Sujata Tekwani & Ors. vs Oriental Insurance Co. Ltd. & Ors.
2012 Latest Caselaw 5781 Del

$~R-61

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 26th September, 2012
+        MAC. APP. No.128/2005

         SUJATA TEKWANI & ORS.                  ..... Appellants
                     Through: Mr. J.M. Kalia, Advocate


                        Versus


         ORIENTAL INSURANCE CO. LTD. & ORS.     ....Respondents
                      Through: Mr. J.P. N. Shahi, Advocate for the
                               Respondent No.1 Insurance Company

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                          JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellants who are legal representatives of deceased Anil Kumar Tekwani seek enhancement of compensation of `10,41,000/- awarded by the Motor Accident Claims Tribunal(the Claims Tribunal) in favour of the Appellants for the death of deceased Anil Kumar Tekwani, who died in a motor vehicle accident, which occurred on 03.05.2003.

2. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of tanker No.HR-38- 0870 by the Respondent No.3 who dashed against a santro car driven by the deceased. It was claimed that the deceased Anil Kumar Tekwani was a self employed person and had an income of `35,000/- per month. In the

absence of any cogent evidence with regard to the deceased's income and filing of any Income Tax Return, the Claims Tribunal assessed the deceased's income to be `50,000/- per month, added 50% towards future prospects to compute the loss of dependency as `9,86,000/-. On adding a sum of `55,000/- towards non-pecuniary damages, an overall compensation of `10,41,000/- was awarded in favour of the Appellants.

3. In the absence of any Appeal by the driver, owner or the insurer, the finding on negligence has attained finality.

4. It is urged by the learned counsel for the Appellants that the Appellants examined Sujata Tekwani, the First Appellant as PW1 who deposed about the deceased's status and his self employment as an agent for export of garments. The Appellants proved that the deceased was paying rent of B-246, Lok Vihar, Pitampura @ `4,200/- per month. His only son was studying in Goodley Nursery School and the deceased was paying tuition fees @ `900/- per month. The Claims Tribunal disbelieved the documents Exs.PW1/2 and PW1/3 on the ground that he (the deceased) was appointed agent on 28.03.2003. In fact, he was appointed agent on 28.03.2002. The Claims Tribunal, therefore, should have relied on these documents to hold that he received a payment of `2,95,790/- from D.R. Polymers Pvt. Ltd. apart from the income of `1,28,345/- from M/s A.K. Sales. The Claims Tribunal dealt with the issue of quantum of compensation as under:

"12. PW 1 Sujata Tekwani testified that her husband was 34 years of age at the time of his death. She proved on record Provisional/Transfer Certificate Ex PW 1/1 of deceased having passed B. Com (H) from G.D. Salwan College, New Delhi which would show that the date of birth of the deceased was 05.05.1969. In the Certified Copy of Post Mortem Report of deceased his age was opined to be around 30 years. It,

therefore, clearly brings out that the deceased was about 34 years of age at the time of his death.

13. As regards Income/earning of the deceased, PW1 Sujata Tekwani in her affidavit tendered under order XVIII Rule 4 (1) CPC deposed that her husband was self employed and doing business of garments on Commission basis and attached to various firms/companies for selling their products. She testified that her husband drew a Commission of Rs1,28,345/- during the period from 01,04,02 to 31,03,03 from M/s A.K.Sales, Karol Bagh, New Delhi, as per Certificate Ex PW1/2; and also earned commission of Rs 3,12,180/-during the same period from M/s D.R.Polymers Pvt Ltd Ex PW 1/3. She testified that her husband was earning Rs 35,000/- per month and was an Income Tax Payee and in this connection placed on record copy of Pan Number Card Ex PW1/4. PW 3 Puran Singh produced the Ledger Account from his company and testified to the effect that deceased earned Rs 2,95,790/- during the period 01.04.02 to 31.03.03.

14. I am afraid evidence of PW 1 Sujata Tekwani and that of PW 3 Puran Singh on the aspect of income or earning of the deceased does not appear to be credible enough. If the deceased was an Income Tax Payee, no record has been placed or shown on the record about the Returns of Income filed by the deceased in the years preceding his death. Shri Kalia, Ld counsel for the petitioners urged that the wife of deceased being a house wife was incapable of making necessary inquiries or laying her hands on the documents concerning the earning/income of her husband. PW1 in her affidavit deposed that she is graduate in Political Science and B.Ed. She is not an illiterate lady and moreover, when a party is in the hand of an experienced advocate, it is no argument that it was difficult to summon and produce the relevant record from the Income Tax Department.

