New India Assurance Co Ltd. vs Bhaktiben Bhaveshkumar Thackerwd/O ... on 29 April, 2019

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Gujarat High Court

New India Assurance Co Ltd. vs Bhaktiben Bhaveshkumar Thackerwd/O ... on 29 April, 2019

1. Feeling aggrieved and dissatisfied by the judgment and award dated 16.4.2004 passed by the Motor Accident Claims Tribunal (Aux.), Kutch at Bhuj in Motor Accident Claim Petition no.696 of 1999, First Appeal no.2132 of 2004 is preferred by the insurance Company and First Appeal no.954 of 2005 is filed by the original claimants for enhancement under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for the sake of brevity). Both the appeals relate to same accident and both the appeals arise out of the same judgment and award and hence, both the appeals are heard together and are dealt with and disposed of by this common judgment and order.

2. Following facts emerge from the record of the appeals: That, the accident took place on 25.5.1999 at about 3:00 hrs. near Dabda S.T. bus stop abutting on Anjar Byepass on BhujAnjar Road. As per the original claimants, the deceased was travelling from Bhuj to Unjha in tempo bearing registration no. GJ12 V6437, which was driven by one injured. According to the Page 2 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT original claimants, the tempo was being driven by the driver on the left side with moderate and controllable speed in accordance with the traffic rules. When the tempo reached near Dabda S.T. bus stop, another tempo bearing registration no. GJ12 - V6212 being driven in a rash and negligent manner with excessive speed came from the other side and as the driver of the said tempo lost his control dashed and collided with the tempo bearing registration no. GJ12 - V6437, because of which, the said tempo turned turtle and the deceased sustained serious injuries and died on the spot. An FIR was lodged at the jurisdictional Police Station being Exh.61 and the original claimants preferred a claim petition under Section 166 of the Act and claimed compensation of Rs.51 lacs. Record indicates that in the claim petition, the original claimants have filed an application below Exh.6 under Section 163A of the Act and the Tribunal, by an order dated 23.5.2000, allowed Exh.6 application and awarded compensation of Rs.21,42,500/. The insurance Company preferred an appeal before this Court being First Appeal No. 2379 of 2000 which was allowed by this Court vide order dated 23.1.2002 directing the original claimants to prefer an application under Section 140 of the Act. However, as the insurance Company had to Page 3 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT deposit the amount as granted by an order dated 23.5.2000 passed below Exh.6 and an amount of Rs.8,22,194/ was already disbursed, this Court while allowing the First Appeal of the insurance Company clarified that the amount which is already disbursed in favour of the claimants shall not be disbursed and shall be adjusted against the amount that may be awarded by the Tribunal under Section 140 of the Act and if necessary, be adjusted against the final award and the original claimants were also directed to file an undertaking to that effect. The record indicates that it was the case of the original claimants that the deceased was a grain merchant and commission agent and was also rendering social services in a trust and was aged 29 years and 2 months on the date of the accident. The original claimants adduced oral evidence in form of deposition of the wife of the deceased at Exh.55 and brother of the deceased at Exh.14. The original claimants also examined one eye witness - Mamad Siddik Juneja at Exh.102 and further relied upon the documentary evidence, such as, FIR Exh.61, inquest Panchnama Exh.63, postmortem note of the deceased Exh.62, copies of the incometax returns Exhs.65, 66, 69, 70, 73 and 74 and also further relied upon intimation from the IncomeTax Department Exhs.64 and 67. The Tribunal came to the Page 4 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT conclusion that the driver of the tempo bearing registration no. GJ12 V6212 was solely negligent. Record further indicates that after appreciating the evidence as regards income, the Tribunal assessed the income of the deceased at Rs.25,000/ per month and after deducting onethird towards personal expenses, determined the monthly income of the deceased at Rs.16,667/ and applied 17 multiplier and awarded Rs.34,00,068/ as compensation under the head of loss of future dependency, Rs.50,000/ towards loss of estate and loss of consortium and other conventional heads including funeral expenses and thus, awarded Rs.34,50,068/ with 9% interest from the date of filing of the claim petition till its realization and being aggrieved by the said judgment and award, both the insurance Company as well as the original claimants have preferred these appeals, as aforesaid.

3. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant in First Appeal No. 2132 of 2004 and for respondent no.3 insurance Company in First Appeal No. 954 of 2005 and Mr. Jenil Shah, learned advocate for the original claimants i.e. appellants of First Appeal no. 954 of 2005 and respondents no.1 to 5 in First Appeal no.2132 of 2004. We have Page 5 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT also perused the original record and proceedings.

