Andhra Pradesh High Court - Amravati

D Krishnaveni 3 Others vs M/S Naveen Travels Another on 6 August, 2024

APHC010231362016

                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI             [3470]
                          (Special Original Jurisdiction)

             TUESDAY ,THE SIXTH DAY OF AUGUST
              TWO THOUSAND AND TWENTY FOUR
                         PRESENT
       THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
        THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

    MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
                            1962/2016
Between:
                                         ...APPELLANT(S)
D Krishnaveni & 3 Others and Others
                               AND
M/s Naveen Travels Another and Others ...RESPONDENT(S)

Counsel for the Appellant(S):
  1. THOTA SUNEETHA

Counsel for the Respondent(S):
  1. GUDI SRINIVASU
  2. KATTA LAXMI PRASAD

The Court made the following:
                                     2


            HON'BLE SRI JUSTICE RAVI NATH TILHARI
                                  AND
             HON'BLE SRI JUSTICE NYAPATHY VIJAY


                     M.A.C.M.A.No.1962 of 2016

JUDGMENT:

(Per Hon'ble Sri Justice Nyapathy Vijay)

This Appeal is filed by the appellants questioning the Award and

Decree dated 31.03.2016 passed in M.V.OP.No.81 of 2012 by the

Chairman, Motor Accident Claims Tribunal-cum-IV Additional District

Judge, Kurnool.

2. For the sake of convenience, the parties are hereinafter referred

to as they were arrayed before the Tribunal.

3. The brief facts of the case are as under:

The claimants are the mother, wife and children of one

Nageswara Reddy (hereinafter called as 'deceased'). The MVOP was

filed claiming compensation on account of the death of the deceased.

It is their case that when the deceased traveling to Banglore in a Bus

bearing No.AP-28-Y-6336 died on 28.12.2011, when the bus driver

drove the bus in a rash and negligent manner while overtaking a lorry

going ahead of the bus. In the process, the bus turned turtle towards

left side of a ditch. It was pleaded that the deceased was working as

civil contractor and getting Rs.8,90,330/- per annum and he was also

an income tax assessee by the date of his death. It was further

pleaded that the deceased was doing agriculture work in his own land

to the extent of Ac.70.00 cents. Therefore, compensation of

Rs.2,00,00,000/- was sought.

4. The Respondent No.1 i.e the owner of the bus remained ex

parte. The Respondent No.2 i.e the Insurance company filed their

counter by denying the averments mentioned in the petition and further

refuted negligence on the part of Driver of the bus. It is further

pleaded in the counter that both the insured and the police failed to

discharge their mandatory duties under Section 134 (C) and Section

158 (6) of the Motor Vehicles Act, 1988. Hence, prayed to dismiss the

petition.

5. In the course of examination on behalf of claimants,

P.Ws1 to 3 were examined, Exs.A.1 to A.9 were marked and on behalf

of insurance company Ex.B1 copy of policy was marked.

6. The Tribunal framed the following issues:

1. Whether the accident occurred due to the rash

and negligent driving of driver of Volvo bus

bearing registration No.AP-28-Y-6336?

2. Whether the claimants are entitled to claim

compensation of Rs.2,00,00,000/- or to what just

amount and from whom the same shall be

recovered?

3. To what relief?

7. The Tribunal, after considering the oral and documentary

evidence, held that the accident occurred due to rash and negligent

driving of the driver of the bus and awarded an amount of

Rs.27,30,000/- towards compensation.

8. Heard Smt. Thota Suneetha, learned counsel for the appellant

and Sri Katta Laxmi Prasad, learned counsel for the respondent No.2.

9. The counsel for the appellant contended that the compensation

awarded is grossly low and that there is apparent error in the

calculation of income adopted by the Tribunal as the Tribunal had not

included refundable tax in the income while awarding compensation. It

is her contention that only the tax payable as reflected in the Income

Tax returns should be deducted and not the refundable tax amount. It

is her contention that the compensation awarded is grossly low and

sought for enhancement.

10. The counsel for the respondents-Insurance company contended

that the Income tax returns were filed by PW.3, a tax consultant and

he had admitted that he is not competent to file tax returns and only an

auditor has to file the returns as the income exceeds Rs 10,00,000/-.

Further, it is doubtful whether the tax returns were filed at all. It was

further contended that there is no proof that the deceased was a

certified Class-I contractor and in the absence of authentic evidence

establishing income of the deceased, the compensation awarded by

the Tribunal cannot be faulted with.

11. After hearing the respective counsel, the only issue for

consideration in this appeal is "whether compensation awarded by

the Tribunal is adequate in the facts and circumstances of the

case?."

