IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 481 of 2001 With CROSS OBJECTION NO. 89 of 2010 In FIRST APPEAL NO. 481 of 2001 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED ==============================================================
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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
============================================================== UNITED INDIA INSURANCE COLTD Appellant(s) Versus NAYNABEN,WD/O BHARATKUMAR BHALCHANDRA PATEL & 4 Defendant(s) ============================================================== Appearance:
(MR PV NANAVATI), ADVOCATE for the Appellant(s) No. 1 MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1 NOTICE SERVED for the Defendant(s) No. 1 4 NOTICE UNSERVED for the Defendant(s) No. 5 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 1819/09/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the judgment and award passed by the Tribunal in MACP No.343/96, whereby the Tribunal has awarded compensation of Rs.20,61,025/ with interest at the rate of 9% p.a.
2. The short facts of the case are that on 18.11.1995, at about 1.15 pm, near Raghavanaj Chokdi, between Kheda and Nadiad, on National Highway No.8, the deceased Bharatbhai was going on his Maruti Car bearing registration No. GJ9B 1994 towards Karamsad, one truck bearing registration No. GRN 5719 came from opposite direction with full speed and dashed with the car. As a result thereof, the deceased Bharatbhai sustained severe injuries and ultimately, he succumbed to the injuries. Such accident gave rise to the claim petition preferred by the original claimants stating to be the dependent members of the family of the deceased for an amount of Rs.50 lakhs.
The Tribunal, at the conclusion of the claim petition, passed the above referred award. Under the circumstances, the present appeal before this Court.
3. It may be recorded that the original claimants have also preferred cross objection No.89/10 by limiting their case for enhancement of their compensation of Rs.10,50,000/.
4. We have heard Mr.Nanavati for the appellant Insurance Company and Mr.Hemant Shah for the original claimants. We have considered the judgment and reasons recorded by the Tribunal. We have also considered the Record & Proceeding.
5. The only contention raised by the learned counsel for the appellant was on the aspect of quantum of compensation awarded by the Tribunal. It was submitted that the Tribunal has committed error in awarding compensation inasmuch the Tribunal found that the income of the deceased was Rs.1,20,000/ and thereafter, assessed prospective income at Rs.2 lakh per year instead of Rs.1.5 lakhs, i.e., Rs.1,80,000/. It was therefore submitted that the Tribunal has applied multiplier of 16 as against the multiplier of 15 as per the view taken by the Apex Court in the case of Sarla Verma & ors. v. Delhi Transport Corporation and anr. reported at (2009) 6 SCC 121 since the deceased was 36 years. The learned counsel therefore submitted that the compensation awarded by the Tribunal deserves to be reduced.
6. Whereas Mr. Shah appearing for the original claimants submitted that, as such, the Tribunal has assessed the income on a lower side inasmuch as, as per the him, there was evidence for showing income of about Rs.1,96,400/ if the consolidated income is considered for the whole accounting year of 19951996 and would be much higher at Rs.2,63,000/, if the income is considered upto the death of the deceased based on the income of the firm where the deceased was the partner. It was also submitted that the income tax returns were produced. They were not properly considered by the Tribunal. The learned counsel therefore submitted that since as per the claimants, less compensation has been awarded, cross objections are also filed for enhancement of the compensation.
7. The examination of the said contention shows that as per the evidence on record, the deceased was working with GEB (Gujarat Electricity Board) and he voluntarily resigned in February 1995. However, when he was serving with GEB, his salary as per the document at exhibit 67, was about 1,17,864/ per year and it can be rounded of to Rs.1,20,000/. But the relevant aspect is that there was income tax liability and the income tax was deducted of Rs.17,793/. It has also come on record that there was revision in the payscale in the year 1996 after the deceased resigned and thereby, the salary was doubled to Rs.2,40,000/. Under these circumstances, if the income of the deceased is considered as that of Rs.1,20,000/ and the revision is considered, at the most, the prospective income would be Rs.2,40,000/ per year minus the amount of income tax. The slab of income tax may be at the relevant point of time higher, but subsequently, it has been substantially reduced and therefore, taking into consideration the said aspect, we find that for the purpose of income tax deduction, it can be considered at the rate of 10% of the annual income since the compensation is to be spreaded over in subsequent years. As a result thereof, based on his salary income with the revision, it can be said that for the purpose of dependency benefit, the amount would be Rs.2,16,000/ per year.
