{"id":52093,"date":"2008-10-16T00:00:00","date_gmt":"2008-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kailashben-vs-somabhai-on-16-october-2008"},"modified":"2017-09-26T18:31:41","modified_gmt":"2017-09-26T13:01:41","slug":"kailashben-vs-somabhai-on-16-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kailashben-vs-somabhai-on-16-october-2008","title":{"rendered":"Kailashben vs Somabhai on 16 October, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Kailashben vs Somabhai on 16 October, 2008<\/div>\n
Bench: R.P.Dholakia And Z.K.Saiyed, Z.K.Saiyed<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nFA\/38719\/1998\t 12\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 387 of 1998\n \n\n \n\n\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE R.P.DHOLAKIA  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nKAILASHBEN\nFATEHSINH PARMAR & 3 - Appellant(s)\n \n\nVersus\n \n\nSOMABHAI\nHARMABHAI PARMAR & 3 - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nJITENDRA MALKAN for\nAppellant(s) : 1 - 4. \nSERVED BY AFFIX.-(R) for respondent (s) :\n1, \nNOTICE SERVED for respondent (s) : 2, \nMS MEGHA JANI for\nrespondent (s) : 3, \nDELETED for respondent (s) :\n4, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE R.P.DHOLAKIA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\nDate\n: 16\/10\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE R.P.DHOLAKIA)<\/p>\n
This
\n\tappeal under Sec.96 of the Code of Civil Procedure, 1908 has been
\n\tfiled by the appellants-original applicants being aggrieved and
\n\tdissatisfied with the judgment and award dated 24th
\n\tOctober, 1997 passed by the learned Motor Accident Claims Tribunal
\n\t(Aux.), Vadodara, in Motor Accident Claims Petition No.1107 of 1991
\n\twhereby the Tribunal has awarded Rs.2,15,000\/- as compensation  for
\n\tdeath of the deceased  Fatehsinh Somsinh Parmar along with
\n\tproportionate costs and interest @ 12% p.a. from the date of the
\n\tpetition till its realisation.\n<\/p>\n
This
\n\tappeal has been listed as per the present roster in our board of
\n\tfinal hearing in the month of October, 2008.\n<\/p>\n
It
\n\tis required to be noted that initially claim petition has been filed
\n\tby five persons but since mother of the deceased died during the
\n\tpendency of the claim petition, her name was deleted from the
\n\tpetition as reflects from para 16 on page 16 of the judgment passed
\n\tby the Tribunal.\n<\/p>\n
Short
\n\tfacts of the case of the appellants are that the deceased Fatehsinh
\n\tSomsinh Parmar, aged 38 years, residing  in Village Ampad, Taluka
\n\tand District Vadodara, who is the husband of appellant No.1 and
\n\tfather of appellant Nos.2 to 4, was doing the business of collecting
\n\tthe milk from his Village and selling the same in the city of
\n\tVadodara along with other work.  On 15-3-1991, the deceased was
\n\tgoing towards Vadodara City on his bicycle with a milk can. When he
\n\treached near Sevasi on Gotri Road, Vadodara, one motor truck
\n\tNo.GTK-2919 driven in a rash and negligent manner by its driver
\n\t(opponent No.1) came from behind and the front portion of the said
\n\tmotor truck dashed with the back portion of the motor cycle causing
\n\tserious injuries to the deceased. The deceased was taken to the
\n\thospital where he succumbed to the injuries. Hence, the claim
\n\tpetition has been filed by the heirs and legal representatives of
\n\tthe deceased. Against the claim of Rs.14,87,666\/-, the Tribunal has
\n\tawarded Rs.2,15,000\/- as compensation. Hence, the present appeal has
\n\tbeen filed claiming Rs.12,72,000\/- being remaining part of the claim
\n\tamount which has not been awarded by the Tribunal.\n<\/p>\n
We
\n\thave heard learned counsel for the appellants, Mr.Jitendra Malkan
\n\tand  learned counsel for the respondent No.3-Insurance Company,
\n\tMs.Anushri for Ms.Megha Jani. As far as respondent Nos.1 and 2, who
\n\tare driver and owner of the vehicle involved in the accident are
\n\tconcerned, though they have been duly served, they have chosen not
\n\tto remain present either personally or through advocate.\n<\/p>\n
Mr.Malkan
\n\thas drawn our attention towards oral as well as documentary
\n\tevidences and more particularly oral evidence of witness
\n\tNo.1-Kailashben, who is the widow of the deceased Mansinh Fatesinh
\n\tParmar, Ex.28.  She has categorically narrated in paras 2, 3 and 4
\n\tof her deposition about the work her husband was doing.