4. Mr. Jenil Shah, learned advocate for the original claimants has contended as under: 4.1 That, the Tribunal has erred in determining the income of the deceased. Relying upon incometax returns of last 3 years i.e. Exhs.65, 69 and 73, Mr. Shah contended that the income of the deceased from business can be determined at Rs.15,000/ per month. It was further contended that the original claimants have proved that the deceased was engaged in social services in a trust and according to Mr. Shah, the deceased had income of at least Rs.5,000/ from the trust and thus, it was urged by Mr. Shah that the monthly income of the deceased should be determined at Rs.20,000/ per month.

4.2 Mr. Shah contended that the Tribunal has erred in not considering increase in income by way of prospective income. Relying upon the judgment of the Hon'ble Apex Court in the cases of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, it was contended by Mr. Shah that the original Page 6 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT claimants would be entitled to prospective income to the extent of 40%.

4.3 It was contended that the Tribunal has also wrongly deducted onethird towards personal expenses and as the deceased had 5 dependents, the deduction towards personal expenses would be onefourth of the income. It was also contended that the Tribunal has awarded lesser amount under conventional heads, which should be enhanced to Rs.70,000/ as per the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra).

4.4 It was contended that the appeal filed by the insurance Company is meritless as the parties have acted as per the order passed by this Court in First Appeal no.2379 of 2000 and therefore, the contention raised in the appeal that the original claimants have already received compensation under Section 163A of the Act cannot now be raised by the insurance Company. According to Mr. Shah, the appeal of the insurance Company is meritless and the same deserves to be dismissed. On the aforesaid grounds, it was therefore contended that the appeal filed by the original claimants may be allowed and the impugned judgment and award may be modified by enhancing the compensation as prayed for and Page 7 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT the appeal filed by the insurance Company may be dismissed.

4.5 Mr. Shah also relied upon the Division Bench judgment of this Court in First Appeal no.2366 of 2014 and Paragraph 10.1 in particular and contended that as the deceased was a businessman and his future prospects were bright as decided by the Division Bench, 20% should be increased as actual income at the time of death as future rise in income.

5. Mr. Vibhuti Nanavati, learned advocate for the insurance Company has contended as under: 5.1 That, the Tribunal has wrongly allowed the claim petitions as the respondents original claimants were already awarded compensation under Section 163A of the Act.

5.2 It was contended that the Tribunal has erred in computing the amount of compensation and has wrongly appreciated the evidence in form of incometax returns.

5.3 It was also contended that the Tribunal has not considered the earlier order passed by this Court in First Appeal no. 2379 of 2000 and has wrongly computed the award.

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C/FA/2132/2004 JUDGMENT 5.4 It was also contended that the Tribunal has erred in appreciating the evidence of the so called eyewitness at Exh.102 as he is a got up witness and the Tribunal has therefore wrongly come to the conclusion that the driver of the tempo bearing registration no. GJ12 V 6212 was solely negligent. Mr. Nanavati also contended that the Tribunal has rightly awarded the conventional amount, which does not require any modification. It was contended that considering the date of accident, the original claimants are not entitled for any prospective income. It was also contended that the judgment of the Division Bench of this Court in First Appeal no.2366 of 2014 is not applicable in the case on hand and the original claimants are not entitled for any compensation by way of prospective income. On the aforesaid grounds, Mr. Nanavati contended that the appeal filed by the insurance Company being First Appeal no.2132 of 2004 deserves to be allowed and First Appeal no.954 of 2005 filed by the original claimants deserves to be dismissed and the claim petition may be dismissed, more particularly as the original claimants have already received the compensation under Section 163A of the Act.

6. No other or further contentions and/or submissions are made by the learned advocates Page 9 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT appearing for the respective parties.

7. We have considered the submissions made and have also perused the record and proceedings. As far as the age of the deceased is concerned, the birth certificate is produced at Exh.106, which indicates that the date of birth of the deceased was 30.3.1970 and the same is not in dispute and as per the record, the deceased was 29 years and 2 months old on the date of the accident. Upon reappreciating the evidence in form of Panchnama and so also the oral deposition of the witness at Exh.102- Mamad Siddik Juneja, he has stated in examinationinchief that he was coming with his friend - Bhimji Vadod on the date of the accident i.e. on 25.5.1999 from Godhra to Bhuj and has also clearly stated that how the accident took place. He has also stated the number of the tempo being GJ12 V6212 was driven by Arvindbhai. Even considering the crossexamination, we find that he has stood the test of his testimony. The driver of the tempo having not been examined, we find that the conclusion as regards negligence arrived at by the Tribunal is correct appreciation of the evidence on record and the Tribunal has therefore rightly come to the conclusion that the driver of the tempo bearing registration no. GJ12 V6212 was solely negligent and Page 10 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT therefore, the contention raised by Mr. Nanavati as regards negligence deserves to be negatived.

