Bombay High Court
Sunita Lalitkumar Agrawal And Ors vs Sudhakar Raising Gambhir And Ors on 2 May, 2025
2025:BHC-AUG:12728
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.1649 OF 2017
1. Smt. Sunita Lalitkumar Agrawal
Age : 53 years, Occu : Household,
R/o. 40/3, Ram Nagar, Near Shirsoli Naka,
Jalgaon, Dist. Jalgaon
2. Puja d/o. Lalitkumar Agrawal @
Puja w/o. Ashwin Agarwal,
Age : 31 years, Occu : Household,
R/o. 40/3, Ram Nagar, Near Shirsoli Naka,
Jalgaon, Dist. Jalgaon
3. Pritesh Lalitkumar Agrawal,
Age : 30 years, Occu : Business,
R/o. 40/3, Ram Nagar, Near Shirsoli Naka,
Jalgaon, Dist. Jalgaon.
4. Kum. Priyanka Lalitkumar Agrawal
Age :26 years, Occu : Education,
R/o. 40/3, Ram Nagar, Near Shirsoli Naka,
Jalgaon, Dist. Jalgaon. ... Appellants
(Orig. Claimants)
Versus
1. Sudhakar Raising Gambhir
Age : Major, Occu : Driver,
R/o. Bambhori, Tal. Dharangaon,
Dist. Jalgaon
2. Laxman Namdeo Nannaware,
Age : Major, Occu : Business,
R/o. Bambhori, Tal. Dharangaon,
Dist. Jalgaon
3. Branch Manager,
Oriental Insurance Company Limited,
Branch Jalgaon, Dist. Jalgaon ... Respondents
......
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Shri. D.J. Patil h/. Shri. S. N. Suryawanshi, Advocate for the Appellants.
Shri. Ramraje A. Deshmukh h/f. Shri. Shambhuraje Deshmukh,
Advocate for Respondent Nos. 1 & 2
Shri. M. K. Goyanka, Advocate for Respondent No.3
.....
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 16.04.2025
PRONOUNCED ON : 02.05.2025
JUDGMENT :-
. This Appeal has been preferred by the Original Claimants under Section 173 of the Motor Vehicles Act (for short, 'M.V. Act') for further enhancement in compensation awarded by the learned Motor Accident Claims Tribunal, Jalgaon (for short, 'Tribunal') by the Judgment and Award dated 10.10.2014, by which Respondent Nos.2 and 3 who are the Owner and Insurer of the offending vehicle, are directed to pay jointly and severally the compensation of Rs.16,84,000/- (Rs. Sixteen Lakh Eighty Four Thousand) with interest @ 7.5% Per Annum from 01.01.2012 till realization to the Appellants.
2. The facts, giving rise to the present Appeal, are as under :
2.1. Lalitkumar Tekchand Agrawal (hereinafter referred to as 'Deceased') was the husband of Appellant No.1 and father of Appellant Nos.2 to 4. Deceased was in the business and running the trading Company under the name and style 'Jagdamba' in Jalgaon city. On 22.02.2008 at about 09:45 a.m. when Deceased was travelling on his 3 motorcycle bearing No.MH-19-AB-5025 to his shop and reached near the Bombay Bakery and was crossing the bridge, the Truck bearing No. MH-19-1371 which was coming from the backside, in a rash and negligent manner, gave dash to his motorcycle and the accident took place. Deceased came under the rear wheel of the said Truck and died.
The accident was reported to the concerned Police Station and crime was registered against Respondent No.1, who was driving the said Truck at the time of the accident.
