Smt. Suchitra Ghosh & Ors vs The National Insurance Company ...
2023 Latest Caselaw 3688 Cal

07.06.2023                IN THE HIGH COURT AT CALCUTTA
Ct. no.654                 CIVIL APPELLATE JURISDICTION
Item no.1                         (Appellate Side)
   Sn/ab
                                    FMA 233 of 2019
                                     (CAN 1 of 2021)
                                     (CAN 2 of 2021)

                        Smt. Suchitra Ghosh & Ors.
                                     Vs.
                  The National Insurance Company Ltd.& Ors.

             Mr. Amit Ranjan Roy
                                            ...for the appellants
             Ms. Sucharita Paul
                                            ..for the respondent-

insurance company

In Re: CAN 1 of 2021

This is an application for recording the

attainment of majority of the appellant no.2, Ms.

Anupoma Ghosh.

Mr. Amit Ranjan Roy, learned advocate for the

appellants submits that during the pendency of this

appeal, the appellant no.2 Ms. Anupoma Ghosh has

attained her majority which has to be recorded in the

Memorandum of Appeal.

From the contention of the application and the

documents annexed thereto, the date of birth of

appellant no.2 is 23rd January, 2002. Hence, the

appellant no.2 has attained her majority.

Let the attainment of majority of the appellant

no.2, Ms. Anupoma Ghosh be recorded in the

Memorandum of Appeal.

Department concerned is directed to record the

aforesaid in the Memorandum of Appeal.

The application being CAN 1 of 2021 stands

disposed of.

In Re: FMA 233 of 2019

This appeal is preferred against the judgment

and award dated 17th February, 2018 passed by the

learned Judge, Motor Accident Claims Tribunal, 5th

Court, Murshidabad in MAC case no.12 of 2016

granting compensation of Rs.10,12,500/- together

with interest in favour of the appellants-claimants

under Section 166 of the Motor Vehicles Act, 1988.

With the consent of the parties, preparation of

informal paper books is dispensed with.

The brief fact of the case is that on 30th

October, 2015 at about 10-30 a.m. while the victim

was returning to his house from Beldanga by riding

his motor cycle keeping left side of the road, at that

time the offending vehicle bearing registration no.

WB-41E/0069 (truck) in a high speed and in rash

and negligent manner dashed the victim along with

his motor cycle from behind, as a result of which the

victim sustained severe injuries all over his bodies

and died on the spot. On account of sudden demise

of the victim, the claimants being the widow, minor

daughter, son and the mother of the deceased filed

application for compensation of Rs.7,50,000/-

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 have been marked as Exhibits 1 to 7

respectively.

The respondent no.1-insurance Company did

not adduce any evidence.

Since the respondent no.2, owner of the

offending vehicle, though appeared before the learned

Tribunal but subsequently contest the claim

application, service of notice of appeal upon the said

respondent is dispensed with.

Upon considering the materials on record and

evidence adduced on behalf of the claimants, the

learned Tribunal granted compensation of

Rs.10,12,500/- 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 of the learned

Tribunal, the claimants have preferred the present

appeal.

Mr. Amit Ranjan Roy, learned advocate for the

appellants-claimants submits that the learned

Tribunal erred in determining the income of the

deceased to the tune of Rs.6,000/- per month basing

on the oral evidence of the wife of the victim (PW-1)

without considering the income disclosed in the

income tax return for the assessment year 2014-15.

He further submits that when a statutory document

in the form of income tax return is placed before the

Court the income disclosed therein is to be taken into

account. Therefore, the annual income of the

deceased of Rs.1,71,284/- disclosed in income tax

return for assessment year 2014-2015 ought to have

been considered by the learned Tribunal. To buttress

his contention, he relies on the decision of the

Hon'ble Supreme Court passed in Smt. Anjali &

Ors. versus Lokendra Rathod & Ors. reported in

2023 SAR (Civ) 18.

Moreover, he submits that since the number of

dependants is 4 (four), hence, the deduction towards

personal and living expenses of the deceased should

be 1/4th instead of 1/3rd in view of the decision of

Hon'ble Supreme Court passed in Sarla Verma

versus Delhi Transport Corporation Limited &

Ors. reported in 2009 ACJ 1298.

