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Gujarat High Court · body

2019 DIGILAW 923 (GUJ)

Mitali Roy v. Kashinath Shivshankar Giri

2019-10-15

PARESH UPADHYAY, R.M.CHHAYA

body2019
JUDGMENT : R.M. CHHAYA, J. 1. Feeling aggrieved by and dissatisfied with the judgment and award dated 09.05.2018 passed by Motor Accident Claims Tribunal (Aux.), Vadodara, in Motor Accident Claim Petition No. 1581/2010, the appellants-original Claimants being the legal heirs of deceased preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short); 2. Heard Mr. R.G. Dwivedi, with Ms. Pooja Hotchandani, learned counsel for the appellants-original Claimants and Mr. Maulik J. Shelat, learned counsel for respondent No. 3-Insurance Company. Though served, no one appears for respondent Nos. 1 and 2. It is pointed out by learned counsel for the parties that as the appeal is only for enhancement of compensation, presence of respondent Nos. 1 and 2 being the driver and owner of the offending vehicle respectively is not essential. 3. This Court vide order dated 08.08.2018 was pleased to issue Notice for final disposal. Considering the same and at the request of learned counsel for the appellants and the Insurance Company, the appeal is taken up for its final disposal. Learned counsel for the parties have also provided the copies of evidence adduced before learned Tribunal for perusal of this Court. 4. The following noteworthy facts emerge from the record of the appeal:- 4.1 That on 09.10.2010, deceased Debabrata Roy was going from his house towards Indian Oil Company by driving his motorcycle bearing registration No. GJ-10-AE-9242, at that time, one Tanker bearing registration No. GJ-6-Y-7911 came in excessive speed with rash and negligent manner and dashed with the motorcycle of the deceased, due to which, the deceased died on the spot as he has received fatal injuries. 4.2 Pursuant to the said accident, FIR being C.R. No. I-69/2010 came to be lodged at Jawaharnagar Police Station, against the driver of the said tanker. 4.3 It is the case of the appellants that, the deceased was aged 54 years on the date of accident and he was serving as Construction Manager in one Company viz. M/s. UHDE India Pvt. Ltd. and had salary of Rs. 58,500/- p.m. 4.4. The appellants being the legal heirs of deceased filed claim petition before the Tribunal under Section 166 of the Act, claiming compensation of Rs. 50,00,000/-, wherein the Tribunal awarded compensation of Rs. 15,22,000/- along with costs and interest @ 9 % per annum. M/s. UHDE India Pvt. Ltd. and had salary of Rs. 58,500/- p.m. 4.4. The appellants being the legal heirs of deceased filed claim petition before the Tribunal under Section 166 of the Act, claiming compensation of Rs. 50,00,000/-, wherein the Tribunal awarded compensation of Rs. 15,22,000/- along with costs and interest @ 9 % per annum. 4.5 Being dissatisfied with the said compensation, the appellants have filed present appeal for enhancement of compensation. 5. Learned counsel for the appellants contended as under: (i) Learned counsel for the claimants relying upon the Pay Slip at Exh. 30, contended that the Tribunal has committed an error in determining the income of the deceased at Rs. 15,000/- p.m. and thereby, has committed an error in granting compensation under the head of loss of dependency; (ii) That the Tribunal has misread the evidence i.e. pay Slip at Exh. 30 and has also not properly appreciated the overall deposition of the witnesses at Exhs. 27 and 28. Therefore, the income of the deceased should be assessed at Rs. 58,500/- p.m. On the abovementioned contentions, learned counsel for the appellants submitted that, present appeal be allowed and impugned judgment and award be modified. 6. Per contra, Mr. Maulik J. Shelat, learned counsel for respondent No. 3 has supported the impugned judgment and award and has contended that the Tribunal has rightly not believed the income of the deceased as the appellants did not produce any evidence prior to April, 2010. Therefore, he submitted that the appeal being meritless, deserves to be dismissed. No other or further submissions have been made by learned counsel for the parties. 7. Only the short question, which arises in this appeal is whether the Tribunal has correctly determined the income of the deceased or not. At this stage, it is appropriate to refer to the evidence on record, more particularly the application for contractual employment at Exh. 28, which was entered into by the deceased with M/s. UHDE India Pvt. Ltd. The said application form is duly signed by the deceased. Exh. 29 is the appointment letter issued by M/s. UHDE India Pvt. Ltd. on 31.03.2010, wherein it is mentioned by the deceased that he will join the company on 01.04.2010. Exh. 30 are the copies of Pay Slips of the deceased for the months of April to October, 2010. Exh. 29 is the appointment letter issued by M/s. UHDE India Pvt. Ltd. on 31.03.2010, wherein it is mentioned by the deceased that he will join the company on 01.04.2010. Exh. 30 are the copies of Pay Slips of the deceased for the months of April to October, 2010. It is an admitted position that the accident has occurred on 09.10.2010. 