\n\tShe has deposed that her husband was doing the business of
\n\tcollecting the milk from his Village as well as milk of his 10
\n\tbuffaloes and selling the same in the City of Vadodara and for that
\n\the used to maintain register which she has proved by way of register
\n\tEx.29. She has further deposed that her husband was getting profit
\n\tof Re.1\/- per litre and was earning about Rs.10,000\/- from the sale
\n\tof milk.  She has further deposed that her husband was collecting
\n\tvegetables and was selling the same in the City of Vadodara. In para
\n\t4, she has deposed that her husband used to sell 130 liters  of milk
\n\ttwice a day i.e. in the evening and in the evening.   She has
\n\tdeposed that her husband had worked as a Sanchalak of Mid-day Meal
\n\tScheme for the period from 1984 to 1990. He was also doing
\n\tagricultural activities on his own land as well as on the land of
\n\tothers on a crop-sharing basis and for looking after the same, he
\n\thad engaged a person by paying Rs.1,000\/- per month. She has further
\n\tdeposed that now she is not getting any income which she used to get
\n\twhen her husband was doing agricultural activities. She has further
\n\tdeposed that her husband had served as a Sarpanch for the period
\n\tfrom 1975 to 1980, Secretary of the milk dairy for the period from
\n\t1968 to 1976 and had taken training in paultry farming and was
\n\tdesirous of doing the paultry farming.  She has further deposed that
\n\ther husband used to give her Rs.10,000\/- for household expenses. In
\n\tpara 5, she has deposed about the longivity of her husband’s family
\n\tby stating that father of the deceased died at the age of 77, mother
\n\tat the age of 73 and grandfather at the age of 87.\n<\/p>\n
\tIn her
\n\tcross-examination, a question was asked as to whether there was any
\n\trecord with the Panchayat pertaining to her buffaloes. She has
\n\treplied that Panchayat had no such practice. She has also admitted
\n\tthat though her husband was selling milk in the City of Vadodara,
\n\tshe has no record for the same but if required, she will examine the
\n\ttraders for proving the same. The question of denial was also asked
\n\tregarding her husband’s working as a Sanchalak in Mid-day Meal
\n\tScheme. She has proved the revenue records and form No.8-A. She has
\n\tadmitted in para 13 that although her husband was earning profit of
\n\tRe.1\/- per litre,  Rs.10,000\/- per month from the sale of milk as
\n\twell as income from mid-day meals scheme, her husband was not paying
\n\tany income tax. She was also asked as to whether any writing was
\n\tthere about her doing the paultry farming business and  she replied
\n\tin negative.\n<\/p>\n
\tIt is clear from her
\n\tentire evidence including cross-examination that there was no denial
\n\ton the aspects of her husband’s business of selling of milk as well
\n\tas of agricultural activities and earning income therefrom. The only
\n\tdenial was regarding the quantity of milk.\n<\/p>\n
\tAnother witness
\n\texamined by the applicants was witness No.2, Mansinh Somsinh Chavda
\n\tat Ex.30, who is a villager and who is knowing the deceased since
\n\this birth. He has categorically deposed that his friend i.e. the
\n\tdeceased Fatesinh was a person doing multi-farious activities
\n\tincluding social work. According to him, the deceased was also
\n\tinterested in doing agricultural activities, buying and selling of
\n\tmilk and also selling vegetables. He has further deposed that by
\n\tselling milk alone, he used to earn Rs.5,000\/-. He has also deposed
\n\tthat he was active in politics. He has also taken training in
\n\tpaultry farming and was doing paultry farming. In his
\n\tcross-examination, he has admitted that he and the deceased are from
\n\tthe same community.\n<\/p>\n
\tIt is established from
\n\tthe cross-examination of the above referred witness that the
\n\tdeceased was doing agricultural activities of his own. As far as
\n\tpaultry farming is concerned, he has admitted that he had seen him
