Bombay High Court
Sunita Lalitkumar Agrawal And Ors vs Sudhakar Raising Gambhir And Ors on 2 May, 2025
2025:BHC-AUG:12728
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.1649 OF 2017
1. Smt. Sunita Lalitkumar Agrawal
Age : 53 years, Occu : Household,
R/o. 40/3, Ram Nagar, Near Shirsoli Naka,
Jalgaon, Dist. Jalgaon
2. Puja d/o. Lalitkumar Agrawal @
Puja w/o. Ashwin Agarwal,
Age : 31 years, Occu : Household,
R/o. 40/3, Ram Nagar, Near Shirsoli Naka,
Jalgaon, Dist. Jalgaon
3. Pritesh Lalitkumar Agrawal,
Age : 30 years, Occu : Business,
R/o. 40/3, Ram Nagar, Near Shirsoli Naka,
Jalgaon, Dist. Jalgaon.
4. Kum. Priyanka Lalitkumar Agrawal
Age :26 years, Occu : Education,
R/o. 40/3, Ram Nagar, Near Shirsoli Naka,
Jalgaon, Dist. Jalgaon. ... Appellants
(Orig. Claimants)
Versus
1. Sudhakar Raising Gambhir
Age : Major, Occu : Driver,
R/o. Bambhori, Tal. Dharangaon,
Dist. Jalgaon
2. Laxman Namdeo Nannaware,
Age : Major, Occu : Business,
R/o. Bambhori, Tal. Dharangaon,
Dist. Jalgaon
3. Branch Manager,
Oriental Insurance Company Limited,
Branch Jalgaon, Dist. Jalgaon ... Respondents
......
2
Shri. D.J. Patil h/. Shri. S. N. Suryawanshi, Advocate for the Appellants.
Shri. Ramraje A. Deshmukh h/f. Shri. Shambhuraje Deshmukh,
Advocate for Respondent Nos. 1 & 2
Shri. M. K. Goyanka, Advocate for Respondent No.3
.....
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 16.04.2025
PRONOUNCED ON : 02.05.2025
JUDGMENT :
-
. This Appeal has been preferred by the Original Claimants under
Section 173 of the Motor Vehicles Act (for short, 'M.V. Act') for further
enhancement in compensation awarded by the learned Motor Accident
Claims Tribunal, Jalgaon (for short, 'Tribunal') by the Judgment and
Award dated 10.10.2014, by which Respondent Nos.2 and 3 who are the
Owner and Insurer of the offending vehicle, are directed to pay jointly
and severally the compensation of Rs.16,84,000/- (Rs. Sixteen Lakh
Eighty Four Thousand) with interest @ 7.5% Per Annum from
01.01.2012 till realization to the Appellants.
2. The facts, giving rise to the present Appeal, are as under :
2.1. Lalitkumar Tekchand Agrawal (hereinafter referred to as
'Deceased') was the husband of Appellant No.1 and father of Appellant
Nos.2 to 4. Deceased was in the business and running the trading
Company under the name and style 'Jagdamba' in Jalgaon city. On
22.02.2008 at about 09:45 a.m. when Deceased was travelling on his
motorcycle bearing No.MH-19-AB-5025 to his shop and reached near
the Bombay Bakery and was crossing the bridge, the Truck bearing No.
MH-19-1371 which was coming from the backside, in a rash and
negligent manner, gave dash to his motorcycle and the accident took
place. Deceased came under the rear wheel of the said Truck and died.
The accident was reported to the concerned Police Station and crime
was registered against Respondent No.1, who was driving the said Truck
at the time of the accident.
2.2. The Appellants - Claimants approached the learned Tribunal by
filing the Claim Petition under Section 166 of the M.V. Act contending
that Deceased was a businessman and claimed the compensation of
Rs.60,00,000/- (Rs. Sixty Lakh) with interest @ 18% Per Annum. The
Claim Petition was resisted by the Insurance Company by filing Written-
statement at Exh.14 and the Driver and Owner of the offending Truck
filed their Written-statement at Exh.15. They denied the contentions of
the Claimants. The learned Tribunal framed the Issues at Exh.19. The
Claimants led their evidence and examined the Widow of Deceased as
Witness No.1 and the Accountant as Witness No.2 and brought on
record certain documents. The Respondents did not examine any
witness. Considering the evidence available on record, the learned
Tribunal passed the above referred Judgment and Award.