2.2. The Appellants - Claimants approached the learned Tribunal by filing the Claim Petition under Section 166 of the M.V. Act contending that Deceased was a businessman and claimed the compensation of Rs.60,00,000/- (Rs. Sixty Lakh) with interest @ 18% Per Annum. The Claim Petition was resisted by the Insurance Company by filing Written- statement at Exh.14 and the Driver and Owner of the offending Truck filed their Written-statement at Exh.15. They denied the contentions of the Claimants. The learned Tribunal framed the Issues at Exh.19. The Claimants led their evidence and examined the Widow of Deceased as Witness No.1 and the Accountant as Witness No.2 and brought on record certain documents. The Respondents did not examine any witness. Considering the evidence available on record, the learned Tribunal passed the above referred Judgment and Award. 4
3. It is submitted by the learned Advocate for the Appellants that, the Appeal is preferred only on two (2) counts: (a) non consideration of the Income Tax Returns of Deceased, and (b) not granting interest from the date of filing the Claim Petition. It is submitted that, the Income Tax Act (for short, 'I.T. Act') provides for the Income Tax Returns can be submitted belatedly. As per the provisions of Sections 153 and 159 of the I.T. Act., even the Legal Heirs can file the Income Tax Returns of Deceased. The Income Tax Department has accepted the Income Tax Returns of Deceased after his death and the Appellants have paid the tax. There was no reason to discard the Income Tax Returns by the learned Tribunal. In support of his submissions, he cited the Judgments in Malarvizhi and Others vs. United India Insurance Company Limited and Another, (2020) 4 SCC 228 and New India Assurance Company vs. Kavita Jitendra Pawar and Others, 2023 SCC OnLine Bom 1494. He further submitted that, the learned Tribunal ought to have granted interest from the date of filing the Claim Petition. He submitted that, the Appeal be allowed and the compensation be enhanced.
4. It is submitted by the learned Advocate for Respondent No.3
- Insurance Company, that there is no dispute in respect of the above referred provisions of the I.T. Act. However, the Income Tax Returns for the last three (3) years were filed after the death of Deceased and 5 therefore, the learned Tribunal has rightly not considered the same. As regards the Interest part is concerned, considering the conduct of the Appellants, the learned Tribunal rightly granted the interest from subsequent date. The Award was satisfied by the Insurance Company. He submitted that, the Appeal be dismissed. In support of his submissions, he cited the Judgment in V. Subbulakshmi and Ors vs. S. Lakshmi and Anr., AIR 2008 SC 1256.
5. Before adverting to the evidence available on record, I deem it appropriate to first deal with the Judgments cited by both the sides. Malarvizhi (supra) was the matter under M.V. Act for compensation by the Heirs and Legal Representatives of Deceased therein who died due to motor vehicular accident occurred on 25.05.2001. To support the income of Deceased, the Claimants therein had filed the Income Tax Returns, filed by Deceased for Financial Year 1995-1996 to 2000-2001. The view taken by the High Court that, the determination of the income of Deceased must proceed on the basis of the income tax return, where available, was upheld. It was observed that, 'the Income Tax Return was statutory document on which reliance may be placed to determine the annual income of the Deceased.'
6. In New India Assurance Company (supra), the Appeal was preferred by the Insurance Company contending that, the Tribunal erred 6 in considering the Income Tax Return of Deceased filed after his death. The accidental death was dated 13.04.2015. Before the learned Tribunal, the Income Tax Returns were filed below Exhs.32 and 33 which were for the periods 2013-14 and 2014-15. It was the contention on behalf of the Appellant therein that the Income Tax Return of the year 2014-15 cannot be considered as it was after the death of Deceased. The said contention was rejected by observing that the said Income Tax Return was for the previous year which was the Assessment year.
7. In V. Subbulakshmi (supra), the Income Tax Return filed after the death of Deceased therein was held rightly not to have been relied.
8. There is no dispute on the aspect that the Insurance Company has satisfied the Award. Though several grounds are raised in the Appeal Memo, the Appeal is pressed only on two (2) grounds at the time of final hearing and they are, (a) the quantum of compensation by discarding the Income Tax Returns, and (b) Interest granted by the learned Tribunal.
