IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2283 of 2012 With CIVIL APPLICATION No. 8112 of 2012 In FIRST APPEAL No. 2283 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE Z.K.SAIYED =========================================================
========================================================= NEW INDIA ASSURANCE COMPANY - Appellant(s) Versus PREMBAI SHIVJI BHUVA & 9 - Defendant(s) ========================================================= Appearance :
MR HASMUKH THAKKER for Appellant(s) : 1, MR MEHUL S SHAH for Defendant(s) : 1 - 7. MR SURESH M SHAH for Defendant(s) : 1 - 7.
- for Defendant(s) : 0.0.0, 0.0.0,0.0.0 ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 01/11/2012 C.A.V. JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. By way of this appeal, the appellant has challenged the award dated 10.1.2012 passed by Motor Accident Claims Tribunal (Aux.), BhujKachchh [“the Tribunal” for short] in Motor Accident Claims Petition No.1 of 1999.
2. Learned counsel Mr.Hasmukh Thakker, appearing for the appellant, submitted that the Tribunal has erred in awarding the sum of Rs.24,48,000/ under the head of “future loss of income”. He has submitted that the Tribunal has erred in law in assessing the monthly income of the deceased, including future prospects at Rs.15,000/, in absence of cogent and reliable evidence in that regard. He has submitted that learned Judge erred in law in assessing the monthly income of the deceased including future prospects at Rs.18,000/ when neither incometax returns nor books of accounts of the deceased were produced during the trial.
3. Learned counsel submitted that learned Judge failed to appreciate that as the claimants could not prove the income of the deceased, the annual dependency loss ought to have been calculated as Rs.3,500/(monthly income) X 12 (months) X 17 (multiplier) 2/3rd (factor) = Rs.4,76,000/. He has submitted that learned Judge erred in law in awarding the amount of Rs.24,48,000/ under the head of “annual dependency loss” instead of Rs.4,76,000/.
4. Learned counsel Mr.Mehul S. Shah, appearing for the respondents, has submitted that the appellant herein has not led any evidence before the Tribunal to controvert the case pleaded and established on record by the claimants. The claimants have not only led oral evidence, but have also produced voluminous documentary evidence on record including the income certificate and the certificate as well as other documents clearly establishing the business of building contract of the deceased. It has also come in evidence that various building contracts were executed by the deceased wherein he had gained profits, and even the deceased, in turn, used to make payment of sufficient amount to his staff and subcontractors. Besides, the extract of accounts of the deceased of his bank have also been produced on record. Therefore, it is submitted that the assessment of monthly income of the deceased arrived at Rs.12,000/ p.m. by the Tribunal as against the claim of the monthly income by the claimant at Rs.35,000/ p.m. can never be considered to be excessive calling for interference by this Court. It is also submitted by the claimants that looking to the number of dependents, in all seven, of the deceased, in fact, the Tribunal ought to have deducted not more than one fifth amount towards personal expenditure of the deceased, whereas the Tribunal has deducted one third amount for the same, which could have called for filing of crossobjections at the hands of the claimants. But, on the overall view of the matter, the amount as assessed and awarded by the Tribunal can never be considered to be excessive or exorbitant and hence, the appeal is required to be dismissed.
5. We have gone through the entire record of the case including the record and proceedings of the trial Court. In support of the claim petition, the claimants have examined the following witnesses;
(1) Jaydipsinh @ Jatubha Khegarji Jadeja Ex.142/C
(2) Devshi Devji Vekariya Ex.138/C
(3) Govind Karshan Mepani Ex.139/C
(4) Rameshbhai Vaghjibhai Hirani Ex.135/C We have gone through the examinationinchief as well as the crossexamination on behalf of the present appellant. The evidence produced on record proves beyond reasonable doubt that the deceased was engaged in the activity of building contractor and to carry out the said work the deceased had engaged various sub contractors also, who are examined in this case. The documents produced by them have been exhibited in the case and even in the crossexamination the present appellant could not bring out any contradiction worth disbelieving the version putforth by the witnesses. Copy of extract of accounts and other documents including extract of ledger records points to the fact that the deceased was engaged in the business of construction activity. The main ground on which appellant has filed this appeal is the monthly income of the deceased arrived at by the Tribunal. Considering the overall evidence, even though the claimants in their claim petition had stated that the monthly income of the deceased was Rs.35,000/, the Tribunal has taken the prospective monthly income of the deceased only at Rs.18,000/ p.m. It is further required to be noted that, Motor Vehicles Act is a benevolent legislation.
Considering the evidence as a whole, we do not find it proper to interfere with the findings arrived at by the Tribunal when, even at the appellate stage, the appellant could not produce anything worth the name to contradict the findings arrived at by the Tribunal. The appeal deserves no interference at the hands of this Court. It is, therefore, dismissed. In view of dismissal of appeal, Civil Application does not survive and stands disposed accordingly.
(D.H.WAGHELA, J.) (Z.K.SAIYED, J.) kks