JUDGMENT

1. Being aggrieved by grant of inadequate compensation, claimant preferred this appeal under section 173 of the Motor Vehicles Act challenging judgment and order passed in MACP No. 215 of 2004 by the learned Motor Accident Claims Tribunal at Bhavnagar, by which the learned Tribunal has granted compensation of Rs. 7,76,769/- with 7.5% p.a. interest from the date of the petition till realization, marking liability of 80% upon the Opponent No. 1 to 3 and 20% upon opponent No. 4 to pay compensation, reserving right of the claimant to recover the amount of compensation jointly and severally from any of the tortfeasor.

2. By common judgment and order, the learned Motor Accident Claim Tribunal disposed of three claim petitions, viz., Claim Petition No. 215 of 2004, 216 of 2004, and 217 of 2004.

2.1. On 05.02.2004, Mr. Sanjaybhai Jadavbhai Lathiya was driving the Rajdoot motorcycle. Two other persons were pillion riders. Two other persons, namely, Vitthalbhai and Nanjibhai were pillion riders, were coming back from Botad after finishing their work. After reaching near the slope of Keriya village on Zamrala Road, at around 5:30 p.m., opponent No. 1 came driving Bolero jeep bearing registration No. GJ-7-AG-2195 at excessive speed in rash and negligent manner and dashed with Rajdoot motorcycle. As a result of the said accident, all three persons travelling on the Rajdoot fell on the road and received multiple injuries. The present appellant and claimant of MACP No. 215 of 2004 was pillion rider on the Rajdoot motorcycle. The FIR of the incident was registered with Botad Police Station vide C.R. No. I-26 of 2004.

3. The aforesaid the claim petition was preferred by the claimant claiming the compensation of Rs. 10,00,000/- with interest and cost, jointly and severally from driver, owner, and insurer of the Bolero jeep as well as owner of Rajkoot motor- cycle. Learned Tribunal assessed the compensation in aforesaid terms.

4. Being aggrieved, claimant has preferred this appeal.

5. Learned advocate, Mr. Vishal Mehta places on record factual aspect of the case and argued that learned Tribunal committed serious error in taking 60% of the income stated by the claimant in ITR on the ground that the claimant has not produced any other documentary evidence to establish that he was earning income stated in the ITR. He further submitted that ITR itself is a statutory evidence to show the income of the claimant. He further submitted that ITR reflects the income and when the income stated in the ITR have been accepted by the IT Department; that document is sufficient to prove the income of the claimant. It is submitted that learned Tribunal committed serious and manifest error in taking 60% of the ITR

5.1. Upon above submissions, it is urged to accept the income stated in the ITR and to calculate the future loss of income and to enhance the amount of compensation.

6. Learned advocate, Ms. Kirti Pathak, appearing for the insurance company supports impugned judgment and award and also argued that this Court may observe that if any of the tortfeasor pays the amount excess to its liability, he would be entitled to recover the same from the other tortfeasor by executing this judgment. Learned advocate Ms. Pathak relied upon the judgment of Khenyei v/s. New India Assurance Company Ltd. [2015 (9) SCC 273] on this proposition.

7. Regard being had to the rival submissions and considering record and proceedings of the case, it appears that the claimant produced income tax return for the year 2003-04, 2004-05, 2005-06, and 2006-07 vide Exhibit-45 to Exhibit-48 respectively. Learned Tribunal, despite income of agriculture stated in the ITR, in absence of any material evidence believed income to be on higher side. The finding of the learned Tribunal in this regard is material. Para 19 of impugned judgment reads as under : -

“19. The applicant has filed his affidavit under Order 18 Rule 4 CPC at E