M.R.SHAH,J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.), Vadodara (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition No.330/2008 by which the learned Tribunal has partly allowed the said claim petition has awarded a total sum of Rs.35,99,400/ to the original claimants and towards compensation for the death of deceased who died in a vehicular accident, the original opponent No.3 ICICI Lombard General Insurance Co. Ltd. insurer of Dumper No.GJ02Z308 involved in the accident has preferred the present First Appeal.
(2.) In a vehicular accident which occurred on 22.12.2007 between Dumper No.GJ02Z308 and the Maruti Car No.GJ01AR7438, deceased Sanjaykumar Hasmukhlal Shah died. Therefore, the original claimants heirs and legal representatives of the deceased filed the aforesaid claim petition before the learned Tribunal claiming Rs.50 lakh towards compensation under different heads. [2.1] It was the case on behalf of the original claimants that on 22.12.2007, the deceased Sanjaykumar Shah was proceeding from Gandhinagar to Vatrak on Dahegam Bayad road by driving his Maruti Car No.GJ01AR7438 and that he was driving slowly and on the left side of the road. According to the claimants, when he reached near the busstand of village Jesana Muvada, at that time, original opponent No.1 came from opposite direction driving his Dumper rashly and negligently at a very high speed and in attempting to overtake one vehicle, he dashed his Dumper against the Maruti car driven by the deceased and due to the impact of this accident, the deceased was pressed under the car and he sustained grievous head injuries and he succumbed to the injuries and died. It was the case on behalf of the original claimants that at the time of accident the deceased was aged 40 41 years. That he was a commerce graduate and after completion of his graduation, he was working as Commission Agent in the cloth market. He also visited abroad for the expansion of his business. It was the case on behalf of the original claimants that at the time of accident the deceased was running proprietary firm known as Krishna Textile and he was carrying on business of commission agent as well. According to the claimants the deceased was earning Rs.2.50 lakh Rs.3 lakh net profit per annum in the year 2007; that he was earning Rs.3 lakh Rs.4 lakh per annum at the time of accident. According to the original claimants if the deceased would not have died in the accident, he would have earned at least Rs.5 lakh to Rs.7 lakh per annum in the years to come. Therefore, the original claimants claimed Rs.50 lakh towards compensation under different heads. [2.2] The claim petition was opposed by the original opponents. The original opponent Nos.1 and 2 ­ driver and owner of the offending vehicle opposed the claim petition by filing the written statement at Exh.10. They denied all the facts and allegations made in the claim petition. They also denied that the accident had occurred due to rash and negligent driving on the part of the opponent No.1. According to them the deceased was solely negligent for the accident. Alternatively, it was submitted that if the original opponent Nos.1 and 2 are held liable, the original opponent No.3 ­ insurance company would be liable to pay the compensation, because the offending vehicle was insured with the original opponent No.3 at the time of accident. That the claim petition was also opposed by original opponent No.3 ­ insurance company of the dumper. Written statement at Exh.19 was filed on behalf of the original opponent No.3 denying all the material facts and allegations in the claim petition. [2.3] That the learned Tribunal framed the issues at Exh.22. That thereafter the original claimants as well as the original opponent No.3 ­ insurance company adduced the evidence oral as well as documentary and relied upon the following oral as well as documentary evidences. JUDGEMENT_195_LAWS(GJH)7_2016.jpg JUDGEMENT_195_LAWS(GJH)7_20161.jpg [2.4] That on appreciation of evidence the learned Tribunal has held the original opponent No.1 ­ driver of the Dumper sole negligent for the accident. That on appreciation of evidence and considering the income tax returns produced on record the learned Tribunal assessed the income of the deceased at Rs.2,56,000/ per annum. Adding 30% towards future rise in income and after deducting 1/3rd towards the total expenses of the deceased and thereafter applying the multiplier of 14, the learned Tribunal has awarded Rs.34,94,400/ towards future loss of income and thereby has awarded a total sum of Rs.35,99,400/ under different heads as under: JUDGEMENT_195_LAWS(GJH)7_20162.jpg [2.5] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal in holding the original opponent No.3 ­ driver of the Dumper sole negligent for the accident and also on quantum the original opponent No.3 ­ insurer of the Dumper ­ ICICI Lombard General Insurance Co. Ltd. has preferred the present First Appeal.
(3.) Shri Sunil Parikh, learned advocate appearing on behalf of the appellant herein ­ insurance company has vehemently submitted that the learned Tribunal has materially erred in holding the original opponent No.1 ­ driver of the Dumper involved in the accident sole negligent for the accident. It is vehemently submitted by Shri Parikh, learned advocate appearing on behalf of the appellant that as there was a head on collision between the two vehicles, the learned Tribunal ought not to have held the opponent No.1 ­ driver of the Dumper sole negligent for the accident. It is submitted that as there was a head on collision between two vehicles and the manner in which the accident has taken place, the learned Tribunal ought to have either held the driver of the maruti car ­ deceased sole negligent for the accident and/or contributory negligent to a larger extent. [3.1] It is further submitted by Shri Parikh, learned advocate appearing on behalf of the appellant that as the deceased was a businessman, the learned Tribunal has materially erred in awarding future loss of income adding 30% rise in future while considering the prospective income. Relying upon the decision of the Hon'ble Supreme Court in the case of Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. reported in (2009)6 SCC 121, it is vehemently by Shri Parikh, learned advocate appearing on behalf of the appellant that as the deceased was a businessman, the learned Tribunal has materially erred in adding 30% towards future rise in income while awarding future loss of income. Making above submissions and relying upon above decision, it is requested to admit/allow the present First Appeal. ;