\n\tpreparing papers for that and was arranging loan from the bank for
\n\tsaid purpose.\n<\/p>\n
\tSimilarly, one
\n\tShantilal Ramanlal Kachiya has been examined by the original
\n\tapplicants as witness No.3 at Ex.32 to prove the aspect of business
\n\tactivities of deceased. He has categorically deposed that he is
\n\tselling the vegetables at Vadodara as a commission agent. He used to
\n\tbring two quintals of vegetables per month and used to sell the same
\n\tto him. In his cross examination, he has admitted that he is doing
\n\tthe work as a commission agent. He has also admitted that he is not
\n\tkeeping any books of account.\n<\/p>\n
\tAs regards taking
\n\ttraining in paultry farming, the original applicants have examined
\n\tone Muzzamithussain Sahirhussain Saiyed as witness No.4 at Ex.37.
\n\tThrough him, training certificate of paultry farming has been proved
\n\tat Ex.38.  For proving the age of the deceased, the original
\n\tapplicants have examined Prakashchandra  Sumantlal as witness No.5
\n\tat Ex.39 and his age has been proved at Ex.40 while the School
\n\tLeaving Certificate has been proved at Ex.42 through School
\n\tRegister. To prove that he was a member of the Co-Operative Society,
\n\tthe applicants have examined one Amarsinh Chavda, witness No.7,
\n\tEx.44. To prove that he was working as a Secretary of milk dairy for
\n\tthe period from 1968 to 1976, one Ishwarbhai Fulabhai Solanki was
\n\texamined as witness No.8, Ex.47 and proved the same by way of Ex.48.
\n\tIt has also been proved that he was a Sarpanch of the Gram Panchayat
\n\tfor the period of five years.\n<\/p>\n
\tInsurance Company has
\n\texamined one witness, Dilipsinh Jaysinh Jadeja as witness No.1 at
\n\tEx.55. It is required to be noted that  evidence of said witness has
\n\tnot been believed by the Tribunal and the Insurance Company has not
\n\tchallenged the same and, therefore, we are not dealing with the
\n\tsame.\n<\/p>\n
\tIt is required to be
\n\tnoted that as per the evidence on record, deceased was aged about 40
\n\tyears and it has been proved by the applicants by way of documentary
\n\tevidence  Ex.40 to 42. They have also proved that the deceased was
\n\tdoing multifarious activities. He was Sarpanch for a period of five
\n\tyears of the same Village, member of the Co-Operative Society,
\n\tSecretary of Milk Dairy and also obtained training in paultry
\n\tfarming and was interested in doing the paultry farming in future
\n\tand for that, he also prepared the some papers.\n<\/p>\n
\tIn short, at the time
\n\tof incident, deceased was aged about 40 and same has been accepted
\n\tby the Tribunal and it has not been challenged. Keeping in mind the
\n\tsaid age of the applicant, we proceed further.\n<\/p>\n
\tAs far as future
\n\teconomic loss is concerned, it is required to be noted that the
\n\tTribunal has believed that he used to sell 50 liters  of milk per
\n\tday. The Tribunal has held that as per panchnama of scene of
\n\toffence, deceased was having burnt can of milk, one another 24
\n\tliters  of milk.  The Tribunal has not believed other cogent
\n\tevidence on record wherein the witness has categorically deposed
\n\tthat her husband used to sell 130 liters of milk twice a day. That
\n\tfact is also denied by the otherside.  He used to get profit of
\n\tRe.1\/-  per liter of milk. The Tribunal has believed the same but
\n\tthe only thing to be taken into consideration is that  on the date
\n\tof incident, he was having 24 liters of milk with him and only on
\n\tthat ground, it can be presumed that he used to bring 24 liters of
\n\tmilk every day.\n<\/p>\n
\tTo prove the case of
\n\tthe original applicants further, though they have examined various
\n\twitnesses, the Tribunal has not believed the same. However, it is
\n\trequired to be noted that the deceased was doing the business of
\n\ttrading of milk. We are not in a position to accept the say of the
\n\tTribunal that he used to sell only 50 liters of milk per day.
