Uma Mondal & Ors vs The National Ins. Co. Ltd. & Anr
2023 Latest Caselaw 1000 Cal

07.02.2023                 IN THE HIGH COURT AT CALCUTTA
  (Ali)
Ct no. 654
                            CIVIL APPELLATE JURISDICTION
  Sl. 5                            APPELLATE SIDE


                                     FMA 470 of 2020

                        CAN 1 of 2019 (Old No. CAN 11812 of 2019)

                                   Uma Mondal & Ors.
                                         Vs.
                           The National Ins. Co. Ltd. & Anr.

                   Mr. Amit Ranjan Roy       ...for the appellant.

                   Mr. Sanjay Paul           ...for the respondent No. 1.

This appeal is preferred against the judgement and

award dated 21 August 2019 passed by learned Additional

District Judge cum Judge, Motor Accident Claims Tribunal,

Fast Track, 2nd Court, Tamluk, Purba Medinipur in M.A.C

Case no. 97 of 2016/359 of 2016 granting compensation of

Rs. 2,86,000/- in favour of the claimants under Section 166

of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 17 May 2016 at

about 4 PM while the victim was standing on the left side

morum portion of Haldia-Mecheda NH-41 Pitch Road near

Dupjora village on NH-41 the offending vehicle bearing

registration no. WB-30/7305 (Ambassador Car) driven in

excessive high-speed and in rash and negligent manner

dashed the victim with great force, as a result of which the

victim sustained grievous injuries on his head and died on

the spot. On account of sudden demise of the victim, the

claimants being the widow and sons of the deceased filed

application for compensation of Rs.14,00,000/-together with

interest under Section 166 of the Motor Vehicles Act, 1988.

The claimants in order to establish their case

examined three witnesses and produced documents which

has been marked as Exhibits 1 to 9 respectively.

Respondent no.1-insurance company did not produce

any evidence.

Upon considering the materials on record and the

evidence adduced on behalf of the claimants, the learned

tribunal granted compensation of Rs. 2,86,000/- together

with interest in favour of the claimants under Section 166 of

the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimants have preferred

the present appeal.

Mr Amit Ranjan Roy, learned advocate for appellants-

claimants submits that the learned tribunal failed to take

into account the income of the deceased disclosed in the

income tax returns on the ground that no supportive

documents relating to business of the deceased were

produced before it. However, the income tax returns for

assessment year 2014-2015 and 2015-2016 were proved by

one official of Income Tax Department and therefore such

income disclosed in the income tax return for assessment

year 2015-16, filed prior to death of the deceased, ought to

have been considered by the learned tribunal for determining

the income of the deceased.

He further submits that in view of the decision of

Hon'ble Supreme Court in National Insurance Company

Limited versus Pranay Sethi and Others reported in 2017

ACJ 2700 the claimants are entitled to an additional amount

of 10% of the annual income of the deceased towards future

prospect which has not been considered by the learned

tribunal.

In light of his aforesaid submissions, he prays for

enhancement of the compensation amount.

In reply to the contentions raised on behalf of

appellants-claimants, Mr Sanjay Paul, learned advocate for

respondent no.1-insurance company submits that the

income disclosed in the income tax return has not been

proved by producing cogent documents relating to the

business namely the trade license etc and as such the

learned tribunal rightly refused to accept the income

disclosed in the income tax return. In view of the above, he

submits that the appeal is liable to be dismissed.

By order dated 18 January 2023 the service of notice

of appeal upon respondent no.2-owner of the offending

vehicle has been dispensed with since he did not contest the

claim application before the learned tribunal.

Having heard the learned advocates for the respective

parties, it appears that the appellants-claimants have raised

twofold issues in the present appeal, firstly, that the learned

tribunal erred in determining the income of the deceased

without taking into account the income disclosed in the

income tax return and secondly, that the claimants are

entitled to future prospect of 10% of the annual income of

the deceased.

