whether the compensation awarded by the
Tribunal under different heads is just and
reasonable or it would call for interference? (3) What order?
7. Details of the accident as well as issuance of policy to the vehicles involved in the accident, namely, Innova car and truck are not in dispute and so also death of the 1 st claimant's husband in the accident that occurred on 7.6.2006. Hence, we have not delved upon these facts in our order as it would be repetition of facts.
RE: POINT NO.(1)
8. The accident in question occurred on 7.6.2006 at about 6 p.m. and Innova vehicle was proceeding towards Borsad from Asodar Chokdi. The driver of Innova car having made attempt to overtake ST bus was unsuccessful and at that time, the incoming truck could not stop the vehicle as a result of which, the driver of Innova vehicle is said to have brushed the diesel tank of ST bus and later on hit the incoming truck or in other words, truck rammed into Innova vehicle as a result of which, husband of the 1st claimant who was the passenger in the Page 6 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 said vehicle and who was also the owner of Innova car sustained grievous injuries and later on succumbed to the same. Tribunal while answering issue No.1 has dealt with in detail the documentary and oral evidence tendered by the parties. After evaluating the same, it has rightly arrived at a conclusion that when the driver of the Innova vehicle made an attempt to overtake ST bus, the driver of the said vehicle signaled him not to overtake and despite such warning given by driver of the ST bus, driver of Innova vehicle overtook the ST bus and later on realized the mistake and in order to avoid hitting the incoming truck, has brushed to the diesel tank of ST bus and thereafter, the incoming truck has dashed against Innova vehicle resulting in injuries being sustained by inmates of Innova vehicle as a consequence of accidental injuries suffered, husband of the 1 st claimant, who was a passenger in the said vehicle sustained grievous injuries and despite treatment extended to him for about 16 days, it did not yield any positive result and thereafter, he succumbed to the injuries on 24.6.2006. As held by the Tribunal, driver of Innova vehicle was responsible for the accident to a greater extent. The records also disclose that the jurisdictional police had registered the FIR against driver of Page 7 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 Innova vehicle who, after completing investigation, have filed the charge sheet against the driver of Innova car for rash and negligent driving. The contents of the charge sheet are not disputed or in other words, none have challenged the charge sheet filed against the driver of Innova car including the driver of Innova vehicle who had been examined as a witness, namely, Bharat T. Singala before the Tribunal. In that view of the matter, the contention raised by the learned counsel appearing for the appellants that there was greater negligence on the part of driver of bus or truck cannot be accepted and said contention is brushed aside. Hence, point No.(1) is answered in the negative, namely, against the appellants and in favour of the insurer. RE: POINT NO.(2)
9. Tribunal while computing the compensation payable towards loss of income to the dependents has taken into consideration the Income Tax Returns filed by the claimants of the deceased for the Assessment Years 2001-02 to 2005-06 as per Exhs.69 to 73. Learned counsel appearing for the claimants has made a valiant attempt to contend that in view of the law laid down by the Hon'ble Apex Court in the case of Shashikala Page 8 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 and others Vs. Gangalakshmamma and another reported in 2015 ACJ page 1239, income of the deceased has to be taken based on the last Income Tax Return and not the average income of past three (3) years, which exercise had been undertaken by the Tribunal, though looks attractive, it is not so, inasmuch as the judgment of the Hon'ble Apex Court in (2018)3 SCC page 686 would indicate that it is always apt, appropriate and safe to take average income, inasmuch as in a given case there may be a situation where due to unforeseen circumstances, income for the last year could be either less or abysmally on the lower side. In such circumstances, the insurer cannot be heard to contend that last Income Tax Return which was filed by the deceased would be required to be taken as his/her actual income. The safe and proper course in such circumstances is to take into consideration the average income of the last three years preceding the death which would indicate the average income the deceased was earning for the last three years prior to his death. It is this precise exercise which was undertaken by the Tribunal in the instant case, namely, the income for last five years as indicated in the Income Tax Returns which were filed as per Exhs.69 to 73 and has arrived at the Page 9 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 average annual income and thereafter has proceeded to determine the loss of dependency or loss of income to which the claimants would be entitled to. There is no error committed by the Tribunal in that regard and we are not inclined to disturb the findings recorded by the Tribunal in that regard.