8. As far as the income is concerned, the original claimants have adduced evidence by way of incometax returns at Exhs.64, 65, 66, 67, 69, 70, 73 and 74. The accident has taken place on 25.5.1999. The incometax returns for Assessment Year 199900 was filled in by the deceased himself, wherein the gross income is shown as Rs.2,41,568/ and the incometax which was paid was Rs.46,471/ which is also evident from the Challan at Exh.74 and such incometax was paid on 11.5.1999 by the deceased himself. During the course of arguments, it was also contended by Mr. Nanavati that the deceased had no permanent account number. However, the fact remains that the return was filled in. Thus, gross income (Rs.2,41,568/) minus tax (Rs.46,471/) for the relevant year would come to Rs.1,95,097/. Hence, monthly income as per the last income tax as per Exh.73 would come to Rs.16,258/ (Rs.1,95,097/ / 12). As far as the further contention raised by Mr. Shah that the deceased had also additional income of Rs.5,000/ from his philanthropic activities in the trust is concerned, firstly, in the incometax return, no such income is reflected Page 11 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT and in the statement of total income for the previous year which was ended on 31.3.1999 for Assessment Year 199900 at Exh.75, no such income is mentioned. On the contrary, the other statement indicates that the gross business income is shown by the deceased. Upon examining the other evidence being Exhs.76 to 79 and 99 to 101 also do not show any such income. It only shows that it was purely a philanthropic activity. On the contrary, the evidence at Exh.90 onwards shows that majority of the evidence is after the accident and therefore, the contention raised by Mr. Shah that there was additional income from trust deserves to be negatived in absence of any evidence. Thus, the income of the deceased can be assessed at Rs.16,258/ per month. The deceased was 29 years and 2 months old on the date of the accident and therefore, following the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma (supra) as well as Pranay Sethi (supra), the original claimants would be entitled to prospective income to the tune of 40%. Having come to the aforesaid conclusion therefore, the appellants would be entitled to compensation under the head of loss of dependency as under: Page 12 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT Monthly income Rs.16,258/ 40% of Rs.16,258/ + Rs.6,503/ Monthly income = Rs.22,761/

9. Record indicates that there are 5 dependents and therefore, deduction towards personal expenses has to be onefourth and not one third as calculated by the Tribunal.

     Monthly income                                           Rs.22,761/
     onefourth of Rs.22,761/                               Rs.5,690/
     Monthly income                                        = Rs.17,071/
     Yearly                                                                 X 12
     Yearly income                                    = Rs.2,04,852/
     Multiplier                                                             X 17
     Total compensation                              = Rs.34,82,484/

10. Over and above the same, the appellants would be entitled to additional amount of Rs.70,000/ under conventional heads as per the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra) and thus, the original claimants would be entitled to total compensation of Rs.35,52,484/.

11. With respect, the judgment of the Division Bench rendered in First Appeal no.2366 of 2014 would not be applicable in view of the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra).

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      C/FA/2132/2004                                       JUDGMENT



12. At   this         stage,   it    would     be    appropriate              to

refer to the judgment of the Division Bench of this Court rendered in First Appeal no.2379 of 2000 dated 23.1.2002, wherein the insurance Company had challenged the order passed by the Tribunal below Exh.6 and while allowing the appeal, the Division Bench of this Court has observed thus: "4. Learned counsel for the appellant contends that the Tribunal has erred in law in treating the said Claim Petition under section 163A as a claim of an interim nature, and has dealt with it in a manner similar to a claim under section 140 of the said Act. It was contended that on account of this approach on the part of the Tribunal, the appellant Insurance Company had no opportunity of leading appropriate evidence and/or meeting the contentions of the original claimants in these proceedings under section 163A. According to the learned counsel for the appellant, the law as laid down by the Supreme Court does not permit the claimants to pursue a claim under section 163A of the Act, whether by way of an interim application or even by way of a final decision, as long as the main claim under section 166 of the said Act is pending adjudication. In other words, learned counsel for the appellant contends that the claims filed under section 163A and section 166 of the said Act are Page 14 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT in the nature of alternative remedies, and only one of such remedies can be pursued, whereas the two remedies cannot be pursued simultaneously or in succession. We are obliged to accept this contention on the part of the learned counsel for the appellant in view of the clear decision of the Supreme Court in the case of The Oriental Insurance Co. Ltd. Vs. Hansrajbhai V. Kodala and others, reported in JT 2001(4) SC 477. It is, therefore, obvious that on the facts of the case, since the main claim petition under section 166 of the Act is pending, the Tribunal had no jurisdiction either to entertain or to decide a claim under section 163A of the said Act. In the premises aforesaid, the impugned award under section 163A is required to be quashed and set aside. We hold and direct accordingly.

