Partly allowed

Ushaben Narendrakumar Patel v. Gsrtc

Gujarat HC6 Jul 2012FA/458/2002

Case brief

AI extract

What is this about?

This appeal against a Motor Accident Claims Tribunal award sought enhancement of compensation for the death of the appellant's son. The High Court, hearing the matter in the absence of the respondent, recalculated the deceased's income and multiplier to grant additional compensation.

What did the court decide?

The appeal was partly allowed; the Tribunal's award was modified to increase compensation to Rs.6,92,640 with interest.

Ushaben Narendrakumar Patel Vs Gsrtc — Motor Accident Claims | Gujarat HC (2012)

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FA/458/2002

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JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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FIRST APPEAL No. 458 of 2002

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For Approval and Signature:

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HONOURABLE MR.JUSTICE ANANT S. DAVE

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USHABEN NARENDRAKUMAR PATEL & 4 - Appellant(s) Versus GSRTC - Defendant(s)

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Appearance :

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MS NIYATI K SHAH for Appellant(s) : 1 - 4, 4.2.1, 4.2.2, 4.2.3, 4.2.4, 4.2.5,4.2.6 - 5. MR YASHWANT S BAROT for Defendant(s) : 1,

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CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE

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Date : 06/07/2012

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ORAL JUDGMENT

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The appellants, original claimants, have filed this appeal under Section 173 of the Motor Vehicles Act, 1988, for enhancement, against the judgment and award dated 26^th April, 2001 passed by the Motor Accident Claims Tribunal (Main) at Mehsana in M.A.C. Petition No.371 of 1995, whereby, the Tribunal awarded Rs.3,90,000/- with proportionate costs and interest at the rate of 9% per annum from the date of the claim petition till realization against the opponent.

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The appellants filed the claim petition to get a sum of Rs.9,00,000/- by way of compensation from the respondent for the death of Naresh @Ambalal Patel due to vehicular accident.

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FA/458/2002

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JUDGMENT

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The short facts for which the claim petition is filed, judgment and award for compensation and subject appeal is filed, are as under.

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3.1 On 05.11.1994, Naresh alias Narendra Ambalal Patel was returning to his home at Chanasma on Hero Honda Motor-cycle bearing Registration No.GCD-4050, on the left side of the road in moderate speed. On Lanva-Mitha Dharava Highway one ST bus bearing registration No.GJ-1/Z-1863 driven by its driver named Allarakha Nyajmahmad rashly and negligently, came from Chanasma side. The deceased reduced the speed of the Hero Honda motorcycle, however, the ST bus dashed to the Hero Honda motor-cycle and as a result the motorcycle was completely damaged. The deceased Naresh @Narendra Ambalal Patel received grievous injuries. No care was taken by the conductor as well as of the driver of the ST bus for the treatment and both have run away and to save themselves from the offence they lodged a wrong complaint before Chanasma Police Station. The deceased was shifted to Civil Hospital, Mehsana for treatment and as per the advise deceased was shifted to V.S.Hospital, Ahmedabad. During the treatment Naresh @Narendra Ambalal Patel died.

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Before the Tribunal, claimants, dependents of the deceased contended that deceased was earning Rs.4,500/- by managing land belonging to the family and he was also working as Commission Agent for sale and purchase of old vehicles and inter alia carrying on business of selling automobile spare parts. The deceased being agriculturist, having 10 vighas of land and was earning Rs.20,000 to Rs.25,000 per annum by selling agricultural yield. The

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FA/458/2002

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JUDGMENT

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deceased was aged 31 years on the date of accident i.e. 05.11.1994.

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The contention about the income of the deceased and other relevant aspects were denied by the opponent. The Tribunal framed issues vide Exh.30 and it was held that legal representatives / dependents of the deceased were entitled to receive compensation in view of material on record and evidence brought before the Tribunal. The factum of accident and also rash and negligent driving of the offending vehicle which ultimately resulted into unfortunate death of the deceased was proved. The claims tribunal in detail examined all the documents, including the complaint lodged before the Police Station Officer, Chanasma by the complainant and driver of the S.T. Corporation, Exh.22 Panchnama of place of offence, injury certificates issued by the hospital, postmortem report, etc.

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In support of claim compensation, the dependentsclaimants had produced various documentary evidence viz. Revenue extracts of village form No.7/12 and 8/A vide Exhs. 25 to 29 revealing the agricultural holdings in the name of joint family, but claims tribunal discarded that evidence on the grounds that name of the deceased did not figure as owner of the land. However, the possession of the agricultural land in the name of brother and relatives of the deceased was not doubted. In support of the claim that the deceased was earning Rs.4,500/- p.m, the appellants produced on record income tax returns and income tax payment receipts for the financial year of 1993-94. That the income from the business of the deceased was shown in the above document as

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FA/458/2002

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JUDGMENT

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Rs.37,000/- per annum. Thus, the claims tribunal discarded the income of the deceased from agricultural holdings and his contribution even for managing and regulating agricultural yield was not believed. The claims Tribunal also refused to believe any future prospects and straightaway believed that multiplier of 15 was to be applied to the deceased, who is aged 31 years and calculated the amount at Rs.5,55,000/[Rs.37,000 (annual income) x 15 (multiplier)] and by deducting 1/3^rd of the amount being 1,85,000/- towards personal expenses, the amount of Rs.3,70,000/- was awarded by the Tribunal. Further, by adding Rs.15,000/- by way of loss of consortium and loss of estate and Rs.5,000/- by way of funeral expenses etc. and thus Rs.3,90,000/- was awarded @9% p.a.

