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Judgment
R.M.Chhaya, J
Feeling aggrieved by and dissatisfied with the judgment and award dated 14.09.2005 passed by learned Motor Accident Claims Tribunal,
Gandhidham Kachchh, in Motor Accident Claim Petition No.867/1999, appellantâ€"The Oriental Insurance Company Ltd. has preferred present
appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ""the Act"" for short).
Heard Mr. Maulik J. Shelat, learned counsel for the appellant, Ms. Shaili A. Kapadia, learned counsel for the original claimants and Mr.Palak
Thakkar, learned counsel for Respondent No.8Â The New India Assurance Company Ltd. Though served, no one appears for Respondent No.7. As
the liability is not denied, presence of Respondent No.6 is not essential. Have also perused the record and proceedings.
The following noteworthy facts emerge from the record of the appeal:Â
4.1 That on 18.06.1996, at about 14:30 hours, deceased viz. Rajeev Garg after completing inspection work from village Adesar, Taluka Rapar, was
returning back to Gandhidham by driving his Tata Sumo Car bearing registration No.GJÂ12ÂFÂ8873 and when he was crossing the bridge near
village Palana, at that time, one Tanker bearing registration No.GTYÂ7453 was coming from other side being driven in rash and negligent manner and
dashed with Tata Sumo car of the deceased, due to which, the deceased sustained serious injuries and died on the spot.
4.2 It is the case of the claimants that there was no negligence on part of the deceased and the accident occurred solely because of negligence on part
of the driver of the Tanker.
4.3 Pursuant to the said accident, FIR came to be lodged with jurisdictional police station, which was exhibited at Exh:38 and the claimants preferred
claim petition under Section 166 of the Act, claiming total compensation of Rs.1,46,40,600/Â. It was further case of the claimants that, deceased
Rajeev was an engineer with first class degree and had experience of 15 years of civil engineering and was handling the works of State Government
as well as Central Government and was earning Rs.20,000/Â p.m. One of the claimants was examined at Exh:37 and the claimants also examined
Smt. Dipti S. Sharma Chartered accountant at Exh:95.
4.4 Respondent No.8 hereinâ€"The New India Assurance Company Ltd. examined one witness namely Rajesh Ishwarlal Kapadi at Exh:99 and the
claimants relied upon the documentary evidence such as FIR at Exh:38, P.M. Note of the deceased at Exh:39, Panchnama of scene of occurrence at
Exh:40, Chargesheet at Exh:42, Marksheets of the deceased at Exh:43, Certificate issued by Gujarat Higher Secondary Education Board at Exh:44,
Appointment order of the deceased issued by Gujarat Housing Board, Jamnagar at Exh:45, Certificate issued by V.K.Patel & Company to the
deceased at Exh:46, Certificate issued by Vishwakarma Construction Company to the deceased at Exh:47, Certificate issued by Bank of India to the
deceased at Exh:48, License issued by Gandhidham Nagarpalika in the name of the deceased being sole proprietor of Agrawal Associates at Exh:49,
School leaving certificate of the deceased at Exh:52, slip of income tax returns for the financial year 1995Â96 paid by the deceased at Exh:53,
Insurance policy of the Tata Sumo Car of the deceased at Exh:64, Work orders received by the deceased at Exhs:67, 68, 70, 71 and 72, TDS
certificates at Exhs:73 and 74, Acceptance letter of resignation of the deceased issued by Garison Engineer at Exh:75, Bank account of the firm of the
deceased with Indian Overseas Bank at Exh:76, Income Certificate of the deceased and balanceÂsheet for the assessment year 1995Â96 at Exhs:79,
80, 81, 82 and 83, Certificate issued by Nagarpalika regarding destroying the office of the deceased situated at Manali Tower, Sector 8 in earthquake
took place on 26.01.2001 at Exh:84, Appointment letter of the deceased by O.E.S as Superintendent B/R, Grade II at Exh:85, Tender acceptance
letter issued by I.O.C at Exh:86, Tender acceptance letter issued by Diu authority at Exh:87, Work order of Rs.6,50,000/Â given to the deceased by
Jesiya Mystry Agencies Pvt. Ltd. at Exh:89, Certificate regarding the income of the deceased issued by Dipti S. Sharma (C.A) at Exh:96 and
Insurance policy of Tanker at Exh:106. The Tribunal upon appreciation of the evidence on record came to the conclusion that the driver of Tanker
was negligent to the extent of 90 % and the deceased being driver of Tata Sumo Car was negligent to the extent of 10 %. The Tribunal after
considering the evidence on record accepted the case of the original claimants that the income of the deceased was Rs.1,42,500/Â p.a and after
considering the prospective income, deducted 1/3rd towards personal expenses and considering the age of the deceased i.e. 34 years on the date of
accident based upon the school leaving certificate at Exh:52, applied 17 multiplier and awarded a sum of Rs.24,42,500/Â as compensation under the
loss of dependency. Over and above the same, the Tribunal awarded Rs.20,000/Â under the head of conventional heads. Thus, the Tribunal awarded
Rs.24,42,500/Â as gross compensation and deducting 10 % negligent, awarded Rs.21,98,250/Â with 9 % interest from the date of filing of claim
petition till its realization.
