Bombay High Court
Deepali Prashant Nandi vs Bharati Rathod And Anr on 10 January, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
2024:BHC-AS:2004
Judgment-FA 2017-2011.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 2017 OF 2011
Deepali Prashant Nandi,
Age 55 years, mother of deceased,
occupation: Housewife,
Residing at Gokul Building No.7,
Flat No. 106, 2nd Floor, RTO Lane,
Andheri West, Mumbai-52. ...Appellant
V/s.
1. Bharati Rathod,
Residing at Flat No. 501,
Anand Building Kores Tower,
Near Kores Limited, Thane
(Owner of Innova No. MH-04-DE-963)
2. Cholamandalam MS General Insurance
Company Limited, Through it's Divisional
Manager, having their office at Unit No. 1,
6th Floor, 167, Ghatkopar Link Road,
Solitair Corporate Park, Chakala,
Andheri (E),Mumbai-99.
(Policy No. MCT 00009109109109-000-00.) ...Respondents
Ms. Rina Kundu, for Appellant.
Mr. Nitin P. Deshpande with Ms. Kanchan Phatak, for Respondent No. 1.
Mr. Rajesh Kanojia with Ms. Riddhi Chavan i/b Res Juris for Respondent
No.2.
CORAM :ABHAY AHUJA, J.
RESERVED ON : 17th AUGUST, 2023
PRONOUNCED ON:10th JANUARY, 2024
JUDGMENT:
-
1. This first appeal has been filed by the original Claimant seeking
enhancement of compensation.
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2. The Appellant is the mother of deceased Padma Prashant Nandi,
who was travelling with her relatives and other passengers in Innova car
no. MH-04-DE-963 towards Shirdi and when the vehicle reached near
Dumberwadi bridge, Kalyan, Ahmednagar Highway, while giving side to a
Maruti car coming from the opposite direction, the driver of the said
Innova car lost control and the Innova car turned turtle, due to which all
the passengers were seriously injured including Padma Prashant Nandi.
She was admitted in rural hospital, Narayangaon, Tal. Junner, District
Pune and due to her serious head injury she died there. This fact is not in
dispute.
3. Thereafter, the Appellant who is the mother of deceased had filed a
claim application under Section 166 of the Motor Vehicles Act before the
Motor Accident Claims Tribunal, Thane, making a claim of compensation
against the owner of the Innova car as well as the insurance company.
4. The Tribunal awarded compensation to the Appellant on the basis
that the notional income of the deceased Padma be presumed at Rs.
3,000/- per month and having died unmarried/spinster, half amount be
deducted towards her personal and living expenses, if she would be alive.
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Accordingly, the yearly income was considered to be Rs. 36,000/- and
after deduction of 50%, it came to Rs. 18,000/- per year, since the age
group of the deceased was 30-35, the multiplier of 17 was applied and
accordingly, the amount of future dependency of the Applicant was
calculated at Rs. 3,06,000/-. Additionally, Rs. 2000/- towards funeral
expenses were given, thereby bringing the total amount of compensation
to Rs. 3,08,000/-. What the Tribunal did not consider as claimed by the
Appellant is that the deceased Padma was earning Rs. 25,000/- per
month, as the same was claimed on the basis of an acknowledgment of
income tax return for the AY 2007-2008, where the gross total income was
shown as 2,84,767/-, as it had been argued on behalf of the Respondent
No. 2-insurance company that there was no iota of documentary proof to
suggest that income was earned out of beauty parlour business by
deceased Padma and bare acknowledgment issued by the income tax
department for the AY 2007-2008 would not be sufficient proof as the
Applicant had not produced true copy of income tax return nor the record
of trading account, profit and loss account and balance sheet in respect of
the beauty parlour business and that the Applicant did not examine the
concerned CA or income tax officer to prove the fact of having filed
income tax return. The Tribunal relied upon the decision of the Calcutta
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Tribunal in the case of Sudhir Bhutia Vs. National Insurance Company
Ltd.1
5. I have heard the learned Counsel and considered the rival
contentions.
6. Ms. Kundu, learned Counsel for the Appellant, would submit and as
recorded in order dated 14th July, 2023, of this Court that the only issue
that arises in this Appeal is with respect to non consideration of income
tax acknowledgment for the year 2007-2008, even though the said
document was not discarded by the Tribunal, but the Tribunal failed to
consider the contents of the same, although the same is a public/statutory
document. Learned Counsel has relied upon the decision of the Ho'ble
Supreme Court in the case of Smt. Anjali & Ors. Vs. Lokendra Rathod and
Ors.2 in support of her contention.