With regard to the determination of income of the

deceased, it is found that the learned tribunal considered the

notional income of Rs. 3000/-per month and did not

consider the income disclosed in the income tax return since

no documentary evidence with regard to business of the

deceased was produced before it. The claimants adduced the

evidence of income tax official namely Kajari Ghosh as PW3

who produced the original income tax returns of the

deceased for assessment year 2014-15 and 2015-16 marked

as Exhibits 9-series. Mr Paul, learned advocate for

respondent no.1-insurance company strenuously argued that

since no documents were placed in support of the business

of the deceased, hence the income appearing in the income

tax returns should not be accepted. It is undisputed that

save and except income tax returns there are no other

document in support of income of the deceased. Now it is to

be seen whether income tax returns can form the basis for

determination of the income of the deceased. At this stage it

will be profitable to refer to the decision of Hon'ble Supreme

Court passed in Kalpanaraj versus Tamil Nadu State

Transport Corporation reported in (2015) 2 SCC 764

where the only available documentary evidence on record of

the monthly income of the deceased was the income tax

return filed by with Income Tax Department and the Hon'ble

Supreme Court in such circumstances held that the High

Court was correct to determine the monthly income on the

basis of income tax return. Further, the Hon'ble Supreme

Court in Malarvizhi and others versus United India

Insurance Company Limited and Another reported in

(2020) 4 SCC 228 endorsed the finding of the High Court

that the determination must proceed on the basis of income

tax return, where available. The income tax return is

statutory document on which reliance may be placed to

determine the annual income of the deceased. Bearing in

mind the aforesaid observation of the Hon'ble court it goes

without saying that the income tax return being the statutory

document should be relied upon for determining the income

of the deceased even though it is the only available

documentary evidence. Income of the deceased disclosed in

the income tax returns has not been discredited by any

cogent evidence. The claimants in the present case have

produced two income tax returns for assessment year 2014-

15 and 2015-16 respectively, however, since the income tax

return for assessment year 2015-16 is filed on 17 March

2016, just prior to the death of the deceased in the month of

May 2016 which is proximate to death of the deceased I am

inclined to consider the income disclosed in such income tax

return. As per the income tax return for assessment year

2015-16 the annual income of the deceased is Rs.2,48,594/-

and the tax paid Nil. Therefore, the annual income of the

deceased comes to Rs.2,48,954/-.

So far as the entitlement to future prospect is

concerned, it is found that the learned tribunal did not allow

any amount towards future prospect. However, considering

the decision of Hon'ble Supreme Court in Pranay Sethi's

case (supra), since the deceased at the time of accident was

56 years of age and was self-employed, hence an additional

amount equalling to 10% of the annual income of the

deceased should be taken into account for assessment of

compensation.

The other findings and factors of the learned tribunal

has not been challenged in the present appeal. Keeping in

mind the above factors the calculation of compensation is

made hereunder.

Calculation of compensation

Annual Income.............................................Rs. 2,48,594/- Add:10% of total Income towards future prospect......................Rs.24,859/-(approx.) Annual loss of Income ...............................Rs.2,73,453/- Less: Deduction 1/3rd of the Annual Income towards personal and living expenses .............Rs.91,151/-

Rs.1,82,302/-

Adopting multiplier 9 ( Rs.1,82,302/- X 9).. Rs.16,40,718/-

Add: General Damages.....................................Rs.70,000/-

Loss of estate....Rs.15,000/- Loss of Consortium....Rs.40,000/- Funeral Expenses.......Rs.15,000/-

Total Compensation .............................. Rs.17,10,718/-

Thus, the claimants are entitled to compensation of Rs.

17,10,718/-together with interest at the rate of 6% per

annum from the date of filing of the claim application (i.e

10.8.2016) till deposit. It is informed that the claimants have

already received an amount of Rs.2,86,000/- together with

interest as per order of the learned tribunal. Accordingly, the

claimants are entitled to balance amount of compensation of

Rs.14,24,718/- together with interest at the rate of 6% per

annum from the date of filing of the claim application (i.e

10.8.2016) till deposit.

Respondent no.1-insurance company is directed to

deposit the aforesaid balance amount of compensation of

Rs.14,24,718/- together with interest at the rate of 6% per

annum from the date of filing of the claim application (i.e

10.8.2016) till deposit, by way of cheque before the learned

Registrar General, High Court, Calcutta within a period of six

weeks from date.

Appellants-claimants are directed to deposit ad

valorem court fees on the balance amount of compensation

assessed, if not already paid.

Upon deposit of the aforesaid balance amount of

compensation and interest as above, learned Registrar

General, High Court, Calcutta shall release the amount in

favour of the claimants, after making payment of Rs.40,000/-

in favour of appellant no.1 (widow of the deceased) towards

spousal consortium, and in following proportion namely ½ of

the amount shall go in favour of appellant no.1-widow of the

deceased and 1/4th each in favour of rest appellants namely

the sons of the deceased.

With the aforesaid observation, the appeal stands

disposed of. The impugned judgement and award of the

learned tribunal is modified to the above extent. No order as

to cost.

All connected applications, if any, stands disposed of.

Interim orders if any, stands vacated.

Urgent photostat certified copy of this order if applied

for the given to the parties upon compliance of all necessary

legal formalities.

(Bivas Pattanayak, J.)