4.5 Being aggrieved by the said compensation, present appeal is filed by the Insurance Company.
Mr. Maulik J. Shelat, learned counsel for the appellant has contended that the accident took place on 18.06.1996 during day time between Tata
Sumo car and Tanker, which was insured with the appellant Insurance Company. He further contended that the FIR at Exh:38 came to be lodged with
jurisdictional police station by brother of the deceased against the driver of Tanker and after investigation, the police has filed chargeÂsheet at Exh:42.
Relying upon the chargeÂsheet, he contended that both the vehicles were driven in rash and negligent manner and due to headÂonÂcollision of both
the vehicles, driver of Tata Sumo car died on the spot. Referring to and relying upon the panchnama at Exh:40, Mr.Shelat, contended that the
panchnama throws more light that how the accident occurred, which indicates that both the vehicles were found on the edge of the bridge and Sumo
car was not found on the correct side. Explaining the geographical location, as mentioned in the panchnama, Mr.Shelat, contended that Bhachau is on
northern side and Gandhidham is on southern side. Width of the road is 24 feet. He further contended that as per the panchnama, Tanker is found on
the edge of the bridge on southern side facing towards northern side and its rear portion is on southern side. Further, referring to panchnana, it
transpires that the rear side wheel of Tanker is 1 feet away from the edge of the road on western side and front portion of the Tanker is completely
damaged and steering is found broken. Further, Tata Sumo car was found 3 feet away from Tanker, but found after completion of bridge. The position
of Tata Sumo car shows that the driver side is facing western side and its rear portion facing eastern side. It was also contended that front portion of
Tata Sumo car is completely smashed because of headÂonÂcollision. It was, therefore, contended that damage to Tata Sumo car is more in
comparison to the Tanker and there are no sign of break marks on any side of the road and thus, on reading the panchnama and the chargeÂsheet, it
clearly shows that there was headÂonÂcollision and therefore, it was contended that the Tribunal has wrongly considered negligence of driver of Tata
Sumo Car to the extent of 10 %. Relying upon the judgment of the Apex court in the case of Khushaliben Ashumal Variani & Ors. Vs. Manilal
Prabhudas Chauhan and Ors. [1988 ACJ 133], it was contended that the driver of both the vehicles should be held to be equally negligent and
therefore, the Tribunal has wrongly considered the negligence on part of driver of Tata Sumo car to the extent of 10 %. Mr. Shelat, also contended
that the Tribunal has wrongly assumed that the income of the deceased was Rs.1,42,500/Â p.a. and that the income tax returns for the assessment
year 1996Â97 was filed much after the accident on 13.01.1997 and relying upon the certificate, it was contended that the deceased had never filed
any income tax returns. Relying upon the oral deposition of Income Tax Inspector at Exh:99, it was contended that as per the affidavit at Exh:63 dated
24.11.1994, the deceased had no taxable income for the assessment years i.e. 1991Â92 to 1994Â95. He further contended that the income tax returns
at Exh:62 is only the income tax returns on record, which shows that the deceased did not have any Permanent Account Number (PAN) and it is
mentioned in the returns that it is applied, which proves that the deceased never filed in any income tax returns. It was, therefore, contended that the
Tribunal has wrongly assessed the income of the deceased, which should be recalculated and some reasonable income of the deceased should be
considered while computing compensation.
Mr.Shelat has relied upon the judgment of Division Bench of this Court reported in 1988 ACJ 133 and contended that just and reasonable income of
the deceased should be considered while computing income. He also contended that even if the income tax returns at Exh:62 is taken into
consideration, the Tribunal has wrongly considered the income at Rs.1,42,500/ p.a. He further contended that income shown in the income tax returns
is Rs.1,69,137/Â, out of which, the income tax paid is Rs.39,267/Â and thus, net income per annum comes to Rs.1,30,000/Â rounded and not
Rs.1,42,500/Â, as considered by the Tribunal.