10. Insofar as adopting of multiplier by the Tribunal, it could be seen from the judgment of the Hon'ble Apex Court in the case of Smt. Sarla Verma Vs. Delhi Transport Corporation and another reported in (2009)6 SCC 121, appropriate multiplier to be adopted for the age group of 26-30 is 17 and for the age group of 31-35 is 16. In the instant case, the overwhelming documentary evidence which was placed on record by the claimants to prove the age of the deceased was the passport of the deceased, which reflected his date of birth as 4.12.1975 and deceased had succumbed to the injuries on 24.6.2006. Thus, as on the date of his death, he was 30 years, 6 months and 3 days. This would clearly indicate that the deceased had completed 30 years and was running on 31 years. Thus, Tribunal has rightly taken into consideration and placed him in the age group of 31-35 years and has adopted the multiplier of
16. There is no error committed by the Tribunal in that regard Page 10 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 and as such, we do not disturb the finding recorded by the Tribunal in that regard.
11. Insofar as the compensation payable towards loss of consortium, the wife alone has been awarded a sum of Rs.40,000/-, ignoring the claim of child as well as father. Though the learned counsel appearing for the insurer would vehemently contend that in the cases of Magma General Insurance Company Ltd. Vs. Nanu Ram Alias Chuhru Ram and Others reported in (2018)18 SCC page 130 as well as United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur & Ors. reported in 2020 SCCOnline SC 410 the Hon'ble Apex Court has referred to filial compensation to be paid to the parents in case of death of a child and not in the case of death of a male adult person, we are not inclined to accept the same, inasmuch as the filial consortium is a compensation paid to the parents on the death of a son or a daughter. The loss that parents would suffer on account of love, care and affection that would be showered by the son or the daughter, as the case may be, on the parent would definitely be lost to them as it has to be construed or requires to be extended even to an adult male or female and it cannot be construed or read down in a narrow Page 11 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 sense to mean and include only a child. Undisputedly, the child in the instant case who is the 2 nd claimant who had lost his father would be entitled to parental consortium of Rs.40,000/- as held by the Hon'ble Apex Court in Satinder Kaur @ Satwinder Kaur(supra) and Magma General Insurance Company Ltd. (supra) and, as such, we award a sum of Rs.40,000/- each to the child as well as to the father i.e. in all a sum of Rs.80,000/- towards parental and filial consortium which has not been awarded by the Tribunal.
12. The deceased in the instant case on suffering accidental injuries that occurred on 7.6.2006 was admitted to the hospital and due to head injuries, he was in ICU and had been extended all medical help with the fond hope of reviving him and yet the fate had befallen on the claimants and despite all reasonable steps taken to extend medical facilities for ensuring his survival did not yield result and ultimately due to the accidental injuries suffered, the 1st claimant's husband expired on 24.6.2006. The deceased had spent about 16 days of agony, pain and suffering which, though cannot be compensated. However, we are of the considered view that just and reasonable compensation if awarded it would meet the ends of justice. As Page 12 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 such we award a sum of Rs.1.00 lakh towards pain and suffering. Thus, in all the claimants would be entitled to additional compensation of Rs.1,80,000/- in addition to what has been awarded by the Tribunal. We also make it clear that claimants would be entitled to interest @ 6% per annum on the additional enhanced compensation and we do not disturb the interest awarded by the Tribunal on the compensation awarded by it.
RE: POINT NO.(3)
For the reasons aforestated, we
proceed to pass following
O R D E R
(i) Appeal is allowed in part.
(ii) Judgment and award passed by the Motor Accident Claims Tribunal (Special), 9th Additional District Judge, Rajkot in Motor Accident Claims Petition No.60 of 2007 dated 16.1.2018 stands modified and a sum of Rs.1,80,000/- (Rupees One Lakh and Eighty Thousand only) is awarded in addition to the compensation which was awarded by the Tribunal which shall carry interest @ 6% per annum from the Page 13 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022 C/FA/3508/2021 ORDER DATED: 06/12/2021 date of petition till date of payment or deposit, whichever is earlier.
(iii) The insurer which is required to indemnify the award jointly and severally shall deposit the said amount before the Tribunal in proportion to their liability expeditiously at any rate within 4 weeks from the date of receipt of certified copy of this order.
(iv) The enhanced compensation is ordered to be released in favour of the 1st claimant, namely, the wife by the jurisdictional Tribunal.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) RADHAKRISHNAN K.V. Page 14 of 14 Downloaded on : Wed Jan 12 07:23:17 IST 2022