Calcutta High Court (Appellete Side)
Smt. Swapna Basak vs New India Assurance Company Ltd. & ... on 25 January, 2023
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
F.M.A 975 of 2008
CAN 2 of 2009 (Old No.CAN 9161 of 2009)
Smt. Swapna Basak
Vs.
New India Assurance Company Ltd. & Anr.
For the Claimant/Appellant :Mr. Saidur Rahaman, Advocate
For the Insurance Company/ :Mr. Saibalendu Bhowmik, Advocate
Respondent no. 1
Heard on : January 18, 2023
Judgment on : January 25, 2023
Bibhas Ranjan De, J.
1. In the accident, which occurred on 11.10.2003 at about 17.00
hours, a 46 years old business man, stated to have earned Rs.
23,707.91 paise per month, died.
2. Kotwali Ps Case No. 347/2003 dated 11.10.2003 under Section
279/338/304A/ 427 of the Indian Penal Code was started
against the driver of goods carrier truck bearing no.
WB73/8230, which was insured with New India Assurance
Company Limited.
3. Legal representatives of the said deceased business man filed
the Motor Accident claim Case No. 27 of 2004 under Section
166 of the Motor Vehicles Act, which was disposed of by the Ld.
Motor Accident claims Tribunal, 1st Track Court, Cooch Behar,
claiming compensation of Rs. 20,00,000/- under various heads.
4. New India Assurance Company Limited, opposed the claim,
denied the manner of accident negligence attributed against the
driver of the vehicle bearing no. WB73/8230. On evaluation of
evidence together with the documents, the Ld. Tribunal held
that the driver of the said truck was negligent in causing
accident.
5. Ld. Tribunal after analyzing the entire evidence regarding
income from business and other circumstances computed the
loss of contribution to the family as Rs. 10,07,000/-.
6. Not satisfied with the quantum of compensation, the legal
representative of the deceased preferred this appeal and Ld.
Advocate Mr. Rahaman appearing on behalf of the claimants
submitted the compensation under some heads requires
enhancement. Mr. Rahaman submitted that Ld. Tribunal
considered the Income Tax Return for the assessment year
2003-2004 but did not consider the total income as commission
agent received for that year ending on 31.03.2003, which was
Rs. 2,84,495/-.
7. To prove the case, claimants adduced evidence of three(3)
witnesses namely Kisori Mohan Sarkar, employee of Cooch
Behar Post Officer who proved one attested copy of the
document showing commission report by the deceased for the
year 2002-2003 and he stated that deceased received Rs.
2,84,495/- and after deducting Income Tax of Rs. 18,440/- and
surcharge Rs. 940/-. He has further testified that in between
01.04.2003 to 11.10.2003 deceased received Rs. 1,77,545/-
after deducting tax of Rs. 8,873/- and surcharge Rs. 453/-
documents were admitted in evidences as exhibit 1 & 2.
8. PW-2, wife of the deceased, has corroborated the claim
application and in course of her evidence F.I.R, PM Report,
charge sheet, Insurance Policy, Income Tax certificate and age
proof certificate were admitted in evidence.
9. PW-3, Biplab Chakraborty, testified that on 11.10.2003 at about
5.00 hours the accident took place by the rash driving of the
vehicle WB 72/8230 and Swapan Kumar Basak died on spot.
10. One Manik Ranjan De, Inspector of Income Tax, has been
examined as DW-1. He testified and proved the Income Tax
clearance certificate in favour of Swapan Basak.
11. No argument has been advanced on behalf of the parties to
this appeal regarding accidental death of Swapan Basak by the
involvement of truck bearing No. WB-73/8230. That apart, from
the evidence of PW-3 together with the documents like FIR
charge sheet etc., I find no reason to disbelieve the accidental
death of Swapan Bask by the rash driving of vehicle no. Wb-
73/8230.
12. Only issue of this appeal is income of the deceased. Mr.
Rahaman on behalf of claimants, submitted that according to
statement of profit and loss account for the year ending
31.03.2003 it is seen that the deceased earned Rs. 2,84,495/-
and after deduction towards difference heads i.e. travelling
expenses, entertainment expenses, stationery expenses,
refreshment of staff, telephone bill, salary to staff and sub agent
commission , net income of the deceased was shown as Rs.
69,530/- but, Ld. Tribunal did not consider the amount of
expenditure towards the aforesaid heads and centered around
the net income of the deceased.
13. Ld. Advocate, Mr. Saibalendu Bhowmik, appearing on behalf
of the Insurance Company, opposing the submission of
adversary, contended that the expenditure towards expenses on
different heads will not come within the purview of the income
for computation of the compensation.
14. Mr. Bhowmik has further submitted that Income Tax Return
was submitted by the wife of deceased leaving a chance of
manipulation in the profit and loss account statement and that
statement can not be relied upon which was submitted after
death of Swapan Basak.
15. 'Income' means the benefits, either in terms of money or
otherwise which had taken into consideration for the purpose
of payment of Income Tax or Professional Tax. In case of a
salaried person allowances received on a different heads come
within the purview of income because of its beneficial aspects to
the family of the said salaried person. Hear in our case, Mr.
Rahaman has tried to convince this Court that expenditure
towards travelling expenses and entertainment expenses, may
be due to bulk amount, should come within the purview of gross
income of the deceased Swapn Basak. Income Tax &
Professional Tax deducted from the salaried person goes to the
corpus of the government without any return. Whereas, amount
deducted towards GPF, LIC are always repayable to the
employee.
16. It is now settled proposition of law that the Tribunal can make
only statutory deductions such as Income Tax, Professional Tax,
and any other contribution, which is not repayable by the
employer, from the salary of the deceased person while
determining monthly income for computing the dependency
compensation. In our case, from the statement of profit and loss
account, relied on by Mr. Rahaman, it comes to my view that
deceased incurred expenditure of Rs. 2,08,965/-. From the
certificate of income Tax Department together with computation
of income tax for the assessment year 2003-2004, it appears
that total of the income of the deceased was 69,530/-.
Therefore, expenditure not being repayable can not be
considered as beneficial to the members of the family of the
deceased for the purpose of computing dependency
compensation.
17. On careful scrutiny of the judgment, passed by the Ld.
Tribunal, I find that Ld. Tribunal assessed the income of the
deceased at Rs. 90,000/- per annum for the year 2003 2004
after deducting Income Tax which is more than the income of
the deceased for that year in terms of aforesaid discussion.
Presumably, Ld. Tribunal assessed the income in view of death
of son of the claimant in the same accident. Ld. Tribunal also
granted future prospect more than 25% of the income and
finally assessed the compensation after applying multiplier 13
rightly leaving no scope for interference. Claimant also received
the entire awarded amount of Rs. 10,00,000/- including Rs.
50,000/- under Section 140 of the Motor Vehicles Act.
18. With the aforesaid observation, I am inclined to dismiss this
appeal. Thus, this appeal being FMA 975 of 2008 stands
dismissed.
19. Let a copy of this judgment along with Tribunal record be
transmitted back immediately.
20. Pending applications, if there be any, stand disposed of.
21. 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.]