9. According to the Appellants, Deceased was in the business. The Appellant No.1 i.e. Widow of the Deceased, examined herself by 7 filing the evidence Affidavit at Exh.23. Her evidence Affidavit is on the line of the avernments in Claim Petition. It has come in her cross- examination that she was unable to tell as to in whose name the Shop Act Licence and the Industrial Permit were issued. However, the positive suggestion is given in the cross-examination that the 'Jagdamba Trading Company' was owned by her husband and she answered the same in the affirmative. It has also come in her cross-examination that after her Husband's death the said business was being looked after by her Brother-in-law and her Son was not the partner in the said business. On the basis of this cross-examination, the learned Tribunal observed that there is no dispute that Deceased was a businessman and rightly so.
10. To claim the compensation, the Appellants have relied on the Income tax Returns filed in the name of Deceased for the Assessment Year 2007-08 (Exh.34) and 2006-07 (Exh.36). Exh.38 is the Statement of income for the Assessment Year 2005-06. Exhs.33, 35 and 37 are taxpayers' counterfoils for the Assessment Year 2007-08, 2006-07 and 2005-06. In the cross-examination of Defendant No. 1 i.e. the Widow of Deceased, she admitted that all the Income Tax Returns were submitted under her signature. To the question that the Income Tax Returns were filed after the accident, she replied that she was not able to specifically say so.
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11. The Appellants also examined the Accountant as Witness No.2. According to this Witness No.2, he used to write business accounts of Deceased from last 15 (fifteen) years. He deposed in respect of the above referred Income Tax Returns filed in the name of Deceased. According to him, the Income Tax Returns of Deceased used to be filed by one Chartered Accountant Mr. Suresh S. Patil, R/o. Jalgaon. Admittedly, the said C.A. is not examined by the Appellants. He admits that, Income Tax Returns at Exhs.34 and 36 are filed after the death of Deceased. Perusal of the endorsement on the taxpayers' counterfoil for the Assessment Year 2005-06 at Exh.37 shows the stamp of Bank dated 22.05.2006. This goes to show that the Income Tax Return for Assessment Year 2005-06 was submitted by Deceased while he was alive. This shows that Deceased was submitting Income Tax Returns. From the detailed Affidavit of Witness No.2 and his detailed cross- examination, nothing has come so as to discard his evidence that, he was looking after the accounts of Deceased. The Income Tax Returns and statement of accounts attached with the Income Tax Returns shows the name of Jagdamba Trading Company. It is, thus, clear that Deceased while he was alive had submitted the Income Tax Returns for the Assessment year 2005-06 and the Income Tax Returns for subsequent years were submitted by Appellant No.1 after death of Deceased. The evidence of Witness No.2 remained unshaken and it shows that on the basis of the information received from the Brother and Son of Deceased 9 he prepared the documents and said Chartered Accountant submitted the Income Tax Returns of Deceased. The evidence available on record sufficiently establishes that Deceased was engaged in the business and was an Income Tax Payer. Therefore, the submission of last two (2) Assessment Years' Income Tax Returns after his death by his Widow to the Income Tax Office, can very well be taken into consideration, in the light of the above referred Judgments, observing that the Income Tax Return filed after the death can be considered.
12. The last Income Tax Return available on record is for the Assessment Year 2007-08 and it shows the Tross Total Income of Deceased as Rs.4,10,182/- (Rs. Four Lakh Ten Thousand One Hundred Eighty Two) and total tax paid is shown as Rs.71,687/- (Rs. Seventy One Thousand Six Hundred Eighty Seven). It has come in the evidence of Witness No.2 that the Professional Tax was Rs.2,000/- (Rs.Two Thousand). It is needless to state that the statutory deductions are to be deducted from the Income of Deceased while computing the amount of compensation. Thus, the last net income of Deceased after deduction towards income tax and professional tax comes to Rs.3,36,495/- (Rs. Three Lakh Thirty Six Thousand Four Hundred Ninety Five) which is rounded to Rs.3,36,500/- (Rs. Three Lakh Thirty Six Thousand Five Hundred).
