Delhi High Court
Const Hanmant Dahiphale & Anr vs Smt Alka Jain & Ors. on 19 February, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd November, 2012
Pronounced on: 19th February, 2013
+ MAC.APP. 629/2011
CONST HANMANT DAHIPHALE & ANR ..... Appellant
Through: Mr. Shaqib, Adv. with
Mr. Bhupender Sharma, Adv.
versus
SMT ALKA JAIN & ORS. ..... Respondents
Through: Mr. Abdhesh Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellants who are the driver and owner of the truck No. AS-01-V-
3707 impugn a judgment dated 26.03.2011 passed by the Motor Accident
Claims Tribunal (the Claims Tribunal) whereby a compensation of
`46,44,484/- was awarded in favour of the Respondents on the ground
that there was no negligence on the part of Appellant No.1 in causing the
accident and that the compensation awarded is exorbitant and excessive.
NEGLIGENCE
2. It is urged by learned counsel for the Appellants that there was no
negligence on the part of Appellant No.1 in driving the earlier said truck.
In fact, the rickshaw puller (Chhotey Lal) was pulling the cycle rickshaw
on a slope. He lost control and dashed against the truck resulting in the
unfortunate accident.
3. I have before me the Trial Court record. The Respondents (the
Claimants) in order to prove the negligence examined Narayan Kumar
Aggarwal (PW-2). He deposed that on 10.08.2009 at about 4:40 P.M.
they boarded the cycle rickshaw at Old Delhi Railway Station for going
to Kanti Nagar, Shahdara. When they reached near red light, the truck in
question being driven in a rash and negligent manner came from the
Hanuman Mandir Angoori Bagh side. It came on the wrong side and
dashed against the riskshaw. As a result of the forceful impact, the
rickshaw turned turtle and was dragged for about 20 ft. In cross-
examination a suggestion was put to the witness that the cycle rickshaw
was hit by the BSF vehicle on the backside, which of course was denied
by PW-2. Even if it is assumed that the rickshaw was hit by the truck in
question on the back side, the driver of the truck was all the more
negligent and responsible for causing the accident.
4. The Appellant No.1 filed his own Affidavit Ex.RW-1/A and entered the
witness box as RW-1. He himself did not give the manner of the
accident. He simply testified that as per information of the Court of
Inquiry conducted by BSF Authorities, Chhotey Lal, (rickshaw puller)
was responsible for causing the accident. Thus, PW-2's testimony was
not challenged by evidence which was in possession of the Appellants. A
suggestion was also given to PW-2 that the accident occurred at 6:45
P.M. which is completely belied from the record as deceased Rajesh Jain
was admitted in JPN hospital at 5:05 P.M.
5. In view of the above discussion, on the touchstone of preponderance of
probabilities, the version of PW-2 is to be accepted. Furthermore, the
testimony of PW-2 further stands corroborated by registration of a
criminal case under Section 279/304-A IPC against the First Appellant.
Thus, the finding on negligence reached by the Claims Tribunal cannot be
faulted.
QUANTUM OF COMPENSATION
6. The Claimants proved on record the Income Tax Return (ITR) for the
year 2008-2009 (for the period ending 31.03.2007) as Ex.PW-1/8
whereby the deceased had returned an income of `1,61,857/-. The
Claimants further proved the ITR Ex.PW-1/9 for the Assessment Year
2009-10 (for the period ending 31.03.2009) whereby the deceased had
returned the income of `4,09,442/-. It is urged by the learned counsel for
the Appellants that this ITR was a suspicious document. It was filed only
on 31.12.2009 much after the accident. The same, therefore, should have
been excluded for consideration by the Claims Tribunal.
7. The Claims Tribunal simply believed the ITR Ex.PW-1/9 for the AY
2009-2010, deducted `24,485/- towards income tax to compute the loss
of dependency.
8. Apart from the fact that there is quantum jump in the income for the AY
2009-10 from the previous year of 2008-2009 and the fact that the ITR
was filed on 31.12.2009 much after the last date of filing ITR, there are
other grounds to disbelieve the ITR Ex.PW-1/9. As per the ITR for the
previous year the deceased received a salary of `68,000/- from M/s.
Suresh Cloth Store and `64,563/- from M/s. Innova Marketing apart from
brokerage and commission of `29,028/-. In the next year the income
from M/s. Suresh Cloth Store increased from `68,000/- to `1,57,680/-
and from M/s. Innova Marketing from `64,563/- to `2,04,878/-.
Admittedly, the income of `4,09,442/- was taxable even if full deduction
of `1 lac was made under Chapter VIA of the Income Tax Act. Apart
from the quantum jump by more than 150% the deceased was liable to
pay advance tax on this income in September, 2008, December, 2008 and
March, 2009. No evidence was produced by the Claimants as to whether
any advance tax was paid. Admittedly, no tax was deducted at source
even on an income of `2,04,878/- received from Innova Marketing by the
deceased.
9. In V.Subbulakshmi & Ors. v. S. Lakshmi & Anr. (2008) 2 SCR 387, the
Supreme Court declined to believe the ITR filed after the death of the
deceased.
10. In the instant case also the ITR filed after four months and 20 days of the
death of the deceased, particularly in view of the circumstances narrated
above, should not have been taken into consideration by the Claims
Tribunal. Thus, the Claimants are entitled to compensation only on the
basis of ITR for the previous year, which showed the income of
`1,61,857/-.
11. There was no evidence with regard to the deceased's future prospects.
This Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011)
decided on 16.07.2012, referred to the reports of the Supreme Court in
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,
Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, Bijoy Kumar Dugar v.
Bidya Dhar Dutta & Ors, (2006) 3 SCC 242, Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr, (2009) 6 SCC 121 and Santosh Devi
v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and
held that Santosh Devi provided for an increase of 30% towards inflation
in the victim's income in case of self employed persons and persons
having fixed income.
12. At the time of the accidental death the deceased was aged 33 years. The
appropriate multiplier therefore is 16 only, which has been rightly applied
by the Claims Tribunal. Since the numbers of dependents were four, there
has to be deduction of one-fourth towards personal and living expenses.
13. The loss of dependency thus comes to `25,09,370/- (`1,61,857/- -
`1,000/- (income tax) + 30% x 3/4 x 16).
14. The Claimants are further entitled to a sum of `25,000/- towards loss of
love and affection and `10,000/- each towards loss of consortium, loss to
estate and funeral expenses. The overall compensation comes to
`25,64,370/-.
15. The compensation stands reduced from ` 46,44,484/- to `25,64,370/-.
16. In pursuance of the order dated 14.07.2011 the compensation awarded by
the Claims Tribunal was deposited in this Court.The excess compensation
of `20,80,114/- along with interest @ 7.5% per annum as deposited in
this Court along with interest accrued, if any, during the pendency of the
Appeal shall be refunded to the Appellant No.2. Rest of the compensation
of `25,64,370/- along with proportionate interest and the interest accrued
during pendency of the Appeal shall be payable to the Claimants in the
proportion and the manner as directed by the Claims Tribunal.
17. The Appeal is allowed in above terms.
18. The statutory deposit of `25,000/- shall be refunded to the Second
Appellant.
19. Pending Applications stands disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 19, 2013
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