Chhaya Pralhad Trimukhe And Ors vs Vishwambar Durgaprasad Gupta And ...
2017 Latest Caselaw 4228 Bom

                                    1                     FA 653.2001.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                      FIRST APPEAL NO. 653 OF 2001

     1.       Smt. Chhaya w/o Pralhad Trimukhe,
              age 33 yrs, Occ. Household,
              R/o Kalasadan Market Road, Majalgaon,
              Tq. Majalgaon, Dist. Beed.

     2.       Rupali d/o Pralhad Trimukhe,
              age 17 yrs, Occ. Education, Minor.

     3.       Avinash s/o Pralhad Trimukhe, 
              age 10 yrs, Occ. Education, minor.

     4.       Ravi s/o Pralhad Trimukhe,
              age 7 yrs, Occ. Nil, minor.

              Petitioner No.2 to 4 are minors,
              u/g of petitioner/appellant no.1.      ..appellants...

              VERSUS

     1.       Vishwambar s/o Durgaprasad Gupta,
              age 23 yrs, Bus owner, r/o winner glass
              Industries, 115/A, Khari-Kamti road,
              Nagpur, Tq. District Nagpur.

     2.       Dinesh Suryabhan Sheshka,
              age 28 yrs, Occ. Bus driver,
              r/o old Babhulkheda, behind police
              station, Nagpur, Tq. & Dist.Nagpur.     Dismissed.

     3.       Gulam Mohammad s/o Russom Khan,
              age 38 yrs, Occ. Truck owner, r/o Shukhe,
              Lagi street, Gal Dharugi, R-5, Bombay400008.




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                                      2                       FA 653.2001.odt

     4.       Sk. Abdul Jabbar s/o Ashif Ali,
              age 24 yrs, Occ. Truck Driver,
              R/o Kalyan Nagar, Bihar Road,
              F.S.Tata Nagar House, Bombay.

              (appeal as against respondent nos.3,4 abated.)

     5.   The United Insurance Company,
          Limited through its Branch
          Manager, Rathi Complex, Subhash
          Road, Beed, Tq. & Dist Beed.       ..Respondents..
                                ...
            Advocate for Appellants : Mr Girish Thigle 
       Advocate for Respondent 5 : Mr S G Chapalgaonkar 
        R/2 Dismissed, Appeal Abated As Against R/3,4 
                                ...
                   CORAM : V.K. JADHAV, J.

Dated: July 10, 2017 ...

PER COURT :-

1. Being aggrieved by the judgment and Award

passed by the Member, Motor Accident Claims Tribunal,

Beed dated 20.7.2000 in MACP No.204/1995, original

claimants have preferred this appeal to the extent of

quantum of compensation as awarded by the Tribunal.

2. Learned counsel for the appellants-original

claimants submits that, deceased Pralhad was a

business man and though he had submitted income tax

returns, the Tribunal has considered his income from

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the business source for the assessment year 1993-1994

for the accounting year 1.4.1992 to 31.3.1993 vide

Exh.57 and ignored income tax returns of the

assessment year 1995-1996 for the accounting year

1.4.1993 to 31.3.1994 vide exh.47. Learned counsel

submits that, as per Exh.57, total income of deceased

Pralhad was Rs.28,310/-, however, vide exh.47, net

income of deceased Pralhad is shown as Rs.58,370/-.

Learned counsel submits that, thus the Tribunal has

not correctly considered income of the deceased from

his business source prior to his death. Learned counsel

submits that, the Tribunal has not made any addition in

the income of deceased towards future prospects.

Deceased Pralhad was 34 years of age at the time of his

accidental death and as such in view of the ratio laid

down in case of Sarla Verma & Ors vs Delhi Transport

Corp.& Anr reported in (2009) 6 SCC 121 and Rajesh

and others Vs. Rajbir Singh and others reported in

reported in (2013) 9 Supreme Court Cases 54 the

Tribunal ought to have considered 30% addition in the

income of deceased Pralhad towards his future

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prospects. Learned counsel submits that the Tribunal

has also not awarded the compensation under the non-

pecuniary heads and awarded very meager amount of

compensation under the heads of loss of Estate, loss of

expectation of life, love and affection and funeral

expenses. Learned counsel for the appellants-claimants,

however, fairly conceded that, the Tribunal has wrongly

applied the multiplier '17' instead of '16' which is

inconsonance with the age of deceased. Learned counsel

submits that the Tribunal has also erroneously

deducted the amount to the extent of 1/3rd towards

personal and living expenses of deceased Pralhad

instead of 1/4th which is in consonance with the

number of the claimants/dependents who are four in

numbers.

