Bombay High Court
Smt Sarita Janardhan Singh And 2 ... vs M/S Haldiram Vitta And Viniyog Pvt ... on 22 May, 2017
Bench: B.P. Dharmadhikari
Judgment fa770.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 770 OF 2006.
1. Smt. Sarita wd/o Jannardhan Singh,
Aged about 40 years, Occ - Household,
2. Saurabh s/o Janardhan Singh,
aged about 19 years, Occu - Student.
3. Mst. Gaurav s/o Janardhan Singh,
aged about 17 years, Occu - Student,
claimant no.3 minor through Guardian
Mother Claimant no.1.
All r/o. C/o. Shri S.N. Singh, Dodhany
Road in front of Waghoda Temple,
Zingabai Takli, Post Mankapur,
Nagpur - 30. ....APPELLANTS.
VERSUS
1. M/s. Haldiram Vitta & Viniyog Pvt. Ltd.
C/o. Avin Food Product, Nagpur.
2. The Divisional Manager,
National Insurance Co. Ltd.,
Mount Road, Sadar, Nagpur. ....RESPONDENTS
.
-----------------------------------
Mr. Asghar Hussain, Advocate for the Appellants.
Mr. A.C. Chaphale, Advocate for Respondent No.2.
None for Respondent No.1.
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Judgment fa770.06
2
CORAM : B.P. DHARMADHIKARI, J.
DATED : MAY 22, 2017.
ORAL JUDGMENT.
Appellants before this Court are claimants in Claim Petition
No.211/2003. Appellant no.1 is widow and appellant nos. 2 and 3 are
children of deceased Janardhan Singh. Accidental death on 06.10.2002 by a
vehicle insured with respondent no.2 Insurance company is not in dispute.
Deceased was a L.I.C. Agent and in claim petition filed under Section 166 of
the Motor Vehicles Act, 1988 on 04.12.2002 above dependents claimed
compensation of Rs. 10,00,000/- under various heads.
2. The matter was contested and vide judgment delivered on
28.04.2005, Member, Motor Accident Claims Tribunal, Nagpur has awarded
total compensation of Rs. 5,21,500/- to them with interest @ 9% from
04.12.2002 till realization.
3. Shri Hussain, learned Counsel appearing for the appellants/
claimants relies upon the judgment of Hon'ble Supreme Court in case of
Judgment fa770.06
Sarla Verma .vrs. Delhi Transport Corporation (2009 ACJ 1289 (SC);
Rajesh .vrs. Rajbir Singh (2013 ACJ 1403 SC) and Asha Verman and
others .vrs. Maharaj Singh and others (2015 ACJ 1286 SC), to urge that
the heads under which compensation has been awarded or quantum thereof
is inconsistent with the law as propounded by the Hon'ble Supreme Court
and it needs to be corrected accordingly. He further adds that deceased was
a L.I.C. Agent and hence, future potential or future prospects @ 30% also
needed to be computed and accordingly compensation should have been
worked out. He does not dispute use of 15 as multiplier as deceased was
about 42 years of age at the time of his death. He submits that looking to
the income of deceased there is no definite material to show that income tax
was being paid by him. Learned counsel submits that in any case annual
income of deceased at the time of accident cannot exceed Rs. 80,000/- per
year and hence, direction to deduct income tax in judgment of the Claims
Tribunal is unsustainable.
4. Shri Chaphale, learned counsel appearing for respondent
Insurance Company does not dispute the law as laid down by the Hon'ble
Supreme Court, however, he invites attention to certificate at Exh.35 proved
by P.W.3 to show that quantum of commission earned by the deceased in 14
years. He states that thus the entitlement of family per year cannot exceed
Judgment fa770.06
Rs.40,000/-. He therefore, states that the calculation of amount by the
Claims Tribunal does not call for any intervention. He argues that if
commission is paid to any agent in lump-sum and amount thereof exceeds
Rs. 5000/-, T.D.S. @ 10% is statutorily deducted and made over to the
Income Tax Department. He further prays for dismissal of present appeal.
5. With the assistance of learned counsel, I have perused records.
The claimants have examined widow Sarita as witness no.1; Doctor who
treated deceased as P.W.2 and colleague employee of L.I.C. Nipun
Bhatnagar as P.W.3. P.W.3 only has spoken about the income of the
deceased. Question about the correctness of computation of compensation
and heads under which it needs to be allowed falls for my consideration.
6. Evidence of P.W.3 Nipun shows that vide Exh.36 between years
1989-90 to 2002-03, commission of Rs. 7,20,578/- was paid to the deceased.