3. It is submitted by the learned Advocate for the Appellants
that, the Appeal is preferred only on two (2) counts: (a) non
consideration of the Income Tax Returns of Deceased, and (b) not
granting interest from the date of filing the Claim Petition. It is
submitted that, the Income Tax Act (for short, 'I.T. Act') provides for the
Income Tax Returns can be submitted belatedly. As per the provisions of
Sections 153 and 159 of the I.T. Act., even the Legal Heirs can file the
Income Tax Returns of Deceased. The Income Tax Department has
accepted the Income Tax Returns of Deceased after his death and the
Appellants have paid the tax. There was no reason to discard the Income
Tax Returns by the learned Tribunal. In support of his submissions, he
cited the Judgments in Malarvizhi and Others vs. United India Insurance
Company Limited and Another, (2020) 4 SCC 228 and New India
Assurance Company vs. Kavita Jitendra Pawar and Others, 2023 SCC
OnLine Bom 1494. He further submitted that, the learned Tribunal
ought to have granted interest from the date of filing the Claim Petition.
He submitted that, the Appeal be allowed and the compensation be
enhanced.
4. It is submitted by the learned Advocate for Respondent No.3
- Insurance Company, that there is no dispute in respect of the above
referred provisions of the I.T. Act. However, the Income Tax Returns for
the last three (3) years were filed after the death of Deceased and
therefore, the learned Tribunal has rightly not considered the same.
As regards the Interest part is concerned, considering the conduct of the
Appellants, the learned Tribunal rightly granted the interest from
subsequent date. The Award was satisfied by the Insurance Company.
He submitted that, the Appeal be dismissed. In support of his
submissions, he cited the Judgment in V. Subbulakshmi and Ors vs. S.
Lakshmi and Anr., AIR 2008 SC 1256.
5. Before adverting to the evidence available on record,
I deem it appropriate to first deal with the Judgments cited by both the
sides. Malarvizhi (supra) was the matter under M.V. Act for
compensation by the Heirs and Legal Representatives of Deceased
therein who died due to motor vehicular accident occurred on
25.05.2001. To support the income of Deceased, the Claimants therein
had filed the Income Tax Returns, filed by Deceased for Financial Year
1995-1996 to 2000-2001. The view taken by the High Court that, the
determination of the income of Deceased must proceed on the basis of
the income tax return, where available, was upheld. It was observed
that, 'the Income Tax Return was statutory document on which reliance
may be placed to determine the annual income of the Deceased.'
6. In New India Assurance Company (supra), the Appeal was
preferred by the Insurance Company contending that, the Tribunal erred
in considering the Income Tax Return of Deceased filed after his death.
The accidental death was dated 13.04.2015. Before the learned
Tribunal, the Income Tax Returns were filed below Exhs.32 and 33
which were for the periods 2013-14 and 2014-15. It was the contention
on behalf of the Appellant therein that the Income Tax Return of the
year 2014-15 cannot be considered as it was after the death of
Deceased. The said contention was rejected by observing that the said
Income Tax Return was for the previous year which was the Assessment
year.
7. In V. Subbulakshmi (supra), the Income Tax Return filed
after the death of Deceased therein was held rightly not to have been
relied.
8. There is no dispute on the aspect that the Insurance
Company has satisfied the Award. Though several grounds are raised in
the Appeal Memo, the Appeal is pressed only on two (2) grounds at the
time of final hearing and they are, (a) the quantum of compensation by
discarding the Income Tax Returns, and (b) Interest granted by the
learned Tribunal.
