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2024 DIGILAW 1900 (GUJ)

Lalitaben @ Lilaben Wd/O Ratilal Gandalal Patel v. Dineshkumar Dalaji Vanzara

2024-10-14

BIREN VAISHNAV, MAULIK J.SHELAT

body2024
JUDGMENT : (Maulik J. Shelat, J.) 1. The present appeal is filed under Section 173 of the Motor Vehicle Act by original claimant since deceased continued by her legal heirs against judgment and award dated 16.04.2012 passed by MACP (Auxilliary), City Civil Court No.13, Ahmedabad seeking an additional compensation for the death of husband of the original claimant – Lalitaben @ Lilaben. 2. The Short facts of the case appear to be that the husband of the original claimant namely Ratilal Gandalal Patel met with an accident on 12.05.1999 at about 7:30 am on public road by Truck No. GJ-1-TT-5999. He sustained very serious injuries and during the course of treatment he succumbed to injuries. 2.1 The widow of the deceased has filed claim petition under Section 166 of the Motor Vehicle Act seeking compensation of Rs.50,00,000/- from driver, owner and insurance company of aforesaid truck. 2.2 The opponent No.3 – insurance company has appeared and filed its written statement and contested claim on its merits. 2.3 The original claimant has been examined at Exh.36 and also submitted following documents in support of her case; Sr. No. Description Exh. 1 Deposition of petitioner 36 2 FIR 57 3 Panchnama of accident 58 4 Insurance Policy 32 5 P. M. Report 59 6 Copy of passport of deceased 48 2.4 After hearing the parties and appreciating the evidence on record, the tribunal has found that due to rash and negligent driving of the truck involved in the accident, the husband of the claimant succumbed to injuries and died in an accident which is arising out of use of motor vehicle. So, after considering oral and documentary evidence on record, learned tribunal has granted total compensation of Rs.4,65,000/- with 7.5% interest from the date of petition till its realization. Hence, present appeal. 3. Submission of appellants 3.1 Learned advocate Mr. Sandip C. Shah would submit that the tribunal has not properly appreciated the evidence on record and not decided the quantum of claim as per the oral as well as documentary evidence, thereby committed a serious error in granting inadequate compensation. He would further submit that the deceased was NRI working at USA and earning 400 US Dollars per week i.e. 1600 US Dollars per month. He would further submit that the deceased was NRI working at USA and earning 400 US Dollars per week i.e. 1600 US Dollars per month. Whereas, the tribunal has considered only 320 US Dollars per month income of the deceased by calculating minimum wages so prevailing in US at the time of accident. He would further submit that the tribunal has committed a serious error by deducting 30 US Dollars out of 320 US Dollars being a social security amount. So, tribunal has only considered 183 US Dollars per month as monthly dependency and 2196 US Dollars yearly dependency benefit to the claimant. To buttress his argument, Learned advocate Mr. Shah has relied upon a decision of the Hon’ble Apex Court in the case of United India Insurance Co. Ltd. V/s Partricia Jean Mahajan And Ors. reported in (2002) 6 SCC 281 in support of his submission and urged that even if this Court will confirm findings of the tribunal so far as ascertaining the income of the deceased is just and proper then also 30 US Dollars deducted of social security amount by tribunal is wrong and contrary to the ratio laid down by the Hon’ble Supreme Court in case of Partricia Jean Mahajan (supra). 3.2 Lastly, he would submit that in view of recent decision passed by Hon’ble Apex Court in case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017 (16) SCC 680 , original claimant being widow is entitled for spousal consortium of Rs.48,400/-, and also entitled to receive Rs. 18,150/ each towards loss to estate and funeral expenses respectively. Thus, he requested this Court to grant just and reasonable compensation in the interest of justice. 4. Submissions of Respondent 4.1 Per contra, learned advocate Mr. Vibhuti Nanavati appearing for respondent – insurance company opposed this appeal by contending inter alia that there is no error committed by the tribunal in awarding compensation which is just and reasonable. He would submit that claimant has failed to prove actual income of the deceased at the time of accident. He would further submit that the deceased was only two standard pass that too in Gujarati Medium than he could not have been engaged in USA as an Assistant Manager in Store as claimed. He would submit that claimant has failed to prove actual income of the deceased at the time of accident. He would further submit that the deceased was only two standard pass that too in Gujarati Medium than he could not have been engaged in USA as an Assistant Manager in Store as claimed. He has drawn our attention to the fact that neither certificate of employment showing income of deceased nor affidavit of alleged employer of the deceased has been proved on record as that evidence were not accepted and same cannot be looked into. So far as deduction of 30 US Dollars towards social security by tribunal is concerned, he would submit that considering peculiar facts and circumstances of the case and in absence of any data available on record, no error is committed by tribunal in deducting such amount then no interference may be made. So, he has requested this Court to dismiss the appeal. 5. Heard learned advocate Mr. Sandip C. Shah for the appellants and learned advocate Mr. Vibuti Nanavati for the respondent – insurance company. 6. We have gone through the impugned judgment and award and perused the Record and Proceedings of claim petition. After going through the oral and documentary evidence on record, following facts are emerging on record, which are as under; 6.1 Deceased was aged about 65 years met with a vehicular accident and succumbed to injuries. He was survived by his wife & children. 6.2 Truck No. GJ-1-TT-5999 involved in the accident was insured with respondent – insurance company. 6.3 Deceased was NRI appears to have been residing at USA and working in departmental store. 6.4 Wife of the deceased was also residing with him at USA. 6.5 After going through the copy of Passport of deceased at Exh.48, claim of claimant that deceased was residing in USA is substantiated. 6.6 No contrary evidence has been led by insurance company to disapprove these facts. 