He fairly submits that future prospect should

be equivalent to 25% of the annual income instead of

40% as considered by the learned Tribunal and since

at the time of accident the victim was 44 years old,

hence, following proposition laid down by the Hon'ble

Supreme Court in Sarla Verma (supra), the multiplier

should be 14 instead of 15 adopted by the learned

Tribunal. Further the claimants are also entitled to

general damages of Rs.70,000/- under the

conventional heads.

In reply to the contentions raised on behalf of

the appellants, Ms. Sucharita Paul, learned advocate

for the respondent no.1-insurance company, at the

very beginning, indicates that there are certain

overwritings in the income tax return for the

assessment year 2014-15 (Exhibit-7) produced on

behalf of the claimants which raises a serious doubt

as the authenticity and veracity of the said

document. She further submits that the income tax

return for the assessment year 2014-15 is much

before the accident and not immediately preceding to

the date of the accident and, therefore, the income

disclosed therein cannot be the actual income of the

deceased. Further, relying of the cross-examination

of PW-3, she submits that if a person continues his

business he can file income tax return every year.

Therefore, since the income tax just preceding the

date of accident has not been filed the income

disclosed in the income tax return for the assessment

year 2014-15 cannot be accepted. The claimants in

their claim application as well as in evidence has

disclosed the income of the victim to be Rs.6,000/-

per month which should be accepted as has been

rightly held by the learned Tribunal.

Having heard the learned advocates for the

respective parties, the following issues have fallen for

consideration. Firstly, whether the learned Tribunal

ought to have determined the income on the basis of

the income tax return for the assessment year 2014-

15 of the deceased victim. Secondly, whether the

deduction towards personal and living expenses of

the deceased should be 1/4th instead of 1/3rd.

Thirdly, whether the learned Tribunal ought to have

considered an amount equivalent to 25% of the

annual income of the deceased towards future

prospect instead of 40%. Fourthly, whether the

multiplier should be 14 instead of 15 and lastly,

whether the claimants are entitled to general

damages of Rs.70,000/- under conventional heads.

With regard to the determination of income of

the deceased victim, it is found that the learned

Tribunal relying on the oral evidence of the victim's

wife (P.W.1) came to this finding that the income of

the deceased was Rs. 6,000/- per month at the time

of accident. In order to establish the income of the

deceased, the claimants have also produced the

income tax return of the deceased victim for the

assessment year 2014-15 marked as Exhibit-7 and

proved by P.W. 3, Sanjay Pal, Inspector attached to

Berhampore Income Tax Office. The genuineness of

the income tax return for assessment year 2014-15

has been challenged on behalf of the insurance

company on the ground of some overwritings. Upon

perusal of the document of income tax return

Exhibit-7, it is found that there are some

overwritings and corrections. Be that as it may, it is

pertinent to note that the said document has been

certified by the income tax officer of its genuineness,

correctness and authenticity. On going through the

cross-examination of P.W.3, there is no iota of

evidence challenging the genuineness of the said

income tax return. To be precise, no contrary

evidence has come up challenging the authenticity,

genuineness or correctness of the said income tax

return filed on behalf of the claimants. Thus, such

arguments advanced on behalf of the insurance

company fall short of merit.

The other challenge thrown to the acceptance

of income tax return is that it does not pertain to the

period just preceding the date of accident. At this

stage, it would be profitable to refer to the decision of

the 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 the 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 the income tax

return. Further, the Hon'ble Supreme Court in

Malarvizhi & Ors. versus United India Insurance

Co. Ltd. & Anr., reported in (2020) 4 SCC 228

endorse the findings of the High Court that

determination must proceed on the basis of income

tax return where available. The income tax return is

a statutory document on which reliance may be

placed to determine the annual income of the

deceased. I find substance in the submissions made

by Mr. Roy, learned advocate for the claimants

relying on the decision of the Hon'ble Supreme Court

passed in Smt. Anjali (supra) in this regard. From the

aforesaid observation of Hon'ble Supreme 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. Thus,

such challenge thrown to the income tax return for

the assessment year 2014-15 cannot be accepted.