3. Learned counsel for the appellants in order to

substantiate his contentions placed his reliance on

following two cases :-

1. Darshana Ganesh Kanavaje and others Vs. Maharashtra State Road Transport reported in 2013 (6) Mh.L.J. 779.

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2. Kalpanaraj and others Vs. Tamil Nadu State Transport Corporation reported in (2015) 2 Supreme Court Cases 764.

4. Learned counsel for respondent-insurer submits

that, the Tribunal has rightly considered the income of

deceased from his business as per income tax returns

exh.57 for the assessment year 1993-1994 for the

accounting year 1.4.1992 to 31.3.1993. Learned counsel

submits that, the Tribunal has rightly discarded income

tax returns vide exh.47 for the assessment year 1995-

1996 for the accounting year 1.4.1993 to 31.3.1994 on

the ground that those returns have been submitted after

the death of deceased. Learned counsel submits that,

the appellant-claimant has not submitted copy of the

returns of assessment year 1996-1997 for the

accounting period 1.4.1994 to 31.3.1995 and as such the

Tribunal has, therefore, rightly considered income tax

returns vide exh.57 for the assessment year 1993-1994.

Learned counsel submits that, tribunal has awarded

rate of interest @ 12% p.a. however, it should be 9% p.a.

Learned counsel submits that, the Tribunal has

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     awarded   just   and   reasonable   compensation.     No 

interference is required. There is no substance in the

appeal.

5. Learned counsel in order to substantiate his

contentions placed his reliance on following two cases :-

1. V.Subbulakshmi and others Vs. S.Lakshmi and another reported in (2008) 4 Supreme Court Cases 224.

2. The oriental Insurance Company Ltd., Khan Market Nagpur Vs. Smt. Ramilaben wd/o of Jayantilal Patel and others in FA No.589/2004 (High Court of Bombay Bench at Nagpur),

In case of V. Subbulakshmi and ors., the Supreme

Court observed that income tax returns filed after death

have rightly not been relied upon by the High Court and

also by this court as in case of The Oriental Insurance

Company Vs. Ramilaben and ors (supra).

6. On careful perusal of the evidence,most

particularly Exh.57 and 47 respectively, it appears that

for the assessment year 1993-1994, the appellant-

claimant has submitted return for the accounting year

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01.04.1992 to 31.3.1993, wherein his total income was

shown as Rs.28,310/-. In view of Exh.58, income tax

department has considered the net taxable income of

the appellant-claimant at Rs.28,311/- for the

assessment year of 1993-1994 for accounting

year/period 1.4.1992 to 31.3.1993. The learned counsel

for the appellant-claimant has vehemently submitted

that so far as Exh.47 is concerned, total income of the

appellant-claimant was shown at Rs.58,370/- as per the

trading account Exh.48 and the same has been

corroborated by the assessment order exh.44 wherein

the gross turn over of sale is shown as Rs.2,87,892/-.

However, the learned counsel appearing for respondent-

insurer has rightly pointed out that, assessment order

Exh.44 though for the period of 1.4.1994 to 31.3.1995,

the same has been issued on 24.1.1997. Furthermore,

so far as exh.48 is concerned, the same is xerox copy of

Trading account for the accounting year 1.4.1993 to

31.3.1994 and though the income tax department has

considered the taxable income of the deceased Pralhad,

those returns were submitted on 20.11.1995 i.e. one

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month after death of deceased Pralhad. Furthermore,

for the accounting year 1.4.1994 to 31.3.1995 no

documents are placed on record to substantiate the

contentions that there was steady rise in the income of

deceased Pralhad. So far as accounting period of

1.4.1994 to 31.3.1995 is concerned, deceased Pralhad

was alive at that time and no explanation whatsoever is

submitted as to why income tax returns of said

accounting period has not been placed on record. It

thus appears that compared to the assessment year

1993-1994 vide exh.57 almost double the income has

been shown vide exh.47 in the assessment year of 1995-

1996 and said returns are also submitted after death of

deceased Pralhad.