7. Ms. Kundu also submits that the Tribunal has erred in not awarding
any compensation towards loss of the love and affection to the mother of
the deceased as well as future prospects. Ms. Kundu, would submit that
1 (2005 (1) EAC 66 (Cal.))
2 Civil Appeal No. 9014 of 2022 of dated 6th December, 2022 of Supreme Court
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since the deceased was below the age of 40 years and self-employed, the
future prospects should be 40% of the income. That the Tribunal also
ought to have awarded compensation towards loss to the estate of her
daughter and enhancement towards funeral expenses instead of Rs.
2,000/-. Learned Counsel relies upon the decisions of the Hon'ble
Supreme Court in the cases of National Insurance Company Limited V/s.
Pranay Sethi and Ors.3 and Magma General Insurance Co. Ltd. Vs. Nanu
Ram @ Chuhru Ram & Ors.4 Learned Counsel has tendered across the bar,
draft of the computation of compensation after considering the income tax
return acknowledgment stating the total income from beauty parlour
business for AY 2007-2008 to be Rs. 2,58,791/- and after deducting
income tax calculating the income as Rs. 2,34,171/-, taking 40% future
prospects which comes to a total income of Rs. 3,27,839/-, computing
dependency on the said basis with a multiplier of 17, filial consortium to
mother as Rs. 44,000/-, loss of estate as Rs. 16,500/-, funeral expenses as
Rs. 16,500/-, thereby seeking an enhanced compensation of Rs.
25,55,631/- to the Appellant.
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8. On the other hand, Mr. Kanojia, learned Counsel for Respondent No.
2- Insurance Company relies upon the decision of the Tribunal. Learned
Counsel reiterates that on the aspect of the consideration of the
acknowledgment issued by the income tax department for the AY 2007-
2008, that the Tribunal was right in not considering the same as copy of
the income tax return was not produced nor was the CA or the income tax
officer examined to prove the fact of having filed the income tax return.
Mr. Kanojia, has relied upon the decision of the Hon'ble Supreme Court in
the case of Malarvizhi and others Vs. United India Insurance Co. Ltd and
Anr.5 to submit that an income tax return is a statutory document on
which reliance may be placed to determine the annual income of the
deceased, but an acknowledgment of the income tax return cannot be
given that status. Referring to the decision of this Court in the case of
National Insurance Co. Ltd. Vs. Mrs. Chaitali Sameer Parekh and others 6
dated 5th May, 2016 of this Court, learned Counsel submits that in the said
case also with respect to an income tax return, the income tax inspector
was called as a witness to prove the return as it was held in that case that
the income tax return alone may not be decisive, although in a given case,
it is a material circumstance to be reckoned. Mr. Kanojia, would submit
5 Civil Appeal Nos. 9196-97 of 2019 @ SLP C(C) 9630-31 of 2019
6 FA 999 of 2012 @ Cross Objection (ST) No. 30505 of 2012 dated 5th May, 2016
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that in the present case, no witnesses have been examined to prove the
acknowledgment issued by the income tax department and therefore
Tribunal had rightly rejected the submission with respect to the claim that
the deceased Padma was earning a profit of Rs. 25,000/- per month and
that the Tribunal has rightly presumed that the notional income of
deceased Padma as Rs. 3,000/- per month and accordingly, calculated the
claim of compensation awarded to the Appellant.
9. Mr. Deshpande, learned Counsel appears for the Respondent No. 1-
owner of the offending vehicle and submits that the vehicle was validly
insured with the Respondent No.2 and the insurance policy was effective
during the period of the accident and adopts the arguments of Mr.
Kanojia.
10. It is not in dispute that the income tax acknowledgment for the AY
2007-2008 has been exhibited as Exhibit 29. The Tribunal, has on the
basis that it is a bare acknowledgment issued by the income tax
department but no income tax return has been produced and also that no
CA or officer of the income tax department has been examined to prove
the fact of having filed the return relying on the submission that veracity
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of contents in a document cannot be taken into consideration unless the
author deposes or offers himself for cross-examination, rejected the said
document. I am afraid, the Tribunal has erred in doing so. Firstly, the said
document, a copy whereof, has been annexed to the Appeal and which is
not disputed, is an acknowledgment bearing a number viz. 1582805407
containing an acknowledgment stamp dated 29 th October, 2007 by the
office of the income tax officer, 15(2)(2), Mumbai. As noted above, the
Hon'ble Supreme Court in the case of Malarvizhi and others Vs. United
India Insurance Co. Ltd and Anr. (supra) has clearly observed that an
income tax return is a statutory document on which reliance may be
placed to determine the annual income of the deceased. Following this
decision, the Hon'ble Supreme Court in the case of Smt. Anjali & Ors. Vs.