Upon perusal of the income tax return for the

assessment year 2014-15 (Exhibit-7) it is found that

the deceased had income from business to the tune

of Rs. 1,71,284/- and the tax paid is nil. Thus, the

actual income of the deceased comes to

Rs.1,71,284/-.

With regard to the deduction towards personal

and living expenses, it is found that the learned

Tribunal has deducted 1/3rd of the annual income of

the deceased towards his personal and living

expenses. Since at the time of accident the number of

dependants is four, hence the deduction towards

personal and living expenses of the deceased should

be 1/4th instead of 1/3rd in view of the decision of

Hon'ble Supreme Court in Sarla Verma (supra).

Following the observations of the Hon'ble

Supreme Court in Pranay Sethi (supra) since at the

time of accident, the deceased was 44 years old and

was self-employed, the claimants are entitled to an

amount equivalent to 25% of the annual income of

the deceased towards future prospect.

Admittedly, at the time of accident, the

deceased was 44 years old. Therefore, following the

observations of the Hon'ble Supreme Court in Sarla

Verma (supra) multiplier should be 14 instead of 15.

So far as the general damages are concerned, it

is found that the learned Tribunal has granted

Rs.9,500/- on such head. However, following the

proposition laid down by the Hon'ble Supreme Court

in Pranay Sethi (supra), the claimants are entitled to

general damages under the conventional heads of

loss of estate, loss of consortium and funeral

expenses to the tune of Rs. 15,000/-, Rs. 40,000/-

and Rs. 15,000/- respectively.

The other factors have not been challenged.

Bearing in mind the above factors, calculation

is made hereunder.

              Calculation of Compensation

       Income                            Rs.1,71,284/-

       Add 25% future prospect           Rs.42,821/-
       Total income                      Rs.2,14,105/-
       Less 1/4th towards personal       Rs.53,526/-
       and living expenses
                                         Rs.1,60,579/-
       Multiplier 14                     Rs.22,48,106/-
       (Rs.1,60,579 x 14)
       Add: General damages              Rs.70,000/-
       Loss of estate: Rs.15,000/-
       Loss of consortium: Rs.40,000/-
       Funeral expenses: Rs.15,000/-
       Total amount                      Rs.23,18,106/-

      Thus,     the   total   compensation    comes      to

Rs.23,18,106/-. Mr. Roy, learned advocate for the

appellants-claimants submits that though the

claimants received the compensation amount of

Rs.10,12,500/- and the interest granted by the

learned Tribunal, however, the interest has been

granted by the learned Tribunal from the date of the

order (17.02.2018) and not from the date of filing of

the claim application. Accordingly, the claimants are

entitled to interest on the compensation amount

granted by the learned Tribunal @ 6% per annum

from the date of filing of the claim application

(13.01.2016) till 16.02.2018.

Further, the claimants are entitled to balance

amount of compensation of Rs. 13,05,606/- together

with interest @ 6% per annum from the date of filing

of the claim application (13.01.2016) till the date of

payment.

The respondent No. 1- insurance company is

directed to deposit the balance amount of

compensation of Rs. 13,05,606/- together with

interest as indicated hereinabove by way of a cheque

before the Registrar General, High Court, Calcutta

within a period of six weeks from date.

The 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 balance amount of

compensation as aforesaid and the interest indicated

above, the learned Registrar General, High Court,

Calcutta shall release the amount in favour of the

appellants-claimants in equal share after making

payment of Rs. 35,000/- (since Rs.5,000/- has

already been received) in favour of the appellant no.

1, widow of the deceased, towards loss of consortium,

upon satisfaction of their identity and payment of ad

valorem court fees, if not already paid.

With the aforesaid observations, the appeal

stands disposed of.

All the connected applications, if any, stand

disposed of.

Interim order, if any, stands vacated.

Let a copy of this order along with the Lower

Court Records be sent to the learned Tribunal in

accordance with law.

Urgent photostat copy of this order, if applied

for, be given to the parties upon compliance of

necessary legal formalities.

(Bivas Pattanayak, J.)