7. In both the cases V.Subbulakshmi and others Vs.

S.Lakshmi and another and the oriental Insurance

Company Ltd., Khan Market Nagpur Vs. Smt. Samilaben

wd/o of Jayantilal Patel and others in FA No.589/2004

(supra) relied upon by the learned counsel for

respondent-insurer the Supreme Court as well as this

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9 FA 653.2001.odt

Court declined to rely upon the income tax returns as

those returns were submitted after death of deceased.

8. I do not find any fault in the finding recorded by

the Tribunal while accepting the income of deceased

vide Exh.57 at Rs.28,310/-. However, the Tribunal has

not made any addition in the income of deceased

Pralhad towards future prospects. In view of the ratio

laid down by the Supreme Court in the aforesaid cases

relied upon by the learned counsel for the appellants-

claimants 1)-Darshana Ganesh Kanavaje and others Vs.

Maharashtra State Road Transport reported in 2013 (6)

Mh.L.J. 779, 2)-Sarla Verma & Ors vs Delhi Transport

Corp.& Anr reported in (2009) 6 SCC 121 and 3)-Rajesh

and others Vs. Rajbir Singh and others reported in

reported in (2013) 9 Supreme Court Cases 54, 30%

addition of income is required to be made towards

future prospects. Further, in view of the number of

dependency, the Tribunal ought to have considered

deduction of 1/4th of the amount instead of 1/3rd

towards personal and living expenses of deceased

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Pralhad. After 1/4th of deductions from the income of

deceased Pralhad, annual loss of income comes to

Rs.21,233/- and after addition to the extent of 30%

towards future prospects, loss of income per annum

comes to Rs.27,603/-. Relevant multiplier would be '16'

and as such the appellants-claimants are entitled for

the compensation of Rs.4,41,648/- towards loss of

future income/dependency.

9. So far as compensation under non-pecuniary

heads are concerned, Tribunal has not awarded any

compensation under loss of consortium. The appellant-

claimant no.1-widow was 28 years of age at the time of

accidental death of her husband. Thus, she is entitled

for an amount of of Rs.1.00 lac towards loss of

consortium. Claimant nos. 2, 3 and 4 are the minor

claimants aged about 7, 5 and 2 years respectively at

the time of death of their father and, as such, they are

entitled for Rs.50,000/- each for loss of love and

affection. The appellants-claimants are also entitled for

an amount of Rs.50,000/- towards loss of Estate. The

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appellants-claimants are also entitled for an amount of

Rs.25,000/- towards funeral expenses and Rs.50,000/-

towards expectation of life.

10. Thus, break up of compensation under various

heads awardable to the appellant-claimants which can

be broadly categorized is as under :-

1 Loss of future income/dependency Rs.4,41,648/- (As against Rs.3,20,858/- awarded by the Tribunal) 2 Loss of consortium Rs.1,00,000/- 3 Loss of love and affection to claimant nos. 2 to 4 Rs.1,50,000/- (Rs.50,000/- each) (as against Rs.10,000/- awarded by the Tribunal) 4 Loss of Estate Rs.0,50,000/-

(as against Rs.10,000/- awarded by the Tribunal) 5 Funeral Expenses Rs.0,25,000/- (as against Rs.6,000/- awarded by the Tribunal) 6 Expectation of Life Rs.0,50,000/-

TOTAL Rs.8,16,648/-

11. The appellants-claimants are entitled for the total

compensation of Rs.8,16,648/- (Rs. Eight lacs sixteen

thousand six hundred and forty eight only). Thus, the

judgment and Award passed by the tribunal requires

modification. Hence, following order.

O R D E R

1. Appeal is hereby partly allowed with

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proportionate costs.

2. The judgment and Award passed by the Member, Motor Accident Claims Tribunal, Beed dated 27.7.2000 in MACP No. 204/1995 is hereby modified in the following manner :-

a] Respondent Nos.1, 3 and 5 jointly and severally do pay an amount of Rs.8,16,648/- (Rs. Eight lacs sixteen thousand six hundred and forty eight only) to the claimants with interest @ 9% p.a. from the date of petition till realization of the entire amount.

3. Rest of the judgment and award stands confirmed.

4. Award be drawn up as per the above modifications.

5. If any amount is paid as per the judgment and Award passed by the tribunal, the same shall be the part of the award after modification.

6. Deficit Court fees, if any, shall be paid within a period of four weeks from the date of this order.

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7. Appeal is accordingly disposed of. Pending civil application, if any, also stands disposed of.

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( V.K. JADHAV, J. ) ...

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