9. According to the Appellants, Deceased was in the business.
The Appellant No.1 i.e. Widow of the Deceased, examined herself by
filing the evidence Affidavit at Exh.23. Her evidence Affidavit is on the
line of the avernments in Claim Petition. It has come in her cross-
examination that she was unable to tell as to in whose name the Shop
Act Licence and the Industrial Permit were issued. However, the positive
suggestion is given in the cross-examination that the 'Jagdamba Trading
Company' was owned by her husband and she answered the same in the
affirmative. It has also come in her cross-examination that after her
Husband's death the said business was being looked after by her
Brother-in-law and her Son was not the partner in the said business. On
the basis of this cross-examination, the learned Tribunal observed that
there is no dispute that Deceased was a businessman and rightly so.
10. To claim the compensation, the Appellants have relied on
the Income tax Returns filed in the name of Deceased for the Assessment
Year 2007-08 (Exh.34) and 2006-07 (Exh.36). Exh.38 is the Statement
of income for the Assessment Year 2005-06. Exhs.33, 35 and 37 are
taxpayers' counterfoils for the Assessment Year 2007-08, 2006-07 and
2005-06. In the cross-examination of Defendant No. 1 i.e. the Widow of
Deceased, she admitted that all the Income Tax Returns were submitted
under her signature. To the question that the Income Tax Returns were
filed after the accident, she replied that she was not able to specifically
say so.
11. The Appellants also examined the Accountant as Witness No.2.
According to this Witness No.2, he used to write business accounts of
Deceased from last 15 (fifteen) years. He deposed in respect of the
above referred Income Tax Returns filed in the name of Deceased.
According to him, the Income Tax Returns of Deceased used to be filed
by one Chartered Accountant Mr. Suresh S. Patil, R/o. Jalgaon.
Admittedly, the said C.A. is not examined by the Appellants. He admits
that, Income Tax Returns at Exhs.34 and 36 are filed after the death of
Deceased. Perusal of the endorsement on the taxpayers' counterfoil for
the Assessment Year 2005-06 at Exh.37 shows the stamp of Bank dated
22.05.2006. This goes to show that the Income Tax Return for
Assessment Year 2005-06 was submitted by Deceased while he was
alive. This shows that Deceased was submitting Income Tax Returns.
From the detailed Affidavit of Witness No.2 and his detailed cross-
examination, nothing has come so as to discard his evidence that, he
was looking after the accounts of Deceased. The Income Tax Returns and
statement of accounts attached with the Income Tax Returns shows the
name of Jagdamba Trading Company. It is, thus, clear that Deceased
while he was alive had submitted the Income Tax Returns for the
Assessment year 2005-06 and the Income Tax Returns for subsequent
years were submitted by Appellant No.1 after death of Deceased. The
evidence of Witness No.2 remained unshaken and it shows that on the
basis of the information received from the Brother and Son of Deceased
he prepared the documents and said Chartered Accountant submitted
the Income Tax Returns of Deceased. The evidence available on record
sufficiently establishes that Deceased was engaged in the business and
was an Income Tax Payer. Therefore, the submission of last two (2)
Assessment Years' Income Tax Returns after his death by his Widow to
the Income Tax Office, can very well be taken into consideration, in the
light of the above referred Judgments, observing that the Income Tax
Return filed after the death can be considered.
12. The last Income Tax Return available on record is for the
Assessment Year 2007-08 and it shows the Tross Total Income of
Deceased as Rs.4,10,182/- (Rs. Four Lakh Ten Thousand One Hundred
Eighty Two) and total tax paid is shown as Rs.71,687/- (Rs. Seventy One
Thousand Six Hundred Eighty Seven). It has come in the evidence of
Witness No.2 that the Professional Tax was Rs.2,000/- (Rs.Two
Thousand). It is needless to state that the statutory deductions are to be
deducted from the Income of Deceased while computing the amount of
compensation. Thus, the last net income of Deceased after deduction
towards income tax and professional tax comes to Rs.3,36,495/-
(Rs. Three Lakh Thirty Six Thousand Four Hundred Ninety Five) which
is rounded to Rs.3,36,500/- (Rs. Three Lakh Thirty Six Thousand Five
Hundred).