Lokendra Rathod and Ors. (supra) has also taken exception that the
Tribunal and the High Court committed grave error while estimating the
deceased income by disregarding the income tax return of the deceased,
even though the same is a statutory document on which reliance can be
placed where available. The acknowledgment of the income tax return for
the AY 2007-2008 is in the name of the deceased. It states a gross total
income of Rs. 2,84,767/- and a total income of Rs. 2,58,791/-, the net tax
payable as Rs. 24,620/-. Neither the existence nor the contents of the said
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document are being denied. What is firstly sought to be canvassed is that
the same is not an income tax return but only an acknowledgment and
therefore, the same cannot be considered. That in my view, is not a correct
as the said document is neither being disputed nor denied in its existence
or in its contents. Like an income tax return the said document is also a
statutory document and can be relied upon to determine the annual
income of deceased. The other argument is that to prove a document, the
author has to depose and offer himself for cross-examination. Once it has
been held by the Hon'ble Supreme Court that reliance can be placed on a
statutory document, in my view it would not necessary for the author to
depose, unless there is any contrary evidence, which suggests otherwise,
which is not the case here. From a perusal of the affidavit of evidence of
the Applicant and her cross-examination by the insurance company, it
clearly emerges that the acknowledgment by the income tax department
has been marked in evidence as Exhibit 29 and that the same is not false.
Further, considering that it is a statutory document, in the facts of this
case, no deposition of the Chartered Accountant would also be necessary.
In my view, therefore, the ratio in the case of Sudhir Bhutia Vs. National
Insurance Company Ltd.(supra), would not be relevant in the facts of this
case.
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11. In view of the above discussion, Mr. Kanojia's reliance on the
decision of this Court in the case of National Insurance Co. Ltd. Vs. Mrs.
Chaitali Sameer Parekh and others (supra) in my view is misplaced, firstly
because the said decision itself clearly records that reliance on an income
tax return alone, may not be decisive although in a given case it is a
material circumstance to be reckoned, which means that ordinarily the
said document can be considered, but in the facts of that case the same
was held not to be decisive. Secondly, it has also been observed in the said
case, that the income tax inspector, who was examined in the matter had
stated that the income tax return for AY 2000-2001 was not traceable in
the office and it was also found that no return of income was filed in the
concerned income tax office as per the computer data for the said year.
This is not such a case. The facts are clearly distinguishable
notwithstanding the law that an income tax return or an acknowledgment
issued by the income tax department being a statutory document be
ordinarily considered or relied upon having been kept intact.
12. No other witness has been examined. If at all, the insurance
company or the owner of the vehicle were desirous of disproving the case
of the Appellant, it was incumbent on them to lead evidence in this regard
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or seek to produce the witnesses, which has not been done and therefore,
submissions of the insurance company ought not to have been considered
by the Tribunal.
13. It has also not been disproved that Padma was doing business in the
name and style of Padma and Pommy Beauty Parlour or that the income
tax acknowledgment was not in her name. Therefore, I am in agreement
in the submissions made on behalf of the Appellant. The income tax
acknowledgment of 29th October, 2007 for the AY 2007-2008 can be relied
upon for determining the annual income of the deceased.
14. Further, the Hon'ble Supreme Court in the case of National
Insurance Company Limited V/s. Pranay Sethi and Ors.(supra) has clearly
laid down the law with respect to future prospects in the case of self
employed to be 40 %, that the conventional heads with respect to loss of
estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs.
40,000/- and Rs 15,000/- respectively and that the said amounts should
be enhanced at the rate of 10% in every three years. Paragraph 61 of the
said decision is usefully quoted as under:-
"61. In view of the aforesaid analysis, we proceed to record
our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been
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well advised to refer the matter to a larger Bench as it was
taking a different view than what has been stated in Sarla
Verma, a judgment by a coordinate Bench. It is because a
coordinate Bench of the same strength cannot take a contrary
view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma
Kumari, which was delivered at earlier point of time, the
decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of
actual salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and was
below the age of 40 years, should be made. The addition
should be 30%, if the age of the deceased was between 40 to
50 years. In case the deceased was between the age of 50 to
60 years, the addition should be 15%. Actual salary should be
read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should be
the warrant where the deceased was below the age of 40
years. An addition of 25% where the deceased was between
the age of 40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be regarded as the
necessary method of computation. The established income
means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for
personal and living expenses, the tribunals and the courts shall
be guided by paragraphs 30 to 32 of Sarla Verma which we
have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the
Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying
the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss
of estate, loss of consortium and funeral expenses should be
Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The
aforesaid amounts should be enhanced at the rate of 10% in
every three years."
