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Judgment
R.M.Chhaya, J
1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 31.1.2005 passed by the Motor Accident Claims Tribunal (Auxi),
Ahmedabad Court No.15, in MACP No.917 of 2000, the appellants Insurance Company has preferred this appeal under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as the “Act†for short).
2.0. The following facts emerge from the record of the appeal.
2.1. That on 23.07.2000 deceased Pravinbhai was driving his motorcycle towards Dhandhuka in slow and moderate speed and his brother was pillion
rider on the motorcycle. According to the respondents original claimants the offending vehicle Chhakada (three wheeler rickshaw) came from the
approach road with full speed and dashed with the motorcycle, because of which, deceased Pravinbhai sustained serious head injuries and succumbed
to the same while being shifted to the hospital for treatment. It was case of the respondents â€" original claimants that deceased Pravinbhai was
engaged in the business of Diamond cutting and had PAN number under the Income Tax Act and was earning Rs.6000/Â to Rs.7000/Â per month.
FIR was lodged with the Dhandhuka Police Station being CRÂIÂ111/2000 and the respondents â€" claimants preferred claim petition under Section
166 of the Act and claim compensation of Rs.30 lakh. One of the original claimant ÂGitaben wife of the deceased Pravinbhai was examined at
Exh.36 and one Ghanshyambhai Harkhabhai Patel was examined at Exh.33 and respondents original claimants also relied upon the documentary
evidence such as FIR at Exh.24, panchnama of place of accident at Exh.25, inquest panchnama at Exh.26, PM Note at Exh.27, Insurance Policy at
Exh.30. In order to prove the income, respondents original claimants relied upon the statement of income for AY 1994Â95 of the deceased at
Exh.41, Challan for payment of income tax for the year 1994Â95 at Exh.43, statement of income for AY 1995Â96 of deceased at Exh.44,
acknowledgment of the return for the year 1995Â96 of the deceased at Ex.45 and challlan for said AY at Exh.46. Over and above the same, the
respondents original claimants also relied upon the income tax statement for AY 2000Â01 at Exh.50 and oral evidence of J J Kotadiya at Exh.40.
The Tribunal after appreciating the evidence on record, determined the income of the deceased at Rs.7000/Â per month and considering the
prospective income, applied 15 multiplier and after deduction of 1/3rd, awarded Rs.12,60,000/Â as compensation under the head of loss of
dependency, Rs.10,000/Â as compensation for expectation of life, Rs.25000/Â under the head of consortium and Rs.5000/Â towards funeral expenses
and thus, awarded total compensation of Rs.13,00,000/Â along with interest at the rate of 9% p.a from the date of filing of the claim petition till its
realization.
2.2. Being aggrieved and dissatisfied with the judgment and award passed by the Tribunal, the appellants Insurance company has preferred this
appeal.
3.0. Heard Mr. Maulik Shelat, learned advocate for the appellants Insurance Company and Mr. B.M. Mangukiya, learned advocate for the
respondents original claimants and have also perused the original record and proceedings.
4.0. Mr. Maulik Shelat, learned advocate for the appellantsÂ
Insurance Company has raised following contentions:
(1). That the Income Tax Returns for the AY 1999Â2000 and 2000Â01 are filed subsequent to the death of the deceased and therefore, should not be
considered as valid piece of evidence. Mr. Shelat also relied upon the judgment of the Hon'ble Supreme Court in the case of V. Subbulakshmi and Ors
vs. S. Lakshmi and Another reported in (2008) 4 SCC 224 to buttress his contention.
(2). It was further contended by Mr. Shelat that if the average of previous year return which is self assessment is taken into consideration, the income
of the deceased per year would hardly come to Rs.36000/Â to Rs.38,000/Â per year.
(3). It was further contended that the Tribunal while assessing the income of the deceased has relied upon the word of the claimants and has
determined the income of the deceased at Rs.7000/Â per month, which is not only excessive but contrary to the documentary evidence.
(4). It was further contended that the income tax returns for the AY 1999Â2000 and 2000Â01 which were filed subsequent to the death which are
purported to have been signed by the deceased and hence such return do not inspire any confidence keeping in mind the previous income. It was
therefore, contended by Mr. Shelat that income of the deceased can be assessed only at Rs.3500/Â per month and accordingly compensation under
the head of loss of dependency deserves to be calculated.
(5). It was also contended that the Tribunal in facts and circumstances of the case and considering the date of accident, has rightly applied the 15
multiplier.
(6). It was also contended that the Tribunal has wrongly granted prospective income and following ratio laid down by the Hon'ble Supreme Court in
the case of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 68,0 considering the age of the deceased on the date of
accident and type of business, the original claimants would be entitled to increase in income by way of prospective income only to the extent to 40%.
On the aforesaid grounds, it was therefore, contended by Mr. Shelat that appeal deserves to be allowed and impugned judgment and award deserves
to be modified.