He further contended that the deceased was 34 years old on the date of accident and therefore, the Tribunal has committed an error in applying 17
multiplier and according to Mr.Shelat, multiplier of 16 would be appropriate.
On the aforesaid grounds, Mr. Shelat, submitted that present appeal deserves to be allowed and the impugned judgment and award deserves to be
modified.
Ms.Shaili A. Kapadia, learned counsel for the original claimants has supported the impugned judgment and award and contended that the Tribunal
has considered the evidence on record correctly and has rightly come to the conclusion that the deceased was negligent to the extent of 10% and the
same does not require any modification. She contended that the deceased was diploma in Civil Engineer and had Construction Company on the date of
accident. She also submitted that there is ample evidence on record to justify the income of the deceased and was having capability to earn
Rs.20,000/Â p.m. Referring to the work orders at Exhs:89 and 90, it was further contended that the work contracts and bank statement of the
deceased in the name of proprietor firm is not controverted by the appellantÂInsurance Company and on the contrary, she submitted that the Tribunal
has not justified while considering his income at Rs.1,42,500/Â p.a. against income tax returns of Rs.1,69,132/Â. On the contrary, the Tribunal has
wrongly deducted 1/4th towards personal expenses, instead of 1/3rd. However, she candidly submitted that multiplier of 16 would be applicable,
instead of 17. Relying upon the judgment of the Apex Court rendered in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in
2017 (16) SCC 680, it was contended that the Tribunal has awarded megre amount of Rs.20,000/Â under the conventional heads, which should be
enhanced at least to Rs.70,000/Â.
On the aforesaid grounds, Ms. Kapadia, submitted that the impugned judgment and award is proper and the Tribunal has granted just compensation,
which does not require any alteration or modification by this Court in its appellate jurisdiction and therefore, the appeal being meritless, deserves to be
dismissed.
Mr.Palak Thakkar, learned counsel for Respondent No.8ÂInsurance Company has adopted the arguments made by Mr. Shelat and submitted that
this Court may pass appropriate order.
No other or further submissions have been made by learned counsel for the respective parties.
Upon considering the submissions made and upon perusal of the original record and proceedings, more particularly the FIR at Exh:38, Panchnama
at Exh:40 and ChargeÂsheet at Exh:42, it clearly transpires that the accident took place on the bridge. The FIR was lodged by brother of the
deceased. Upon reappreciation of such piece of evidence, it clearly transpires that there was headÂonÂcollision between both the vehicles.
Panchnama clearly shows that because of headÂonÂcollision, Tanker as well as Tata Sumo car have been deadly damaged on front side of the
vehicles and the same is quite evident from position of vehicles as shown in the panchnama. Panchnama at Exh:40 does not show any break marks on
either side and the vehicles are found on the edge of the bridge. Thus, it can very well be inferred that both the vehicles involved in the accident were
driven in excessive speed and even the driver of both the vehicles did not apply any breaks. Driver of the Tanker though available was not examined.
Even considering the judgment of the Apex Court in the case of Bijoy Kumar Dugar Vs. Bidya Dhar Dutta & Anr. [(2006) 3 SCC 242 ]and the
judgment of the Division Bench of this Court rendered in Khushaliben Ashumal Variani & Ors. (supra), as relied upon by learned counsel for the
appellant, it cannot be said that the driver of both the vehicles were equally liable for the accident. However, upon reappreciation of the evidence on
record, more particularly, the panchnama at Exh:40, driver of both the vehicles were negligent and considering the manner in which the accident has
occurred, driver of Tanker was more negligent than the driver of Tata Sumo car. However, as discussed hereinabove, we find that the driver of
Tanker being more negligent was negligent to the extent of 70 % and driver of Tata Sumo car was negligent to the extent of 30%, instead of 10 % as
held by the Tribunal. Even considering the manner in which the accident occurred, both the vehicles have reached at the bridge and looking to the
position of the vehicles, which is evident from the panchnama at Exh:40, the deceased being driver of Tata Sumo car was also negligent to the extent
of 30 %.