8. It is true that the deceased had joined business for few months after resigning from GEB. As per the evidence on record, the say of the claimants was that he joined with Powertrans Electric Company, which was a partnership firm. The perusal of the deed of partnership shows that it was a family business of the father of the deceased. The business was in existence prior to the joining of the firm by the deceased and partners were father, his brother, his brother’s wife and one third party. The alteration of the partnership deeds are produced so as to show the share of the deceased of 75%, but no authenticated material is produced to show that such was duly registered with the Registrar of firms nor the partnership deed is notarised. Further, the income tax returns of the firm prior to the deceased joining the firm are not produced. The only one income tax return is produced filed on 29.08.1996 and another of the firm during that period, which are admittedly after the date of the accident. Another relevant circumstance is that no advance income tax was paid by the firm and the profit is stated to have been bifurcated into two parts; prior to the death of the deceased and after the death of the deceased. During the period prior to the death of the deceased, huge profit is shown wherein the share and the salary of the deceased are shown as that of Rs.1,96,400/ and Rs.61,326/, but after the death of the deceased, in the income tax record of the firm, the loss is shown. If the consolidated income is considered of the profit minus the loss during the span of one year of 19951996 of the firm, such would come to approximately Rs.2,61,867/ as net profit and even if considered as share of deceased of 75%, such amount may be around Rs.1.96 lakhs. It is true that if the documents are found to be fully reliable, the question of prospective income may be required to be considered. But we find that as all income tax returns including the payment of income tax are much after the death of the deceased, the reliability would be doubtful. As against the same, there is reliable piece of evidence of salary and the revision in the salary had he continued in service. Under these circumstances, we find that instead of assessing the income of the deceased on the unreliable piece of evidence of books of accounts and the income tax return, which are of the much later date after the date of the accident, it would be appropriate to rely upon the evidence of the income of the deceased while in service and to consider the prospective income.
9. In view of the aforesaid, we find that if the reliance is to be placed upon the income of the deceased while in service, the net income would be Rs.2,16,000/ per year. The number of claimants in the claim petition were 5. However, the father of the deceased, Bhalchandrabhai was partner in the partnership firm and in any case, he had expired after filing of the claim petition. Under the circumstances, the number of claimants can be considered as 4 and therefore, as per the decision of the Apex Court in the case of Sarla Verma (supra), the deduction of 1/4th towards personal expenses may be required to be considered and such amount of personal expenses would come to Rs.54,000/ and if deducted from Rs.2,16,000/, the net amount would come to Rs.1,62,000/ per year. As per the decision of the Apex Court in the case of Sarla Verma (supra), since the deceased was aged 36 years, appropriate multiplier would be 15 and not 16 as applied by the Tribunal. Accordingly the amount would come to Rs.24,30,000/ towards dependency benefit.
10. The next contention raised on behalf of the original claimants was that the amount towards loss of estate, loss of consortium and funeral expenses is much lower, inasmuch as the Tribunal has awarded only Rs.9,500/ in all. The learned Counsel relied upon the decision of the Apex Court in the case of Rajesh and Others Vs. Rajbir Singh & Others, reported in 2013 ACJ 1403. It was submitted that towards consortium, in the said case, the amount awarded was Rs.1,00,000/ and, therefore, similar amount deserves to be awarded in the present case.
11. The relevant aspect is that the decision upon which the reliance is placed pertains to fatal accident on 5.10.2007, whereas in the present case, it is in the year 1995. As against the same, the learned Counsel for the Insurance Company relied upon the recent decision of the Apex Court in the case of Minu Rout & Anr. Vs. Satya Pradyumna Mohapatra & Ors., reported in 2013(11) Scale 112, wherein for the accident in the year 2004, the Apex Court awarded Rs.50,000/ towards loss of love and affection, funeral expenses and loss of consortium, by relying upon the decision in the case of Karnataka State Road Transport Corporation Vs. Susamma Thomas, reported in (1994) 2 SCC 176.
12. Considering the facts and circumstances, it appears to us that Rs.9,500/ as awarded by the Tribunal is, in any case, on lower side. Hence, we find that appropriate amount towards loss of consortium, loss of estate and funeral expenses can be awarded of Rs.50,000/.
13. Accordingly, the total amount of compensation would be Rs.24,80,000/ (Rs.24,30,000/ + Rs.50,000/). Out of the said amount, contributory liability is held to the driver of the truck, which was insured with the appellant Insurance Company of 95% and accordingly, such amount would come to Rs.23,56,000/, as against the amount awarded by the Tribunal of Rs.20,61,025/.
14. In view of the aforesaid observations and discussion, the judgement and award of the Tribunal is modified to the extent that the original claimants shall be entitled to the compensation at Rs.23,56,000/. However, the interest as awarded by the Tribunal on the amount of Rs.20,61,025/ at the rate of 12% per annum is not interfered with, but on the additional amount of Rs.2,94,975/, the original claimants shall be entitled to the interest at the rate of 9% per annum from the date of claim petition until the amount is paid or deposited with the Tribunal.
15. Mr.Nanavati, learned Counsel for the appellant, states that the additional amount shall be deposited within a period of six weeks from the date of receipt of the order of this Court. Hence, we direct the appellant to abide by the aforesaid declaration.
16. The First Appeal as well as Cross Objection are disposed of accordingly. Considering the facts and circumstances, no order as to costs. The Record and Proceedings be sent to the trial court.
(JAYANT PATEL, J.) bjoy (Z.K.SAIYED, J.)