5.0. Per contra, Mr. Manguikiya, learned advocate for the respondents original claimants has supported the impugned judgment and award passed
by the learned Tribunal. Mr. Manguikiya, learned advocate for the original claimants has raised following contentions:
(1). It was contended that the Tribunal has rightly appreciated the evidence on record and has considered the income of the deceased at Rs.7000/Â‐
per month. Mr. Mangukiya, learned advocate for the original claimants contended that there is independent evidence on record to show that the
deceased was businessman in Diamond cutting and was earning Rs.7000/Â per month. Relying upon the deposition of one of the claimant Âwife of
the deceased Gitaben at Exh.36, Mr. Mangukiya contended that even in her cross examination she has narrated that her husband i.e. deceased used
to give her Rs.5000/Â to Rs.7000/Â per month. Mr. Mangukiya contended that even if the returns for year 1999Â 2000 and 2000Â01 are not taken
into consideration, there is sufficient evidence on record to show that deceased was earning Rs.7000/Â per month from his Diamond Business and the
Tribunal has rightly appreciated the evidence on record and hence the award does not require any modification. Mr. Mangukiya contended that the
Tribunal has rightly appreciated the evidence on record and has rightly considered the income of deceased at Rs.7000/Â per month.
(2). Mr. Mangukiya contended that the deceased was 35 years of old on the date of accident and therefore, Tribunal ought to have applied multiplier
of 17 instead of 15.
(3). Mr. Mangukiya also further submitted that as per the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra), the
respondents original claimants would be entitled to Rs.70,000/ as compensation under the different conventional heads. On the aforesaid ground, it
was asserted by Mr. Mangukiya that appeal being merit less and same deserves to be dismissed.
6.0. No other and further submissions / contentions have been raised by the learned advocates for the respective parties.
7.0. Upon considering the submissions made and on perusal of the original Record and Proceedings, it deserves to be noted that accident occurred on
23.07.2000 and the income tax returns for the AY 1999Â2000 and 2000Â2001 are admittedly filed after the accident. It is no doubt true that in earlier
years i.e. for AY 1994Â95 and 1995Â96, the income was between Rs.36000/Â to Rs.38,000/Â per year. Upon reÂappreciation of evidence on
record, more particularly, deposition of Gitaben wife of deceased at Exh.36 even in her cross examination as rightly observed by the Tribunal the
original claimant has clearly stated that the deceased used to give her Rs.5000/Â to Rs.7000/Â per month. It further deserves to be noted that
Rajubhai Mohanbhai Patel brother of the deceased has been examined at Exh.51. Apart from that, the original claimants have relied upon the bills at
Exh.47. Upon reÂappreciation of evidence of the bills at Exh.47, it transpires that in the year 1992, 1993 and 1994 deceased Pravindbhai has done
business of Diamond wherein he has made payment ranging from Rs.48860/Â to Rs. 5999/Â towards labour charges.. The original claimants have
also further produced the extract of account of parties with whom the deceased had business at Exh.47, which also reveals and indicates that the
business conducted by the deceased till the year 1996Â97. Upon reÂappreciation of the evidence of such bills at Exh.47, in our opinion, the Tribunal
has rightly assessed the income of the deceased at Rs.7000/Â per month. Even if the ratio laid down by the Hon'ble Supreme Court in the case of V.
Subbulakshimi and Ors (supra) relied upon by Mr. Shelat is taken into consideration, the claimants have independently apart from the returns filed
after the date of accident are not considered as reliable piece of evidence, the Tribunal has correctly assessed the income of the deceased at
Rs.7000/Â per month. Hence, contentions raised by Mr. Shelat deserve to be negatived.
8.0. The Tribunal has rightly assessed the income of the deceased and has granted just compensation. Following the judgment of the Hon'ble Apex
Court in the case of Smt. Sarla Verma and ors vs. Delhi Road Transport Corporation and Anr reported in (2009) 6 SCC 121 as the deceased was 35
years old on the date of accident, the respondents â€" claimants would be entitled to multiplier of 17 and as per the judgment of the Hon'ble Apex
Court in the case of Pranay Sethi (supra) the respondents original claimants would be entitled to 40% prospective income instead of 50%. Upon
re appreciation of evidence on record, it cannot be said that the learned Tribunal has only relied upon the deposition of Geetaben at Exh.36. Even if
Income Tax Return at Exh.50 are not considered, upon re appreciating the bills at Exh.47, in our opinion, the Tribunal has committed no error in
assessing income of the deceased who was dealing in diamond business at Rs.7000/Â p.m.
Having come to the aforesaid conclusion, therefore, the respondents original claimants would be entitled to compensation under the loss of
dependency as under:
Rs.7000 x 12= 84,000/Â p.a (income) + Rs.33,600/Â (40% prospective income) = 1,17,600/Â Â 39,200/Â (1/3 towards personal income =
Rs.78,400/Â X 17 (Multiplier as the age of the deceased was 35 years) = 13,32,800/Â
9.0. The original claimants shall also be entitled to Rs.70,000/Â under the different conventional heads. Thus, the original claimants would be entitled to
total compensation of Rs.14,02,800/Â. However, the original claimants have not preferred any cross objection and therefore, the award is not
modified. However, the same stand confirmed as granted by the Tribunal and resultantly the appeal is dismissed. However, there shall be no order as
to costs. Registry to send back the Record and Proceeding to the Tribunal.