Delhi High Court
Santosh Khandelwal & Ors. vs Abbas & Ors. on 16 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 16th March, 2012
+ MAC.APP. 31/2010
SANTOSH KHANDELWAL & ORS. ..... Appellants
Through: Mr. Manish Mannie, Advocate
versus
ABBAS & ORS. ..... Respondents
Through: Mr. Galib Kabir, Advocate of
respondent no.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `13,60,588/-
awarded for the death of Ravi Shankar aged 34 years who died
in a motor accident which occurred on 05.08.2008.
2. During enquiry before the Claims Tribunal it was claimed that
the deceased was running a General Merchant Shop in the name
and style of M/s Khandelwal Provision Store. He was an
income tax assessee for the last five years. His Income Tax
Return filed for the assessment year 2008-09 for an income of
`1,30,529/- was not believed on the ground that this was filed
after the deceased's death. On the income of previous year i.e.
th
`1,07,549/-, the Claims Tribunal deducted 1/4 towards
personal and living expenses adopting multiplier of 16 to
compute the loss of dependency.
3. Following contentions are raised on behalf of the Appellant:-
(i) There was no ground to reject the Income Tax
Returns for the year 2008-09 as this was filed
within the prescribed time in the usual course of
business as the previous returns were being filed.
Reliance is placed on Dalvinder Kaur & Ors v.
United India Insurance Company 2011 ACJ 2133.
(ii) The deceased's income was gradually increasing
for the last 5 years and tripled during this time.
Adequate compensation taking into account future
prospects should have been awarded.
4. On the other hand, the learned counsel for the Respondent
Insurance Company supports the impugned judgment on the
ground that since there was considerable increase in the
deceased's income for the year 2008-09 in the Income Tax
Return filed on 08.09.2008, the Claims Tribunal was justified in
not taking into account that income. It is stated that future
prospects are not permissible in case of a self employed person.
5. The Appeal is bound to succeed on both the grounds.
6. The deceased filed Income Tax Returns right from the
assessment year 2004-05 which was proved before the Claims
Tribunal. The same are extracted hereunder:-
Assessment Year Income Returned
2004-05 `43,215/-
2005-06 `1,10,101/-
2006-07 `1,05,600/-
2007-08 `1,07,549/-
2008-09 `1,30,450/-
7. It may be noticed that the deceased's income from the
assessment year 2004-05 increased by more than 225%.
Otherwise also, it is apparent that the deceased income was
constantly increasing. Therefore, the Income Tax Return for the
year 2008-09 could not have been rejected simply on the ground
that this was filed after the deceased's death. The deceased died
on 05.08.2008. The last date for filing income tax return for
self employed person was 31st October in the relevant year.
Otherwise also, the record shows that the Income Tax Return
for the previous year was filed on 06.12.2007. There was
nothing unusual in the Income Tax Return for the year 2008-09.
8. In Dalvinder Kaur (supra) this Court took into consideration the
Income Tax Return filed after the death of the deceased. In the
absence of any specific ground, I do not find any reason to
exclude it from consideration.
9. Since, the deceased's income was increasing gradually; I would
adopt his income for the last three years to compute the loss of
dependency. In Sarla Verma v. Delhi Transport Corporation
2009 6 SCC 121, the Supreme Court simply stated that in case
of self employed persons usually actual income at the time of
death should be considered. Since, in this case the income was
gradually increasing and the deceased was aged 34 years, I
would grant him future prospects on the scale of Sarla Verma
(supra) i.e. 50%.
10. The deceased's overall income for the last three years comes to
`1,14,533/- (`1,05,600/-+`1,07,549/-+`1,30,450/- =3,43,599/3).
There was liability of income tax amount to `1,400/-. On
adding 50% towards future prospects, deducting 1/4th towards
personal and living expenses (as the number of dependants even
if father is excluded were five) and adopting a multiplier of 16,
the loss of dependency would come to `20,36,400/- (`1,14,533-
1,400(income tax)+50%x3/4x16). I would add a sum of
`25,000/- towards loss of Love and Affection, `10,000/- each
towards, Loss of Consortium, Funeral Expenses and Loss to
Estate.
11. The overall compensation comes to `20,91,400/- which shall
carry interest @ 7.5% per annum as awarded by the Claims
Tribunal.
12. The compensation is enhanced by `7,30,812/- which as stated
earlier shall carry interest @7.5% per annum. The enhanced
compensation shall apportioned as under:-
Appellant No.1 55%
Appellant No.2 to 5 10% each
Appellant No.6 5%
13. The amount payable to Appellants No. 2 to 4 shall be held in
Fixed Deposit in UCO Bank, Delhi High Court Branch, till they
attain the age of 21 years. Since Appellants No. 5 and 6 are
very old. The enhanced compensation awarded shall be
released to them immediately on deposit.
14. 75% of the enhanced compensation shall be held in Fixed
Deposit for a period of 2 years, 4 years and 6 years in equal
proportion. Rest 25% shall be released to Appellant No.1
immediately on deposit.
15. The Respondent No.3/Insurance Company is directed to deposit
the enhanced compensation within six weeks.
16. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MARCH 15, 2012
mr
