Shilpa Jignesh Mehta & Ors. vs Vaibhav Manohar Garse & Anr.

By consent of both sides heard finally at the stage of admission.

These appeals filed by Insurer and claimants take exception to the impugned Judgment and Awarded dated 01.09.2017 passed in M.A.C.P No. 229 of 2013 whereby the compensation of Rs.13 lakhs was directed to be paid by the opponent -owner and insurer jointly @8% p.a. from the date of application till realisation. The insurer has filed appeal on the ground that the non involvement of the offending vehicle in the accident in question so also on the ground that the Tribunal has erred in accepting the income of the deceased on higher side.

Whereas the claimants seek enhancement of the compensation on the ground that the Tribunal has failed to take into consideration the monthly remuneration received by the deceased which is over and above the profits share by him in the partnership business. Similarly, the computation done by the Tribunal is taken exception on the ground that 1/5^th amount ought to be deducted towards personal expenses of the deceased which has been considered incorrectly as 1/4^th. Similarly, the future prospects are not granted in view of the Judgment of National 1. Insurance Company Limited vs. Pranay Sethi

Learned counsel for the appellant / insurer submits that in First Information Report (FIR) lodged in respect of the incident in question indicates that the vehicle i.e. Innova car without complete registration number, was shown to have been involved in the accident and in view of the communication of owner of the vehicle in question, it could not have been held that the offending vehicle is involved in accident. It is further argued that evidence led by Insurer is not considered by the Tribunal to record findings on the involvement of vehicle.

He further argued that the evidence on record is sufficient to

1 ^{AIR 2017 SC 5157} indicate that the offending vehicle is not involved in the accident and in any case the driver of the offending vehicle was not negligent. In this regard, reference is made to the evidence of claimant No.1 who said to have admitted the fact that the accident has occurred in the middle of the road, though later on changed the version. It is submitted that the Tribunal ought not to have accepted case of the claimant with regard to the involvement of the offending vehicle in the accident in question. On the point of quantum of compensation, it is contended that the Tribunal has misread the evidence on record in order to hold that there is loss of income suffered by the claimants. In this regard reference is made to the evidence led by claimants.

Learned counsel for the original claimants submits that the Tribunal ought to have granted compensation on the basis of the income of deceased proved. It is her submission that the evidence on record in the form of partnership deed indicates that over and above the profits in the business of the partnership firm, the partners were entitled to receive remuneration. It is her submission that in spite of leading evidence to that effect, the Tribunal has not accepted the said case of the claimant. Grievance is also made that though it was established before the Tribunal that there were five dependents on deceased, 1/4^th deduction towards his personal expenses is done instead of 1/5^th. On these amongst other contentions she seeks enhancement of the compensation.

In so far as the involvement of the offending vehicle in the occurrence of the accident, the initial burden was on the claimant to prove on probability that the said vehicle was involved in the accident. To prove the said contention claimant examined claimant No.1 and also placed reliance on the police papers. From the police papers on record, it can be said that the offending vehicle bearing registration No. MH-31-DV-7616 was involved in the accident. Pertinently the last digits of the registration number were correctly mentioned even at the time of lodging of the First Information Report. Apart from this, there are statements recorded during the investigation indicating involvement of the said vehicle in the accident. Further, there is no challenge made by the insurer with regard to the fact that the driver of the said vehicle was chargesheeted for being responsible for the accident. There is nothing on record to indicate that the filing of the chargesheet was ever challenged by the driver of offending vehicle. Thus, it can be safely held that the claimants have proved the involvement of the offending vehicle in the occurrence of the accident on probability.

The onus therefore shifted upon the other side to prove otherwise. Now question arises as to whether the insurer has been able to rebut the case made out by claimants. There is no evidence led by the insurer by calling the informant or the driver of the offending vehicle as a witness before the Tribunal. The insurer therefore has failed to prove its claim of non-involvement of the vehicle owned by the opponent No.1 in the accident in question.

As far as the evidence led by the claimant in order to prove the occupation and income of the deceased, claimant led evidence of Jignesh Mehta who is the partner of M/s. Neptun Optical Company. He has produced before the Tribunal copy of partnership deed (Exhibit-31) indicating that deceased was having 34% share in the said firm. Apart from this, the income tax returns of Assessment Year 2012-13 is filed on record indicating gross income of the Firm of Rs.2,97,696/-. Though the claimants have claimed about receiving remuneration of Rs.18,000/- per month, there is no evidence placed on record to that effect. Pertinently even claimant No.1 in her evidence on oath does not claim that the deceased was earning anything over and above the profit of the partnership firm. It is specifically claimed that the deceased was earning Rs.20,000/- per month from the business. Merely because there is a recital in the Partnership Deed with regard to the payment of additional remuneration, in the absence of any evidence on record to indicate actual payment thereof, it cannot be held that the claimant was paid something more than what has been claimed by claimant No.1 in claim petition and oral evidence. Apart from this, the income tax return filed on record also does not indicate payment of any such remuneration. This Court, therefore, finds no hesitation to hold that the Tribunal has rightly concluded the income of the deceased and determined compensation on the basis of the same.

The Tribunal however ought to have taken into consideration the fact that there were five dependents on the deceased thus personal expenses should have been taken 1/5^th instead of 1/4^th. This error deserves to be corrected and computation of compensation needs to be done accordingly.

In view of above, appeal filed by the insurer i.e. F.A.No. 154 of 2021 stands dismissed.

Appeal filed by the claimant i.e. F.A.No. 1020 of 2023 stands partly allowed in following terms.

The calculation and computation of the amount receivable

In view of above, I pass following order :