8. Upon considering the pay slip for the months of April to September, 2010, it clearly establishes the fact that the consolidated salary of the deceased was Rs. 28,550/- p.m. and other allowances like HRA, conveyance allowance, medical reimbursement and Ad-hoc allowance were paid and a sum of Rs. 4,060/- was total deducted towards the professional tax, income tax and educational cess respectively. From the said pay slips, it appear that the gross earning of the deceased was Rs. 58,500/- and net earning which comes after deduction of professional tax, income tax and educational cess, was Rs. 54,440/-. The Tribunal has further not considered such piece of evidence, which has been duly proved by the claimants mainly on the ground that no income prior to April, 2010 is proved by the claimants. 9. Further, the claim petition under Section 166 of the Act relates to the claim for the accident occurred and therefore, the income of the deceased or injured or affected person is to be considered as he/she was getting on the date of the accident. Over and above the same, the claimants have also produced on record the appointment letter at Exh. 29, copy of attendance muster at Exh. 31 and the claimants have also examined Suvin, who was working as Personal Manager in M/s. UHDE India Pvt. Ltd. on the date of accident. The said company is a German company, having its establishment in India and even considering the cross-examination of the said witness, nothing contrary is found and therefore, only on the ground of no income prior to April, 2010 is proved by the claimants, the Tribunal has committed an error in applying guesswork and determined the income at Rs. 15,000/- p.m. only. 10. Upon re-appreciation of the evidence, more particularly considering the pay slips of April to October, 2010 at Exh. 30, gross salary of the deceased has to be taken at Rs. 58,500/-. 15,000/- p.m. only. 10. Upon re-appreciation of the evidence, more particularly considering the pay slips of April to October, 2010 at Exh. 30, gross salary of the deceased has to be taken at Rs. 58,500/-. At the same time, as the professional tax, reimbursement as well as taxes paid in any form deserve to be deducted. Conveyance charges are personal and even the rent reimbursement is personal, as HRA is already considered separately. 11. Having come to the aforesaid conclusion, income of the deceased based upon the salary earned on the date of accident, would be as under: Rs.58,500/- Rs.13,810/- (Rs.4060/- towards income tax, Rs.6250/- towards conveyance and Rs.3500/- towards rent reimbursement) Rs. 44,690/- Which is rounded to Rs.45,000/- 12. The claimants would be entitled to prospective income only to the tune of 10 % as the deceased was aged 54 years on the date of accident, as under: Rs.45,000/- + Rs. 4,500/- (10 % prospective income) Rs.49,500/- Which is rounded to Rs.50,000/- 13. Having come to the aforesaid conclusion, the claimants would be entitled to get compensation under the head of loss of dependency as under: 58,500/- P.M. Salary income 13,810/- Deductions (Rs.4060/- towards income tax, Rs.6250/- towards conveyance and Rs.3500/- towards rent reimbursement) Rs.44,690/- Rs.45,000/- (Rounded amount) + Rs. 4,500/- (10 % future prospects income) Rs.49,500/- Rs.50,000/- (Rounded amount) Rs.16,666/- (1/3rd towards personal expenses) Rs.33,334/- X 12/- Months X 11 Multiplier (as the deceased was 54 years on the date of accident) Rs.44,00,088/- Rs.70,000/- Conventional heads Rs.44,70,088/- Total loss of dependency Rs.44,70,000/- (rounded amount) 14. At last, Mr. Maulik J. Shelat, learned counsel for respondent No. 3-Insurance Company contended that the Tribunal has awarded 9 % interest on the awarded amount from the date of filing of claim petition till its realization and that, the claim petition was preferred in the year 2010 and therefore, this Court may award 7 % interest on the enhanced amount of compensation. 15. Upon overall peculiar facts and circumstances of the case, we deem it fit to accept the contention raised by Mr. Shelat as regards the rate of interest. 16. Accordingly, as Rs. 15,22,000/- is already awarded by the Tribunal, the appellants-claimants would be entitled to get further compensation of Rs. 29,48,000/-. As far as the rate of interest is concerned, the appellants would be entitled to get 9 % interest on the amount awarded by the Tribunal i.e. Rs. Shelat as regards the rate of interest. 16. Accordingly, as Rs. 15,22,000/- is already awarded by the Tribunal, the appellants-claimants would be entitled to get further compensation of Rs. 29,48,000/-. As far as the rate of interest is concerned, the appellants would be entitled to get 9 % interest on the amount awarded by the Tribunal i.e. Rs. 15,22,000/- from the date of filing of claim petition till its realization and would be entitled to get 7.5 % interest on the enhanced amount of compensation i.e. Rs. 29,48,000/-. 17. Accordingly, respondent No. 3-Insurance Company shall deposit the amount of further compensation of Rs. 29,48,000/- along with proportionate costs and interest at the rate 7.5 % from the date of filing of claim petition till its realization before the Tribunal within a period of three months from today. Thereafter, the Tribunal shall pass appropriate order for disbursement. For the foregoing, the appeal is partly allowed. Impugned judgment and award stands modified to the aforesaid extent. Record and proceedings be transmitted back to the learned Tribunal forthwith. No order as to costs.