FA/2026/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2026 of 2008 With CIVIL APPLICATION No. 4930 of 2008 In FIRST APPEAL No. 2026 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD 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 ? ========================================================= NEW INDIA ASSURANCE COMPANY LIMITED THROUGH - Appellant(s) Versus BHAGWANBHAI TAPUBHAI BORIYA & 5 - Defendant(s) ========================================================= Appearance : (MR PV NANAVATI) for Appellant(s) : 1,MR VIBHUTI NANAVATI for Appellant(s) : 1, RULE NOT RECD BACK for Defendant(s) : 1 - 2, 4, MR MTM HAKIM for Defendant(s) : 1, 3, 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE FA/2026/2008 2/8 JUDGMENT Date : 30/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The appeal arises out of the judgment and award rendered by the Motor Accident Claims Tribunal (Main) at Anand in Motor Accident Claims Petition No.6569 of 2006 (old number 06 of 1994) on 31.12.2007. The said claim petition was preferred by heirs and legal representatives of Yogeshbhai Shantibhai Patel who met with an accident on 2.9.1993 at about 1.45 p.m., on Lajai-Dhruvnagar road near Dhruvnagar. The deceased was driving his Maruti Van No.GJ-7U-363. He was accompanied by Natwarbhai Mulchand Mistry. When they reached near the place of incident, Truck No.GJ.12T.7745 came from opposite direction and both the vehicles collided with each other. An offence was registered against the driver of the truck vide CR No.129 of 1993 of Tankara Police Station. The claimants claimed a total compensation of Rs.25 lacs for the accidental death of Yogeshbhai Shantibhai Patel. 1.2. The claimant no.1 Pragnaben is the widow, claimant no.2 Gikesh is the minor son, original claimant no.3 (now deleted) Shantibhai was the father of the deceased and claimant no.4 Vimlaben is the mother of the deceased. 1.3. The deceased was a partner in Envirotechs company to the extent of 60% in the profits of the FA/2026/2008 3/8 JUDGMENT said firm and was also drawing salary of Rs.8000/- per month. He was aged 29. His income was proved through Exh.41 which revealed the income for the accounting years 1990-91 to 1993-94. It has come in evidence that claimant no.1 – widow of the deceased has now entered the firm as a partner in place of her deceased husband and is getting her 60% share in the profits. The Tribunal took mean of the income of the deceased for the past three years and mean of the income drawn from the firm for three years 2002-03, 2003-04 and 2004-05 as emerging from Exhs.51 to 53 and assessed the income of the deceased at Rs.69,200/- p.a., and following the formula of adding two folds the income and dividing it by two, assessed the prospective income of the deceased at Rs.1,03,800/- and after deducting 1/3rd therefrom as expenditure on self, assessed the dependency loss at Rs.69,200/- p.a. The Tribunal adopted the multiplier of 16 and awarded a compensation of Rs.11,07,200/- for dependency loss. Additionally, the Tribunal awarded Rs.20,000/- towards loss of consortium to applicant no.1, Rs.10,000/- as compensation towards loss of love and affection for the parents and Rs.10,000/- to applicant no.2 towards loss of love and affection to the minor son and Rs.20,000/- towards the loss to estate and Rs.5000/- for funeral expenses, totalling to Rs.65,000/- as non-pecuniary damages. The Tribunal, thus, awarded a total compensation of Rs.11,72,000/- with proportionate costs and interest at the rate of 9% per annum. FA/2026/2008 4/8 JUDGMENT 2. The insurer of the vehicle involved in the accident has approached this Court with this appeal under Section 173 of the Motor Vehicles Act. The appellant had tendered an application under Section 170 of the Motor Vehicles Act at Exh.40 which came to be allowed by a reasoned order passed on 3.5.2007 and the witnesses of the claimants were cross examined by the Insurance Company on behalf of the accused. As such, there is no dispute on maintainability of the appeal by the insurer alone. 3. The appellant challenges the award on negligence as well as quantum. So far as negligence is concerned, learned advocate for the appellant submitted that the Tribunal has committed an error in holding that the driver of the vehicle insured by the appellant was solely responsible for the accident. In this regard, it may be noted that no eye witness is examined. We have, therefore, to fall back on the investigation papers. The panchnama of the place of incident indicates that Maruti Van was found to be lying on the highway at a distance of 2 and 1/2 ft., from the western edge of the road, while it was facing Rajkot side. This would go to show that the Van was on the extreme left side of the road, whereas a truck bearing No.GJ-12T 7745 which was going in the opposite