5. However, the facts of the case require further directions to be given in respect of the amount which has been deposited by the appellant before the Tribunal, and in respect of which we are informed that the Tribunal has already passed orders as to investment and disbursement.

6. In view of the fact that the impugned award under section 163A has been quashed and set aside, it would normally follow that the appellant Insurance Company would be entitled to restoration of the status quo ante. However, we are mindful of the fact that the main Page 15 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT claim under section 166 is yet pending adjudication and are also mindful of the fact that in such a claim petition, it is always open to the claimants to prefer an application under section 140 of the said Act.

7. In the premises aforesaid, and on the facts of the case, we hold by consensus between the learned counsel for the parties that it would be open to the respondents original claimants to prefer an application under section 140 in the claim petition, now pending under section 166 of the said Act.

8. However, we are also conscious that in case of a fatality from which the main claim petition arose, the maximum the Tribunal could award under section 140 would be Rs.50000/. It would, therefore, be appropriate to direct that it shall be open to the appellant Insurance Company to apply to the Tribunal to liquidate and/or realise the investment made by the Tribunal. If and when such an application is made the Tribunal shall grant the same.

9. It is clarified that the amount which is already disbursed in favour of the original claimants out of the said deposit made by the Insurance Company, shall, for the present, not be disturbed and shall be adjusted against the amount that may be awarded by the Tribunal on the adjudication of the claimants' application under section 140 of the said Act, and if necessary, Page 16 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT adjusted against the final award under section 168 of the said Act.

10. However, this direction as to retention by the claimants of the amount already disbursed shall be subject to the claimants filing an undertaking before the Tribunal to the effect that the claimants shall pursue the main claim petition under section 166 of the Act, and obtain an adjudication thereon, on merits and in accordance with law, and that they shall not permit this application to be withdrawn or dismissed for default, or be disposed of in any other manner, and that the amount already already disbursed in favour of the claimants shall be adjusted in the final award under section 168 of the said Act. If such an undertaking is not filed along with an application under section 140 of the said Act, it shall be open to the appellant Insurance Company to apply to the Tribunal for restitution of the amount already disbursed in favour of the original claimants."

13. In view of the judgment of this Court rendered in First Appeal no.2379 of 2000 dated 23.1.2002, the contention raised by Mr. Nanavati that the claim petition deserves to be dismissed in view of the fact that the claimants had already received the compensation under Section 163 of the Act cannot be accepted.

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C/FA/2132/2004 JUDGMENT

14. In view of the aforesaid discussion and upon reappreciation of the evidence on record, the Tribunal has rightly come to the conclusion that the driver of the impending tempo bearing registration no. GJ12 V6212 was solely negligent deserves to be upheld. The income, as determined by the Tribunal, deserves to be modified and the award deserves to be modified as observed hereinabove. Consequently, the appeal filed by the insurance Company being First Appeal no.2132 of 2004 is hereby partly allowed. First Appeal no.954 of 2005 filed by the original claimants is partly allowed. The original claimants would be entitled to additional amount with 9% interest per annum from the date of filing of the claim petition till its realization. However, the same shall be subject to calculation as per the judgment rendered by the Division Bench of this Court in First Appeal no.2379 of 2000 dated 23.1.2002 and the amount which is already disbursed in favour of the original claimants shall be adjusted in the final award. The impugned judgment and award is modified to the aforesaid extent. The insurance Company shall deposit the additional amount as awarded by this Court with 9% interest per annum from the date of filing of the claim petition till its realization with proportionate costs. However, there shall be no order as to costs in these Page 18 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019 C/FA/2132/2004 JUDGMENT appeals. Registry is directed to send back the original record and proceedings back to the Trial Court forthwith. The impugned judgment and award is modified to the aforesaid extent only.

(R.M.CHHAYA, J) (S.H.VORA, J) MRP Page 19 of 19 Downloaded on : Tue Jun 25 10:23:32 IST 2019

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