FA/1014/1998 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1014 of 1998 With FIRST APPEAL No. 1030 of 1998 With FIRST APPEAL No. 1031 of 1998 With FIRST APPEAL No. 1032 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A. L. DAVE HONOURABLE MR.JUSTICE S. D. DAVE ========================================= 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 ? ========================================= LALITA PISHORILAL VIJAN & Others. Versus OMPRAKASH PISHORILAL VIJAN & Others. ========================================= Appearance : First Appeal No.1014 of 1998 Mr. MTM HAKIM for the Appellants. Mr. MAKBUL I MANSURI for Respondent No. 1 FA/1014/1998 2/11 JUDGMENT Mr. KK NAIR for Respondent No.2. First Appeal No.1030 of 1998 Mr. KK NAIR for the Appellant. Mr. MTM HAKIM for Respondents No.1 to 3. Mr. MAKBUL I. MANSURI for Respondent No.4. First Appeal No.1031 of 1998 Mr. KK NAIR for the Appellant. Mr. MTM HAKIM for Respondents No.1 & 2. Mr. MAKBUL I. MANSURI for Respondent No.3. First Appeal No.1032 of 1998 Mr. KK NAIR for the Appellant. Mr. MTM HAKIM for Respondents No.1 & 2. Mr. MAKBUL I. MANSURI for Respondent No.3. ========================================= CORAM : HONOURABLE MR.JUSTICE A. L. DAVE and HONOURABLE MR.JUSTICE S. D. DAVE Date : 23/01/2008 ORAL JUDGMENT : (Per : A. L. DAVE, J.) 1. This group of appeals arises out of a judgment and order rendered by Motor Accident Claims Tribunal (Main), Vadodara, in Motor Accident Claim Petitions No.1067, 1989 and 1090 of 1991, rendered on 19.11.1997. 1.1 First Appeal No.1014 of 1998 is preferred by original claimants in Motor Accident Claim Petition No.1067 of 1991 for FA/1014/1998 3/11 JUDGMENT enhancement of the award, whereas First Appeals No.1030 to 1032 of 1998 are preferred by the insurer of the vehicle involved in the accident, challenging the award as being excessive. 2. The facts of the case, in brief, are that, one Pishorilal Vijan was travelling by Car No.MAP 4595 along with one Lal Saheb Yadav and Mohammed Abdul Rahim from Bombay to Baroda on 24th January, 1991, on National Highway No.8. When the vehicle reached near village Kapurai, the vehicle collided with an ongoing vehcile. In the accident, all the three expired. The vehicle was driven by Nazir Khan, who, subsequently, expired. According to the claimants, the accident occurred because of rash and negligent driving by both the drivers. 3. After considering the evidence led by the parties, the Tribunal partly allowed the applications and awarded a compensation of Rs.5,02,000/ in Motor Accident Claim Petition No.1067 of 1991, a compensation of Rs.1,48,000/ to the claimants in Motor Accident Claim Petition No.1089 of 1991 and Rs.1,48,000/ to the claimants of Motor Accident Claim Petition No.1090 of 1991. 3.1 The claimants in Motor Accident Claim Petitions No.1089 of 1991 and 1090 of 1991 appear to be satisfied with the award and have not preferred any appeal. 3.2 The claimants in Motor Accident Claim Petition No.1067 of 1991 have preferred Appeal No.1014 of 1998. They are FA/1014/1998 4/11 JUDGMENT the widow and daughters of the said Pishorilal. According to them, Pishorilal was aged 50 years at the time of his death; he was engaged in transport business; he was a partner in Vijan Transport Corporation to the extent of 50 per cent share; and he owned eight motor tankers, which he used to ply on hire and earn therefrom. According to them, the deceased was earning Rs.25,000/ per month and, therefore, they claimed a compensation of Rs.25 lakh. 3.2.1 The Tribunal assessed the income of the deceased at Rs.6000/- per month, deducted 1/3rd out of it and assessed the dependency loss of the claimants at Rs.4000/- per month. While adopting a multiplier of 10, the Tribunal assessed the dependency loss of the claimants at Rs.4,80,000/-. The Tribunal awarded Rs.20,000/- towards loss of expectation of life and Rs.2,000/- towards funeral expenses, totalling to Rs.5,02,000/-. 3.3 The claimants in the said Motor Accident Claim Petition have preferred appeal No.1014 of 1998 on the ground that the Tribunal has not taken into consideration prospective rise in income while assessing the dependency loss. According to the claimants, the Tribunal has also erred while assessing the income of the deceased at Rs.6,000/-. There is material to show that the income of the deceased must have been more than the assessed income by the Tribunal and, hence, the appeal. 3.4 On the other hand, the insurance company has preferred the appeals to challenge the award as being excessive. The insurance company is also aggrieved by the finding of the FA/1014/1998 5/11 JUDGMENT Tribunal that the claimants are entitled to recover compensation from all the opponents jointly and severally, though the Tribunal gave a finding that both the drivers were equally negligent and, hence, the appeals by the insurance company. 