direction has dashed against the Maruti Van by going on the wrong side. We, therefore, find no reason to interfere with the finding of the Tribunal and the contention is turned down. FA/2026/2008 5/8 JUDGMENT 4. Learned advocate for the appellant submitted that the appellant is aggrieved by the assessment of dependency loss made by the Tribunal. Mr.Nanavati submitted that the evidence clearly shows that the deceased had income from a partnership firm as a partner. It has come in evidence that the business of the firm is continued after the death of the deceased and that claimant No.1 widow of the deceased has been absorbed in the business in place of the deceased and as such there is no loss of income on that count. Assessment of the income made by the Tribunal is mainly dependent on the income tax return of the deceased which included the income by way of share in the profit of the firm and therefore, the Tribunal's award is erroneous and may be suitably reduced. 5. Learned advocate Mr.Hakim for the original claimants submitted that income of the deceased comprised not only of profit in the firm, but also of salary from the firm. The deceased was a working partner and was drawing salary from the firm. Now that the deceased has expired, though his widow is absorbed as a partner, she does not get the income that the deceased was getting by way of salary. Mr.Hakim submitted further that the widow though absorbed as a partner in place of the deceased is getting 50% in the share in place of 60% that the deceased was earning from the firm and the award of the Tribunal, therefore, is just, legal and proper and may not be interfered with. FA/2026/2008 6/8 JUDGMENT 6. As discussed above, the Tribunal has taken mean of the income of the deceased for last three years and the income of the claimants for three years and has arrived at a mean thereof again to come to a figure of Rs.69,200/-. It has come in evidence of the claimants that the deceased was receiving salary of Rs.8000/- per month. However, if we see the documentary evidence in the form of income tax return, we find that this claim is too tall. From the income tax return, it is revealed that the deceased was initially getting an annual salary of Rs.36,000/- which gradually increased to Rs.54,000/- for the last year. It is also a fact on record that the widow of the deceased is now not getting anything by way of salary or remuneration and, therefore, remuneration that was drawn by the deceased is net loss to the claimants even if we consider that she is earning from the business as a partner (though there is 10% loss in the share of the firm). This fact is emerging from the contemporaneous record and has to be given more weightage than the say of the claimants. The income of the deceased was initially Rs.36000/- which rose to Rs.54000/- which would go to show that he had prospects and for calculating prospective rise in income, if the theory of adding two folds the income to the income of the deceased and dividing it by two is applied, the prospective income of the deceased would be Rs.81000/- p.a. (Rs.54,000/- + Rs.1,08,000/- = Rs.1,62,000/2 = Rs.81,000/-). Deducting therefrom the expenditure FA/2026/2008 7/8 JUDGMENT that the deceased would have incurred on himself by deducting 1/3rd of it, an amount of Rs.27000/- will have to be deducted which would fetch an amount of Rs.54000/- p.a., as dependency loss to the claimants as against Rs.69200/- assessed by the Tribunal. The age of the deceased was 39 years and a multiplier of 13, therefore, will have to be adopted which would fetch an amount of Rs.7,02,000/- as compensation under the head of loss of dependency. Added to this, would be compensation for non-pecuniary damages to the extent of Rs.25,000/- under the head of loss to estate, Rs.15000/- under the head of consortium and, Rs.5000/- towards funeral expenses. The total amount of compensation, therefore, would be Rs.7,47,000/- as compared to Rs.11,72,200/- awarded by the Tribunal. The claimants are entitled to the said amount of compensation with proportionate costs and interest @9% p.a., as awarded by the Tribunal from the date of the application till realization. 7. The appeal, thus, stands partly allowed. The amount of compensation awarded by the Tribunal is reduced to Rs.7,47,000/- with proportionate costs and interest @9% p.a. The claimants are entitled to recover and appellant is liable to pay the compensation as decided herein. No order as to costs in this appeal. Award accordingly. Rs.25000/- deposited with the Registry will be transmitted to the Tribunal forthwith. Disbursement of compensation as directed by the Tribunal in the judgment impugned. FA/2026/2008 8/8 JUDGMENT 7. Civil Application No.4930 of 2008 would stand disposed of. ( A.L.DAVE, J )( SHARAD D DAVE, J ) srilatha