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Today, when the matter is called out for hearing, no one appears for the respondent-Corporation. Name of learned advocate Mr. Yashwant S. Barot is shown on board for respondent-Corporation and today he has neither filed sick note nor leave note. Earlier also, no one appeared for the respondent-Corporation and this fact is recorded by this Court in orders dated 24.04.2012, 26.06.2012 and 02.07.2012.

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8. On 24.04.2012, this Court [Coram : Hon'ble Mr. Justice K.S.Jhaveri] passed the following order:

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“Prima facie, the amount awarded by the Tribunal is on lower side. From the record it is clear that the Tribunal has not calculated the income of the deceased as the per ratio laid down by the Apex Court in the case of Sarla Dixit and Another Vs. Balwant Yadav and Another reported in (1996) 3 SCC 179 . Even if the Rs.3700/- is considered as monthly income of the deceased. As per the said decision, the monthly dependency comes to Rs.5500/-. Further, the Tribunal ought to have deducted ¼ amount instead of 1/3, as the claimants are five in number. The multiplier of 15 adopted by

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JUDGMENT

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the Tribunal is also on lower side, it should be 16.

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However learned advocate for the respondents is not present. In the interest of justice, as a last chance, S.O. to 8^th May, 2012 .

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It is made clear that if on the next date of hearing learned advocate for the respondents is not present, the matter shall be decided exparte”.

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Learned advocate for the appellant would contend that though sufficient material was produced on record about income of the deceased, out of agricultural holdings and extracts of such records reveal possession of the deceased along with joint holdings of the family members, the claims tribunal has discarded the above evidence and also income derived from other sources viz. by selling old vehicles and automobile spare parts by the deceased. The monthly income of the deceased to the tune of Rs.37,000/- p.a was believed by the claims tribunal on the basis of income tax returns and assessment orders. The deceased was 31 years educated person and had bright future and future prospects were not considered by simply the believing that there was no chance of promotion in future, which would be contrary to the decision of the Apex Court in the case Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [(2009)6 SCC 121]. Even in decision of the Apex Court in the case of Sarla Verma [supra] the Apex Court noticed that future prospects can be considered in certain exceptional cases where the deceased had fixed income. The above logic and reasoning though doubted by the Apex Court in the subsequent decision it was made applicable in the case of the deceased, who had fixed income or no income. The deceased passed I.T.I. and has better prospects.

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FA/458/2002

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JUDGMENT

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Considering the overall facts and circumstances of the case and on perusal of the record of the case, there is some force in the arguments of the learned advocate for the appellants. Even as per the income tax returns and declarations made therein, which are produced on the record of the Tribunal, the annual income of the claimant in the preceding year of the accident was Rs.37,000/-. Besides, the extracts of village form No.7/12 and revenue record viz. Revenue Patrak No.8/A etc. reveal the joint agricultural land of Joitabhai Patel. Even on declaration it was stated that the petitioner was getting agricultural work done through labourers in ordinary course. In addition to the above he was engaged in the business of dealing with old vehicles and getting commission out of the same and doing repairing job.

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Thus, the deceased had an additional income other than what was shown in the income tax returns, but as recorded in the order dated 24.20.2012 passed by learned Single Judge of this Court [Coram : Hon'ble Mr. Justice K.S.Jhaveri], monthly income of the deceased can be considered as Rs.3,700/- p.m. Further, considering the facts of the case, this court is of the opinion that 30% of the prospective and future income if applied in case of the dependents of the deceased, who had as such no regular income, monthly dependency would come to Rs.4,800/- [Rs.3,700 + Rs.1,10/- (30% prospective income)] and yearly income would be at Rs.57,720/- [Rs.4,800 x 12]. Out of the above income, 1/4^th is to be deducted towards personal expenses of the deceased since the family consists of more than 5 persons. The net annual income of the deceased is assessed at Rs.43,290/- [Rs.57,720 minus Rs.14,430/-]. The

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JUDGMENT

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deceased is aged about 31 years, and therefore, multiplier of 16 is required to be applied and accordingly the total amount comes to Rs.6,92,640/-. The Tribunal has already awarded Rs.3,90,000/-.

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Thus, the appellant are entitled to get additional amount of Rs.3,02,640/- along with interest at the rate of 6% per annum from the date of application till realization.

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The appeal is partly allowed. The judgment and award of the Tribunal is modified to the aforesaid extent. Award to be drawn accordingly.

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[ Anant S. Dave, J .]

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*pvv

Ushaben Narendrakumar Patel v. Gsrtc

Case brief

What is this about?

What did the court decide?

Ushaben Narendrakumar Patel v. Gsrtc

Case brief

What is this about?

What did the court decide?

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