\n\tHowever, facts remain that the deceased was doing multifarious
\n\tactivities of collecting and selling the milk. He was also selling
\n\tvegetables in the City of Vadodara. He was also doing agricultural
\n\tactivities but the Tribunal has ignored the income which he was
\n\tderiving by doing agricultural activities on his own land and has
\n\tnot awarded any single rupee towards the same. The Tribunal has also
\n\tignored the business of selling vegetables and only believed that he
\n\tused to earn Rs.100\/- per month from the sale of vegetables.\n<\/p>\n
\tIt is to be noted that
\n\tthe deceased was maintaining  his family consisting of six persons.
\n\tHe was also an active political worker and was rendering his service
\n\tas a Sarpanch of the Village, Secretary of the Mid-day Meal Scheme
\n\tand member of a Co-Operative Society. He also obtained training in
\n\tpaultry farming and was interested in doing paultry farming but
\n\tbefore starting the same, he met with an accident and succumbed to
\n\tthe injuries. His income cannot be assessed on the basis of income
\n\tof able bodied persons. However, his income can be considered
\n\tsomething more than the able bodied person but something lesser than
\n\tthe skilled workers. In short, the Tribunal has calculated Rs.1600\/-
\n\tas his monthly income on the basis that he used to earn Rs.50\/- by
\n\tsale of milk and Rs.100\/- per month from the sale of vegetables. We
\n\tbelieve that he was earning about Rs.3,000\/- per month and which
\n\twill meet the ends of justice.\n<\/p>\n
On
\n\tgoing through the entire evidence on record, we are not convinced
\n\twith the reasons assigned and the conclusions arrived at by the
\n\tTribunal qua quantim. Looking to the evidence on record and also the
\n\tfacts and circumstances of the case, we consider the monthly income
\n\tof the deceased at Rs.3,000\/-  i.e. Rs.36,000\/- per annum and
\n\tdeducting one-third towards his personal expenses, Rs.24,000\/- are
\n\tawarded towards future economic loss of the deceased. We do not
\n\tdisturb the multiplier of 15 as it has not been challenged and hence
\n\tapplying the same multiplier, the original applicants would be
\n\tentitled to receive Rs.3,60,000\/- and deducting therefrom the amount
\n\tof Rs.1,92,000\/- as has already been awarded by the court below
\n\tunder this head, the original applicants are entitled to receive
\n\tadditional amount of Rs.2,68,000\/- towards future economic loss
\n\tplus. We also hold that the original applicants are entitled to
\n\treceive interest @ 7.5% p.a. on the additional amount from the date
\n\tof claim petition till realisation. The order for disbursement will
\n\tbe made after the awarded amount is deposited in the Tribunal. This
\n\tFirst Appeal stands disposed of accordingly.\n<\/p>\n
(R.P.DHOLAKIA,J)<\/p>\n
\t\t\t\t\t\t\t(Z.K.SAIYED,J.)<\/p>\n
radhan\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Kailashben vs Somabhai on 16 October, 2008 Bench: R.P.Dholakia And Z.K.Saiyed, Z.K.Saiyed FA\/38719\/1998 12\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 387 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-52093","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nKailashben vs Somabhai on 16 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kailashben-vs-somabhai-on-16-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kailashben vs Somabhai on 16 October, 2008 - 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