Gujarat High Court
The New India Assurance Co Ltd vs Salmabibi Jainulabedin Doi on 3 March, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/FA/96/2022 JUDGMENT DATED: 03/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 96 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/FIRST APPEAL NO. 96 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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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 ?
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THE NEW INDIA ASSURANCE CO LTD
Versus
SALMABIBI JAINULABEDIN DOI
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 03/03/2022
ORAL JUDGMENT
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C/FA/96/2022 JUDGMENT DATED: 03/03/2022 [1.0] This is an Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 challenging the judgment and award passed by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himatnagar dated 29.01.2021 in MAC Petition No.208 of 2016 whereby the tribunal has awarded an amount of compensation to respondents nos.1 to 4 - original claimants for the death of Jainulabendin Ibrahimbhai Doi caused in a vehicular accident. The claimants have been ordered to be paid compensation of Rs.22,69,432/- with interest at the rate of 9% per annum from the date of filing of the Claim Petition till realization thereof and to pay proportionate cost thereof. The appellant and other two respondents in the Claim Petition were held to be jointly and severally liable for payment of compensation.
[2.0] The brief facts of the case, as pleaded in the Claim Petition, are as under:
[2.1] The deceased sustained lethal injuries in a vehicular accident occurred on 14.08.2016. When the deceased was proceeding for business work by Scooter bearing No.GJ-9-CD- 7863, which he was driving on the correct side of the road with moderate speed, while he reached near village Raigadh on the National Highway No.8, at that time, at about 8:00 a.m. a Truck Trailer bearing No.MP-33-H-1831 driven by respondent no.5 herein - opponent no.1 as mentioned in the Claim Petition rashly and negligently came from behind and dashed with the Scooter of the deceased and in that way the accident occurred and the deceased fell down on the road. In the accident, the Truck Trailer ran over the deceased and he sustained fatal injuries and succumbed to death on the spot. At the time of Page 2 of 6 Downloaded on : Thu Mar 03 21:25:49 IST 2022 C/FA/96/2022 JUDGMENT DATED: 03/03/2022 death of the deceased, the age of the deceased was 58 years and he was hale and hearty. He was doing business in the name of "Doi Saree Center" at Himatnagar since 1971 and thereby he was earning Rs.25,000/- per month and was maintaining his family but due to untimely death of the deceased, his business was affected, and therefore, the heirs and legal representatives of the deceased i.e. claimants have claimed compensation on various grounds mentioned in the Claim Petition. The tribunal has on appreciation of evidence led and considering the documents produced and proved, after following the decisions of the Supreme Court, determined the monthly average earning of the deceased to the tune of Rs.23,338/- and after applying proper multiplier and considering the future prospective earning in accordance with the decisions of the Supreme Court determined it at monthly Rs.25,672/- and Rs.3,08,064/- for a year. In view of four claimants, ¼th of the earning is deducted towards personal expenses of the deceased i.e. Rs.77,016, which comes to Rs.2,31,048/-, which is considered to be dependency loss per annum and applying the multiplier of 9 in accordance with the decision of the Supreme Court in the case of Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation And Another reported in (2009) 6 SCC 121, the total compensation worked out is Rs.20,79,432/- and in addition thereof, Rs.1,60,000/- was added towards consortium to the claimants, who had lost the husband and beloved father and Rs.30,000/- towards loss of estate and funeral expenses collectively and thereby the total compensation was awarded to the tune of Rs.22,69,432/-.
[3.0] Heard Mr. Palak Thakkar, learned advocate for the Page 3 of 6 Downloaded on : Thu Mar 03 21:25:49 IST 2022 C/FA/96/2022 JUDGMENT DATED: 03/03/2022 appellant. The only argument advanced for assailing the impugned judgment and award is to the effect that since the claimants have produced the income tax returns of the deceased for the Assessment Year 2014-15 at Exh.38 and for the Assessment Year 2015-16 at Exh.39, for arriving at a monthly earning or yearly earning of the deceased, the average of total earning reflected from two income tax returns should have been considered, and therefore, the monthly /yearly earning arrived at by the tribunal for awarding compensation requires reconsideration.
[3.1] He has further submitted that the amount towards consortium should be awarded only Rs.40,000/-, whereas the tribunal has awarded at the rate of Rs.1,60,000/- considering Rs.40,000/- towards each claimants, and therefore, he has submitted that the judgment and award requires reconsideration.
[3.2] No other contentions are raised assailing the impugned judgment and award.
[4.0] Heard learned advocate for the appellant and perusing the judgment and award in detail with the help of the learned advocate for the appellant, it emerges that for arriving at monthly earning as per the decision of the Supreme Court in the case of Sangita Arya and Others Vs. Oriental Insurance Company Ltd and Others reported in (2020) 5 SCC 327 the income tax return being statutory document, reliance can be placed to determine the annual income of the deceased and the latter most income tax return is to be considered for computation of income and based on that future Page 4 of 6 Downloaded on : Thu Mar 03 21:25:49 IST 2022 C/FA/96/2022 JUDGMENT DATED: 03/03/2022 prospective income may be awarded. Following the said decision, the tribunal has considered the monthly earning as reflected in the income tax return for the Assessment Year 2015-16 at Exh.39, which was filed much prior to the date of the accident, and therefore, I see no reason to interfere with the decision of the tribunal, based on following binding precedent of the Supreme Court. Therefore the contention that there are more than one income tax returns produced for determining the monthly /yearly earning of the deceased average of multiple income tax returns produced should have been considered by the tribunal is required to be rejected in view of the decision of the Supreme Court in the case of Sangita Arya and Others (Supra).
[4.1] Another contention that towards the loss of consortium only Rs.40,000/- should have been awarded also requires to be rejected outright in view of the decision of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Somvati and Others reported in 2020 ACJ 2321 where Supreme Court has held that in fatal case each claimant should be awarded consortium of Rs.40,000/- towards spousal as also filial consortium in the case of children, and therefore, considering number of claimants, the tribunal reached the amount of Rs.1,60,000/- at the rate of Rs.40,000/- each per claimants towards spousal consortium as also filial consortium respectively. The said amount is also arrived at by the tribunal considering the binding precedent of the Supreme Court, and therefore, there is no room for interference to the judgment and award passed by the tribunal and I am in full agreement with the same.
Page 5 of 6 Downloaded on : Thu Mar 03 21:25:49 IST 2022C/FA/96/2022 JUDGMENT DATED: 03/03/2022 [5.0] In view thereof, the present Appeal is required to be dismissed and it is hereby dismissed.
ORDER IN CIVIL APPLICATION In view of dismissal of the Appeal, the connected Civil Application stands disposed of.
(UMESH A. TRIVEDI, J.) siji Page 6 of 6 Downloaded on : Thu Mar 03 21:25:49 IST 2022