Bombay High Court
Sindhu Sudam Ghuge And Ors vs The New India Assurance Co. Ltd., ... on 21 January, 2021
Bench: V.L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
912 CIVIL APPLICATION NO.6829 OF 2020
IN FA/3677/2019
SINDHU SUDAM GHUGE AND ORS
VERSUS
THE NEW INDIA ASSURANCE COMPANY LTD., AND ANR
...
Mr.S.S. Jadhavar, Advocate for applicants.
Mr.S.R. Bodade, Advocate for respondent no.1.
...
CORAM : V.L.ACHLIYA,J.
DATE : 21.01.2021
ORAL ORDER :
Learned counsel for the applicants
undertakes to deposit the deficit Court fees
within one week.
2. The applicants-claimants have moved
this application seeking withdrawal of amount
deposited by the appellant-insurance company
for the reasons set out in detail in the
application.
3. Mr.Bodade, learned counsel for the
appellant-insurance company opposed the
application with contention that the impugned
judgment and award passed by Tribunal is
perverse and not sustainable in law. By
referring to the reasons and findings
recorded by the Tribunal, learned counsel
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submits that although no evidence adduced to
prove the income of the deceased, the
Tribunal has considered his yearly income as
Rs.2,00,000/-. Although the applicants have
claimed that the deceased was carrying the
business and earning income from agricultural
land owned by applicant, however, no evidence
adduced to prove the business as well as
agricultural income of the deceased. The
copies of income tax return not tendered in
evidence to show the business income of the
deceased. Similarly, the applicants have also
not filed 7/12 extract to show that the
deceased was owner and in possession of the
agricultural land. In absence of such
evidence as to proof of income of deceased,
the reasons and findings recorded by the
Tribunal are not sustainable in law. It is
submitted that the award passed by Tribunal
is based upon conjunctures and surmises.
4. On the other hand, learned counsel
for the applicants-claimants support the
judgment and award passed by the Tribunal. It
is submitted that the claimants have examined
the number of witnesses to prove that the
deceased was carrying the business of music
and preparing and selling the Cassette of
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songs of musicians. The evidence brought
through the testimony of Bank Manager it is
proved that the deceased was repaying the
loan installments of Rs.25,000/- to
Rs.27,000/- per month. Beside the business
income, the deceased was also deriving the
income from the agricultural land. The
applicants have tendered in evidence the
receipts of payment received on sale of
agricultural products.
5. On due consideration of submissions
advanced in the light of challenge raised in
appeal, I am of the view, there is arguable
case to be considered in appeal. It is
admitted position that the deceased was not
assessed for income tax. No income tax
returns produced on record. The Tribunal has
assessed the income by presuming that the
deceased was earning taxable income by
carrying the business however not liable to
pay income tax due to various exemptions
available under the Income Tax Act. In my
view, the reasons recorded in judgment are
perverse. The Court is expected to base its
findings on the basis of evidence adduced in
the case. The deceased was 35 years of age
and claims to be doing business. There is no
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serious challenge to this evidence.
Therefore, in the facts and circumstances of
the case, it can be inferred that the
deceased must earning income sufficient to
maintain his family. Considering the overall
facts of the case and the applicant nos.3 and
4 have attained the age of majority during
pendency of proceedings, I am of the view,
the order in following terms would meet the
ends of justice. Hence the following order :-
ORDER
(i) The applicants are permitted to withdraw
the amount to the extent of Rs.12,00,000/-
out of the amount deposited by the appellant-
insurance company on furnishing written
undertaking to the effect that in case the
award is set aside or modified, they shall
redeposit the amount within eight weeks from
the date of order.
(ii) The amount Rs.12,00,000/- be paid to the
applicant nos.1 to 4 in equal proportion by
transferring the amount in their respective
Savings Bank Accounts.
(iii) After making the payment of
Rs.12,00,000/- to the applicants, the balance
amount be invested in fixed deposit with any
Nationalized Bank initially for a period of
two years with standing instructions to renew
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the same till further orders from the Court
or disposal of appeal whichever earlier.
(iv) The withdrawal of amount shall be subject
to outcome of the appeal.
(v) The application is disposed of in above
terms.
[V.L.ACHLIYA]
JUDGE
SGA