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13. The age of Deceased, as considered by the learned Tribunal, is between 51 to 55 years, on which there is no dispute and for which, there shall be addition of 10% towards future prospects. There shall be 1/5th deduction towards living and personal expenses as is considered by the learned Tribunal, on which there is no dispute. Considering the age of Deceased, the multiplier of 11 will be applicable, on which there is no dispute. The other additions under the Conventional Heads done by the learned Tribunal is not disputed by either side. The said deduction, addition, multiplier are based on the Judgment in the case of Sarla Verma & Ors vs. Delhi Transport Corporation & Anr., [(2009) 6 SCC 121]. The computation in the compensation is worked out as follows:
Sr. No. Particulars Amount
1. Last net income after deduction Rs.3,36,500/-
of Income Tax and Professional Tax
2. Future Prospects Rs.3,36,500/- Rs.3,70,150/-
(Addition of 10%) + Rs.33,650/-
3. 1/5th deduction towards living Rs.3,70,150/- % 5 Rs.74,030/-
and personal expenses
4. Yearly income Rs.3,70,150/- Rs.2,96,120/-
- Rs.74,030/-
5. Multiplier of 11 Rs.2,96,120/- x 11 Rs.32,57,320/-
6. Towards Conventional Heads Rs.1,00,000/-
(Rs.25,000/- + 25,000/- + 50,000/-)
Total Compensation payable to Claimants : Rs.33,57,320/-
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14. The compensation awarded by the learned Tribunal is modified to the above extent i.e. Rs.33,57,320/- (Rs. Thirty Three Lakh Fifty Seven Thousand Three Hundred Twenty Only).
15. As regards the Interest granted by the learned Tribunal is concerned, the award of Interest where any claim is allowed by the Claims Tribunal is governed by the provisions of Section 171 of the M.V. Act. It provides that Tribunal may grant the simple Interest in addition to the amount of compensation at such rate and from such date not earlier than the date of making the claim as it may specified in this behalf. The learned Tribunal made the following observations in paragraph no.13 of the impugned Judgment which reproduced below:
"13. It can be seen that the petition was presented on 11.11.2008. The respondents 1, 2 and 3 filed written statements on 26.02.2009 and 3.2.2009. Issues were framed on 1.7.2009. The petitioner no.1 filed evidence affidavit on 11.03.2011 and then made available for cross examination on 27.11.2012. The PW-2 was examined on 26.07.2013. The petitioners kept the matter pending for years together. Therefore awarding interest from 1st January 2012 shall be reasonable. Answering the point accordingly following order is passed."
16. I see no reason to take different view than the one taken by the learned Tribunal in respect of the Interest from 01.01.2012. Hence, the following order:
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ORDER (I) The Appeal is partly allowed with proportionate costs.
(a) Respondent Nos.2 and 3 i.e. Owner and Insurer shall jointly and severally pay Rs.33,57,320/- (Rs. Thirty Three Lakh Fifty Seven Thousand Three Hundred Twenty) to the Appellants with interest @ 7.5% Per Annum from 01.01.2012 till realization. (II) The amount of compensation is apportioned as follows :
(a) Widow - Smt. Sunita Lalitkumar Agrawal -
Rs.20,00,000/- (Rs. Twenty Lakh) + Interest +
costs.
(b) Son - Pritesh Lalitkumar Agrawal
Rs.5,57,320/- (Rs.Five Lakh Fifty Seven Thousand Three Hundred Twenty) + Interest + costs.
(c) Daughter - Puja d/o. Lalitkumar Agrawal @ Puja w/o. Ashwin Agarwal, Rs.4,00,000/- (Rs. Four Lakh) + Interest + costs.
(d) Priyanka Lalitkumar Agrawal -
Rs.4,00,000/- (Rs. Four Lakh) + Interest + costs. (III) The Record and Proceedings be sent back.
( NEERAJ P. DHOTE, J. ) GGP Signed by: Gajanan G. Punde Designation: PA To Honourable Judge Date: 02/05/2025 16:49:03