FA/1863/2002 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1863 of 2002 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 ? ========================================================= HANSABEN SANDEEPBHAI BODIWALA & 1 - Appellant(s) Versus NARENDRA K PATEL & 1 - Defendant(s) ========================================================= Appearance : MR MB GANDHI for Appellant(s) : 1 - 2. RULE SERVED for Defendant(s) : 1, MR SHASHIKANT S GADE for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 06/02/2008 ORAL JUDGMENT FA/1863/2002 2/7 JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The appellants challenge the judgment and award passed by the Motor Accident Claims Tribunal (Aux.) at Mehsana passed in Motor Accident Claim Petition No.1162 of 1994 on 4.3.2002. 2. The appellants had preferred the said claim petition claiming compensation of Rs.60 lakhs for accidental death of Sandeepbhai Bodiwala, husband of appellant No.1 who met with unfortunate accident on 19.5.1994 at about 9.00 a.m., near Bileshwar Patiya on Mehsana Ahmedabad Highway. According to the claimants, deceased Sandeepbhai Bodiwala was riding his motor cycle No.GUJ 9327 from Mehsana to Ahmedabad side when Truck No.GJ 1 U 5672 came from rear side. The said truck was being driven by respondent No.1 in rash and negligent manner and as a result thereof the truck dashed against the motor cycle of deceased Sandeepbhai Bodiwala from behind. Sandeepbhai Bodiwala expired on the spot because of the injuries suffered by him. The deceased was aged 32 years and was a qualified Mechanical Engineer from the Gujarat University. He was running the business in partnership under the firm named “Utility Services” and had 50% share in the profit of the firm. The deceased had also obtained franchise from Thermex Limited. The claimants are the widow and minor child of the deceased. According to the claimants, the deceased had earned Rs.53,759/- for the accounting FA/1863/2002 3/7 JUDGMENT year 1992-1993 and Rs.82,410/- for the accounting year 1994-1995. The deceased had earned Rs.43,665/- for the accounting year 1994-1995. 3. Respondent No.2 – opponent No.2 before the Tribunal denied the averments made in the claim petition by filing a written statement. 4. The claimants led the evidence in the form of the deposition of claimant No.1 Hansaben and partner of the deceased Mr.Ashish Sharma Exh.25 and Exh.51 respectively. The claimants have also adduced evidence in the form of copy of the acknowledgment of the income tax return filed on behalf of the deceased posthumously for the years 1992-1993, 1993-1994 and 1995-1996. There are other documentary evidences in the form of copy of the profit and loss account of the firm of which the deceased was partner and other material. 4.1 After considering the evidence led by the applicants – appellants, the Tribunal came to the conclusion that income of the deceased can be assessed at Rs.7500/- per month. From that the Tribunal deducted Rs.3000/- as expenditure by the deceased on himself and dependency of the claimants was assessed at Rs.4500/- per month. Yearly dependency was assessed at Rs.54000/- and a multiplier of 15 was adopted by the Tribunal. The Tribunal also awarded compensation of Rs.10,000/- towards loss of consortium and Rs.10,000/- towards FA/1863/2002 4/7 JUDGMENT loss to estate. The Tribunal, in all, awarded compensation of Rs.8,30,000/- with interest at the rate of 9% with proportionate costs. 5. This has aggrieved the claimants and hence, this appeal. 6. Learned advocate Mr.Gandhi appearing for the claimants – appellants submitted that the Tribunal has committed error in ignoring the income of the deceased for last two months in respect of which the return is filed to show that the income during these two months was Rs.43,665/-. Mr.Gandhi also submitted that the Tribunal has not taken into consideration the statement of accounts of the firm which would show correct income of the deceased. The Tribunal has also ignored the certificate of income issued by a qualified Chartered Accountant and, therefore, this appeal may be allowed. 7. Learned advocate Mr.Gade has opposed this appeal. 8. We have examined the Record and Proceedings in light of the contentions raised before us by learned advocate Mr.Gandhi. We find that the claimants have, to prove the income of the deceased, adduced two sets of evidence. The first set is in the form of deposition of the partner of the deceased and the certificate issued by the Chartered Accountant to show the income of the deceased on one FA/1863/2002 5/7 JUDGMENT hand and acknowledgment of return of income on the other. According to the witness as well as evidence adduced in the form of statement of accounts and the certificate by the Chartered Accountant, the income of the deceased was Rs.82,410/-, whereas acknowledgment of return of income tax indicates that gross income of the deceased was Rs.63,000/-. 8.1 In such eventuality, income that is shown in the income tax return has to be accepted at the face value though return for the year 1993-1994 is shown at Rs.63,000/- only (Exh.37). It is also clear from the evidence that income tax of Rs.9903/- was paid by the claimant for the accounting year 1993-1994 (Assessment year 1994-1995). The verbal say of the partner and books of accounts are not authenticated by any one. They remain verbal say and copies of the accounts. Under the circumstances, this Court is not inclined to place reliance on those evidence as indicated, except as stated in the return of income as reflected from acknowledgment of filing of return at Exh.37. 8.2 It is brought on record as a piece of evidence that the deceased had bright career ahead of him, would have developed his business and earned much more but there is no material in support thereof. However, prospects of rise in income can reasonably be accepted and since here is the case of businessman who has not been able to bring on record any material to show that prospects of his income FA/1863/2002 6/7 JUDGMENT established and accepting the theory of doubling income adding to the present income and dividing it by two requires to be adopted. 9. That part of the income of the deceased will have to be taken into consideration which would have been as annual receipt. Differently put, money paid on income tax will have to be deducted while assessing the income of the deceased. However, income of the deceased is assessed at Rs.63,000/-, tax paid thereon will have to be deducted which is paid of Rs.9903/- approximately Rs.9900/-. The benefit of the deceased, therefore, would be Rs.63,000/- less Rs.9903/- i.e. Rs.53097/-. If the formula is applied to this amount for assessing prospective income, the figure will have to be added to it which would be equivalent to two fold of the said amount that would be Rs.159291/-. This will have to be divided by two which would show prospective annual income of the deceased which would be Rs.79645.50 ps. Out of the said amount, 1/3rd will have to be deducted as expenditure by the deceased on his own self which would be Rs.26,548.50 ps., leaving behind Rs.53097/- as dependency loss. Considering the recent judgments of the Apex Court, for eg., T.N.State Transport Corporation V/s S.Rajapriya (2005) 6 SCC 236, multiplier of 15 can be adopted considering the fact that age of the deceased was 32 years which would fetch the amount of Rs.796455/-. This would be the amount of compensation under the head of dependency loss. The Tribunal, has then, in addition awarded FA/1863/2002 7/7 JUDGMENT Rs.10000/- towards loss of expectation of life and Rs.10000/- towards loss of consortium which would bring the total amount of compensation to Rs.8,16,455/-. The claimants, thus, would be entitled to compensation of the said amount whereas the Tribunal has awarded compensation of Rs.8,30,000/- which is higher than the amount claimed. There is no scope for interference by this Court with the award passed by the Tribunal as there is no scope for any enhancement in light of the evidence adduced by the claimants towards the income of the deceased. The appeal, therefore, must fail and stands dismissed with no order as to costs. ( A.L.DAVE, J ) ( SHARAD D DAVE, J ) pathan