12. The only documents that need to be considered in this case are

Ex.A.6 and Ex.A.7, which the Income Tax returns for the AY 2010-

2011 and AY 2011-2012 respectively. The Ex.A.6 is Form ITR-V

(Income Tax Return-Verification) i.e e-filing of tax return without digital

signature. This Ex.A.6 was filed on 15.10.2010 and the breakup of the

income of the deceased in the Income Tax return is as under;

Computation Statement For the year ended 31-03-2010

Profit and gains of Business of Profession Net Profit as per profit & loss account 5,23,825-00 LESS : Deduction U/S. 80C 1,00,000-00 4,23,825-00 Add : agriculture Income 2,40,000-00 Total Income 6,63,825-00

Tax thereon 1,03,148-00 Less : Rebate on A.G. Income 34,000-00 69,148-00

Add HEC 3% 2,074-00 Tax payable 71,222-00 Less : T.D.S. 3,28,996-00 Refund due 2,57,774-00

13. The Ex.A.7 is in ITR-4 i.e tax return for taxpayers who opt for tax

under presumptive income scheme. The profit and loss account

annexed there shows that the gross bills was Rs.3,60,22,029/- and the

deceased may have to file ITR-3 as the gross turnover is over and

above Rs.2 crores. Be that as it may, this Ex.A.7 was digitally signed

and filed on 11.11.2011. The breakup of the income of the deceased in

the Ex.A.7 IT return is as under;

Computation Statement For the year ended 31-03-2011

Net Profit as per profit & loss account 5,40,330-00 LESS : Deduction U/S. 80C 3,50,000-00 Total Income 8,90,330-00

Profit and gains of Business of Profession

Tax thereon 1,24,740-00 Less : Rebate on A.G. Income 39,641-00 85,099-00 Add HEC 3% 2,553-00 Tax payable 87,652-00 Less : T.D.S. 3,60,268-00

Refund due 2,72,620-00

14. The Tribunal though had accepted the Ex.A.6 and Ex.A.7, but

had taken income in Ex.A.6 only and did not take into consideration

the income in Ex.A.7. For the purpose of the appeal, the income

under Ex.A.7 can be taken into consideration for the purpose of

computation of compensation as the same having been filed on

11.11.2011 before the accident.

15. The average income of the deceased after excluding agricultural

income and tax payable is under Ex.A.6 and Ex.A.7 is as under;

For Ex.A.6:

Total Income (Rs.6,63,825/-) - Tax (Rs.71,222/-) - Ag.Income(

Rs.2,40,000) =Rs 3,52,603/-

For Ex.A.7:

Total Income (Rs.8,90,330/-) -Tax (Rs.87,652/-) - =Rs 8,02,678/-. In

the Ex.A.7 return, the deceased did not mention agricultural income,

but had sought rebate on agricultural income @ Rs 39,642/-.

16. The average income is Rs.3,52,603/- + Rs 8,02,678/- divided by

2 (for two years) = Rs.5,77,640/-. The monthly income of the

deceased for the two years is Rs.48,136/-.

17. Though, there is no dispute with regard to age of the deceased,

but the deceased being a contractor, there would be variation in his

income. The variation is inevitable as the business of the contractor is

tender dependent and proximity with the ruling establishment. In the

opinion of the Court, it would not be safe to totally rely on ITR returns

for two years to arrive at average income for the purpose of

computation of compensation.

18. As regards the contention of the counsel for the insurance

company, with regard to veracity of the Income Tax returns, this Court

is of the opinion that these documents were filed online by the

deceased and are authentic, nothing has been pointed by the counsel

as to why these documents should be doubted. It is to be noted here

that these documents were accepted by the Tribunal and the

compensation awarded on the basis of these documents was

accepted by the Insurance company. Therefore, it is not open to the

Insurance company to raise these name sake objections in the appeal

filed by the claimants seeking enhancement. The other argument with

regard to there being no proof of the deceased being class-I

contractor, this Court is of the opinion that the gross turnover, profit

and loss account etc., filed as annexures to the Ex.A.6 and Ex.A.7

sufficiently indicate that the deceased was a contractor and the same

would suffice.

19. The deceased being a contractor would have filed Income Tax

returns for the previous AY years and the claimants in fairness should

have filed the same for the Court to arrive at just compensation.

Further, there is no proof as to when the deceased became contractor

and what was his occupation prior to becoming contractor. Therefore,

the Court is inclined to fix the monthly income of the deceased @

Rs.40,000/- per month after deduction of tax. The revised

compensation payable is as under;

                 Monthly Income-:                             Rs 40,000/-


Addition to income to future prospect(@40% deceased            Rs 56000/-

              being less than 40 years)                  (Rs 40000+Rs 16000)


             Annual income(56000*12)                          Rs 6,72,000/-


                                                              Rs 5,04,000/-

Deduction towards personal & Living Expenses(1/4) (Rs 672000-Rs 168000))

Rs 75,60,000/-

              Amount of compensation
                                                             (Rs 504000x15)


                   Loss of Estate                              Rs 15000/-


                 Loss of consortium                           Rs 40000/-x4


                 Funeral Expenses                              Rs 15000/-


           Total amount of compensation                       Rs 77,50,000/-

20. As no agricultural income was claimed in the Ex.A.7, this Court is

not granting any supervisory expenses thereon. In the above table,

loss of consortium was granted to all claimants taking into

consideration, the Judgment of Hon'ble Supreme Court in Magma

General Insurance Co.Ltd. v. Nanu Ram1.

21. The Interest payable is revised to 9% as held by Hon'ble

Supreme Court in Smt.Anjali and others v. Lokendra Rathod and

others2. The balance amounts shall be deposited by the Respondent

Insurance company within two months before the Tribunal and the

claimants shall be entitled to the amounts as per the ratio and

conditions determined by the tribunal.

22. With the above observations, the Appeal is partly allowed. No