Calcutta High Court (Appellete Side)
The Oriental Insurance Company ... vs Rupa Agarwal & Ors on 10 January, 2023
1
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
F.M.A 843 of 2010
With
CAN 1 of 2010 (CAN 298 of 2010)
With
CAN 5 of 2019 (CAN 3224 of 2019)
(Application not in the file)
With
CAN 6 of 2019 (CAN 3225 of 2019)
(Application not in the file)
The Oriental Insurance Company Limited
Vs.
Rupa Agarwal & Ors.
For the Appellant/ :Mr. Sanjay Paul, Advocate
Insurance Company
For the Respondents/ :Mr. Saidur Rahaman, Advocate
claimants
Heard on : January 06, 2023
Judgment on : January 10, 2023
2
Bibhas Ranjan De, J.
1. The appeal is directed against the Judgement and award
passed by the Learned Motor Accident Claims Tribunal,
Additional District Judge, Fast Track, 6th Court, Alipore, 24
Pargans (South), in connection with MAC No. 03 of 2009
whereby Learned Judge awarded compensation to the tune of
Rs. 11,32,956/-.
2. The claim petition under Section 166 of the Motor Vehicles Act,
on account of death of Vinay Kumar Agarwal in a motor
accident on 16.04.2004 while he was travelling by a scooter as
pillion rider was knocked down by the vehicle number OR-09D-
2851d(Tipper) as a result, he died . At the time of death
deceased was aged about 56 years having income of Rs.
2,63,700/- per annum from his commission agent business for
supply materials to different companies. Accordingly, claimants
i.e. widow of deceased and her daughter filed claim application
with a prayer for compensation to the tune of Rs. 14,20,000/-.
3. Though owner of the offending vehicle did not contest the case
but oriental Insurance company i.e insurer of the offending
vehicles contested the case by filing written statement denying
all material averments of the claim petition contending, inter
alia, that Insurance Company is not liable to pay compensation.
4. To prove the case claimants examined 4 (four) witnesses namely
Rupa Agarwal, widow of the deceased as PW-1, Hrishikesh
Naskar, Income Tax inspector of the concerned ward as PW-2,
Anup Kr. Gutgutia, a partner of Boon Metal and Alloy
Corporation as PW-3 and Sarat Kr. Sahoo claiming himself to be
an eye-witness to that accident as PW-4. In course of their
evidences a good number of documents were admitted in
evidence as exhibit 1to19.
5. After considering the evidence on record Learned Tribunal
assessed the compensation of Rs. 11,32,956/- taking the
annual income of Rs. 2,63,584/- after statutory deduction in
terms of Income Tax Return.
6. I have gone through the entire evidences of four all witnesses
examined on behalf of the claimants and I do not find anything
contrary to the observation of the Learned Tribunal regarding
death of Vinay Kumar Agarwal by the involvement of the
offending Tipper which was solely responsible for the accident.
In fact, the accidental death of Vinay kunar Agarwal has been
proved by the evidence of eye-witness (PW-4) together with F.I.R
and charge sheet. Therefore, to eschew the prolixity, I refrain
myself from going into further discussion on the issue of
accident and negligent driving of the offending vehicle.
7. In fact, the instant appeal has been preferred only on the
ground of income of the deceased at the time of death.
8. Learned Advocate, Mr. Sanjay Paul, appearing on the behalf of
the appellant/Insurance Company has submitted that Learned
Tribunal ought to have considered the Income Tax Return
submitted by the deceased himself prior to his accidental death,
for the purpose of assessing the income of the deceased, at the
time of death. In support of his contention, he relied on a case
of Subbulakshmi and others Vs SuLakshmi and another
(2008) 4 Supreme Court Cases 224, wherein Hon'ble apex
Court observed in para 21 and 22 as follows:-
"21.The accident took place on 7.5.1997. Income
tax returns were filed on 23.6.1997.
22. The Income Tax Returns (Exp. P-14),
therefore, have rightly not been relied upon."
9. Mr. Paul has further relied on a case of Shashikaka and
others Vs Gangalakshmamma and another (2015 (2) T.A.C.
867 (S.C.) ,where Hon'ble Apex Court held in para 5, 10 and 16
as follows:-
"5. Aggrieved by the said award of the tribunal,
the appellants filed appeal before the High
Court seeking enhancement of compensation.
The High Court modified the award by
recalculating the income of the deceased. Taking
the income tax returns of the deceased for the
assessment years 2005- 06 and 2006-07, the
High Court calculated average of the same and
taken the income at Rs. 1,55,812/- per annum.
After making deductions towards income-tax,
professional tax and income from house
property, the High Court calculated the net
income of deceased at Rs.1,17,831/- per
annum. The High Court deducted 1/4th towards
personal expenses and to the remaining amount
of Rs.88,373/- applied multiplier of 14 and
accordingly re- determined the loss of
dependency at Rs.12,37,222/- as against
Rs.6,50,000/- awarded by the tribunal.
Awarding conventional damages at Rs.