7. The question which arise and falls for our consideration is, as to whether learned tribunal has committed any error in computing the income of the deceased and so also committed an error in deducting amount towards social security while computing compensation? 7.1 The claimant has failed to submit any documentary evidence which can be proved in accordance with law to support her claim that deceased was earning 1600 US Dollars per month at USA. 7.1 The claimant has failed to submit any documentary evidence which can be proved in accordance with law to support her claim that deceased was earning 1600 US Dollars per month at USA. It is true that wages certificate of owner of the store where deceased was alleged to have worked is filed with his affidavit at Mark 31/7 and 31/8 respectively. Nonetheless, claimant has failed to prove such vital documents in accordance with law. So, tribunal has correctly not accepted it on its face value. The claimant could have submit salary slip and any income tax returns of deceased filed before competent authority at USA to prove income of deceased as alleged. The tribunal has correctly observed that claimant has failed to prove income of the deceased as claimed. Resultantly, the tribunal arrived at just income considering minimum wages in the year 1999 (year of accident). According to us, learned Tribunal has properly considered 320 US Dollars per month as income of the deceased which appears to be just and reasonable in the peculiar facts of the case. We are of the opinion that learned Tribunal has not committed any serious error in determining the income @ 320 US Dollars per month. The tribunal has further deducted 1/3rd personal expenses of deceased which is line of ratio of decision of Hon’ble Apex Court in a case of Sarla Verma V/s Delhi Road Transport Corporation And Ors. reported in (2009) 6 SCC 121 . Thus, tribunal has correctly considered net dependency 230 US Dollars. 7.2 The tribunal has further deducted 30US Dollars towards social security from the said figure of 230 US Dollars thereby considered net monthly dependency 183 US Dollars per month after considering loss of dependency. As per the decision of Honourable Apex Court in case of Partricia Jean Mahajan (supra) the amount of social security is benefit to the citizens of US given by the Government and such amount could not have been deducted. As such, there is not on record to suggest that such amount of 30 US Dollars towards social security requires to be deducted from income derived by the deceased through his employment as undisputedly deceased was not a US citizen. Prima facie, question of deduction of 30 US dollars towards social security could not have been arisen in the facts of the present case. Prima facie, question of deduction of 30 US dollars towards social security could not have been arisen in the facts of the present case. Even otherwise, social security can be considered to be equated with Provident Fund which is available to a regular employee working in India in establishment where Rules and Regulations of Provident Fund apply. It is settled legal position of law that amount of Provident Fund, insurance etc. cannot be deducted from income so far as computing monthly dependency benefit. What constitute component as income for arriving at just compensation is succinctly stated by Hon’ble Apex Court in a case of National Insurance Company Ltd vs Indira Srivastava & Ors reported in 2008 (2) SCC 763 , wherein it held as under: “18. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.) has been defined as under : "The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture." It has also been stated : 'INCOME' signifies 'what comes in' (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). 'It is as large a word as can be used' to denote a person's receipts '(per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337." 19. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337." 19. If the dictionary meaning of the word 'income' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute.” 7.3 So, we are of the opinion that learned tribunal could not have deducted 30 US Dollars out of 320 US Dollars while computing monthly benefit. Conclusion. 8. The upshot of above said discussion leads to following conclusion. 8.1 The income of the deceased requires to be considered @ 320/ US Dollars out of which 1/3rd towards his personal expenses is required to be deducted. Thereby, net monthly dependency comes to 253/ US Dollars, annually it would come to 2556/ US Dollars. As deceased was more than 65 years old, an appropriate multiplier of 5 is applied on such annual dependency. Thus, claimants are entitled to get 12,780/ US Dollars towards loss of dependency benefit. There is no cavil that rate of US Dollars viz. a viz. Indian Rupee on the date of accident i.e. Rs.40/-. So, to convert the loss of dependency from US Dollar to Indian Rupees i.e. 12,780/- multiplied by 40 comes to Rs.5,11,200/-, which the claimants are entitled to get as loss of dependency benefit. 8.2 As per ratio of Ho’ble Apex Court in its decision in a case of National Insurance Company ltd. V/s Pranay Shetty reported in AIR 2017 SC 5157 and Magma General Insurance Co. Ltd. v/s Nanu Ram @ Churu Ram & Ors. reported in (2018) 18 SCC 130 , original claimant would be entitled to receive spousal consortium of Rs.48,400/ - and further entitled to Rs.18,150/- towards loss of estate and Rs.18,150/ - towards funeral expenses. 8.3 Thus, claimants are entitled to receive Rs. 5,95,900/- which carry 7.5% interest from the date of claim petition till its realization. As claimants must have received an amount of Rs. 4,65,000/- together with interest and cost by now, they are now entitled to get an additional compensation of Rs.1,30,900/- with 7.5% interest from the date of petition till its realization. 5,95,900/- which carry 7.5% interest from the date of claim petition till its realization. As claimants must have received an amount of Rs. 4,65,000/- together with interest and cost by now, they are now entitled to get an additional compensation of Rs.1,30,900/- with 7.5% interest from the date of petition till its realization. Once such additional compensation will be deposited by respondent – insurance company then after, tribunal may disburse such amount in equal proportion to legal heirs of original claimant after due and proper verification and in accordance with law. 8.4 Thus, in view of above, the appeal is partly allowed to aforesaid extent. Record and Proceedings be sent back to the concern tribunal forthwith. There shall be no order as to costs.