(emphasis supplied)
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15. In Magma General (supra) the Hon'ble Supreme Court has observed
that filial consortium is the right of the parents to compensation in the
case of an accidental date of a child as the same causes great shock and
agony to the parents. It has also been observed that the Motor Vehicles Act
is a beneficial legislation aimed at providing relief to the victims or their
families, in cases of genuine claims and are entitled to be awarded loss of
consortium under the head of Filial Consortium. Paragraph 8.7 of the said
decision is usefully quoted as under:-
"8.7 A Constitution Bench of this Court in Pranay Sethi supra)
dealt with the various heads under which compensation is to be
awarded in a death case. One of these heads is Loss of
Consortium.
In legal parlance, "consortium" is a compendious term
which encompasses 'spousal consortium', 'parental consortium'
and 'filial consortium'.
The right to consortium would include the company,
care, help, comfort, guidance, solace and affection of the
deceased, which is a loss to his family. With respect to a spouse,
it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights
pertaining to the relationship of a husband-wife which allows
compensation to allows compensation to the surviving spouse
for loss of "company, society, co-operation, affection, and aid of
the other in every conjugal relation."
Parental consortium is granted to the child upon the
premature death of a parent, for loss of "parental aid,
protection, affection, society, discipline, guidance and training".
Filial consortium is the right of the parents to
compensation in the case of an accidental death of a child. An
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accident leading to the death of a child causes great shock and
agony to the parents and family of the deceased. The greatest
agony for a parent is to lose their child during their lifetime.
Children are valued for their love, affection, companionship
and their role in the family unit.
Consortium is a special prism reflecting changing norms
about the status and worth of actual relationships. Modern
jurisdictions world-over have recognized that the value of a
child's consortium far exceeds the economic value of the
compensation awarded in the case of the death of a child. Most
jurisdictions therefore permit parents to be awarded
compensation under loss of consortium on the death of a child.
The amount awarded to the parents is a compensation for loss
of the love, affection, care and companionship of the deceased
child.
The Motor Vehicles Act is a beneficial legislation aimed
at providing relief to the victims or their families, in cases of
genuine claims. In case where a parent has lost their minor
child,or unmarried son or daughter, the parents are entitled to
be awarded loss of consortium under the head of Filial
Consortium.
Parental Consortium is awarded to children who lose
their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this
count. However, there was no clarity with respect to the
principles on which compensation could be awarded on loss of
Filial Consortium.
The amount of compensation to be awarded as
consortium will be governed by the principles of awarding
compensation under 'Loss of Consortium' as laid down in
Pranay Sethi (supra).
In the present case, we deem it appropriate to award
the father and the sister of the deceased, an amount of Rs.
40,000 each for loss of Filial Consortium."
(emphasis supplied)
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16. In view of the above discussion, I am in agreement with the
submissions made by Ms. Kundu.
17. Accordingly, the total income of the deceased based on the income
tax acknowledgment for the AY 2007-2008 after deducting income tax of
Rs. 24,620/- be taken as Rs. 2,34,171/-. Considering that the deceased
was self employed conducting a beauty parlour business, the future
prospects be taken as 40% of the said income. The dependency be
computed on the basis of the age of the deceased at the time of her death
on the basis of a multiplier of 17. The mother would be entitled to filial
consortium for the loss of love, affection and companionship of her
daughter of Rs. 40,000/- with an enhancement at the rate of 10% in every
three years. The loss of estate and funeral expenses be computed at Rs.
15,000/- again with an enhancement at the rate of 10% in every three
years.
18. Ergo, the compensation to be paid to the Appellant be computed as
under:-
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Sr No Description Amount in Rs.
1 Dependency = Rs. 3,24,839/- Total income per 27,86,631
year X ½ of income=Rs. 1,63,919/-X 17 multiplier
2 Filial consortium to mother (Applicant) 44,000
5 Loss of estate 16,500
6 Funeral expenses 16,500
7 Total 28,63,631
8 Tribunal awarded 3,08,000
9 Enhanced compensation 25,55,631
19. The Appellant is, therefore, entitled to enhanced
compensation of Rs. 25,55, 631/- less the amount already received
by the Appellant with interest at the rate of 8% p.a. till payment or
realization, which the Respondents to jointly and severally pay to
the Appellant, by depositing the amounts in the Motor Accident
Claims Tribunal, Thane, within a period of four weeks, from the
date of uploading of this order and the Tribunal to make the
payment to the Appellant within two weeks of a request made in
this behalf.
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20. The impugned judgment and award dated 7 th July, 2011, be
accordingly modified.
21. The Appeal stands allowed in the above terms. Parties to bear
their own costs.
(ABHAY AJUJA, J)
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