45,000/- and medical expenses at
Rs.1,87,150/-, the High Court enhanced the
compensation to Rs.14,69,372/-. Still aggrieved
by the quantum of compensation, appellants
have filed this appeal.
The deceased was aged 45 years and was
doing transport business. Though the claimants
have filed income tax returns for two
assessment years 2005-06 and 2006-07, as per
the income tax returns for the year 2006-07, the
income of the assessee was Rs.2,02,911/-.
Tribunal did not take the income of the
deceased for the assessment year 2006-07 on
the ground that only xerox copy was filed and
the claimants have failed to examine income-tax
authorities to prove the same. Instead of taking
the income of the deceased as per the
assessment year 2006-07, the High Court has
chosen to calculate the average of the income for
two assessment years 2005-06 and 2006-07.
Considering the age of the deceased and the
nature of business he was doing, in my
considered view, the High Court was not
justified in so taking the average of income of
the two assessment years. The deceased was
aged 45 years and doing business. Admittedly,
he was also owning agricultural lands. Even
though agricultural income was not shown in
the income tax return, it emerges from the
evidence that the deceased was also doing
agricultural work.
16. Without adverting to the issue whether
additions are to be made towards future
prospects or not, as it is obligatory on the part of
the Court to award just compensation,
considering the age of the deceased and the
nature of business he was doing, in my view,
the income of the deceased as stated in the
income tax return for the year 2006-07 i.e. Rs.
2,02,911/- may be taken as the income of the
deceased. Ten per cent of the said amount i.e.
Rs.20,290/- is to be deducted towards income
tax and the remaining comes to Rs.1,82,620/-.
The amount to be deducted for professional tax
is Rs.2,400/- and after deducting the same, the
balance comes out to Rs. 1,80,220/-. The
income from the house property for the year
2006-07 is shown to be Rs.20,000/- and after
deducting the same, the net amount comes to
Rs.1,60,220/-. Deducting 1/4th (one/fourth)
towards personal expenses which comes out to
Rs.40,055/-, the loss of dependency/loss of
contribution is arrived at Rs.1,20,165/- per
annum."
10. In opposition to that, Learned Advocate, Mr. Saidur Rahaman,
appearing on behalf of the respondent/claimants have
contended that Learned Tribunal assessed all the evidences
including the statement of commission and consider the income
of the deceased in terms of Income Tax Return showing income
of the deceased while he was alive. Therefore, according to Mr.
Rahaman, there is no question of inflated income shown in the
Income Tax Return. It is further, submitted that more than Rs.
50,000/- was paid as Income Tax.
11. In Subbulakshmi (supra) Hon'ble Apex Court came across a
case where High Court assessed income of deceased at Rs.
7,000/- per month in respect of income of the deceased from
agricultural operation and commission business while appellant
produced some documents to show that the income of the
deceased was about 12,500/- per month. Nowhere from the
judgment, I find that whether Income Tax Return was ever
proved by the Income Tax Authority unlike our case. Moreover
in our case, PW-3, being Director of team Ferro Alloy Pvt. Ltd.
testified in support of commission business of Vinay Kumar
Agarwal. That apart, PW-2, being Tax Inspector proved the
Income Tax Return submitted by or on behalf of the deceased.
After careful scrutiny of all Income Tax Return, it appears that
income of deceased increased every year and lastly income of
the deceased has been reflected in the Income Tax Return only
submitted by the widow of the deceased. Therefore, the Income
Tax Return submitted by the wife of the deceased shows the
income of the deceased prior to his death.
12. Learned Tribunal after considering all the commission's
statements together with the Income Tax Return accepted the
return lastly submitted by the wife of the deceased for the
assessment year 2004 & 2005 showing income of Rs.
2,63,584/- and payment of tax of Rs. 50,558/-. The aforesaid
Income Tax Return clearly shows the income of the deceased
prior to his death therefore ratio of Subbulakshmi (supra)
cannot provide any assistance to the appellant/Insurance
Company.
13. Facts dealt with by the Hon'ble Apex Court in Shashikala
(supra), on the issue of Income Tax Return is not applicable in
this case, where Income Tax Inspector proved the original
Income Tax Return filed on behalf of the claimants.
14. With the aforesaid observation, I am unable to interfere with
judgment and award passed by the Learned Tribunal in
connection with Motor Accident Claim Case No. 3 of 2009.
15. Accordingly the appeal fails.
16. It is reported that appellant/ Insurance Company has already
deposited the entire awarded amount before the office of the Ld.
Register General.
17. Claimants are at liberty to withdraw the aforesaid amount,
along with accrued interest.
18. Learned Registrar General is requested to disburse the
amount o the claimants in the manner prescribed in the order
passed by the Ld. Tribunal.
19. F.M.A 843 of 2010 stands disposed of without any order as to
cost.
20. All pending applications, if any, stand disposed of accordingly.
21. Let the records of the Tribunal, if any, be sent back
immediately.
22. Urgent Photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance with all requisite
formalities.
[BIBHAS RANJAN DE, J.]