15. I may state that it is difficult to rely on the documents Ex PW1/2 and Ex PW1/3 since PW3 in his cross examinations testified that deceased was appointed as an Agent with his company on 28.03.03. In other words, hardly two months prior to his death. It is not clear if the payment of Rs 2,95,790/- was

made by cheque or cash. No documents have been shown in regard to payment of such amount. No evidence has been led about the Bank Account of the deceased. There is led no evidence about the exact nature of business of deceased or number of employees etc. It is in evidence that Santro Car which was involved in the accident did not belong to the deceased. PW 1 testified that her husband was paying Rs 4200/- per month as rent of the premises where they have been residing but she was unable to substantiate the same by any documentary evidence.

16. All the same, having regard to the fact that deceased was graduate and self employed as a businessman, it would not be legally inappropriate to assess the income of deceased as per rates of minimum wages under the Minimum Wage Act applicable in Delhi. To my mind, since the deceased has been cogently shown to be a businessman, it could be safely said that he was earning more then what was prescribed or provided under the Minimum Wages Act. During the relevant time, annual income of Rs 50,000/- was exempted from payment of Income Tax and therefore, I assume that deceased was earning Rs 50,000/- annually. Reference here can be had to decision in Asha Gupta v. Ramjilal, 102 (2003) DLT 847, wherein similar facts had arisen for consideration.

17. Further, it is well settled in making assessment of just and reasonable compensation regard must be had to the prospectus of future increase in the income or earning of the deceased. Deceased was a young man of about 34 years of age and he would have definitely survived for another 20-25 years. Having regard to the average longevity of life in India, it could be safely said that his income would have doubled in the future, if not trippled; and his annual income would have risen to at least Rs 1,25,000. I, therefore, work out the claim of compensation as under :-

(In Rupees)

(a) Annual Income 50,000

(b) Estimated Future Increase 1,25,000

(a) + (b) 1,75,000

(c) Average/Mean Income 87,500

Less: 1/3 towards personal use & consumption 29,500 (Rounded off)

(d) Annual Dependency 58,000

Hence:

                  (i)Loss of Dependency                             9,86,000
                  (58,000 X 17)
                  (ii)Loss of Consortium                               20,000
                  (iii)Loss of Love & Affection                        30,000
                  (iv)Funeral Expenses                                  5,000

                  TOTAL COMPENSATION                        Rs. 10,41,000/-"

5. This accident took place on 03.05.2003. In the A.Y. 2005-06 any income beyond `60,000/- was liable for deduction of Income Tax. The Claims Tribunal observed that the First Appellant was a graduate in Political Science and B.Ed. She was assisted by an advocate. If the deceased had an income of `4,20,000/- as claimed by the Appellants, she could have summoned relevant record from the Income Tax Department to prove the same. This finding of the Claims Tribunal cannot be faulted. It is true that the letter Ex.PW3/DA through which the deceased was allegedly appointed as an agent by M/s D.R. Polymers Pvt. Ltd. was dated 28.03.2002 and not 28.03.2003 as observed by the Claims Tribunal, yet much value cannot be attached to these documents. Such documents could be created at any time. Even deduction of the TDS by document Ex.PW1/3 was made only on 25.06.2003, that is, after the death of the deceased. Moreover, as observed by the Claims Tribunal the Appellants did not produce any evidence to prove as to how the amount of `2,95,790/- was received by the deceased. Thus, in the absence of any Income Tax Return, the Claims Tribunal rightly discarded these documents.

6. Similarly, the Claims Tribunal declined to believe that the deceased was paying rent @ `4,200/- per month as neither any rent receipt was produced nor the landlord was summoned nor any other evidence was produced to show the extent of the tenancy premises or any documentary evidence with regard to letting. It is not a case where the Appellants were not aware that they were to produce documentary evidence in support of their claim. The Appellants produced photocopy of a receipt dated 09.12.2002 to prove Appellant No.2's admission in Goodley Nursery School where tuition fees of `2,700/- for three months and other charges towards admission were paid by the deceased/Appellants in December, 2002. Thus, the Appellants produced evidence selectively and left gaps.

7. It is not the question of the annual income in the year 2003-04. The deceased was aged 33 years and must have been working and earning for the past several years. If he really had an income of over `4,00,000/- in the year 2003-04, some evidence could have been brought in by the Appellants to prove his income for the previous years. The Claims Tribunal took an income of `50,000/- per month and took the future income as `1,25,000/-. Since the deceased was a self employed person, addition of only 30% towards inflation was permissible as per the law laid down in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559, whereas the Claims Tribunal made an addition of 75%. Practically, an income of about `70,000/- (after deduction of Income Tax) was taken to compute the loss of dependency if an addition of only 30% is to be made towards inflation in the absence of any documentary evidence with regard to the payment of Income Tax, the Claims Tribunal was very benevolent in awarding the compensation on

an income of `87,500/- per annum in the year 2003, which does not call for an interference.

8. The Appeal is devoid of any merit; the same is accordingly dismissed.

9. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 26, 2012 pst