As far as income of the deceased is concerned, it is no doubt true that income tax returns at Exh:62 is only the income tax returns on record for
the assessment year 1996Â97 and the accident has occurred on 18.06.1996. However, in the facts of the case, income tax return is filed after the
accident, which cannot be totally discarded. It can be seen from the impugned judgment and award itself that the Tribunal has not relied upon the said
piece of evidence. The Tribunal has rightly considered other piece of evidence and has rightly considered that the deceased was a contractor and the
work contracts were already awarded to the deceased. The Tribunal has rightly recorded the finding that the deceased had pending work orders of
Rs.19,00,000/Â, which is evident from the work orders, which had produced on record at Exh:89 and 90, however, while awarding compensation, the
Tribunal has considered estimated profit to the tune of 7.5 % in such contract business. However, upon reappreciation of the evidence on record and
considering the fact that the deceased was a government contractor and was holding the works of government and semi government institutions, in
opinion of this Court, profit margin should be considered to be more than 7.5 % i.e. at least 9 % and hence, the business income of the deceased can
safely be assessed at Rs.1,71,000/Â p.a. The contention raised by Mr. Shelat that the deceased was not having any taxable income and was not
paying any income tax would go into eclipse.
In light of the fact that the deceased had pending work orders that too by the Government Authority and considering the certificate issued by Dipti
S. Sharma, Chartered Accountant and deposition of one of the claimants at Exh:37, the income of the deceased at Rs.1,71,000/Â p.a. Income on the
date of accident is to be taken into reckoning and not it is based on record that the deceased was not paying any income tax and that the deceased had
no Permanent Account Number as well, it is an admitted position that the accident occurred on 18.06.1996 and therefore, next occasion to pay the
income tax would arise only on the year ending, still however, the Tribunal has not relied upon the said evidence in form of income tax returns and has
correctly assessed the income of the deceased based upon the other evidence on record, more particularly, pending the work orders of the deceased
and therefore, the contention raised by learned counsel for the appellant that the income of the deceased is wrongly considered and just and
reasonable income of the deceased should be considered, deserves to be negatived. Further, with respect, the ratio laid down by the Apex Court in the
case of Khushaliben Ashumal Variani & Ors. (supra) would not be applicable to the present case.
Even the contention raised by Mr. Shelat, that net income would be gross income minus tax is not required to be considered separately for just and
proper compensation. The Tribunal has not taken into consideration the income tax returns for the assessment year 1996Â97, has based the
assessment of the income on other evidence, which upon reappreciation, this Court finds that the same is correctly appreciated. The Tribunal while
assessing the compensation under loss of dependency has deducted 1/3rd as personal expenses of the deceased, however, the deceased had 5
dependents on the date of accident and therefore, following the judgment of the Apex Court in the case of Sarla Verma (Smt) & Ors. Vs. Delhi
Transport Corporation & Anr. [2009 (6) SCC 121], such deduction should be to the tune of 1/4th. The deceased was 34 years on the date of accident
and therefore, following the ratio of the Apex Court in the case of Sarla Verma (supra), multiplier of 16 would be applicable, instead of 17 as applied
by the Tribunal. In addition to that, following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), the claimants would be entitled
to Rs.70,000/Â under different conventional heads.
Following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), the claimants would be entitled to 40 % future prospective
income and therefore, the claimants would be entitled to compensation under the loss of dependency as under:
Rs.1,71,000/Â Income P.A
+ Rs. 68,400/Â 40 % prospective income
ÂÂÂÂÂÂÂÂÂÂÂÂÂ
Rs.2,39,400/Â
 Rs. 59,850/ 1/4th towards personal expenses
ÂÂÂÂÂÂÂÂÂÂÂÂÂ
Rs.1,79,550/Â
X 16 Multiplier
ÂÂÂÂÂÂÂÂÂÂÂÂÂ
Rs.28,72,800/Â
+ Rs. 70,000/Â Conventional heads
ÂÂÂÂÂÂÂÂÂÂÂÂÂ
Rs.29,42,800/Â
 Rs. 8,82,840/ 30 % negligent
ÂÂÂÂÂÂÂÂÂÂÂÂÂÂ
Rs.20,59,960/Â
As Rs.21,98,250/ is already awarded by the Tribunal, appellant â€" The Oriental Insurance Company Ltd., would be entitled to refund a sum of
Rs.1,38,290/Â with proportionate costs and interest at the rate 9 % from the date of filing of claim petition till its realization. Accordingly, the Tribunal
shall refund a sum of Rs.1,38,290/Â along with proportionate costs and interest at the rate 9 % from the date of filing of claim petition till its realization
to the appellant â€" Insurance Company.
For the foregoing, the appeal as well as Cross Objections are partly allowed. Impugned judgment and award stands modified to the aforesaid extent.
However, there shall be no order as to costs. Record and proceedings be transmitted back to the concerned Tribunal forthwith.