3.5 The appeals by the insurance company are opposed to by the respondents on the ground that the insurance company has no right to challenge the award on merits in absence of an application under Section 170 of the Motor Vehicles Act being granted in its favour. 4. First, we propose to deal with the three appeals of the insurance company. 4.1 There is no dispute on the aspect that application under Section 170 of the Motor Vehicles Act was not preferred by the insurance company nor any order was passed under Section 170 of the Motor Vehicles Act by the Tribunal authorising the insurance company to contest the claim on merits, i.e. on all counts. If this is the situation, appeals by the insurance company alone would not be maintainable unless the appeals are preferred on any of the grounds stated in Section 149(2) of the Motor Vehicles Act. Differently put, an appeal on merit by the insurance company alone in absence of an order under Section 170 of the Motor Vehicles Act would not be maintainable. In this regard, we may refer to decision of the Apex Court in Shankarayya and Another v. United India Insurance Company and Another, (1998) 3 SCC 140 and National Insurance Company v. Nicolletta Rohtagi and Others, FA/1014/1998 6/11 JUDGMENT 2002 ACJ 1950, wherein what is stated by us hereinabove has been laid down. 4.2 In light of the undisputed fact that there is no order under Section 170 of the Motor Vehicles Act passed by the Tribunal in any of the three claim petitions, the appeals of the insurance company on merits would not maintainable. We may add that it is not the case of the insurance company that it proposes to contest the award on any of the grounds narrated in sub-section (2) of Section 149 of the Motor Vehicles Act. All the three appeals by the insurance company, therefore, must fail. 5. Now, coming to Appeal No.1014 of 1998 by the original claimants for enhancement of the award, we find that the claimants have produced insurance policies of eight motor tankers running in the name of the deceased. The addresses given in the policies appear to be different, but the fact remains that owner's name in all the policies is that of the deceased. It was contended by learned Advocate, Mr. Nair that the claimants ought to have produced the registration books or copy of the registration books to support their claim that the deceased owned eight tankers. It is true that, if the claimants had produced the registration books or copies thereof, the evidence would have been foolproof and conclusive, but non- production of registration books would not abrogate the effect of the evidence in the form of insurance policies. The insurance policies are of dates prior to the accident and no prudent man would take out a policy in his own name in respect of a vehicle which he does not own. Necessary inference, therefore, would be FA/1014/1998 7/11 JUDGMENT that an owner would take out a policy of the vehicle and, therefore, we can accept the case of the claimants that the deceased owned eight tankers in absence of rebuttal evidence. The claimants could have brought out the details of ownership of those tankers by adducing evidence of registration by getting a certificate from R. T. Authority or by examining a witness from R. T. Authority. The Here, we are concerned with the question of assessment of income of the deceased and we are not deciding title over the tankers nor are we deciding a civil suit where the principles of Evidence Act are strictly required to be adhered to. We are, therefore, of the view that the Tribunal was justified in accepting that the deceased owned eight tankers. 5.1 The income-tax assessment orders of Vijan Transport Corporation for the years 1990-91 and 1991-92 are produced on record collectively at Exhibit 42 to show that the total income of the firm was Rs.22,190/- and Rs.40,500/-, respectively. It has come in evidence that the deceased was a partner to the extent of 50 per cent share in profit or loss of Vijan Transport Corporation. 5.2 Therefore, the income of the deceased as a partner of Vijan Transport Corporation can be assessed at Rs.11,065/- and Rs.20,250/, respectively, for the assessment years 1990-91 and 1991-92. 5.3 So far as the income of the deceased from the tankers is concerned, it has come in evidence of witness Ram Chandanlal Jagi (Exhibit 33) that Vijan Transport did not own any vehicle, but used FA/1014/1998 8/11 JUDGMENT to hire vehicles from other owners. It has also come in evidence that, Vijan Transport, out of the receipts from the contracts, used to retain 10 per cent as its commission and 90 per cent was made over to the owner of the vehicle. The owner, obviously, would make profit out of this 90 per cent by plying the tanker. If that is not so, the owner would not run the tanker by investing huge funds and, therefore, some profit has to be accepted as having been earned by the deceased out of plying the tankers. There is no specific evidence led by the claimants in this regard, but considering the huge investments required in purchase of tankers, a net profit of Rs.1000/ per tanker per month can be assessed safely. This would fetch a profit of Rs.8000/- per month to be added to the income of the deceased. 