13. The age of Deceased, as considered by the learned Tribunal,
is between 51 to 55 years, on which there is no dispute and for which,
there shall be addition of 10% towards future prospects. There shall be
1/5th deduction towards living and personal expenses as is considered
by the learned Tribunal, on which there is no dispute. Considering the
age of Deceased, the multiplier of 11 will be applicable, on which there
is no dispute. The other additions under the Conventional Heads done
by the learned Tribunal is not disputed by either side. The said
deduction, addition, multiplier are based on the Judgment in the case of
Sarla Verma & Ors vs. Delhi Transport Corporation & Anr., [(2009) 6
SCC 121]. The computation in the compensation is worked out as
follows:
Sr.
No. Particulars Amount
1. Last net income after deduction Rs.3,36,500/-
of Income Tax and Professional
Tax
2. Future Prospects Rs.3,36,500/- Rs.3,70,150/-
(Addition of 10%) + Rs.33,650/-
3. 1/5th deduction towards living Rs.3,70,150/- % 5 Rs.74,030/-
and personal expenses
4. Yearly income Rs.3,70,150/- Rs.2,96,120/-
- Rs.74,030/-
5. Multiplier of 11 Rs.2,96,120/- x 11 Rs.32,57,320/-
6. Towards Conventional Heads Rs.1,00,000/-
(Rs.25,000/- + 25,000/- + 50,000/-)
Total Compensation payable to Claimants : Rs.33,57,320/-
14. The compensation awarded by the learned Tribunal is
modified to the above extent i.e. Rs.33,57,320/- (Rs. Thirty Three Lakh
Fifty Seven Thousand Three Hundred Twenty Only).
15. As regards the Interest granted by the learned Tribunal is
concerned, the award of Interest where any claim is allowed by the
Claims Tribunal is governed by the provisions of Section 171 of the M.V.
Act. It provides that Tribunal may grant the simple Interest in addition
to the amount of compensation at such rate and from such date not
earlier than the date of making the claim as it may specified in this
behalf. The learned Tribunal made the following observations in
paragraph no.13 of the impugned Judgment which reproduced below:
"13. It can be seen that the petition was presented on
11.11.2008. The respondents 1, 2 and 3 filed written
statements on 26.02.2009 and 3.2.2009. Issues were framed
on 1.7.2009. The petitioner no.1 filed evidence affidavit on
11.03.2011 and then made available for cross examination on
27.11.2012. The PW-2 was examined on 26.07.2013. The
petitioners kept the matter pending for years together.
Therefore awarding interest from 1st January 2012 shall be
reasonable. Answering the point accordingly following order
is passed."
16. I see no reason to take different view than the one taken by
the learned Tribunal in respect of the Interest from 01.01.2012. Hence,
the following order:
ORDER
(I) The Appeal is partly allowed with proportionate costs.
(a) Respondent Nos.2 and 3 i.e. Owner and Insurer shall
jointly and severally pay Rs.33,57,320/- (Rs. Thirty
Three Lakh Fifty Seven Thousand Three Hundred
Twenty) to the Appellants with interest @ 7.5% Per
Annum from 01.01.2012 till realization.
(II) The amount of compensation is apportioned as follows :
(a) Widow - Smt. Sunita Lalitkumar Agrawal -
Rs.20,00,000/- (Rs. Twenty Lakh) + Interest +
costs.
(b) Son - Pritesh Lalitkumar Agrawal
Rs.5,57,320/- (Rs.Five Lakh Fifty Seven Thousand
Three Hundred Twenty) + Interest + costs.
(c) Daughter - Puja d/o. Lalitkumar Agrawal @
Puja w/o. Ashwin Agarwal, Rs.4,00,000/-
(Rs. Four Lakh) + Interest + costs.
(d) Priyanka Lalitkumar Agrawal -
Rs.4,00,000/- (Rs. Four Lakh) + Interest + costs.
(III) The Record and Proceedings be sent back.
( NEERAJ P. DHOTE, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 02/05/2025 16:49:03