This witness has further pointed out that income tax on said payment
approximately works out to Rs. 72,000/-. Perusal of document on record
further reveals that in Exh.36 there is nothing to indicate any deduction
towards income tax. Earlier two pages are letters written by the Branch
Manager of L.I.C. to Income Tax Department. Letters are not exhibited and
also not fully legible. Period covered under these two letters is from
01.04.2000 to 31.03.2001 and from 01.04.2001 to 31.03.2002. These
Judgment fa770.06
letters are dated 30.04.2001 and 30.04.2002. In these letters various
deduction effected from commission are mentioned. Amount of income tax
deducted as per communication dated 30.04.2001 is Rs. 10,290/-, while as
per letter dated 30.04.2002 that amount is Rs.8339/-. It is not very clear
whether this amount has been made over by LIC to Income Tax Department.
Widow has also not spoken of any returns filed under Income Tax Act, 1961
by the deceased so as to find out appropriation of this TDS.
7. The only occupation of deceased brought on record as his work as
LIC agent. In this situation, Exh.36 brought on record through P.W.3
appears to be an authentic document. There the Senior Branch Manager has
certified total commission earned by the deceased for period from 1989 to
2003 i.e. for about 14 years to be Rs. 7,20,578/-.
8. In impugned judgment delivered by the Claims Tribunal, the
Claims Tribunal has accepted this document in paragraph no.15 and after
deducting the income tax amount of Rs. 72000/- it has worked total take
home commission for 14 years to Rs. 6,45,578/-. As already noted supra,
correctness of this exercise needs to be verified. The certificate is issued for
the purpose of present litigation and therefore, it mentions payment of
commission which may have been received by the deceased from time to
Judgment fa770.06
time in 14 years. How many payments exceeded Rs. 5000/- and therefore
TDS was deducted or could have been deducted is not clear. If TDS was
deducted, definitely his employer (LIC) could have produced in Court
communications like letters dated 30.04.2001 and 30.04.2002 supra. The
amount of Rs. 72000/- spoken of by P.W.3 is presumption and it does not
mean that amount has been already deducted.
9. Facts however, show that if the amount of TDS provisionally
calculated at 10% is deducted from this total commission of Rs. 7,20,578/-,
the take home commission works out to Rs. 6,48,478/- If average annual
commission is calculated on this basis, it may work out to Rs.46,112/-, while
the tribunal has accepted the same to be Rs. 48,000/- per year. Making
allowance for the fact that income tax amount to be deducted may not be
Rs.72,000/- exactly, I am not inclined to disturb this figure of Rs.48,000/-,
accepted by the Tribunal.
10. Judgments relied upon by learned counsel for the appellants,
particularly last judgment in case of Asha Verman and others .vrs. Maharaj
Singh and others (supra), show need of paying 30% of the amount for loss
of future prospects even in case of a person employed in business or
profession. That has not been done in the present matter. That amount
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works out to Rs. 14,400/-, therefore total annual dependency works out to
Rs. 62,400/-. Considering the number of members in the family to be 4
including deceased, 1/3rd amount is required to be deducted for his
personal expenditure and that amount comes to Rs. 20,800/-. Hence, loss
to family works out to Rs, 41,600/-. Use of multiplier of 15 is not in dispute
and therefore, total loss to family on account of death works out to Rs.
6,24,000/-.
11. Coming to other heads, the Tribunal has awarded medical
expenses of Rs. 31,500/-. This figure is not in dispute before this Court. For
loss of consortium, it has awarded only Rs. 5000/-. It has awarded amount
of Rs. 2500/- towards loss of estate and amount of Rs. 2500/- as funeral
expenses. Facts at hand do not justify grant of compensation under the head
loss of estate. On the contrary as rightly argued by learned counsel for the
appellants, compensation needs to be awarded to each child for loss of love
and affection. This issue is covered by the judgments delivered by the
Hon'ble Supreme Court. Accordingly following those judgments, the
compensation awarded to widow towards loss of consortium is enhanced to
Rs. 1 lakh. Similarly, each child is held to be entitled to an amount of Rs. 1
lakh towards love and affection of their father. Funeral expenses are also
enhanced to Rs. 25,000/- from Rs. 2500/-. Thus, the appellants are entitled
Judgment fa770.06
to an amount of Rs. 6,24,000/- towards loss of dependency; Medical
expenses of Rs. 31,500/-. Appellant no.1 widow is entitled to Rs. 95,000/-
more towards loss of consortium; each child is entitled to an amount of Rs. 1
lakh separately for loss of love and affection. Amount of Rs. 1 lakh allowed
towards loss of estate shall be adjusted towards this claim. Funeral expenses
of Rs. 22,500/- more are also allowed to the appellants. Accordingly, the
appellants are entitled to an additional amount of Rs.3,61,500/-. On this
amount they are entitled to interest @ 9% from 04.12.2002 till realization.
Amounts already paid along with interest, may be adjusted while
determining the final compensation found due and payable to them, if any
occasion therefor arises. Rest of the arrangement made by the Tribunal for
distribution/disbursement of amount of compensation amongst the
appellants is maintained as it is.
12. First Appeal is thus, partly allowed and disposed of. No costs.
JUDGE
Rgd.