5.4 Dealing with the contention that no owner of the tankers was examined to show that 90 per cent of the revenue was made over to the owner by Vijan Transport Corporation and what was the profit out of the 90 per cent, we may observe that there are contracts produced on record of this case, which were entered into by Vijan Transport Corporation with Hindustan Petroleum Corporation Limited. If Vijan Transport Corporation did not own a vehicle and have provided vehicles to Hindustan Petroleum Corporation Limited, obviously Vijan Transport Corporation borrowed services of others' tankers and when services are to be borrowed from others, obviously, the first priority would be that of the tankers of one of the partners and, therefore, there is no reason for not believing the case of the claimants in this regard. It has also to be accepted that the owner of the tanker would take larger FA/1014/1998 9/11 JUDGMENT chunk of the revenue considering his investment and expenditure on vehicle. So far as profit out of running the tankers is concerned, there is no evidence, as stated by us earlier, and we have proceeded on assessing the income on the basis of certain guess work and inference. 5.5 The income of the deceased, therefore, would be Rs.2,000/ by way of profit from the firm, namely, Vijan Transport Corporation and Rs.8000/- from the tankers owned by him, totalling to Rs.10,000/- per month. 6. While commenting on the views expressed by the Tribunal on non-filing of returns by the deceased individually, learned Advocate, Mr. Nair, contended that, if no return is filed, the income would certainly be less. In our view, non-filing of return may be for a number of reasons. But that, by itself, cannot be a sufficient force for drawing an inference that the income was less. If there is other material to show the income, non-filing of income- tax return will not abrogate such evidence. Such evidence cannot be ignored. The Court, in exercise of this jurisdiction, is assessing the income and dependency of the claimants and filing or non- filing of income tax return by the deceased may be one of the facets or pieces of evidence in that regard which aspect will have to be weighed against other evidence produced to show income of the deceased. The contention, therefore, cannot be accepted. 7. In light of the above discussion, we are of the view that the income of the deceased can be assessed at Rs.10,000/- per FA/1014/1998 10/11 JUDGMENT month, i.e. Rs.1,20,000/- per annum. If out that amount 1/3rd by way of expenditure on self by the deceased is deducted, that would leave behind an amount of Rs.80,000/- per annum as dependency loss caused to the claimants. 7.1 So far as age of the deceased is concerned, the case of the claimants in the petition is that the deceased was aged 50 years, but the evidence produced by the claimants indicate that the deceased was aged about 55 years. Obviously, the age of the deceased has to be accepted at 55 years. Considering that age and considering the recent judgments of the Apex Court on application of multipliers, in our view, ends of justice would be met, if a multiplier of 8 is adopted. This would fetch an amount of Rs.6,40,000/- as compensation for dependency loss to the claimants as against Rs.4,80,000/- awarded by the Tribunal under that head. 7.2 Added to this would be Rs.20,000/- towards loss of expectation of life and Rs.2,000/- towards funeral expenses. The total amount of compensation, therefore, would be Rs.6,62,000/- payable by the respondents to the original claimants. 8. Considering the fact that the Tribunal has awarded interest on the awarded amount at the rate of 12 per cent per annum and further considering that the present rate of interest that the banks give is lesser, we are of the view that the claimants would be entitled to interest on the enhanced amount of compensation, i.e. Rs.1,60,000/-, at the rate of 9 per cent per annum from the date of claim petition till realization. FA/1014/1998 11/11 JUDGMENT 9. In light of the foregoing discussion, First Appeals No.1030 of 1998, 1031 of 1998 and 1032 of 1998 stand dismissed. 9.1 First Appeal No.1014 of 1998 stands partly allowed. The compensation awarded by the Tribunal of Rs.5,02,000/- shall stand enhanced to Rs.6,62,000/- with rate of interest as stated hereinabove and proportionate costs. There shall be no costs. Award accordingly. 10. Learned Advocate, Mr. Nair, stated that the Insurance Company will deposit the amount of compensation including the enhanced awarded amount with proportionate costs and interest with the Tribunal within a period of six weeks from the date of receipt of certified copy of the judgment and award. [ A. L. DAVE, J. ] [ S. D. DAVE, J. ] gt