United India Insurance Co. Ltd vs Sh. Ram Sujan Mehto & Ors
2014 Latest Caselaw 3127 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment Reserved on : 10.07.2014
                                   Judgment Pronounced on : 16.07.2014

+     MAC.APP. 526/2014 and CM Appl.No.10203/2014 (stay)

      UNITED INDIA INSURANCE CO. LTD         ..... Appellant
                    Through Mr.Pradeep Gaur and Mr.Amit Gaur,
                            Advocates.

                          versus

      SH. RAM SUJAN MEHTO & ORS              ..... Respondents
                    Through  Mr.B.R.Sharma, Advocate

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

1. The present appeal is filed challenging the Award dated 24.04.2014 passed by the Tribunal.

2. The basic facts are that respondent No.1 on 31.01.2011 at about 11.00 a.m. was trying to board DTC Bus which was driven by its driver as alleged in a rash and negligent manner on account of which respondent No.1 fell down and sustained grievous injuries. Respondent No.1 suffered 70 % permanent physical disability in relation to the left lower limb and had to amputate left limb below the knee. The Tribunal awarded a total compensation of `56,80,225/- (Rupees Fifty Six Lacs Eighty Thousand Two Hundred Twenty Five Only). The breakup includes expenses for treatment, pain and sufferings, conveyance, special diet and loss of income during

treatment period. The compensation on account of disability was fixed at `52,30,368/- (Rupees Fifty Two Lacs Thirty Thousand Three Hundred Sixty Eight Only).

3. The breakup of compensation awarded to the claimants is as follows:

The total compensation is assessed as under:-

      Treatment expenses:             Rs. 39,277/-
      Pain and sufferings:            Rs. 50,000/-
      Conveyance and special diet: Rs. 20,000/-
      Loss of income during treatment
      Period                          Rs. 2,90,000/-
      Compensation of account of
      Disability                      Rs. 52,30,000/-
      Compensation on account of loss
      Of amenities of life and enjoyment
      Of life                         Rs. 50,000/-
      Total                           Rs. 56,80,225/-

4. The Tribunal framed the following issues:

1.Whether the petitioner Sh. Ram Sujan suffered injuries in an accident that took place on 31/01/2011 at about 11.10 hours involving DTC Bus bearing No. DL-1PC-7833 driven by Sh. Roshan Lal, owned by the DTC and insured with the United India Insurance Co. Ltd.? OPP

2.Whether the petitioner is entitled to any compensatin, if so, to what amount and from whom?

3.Relief."

5. The claimant led evidence deposed himself as PW1, Dr. Vineet Kumar Arora as PW2 and Sh. Sanjeev Chauhan, Inspector Income Tax as PW3. Based on the evidence of the witnesses and the detailed accident report filed by the police and the FIR under Section 279/338 IPC, the

Tribunal concluded that respondent No.2 the driver was driving the vehicle at the time of accident in a rash and negligent manner.

6. Learned counsel appearing for the appellant has made only one submission to assail the Award, namely, that the said compensation on account of disability awarded of `52,30,368/-(Rupees Fifty Two Lacs Thirty Thousand Three Hundred Sixty Eight Only) is excessive and improper. He submits that the average annual income of respondent No.1 has been concluded based on an average annual income of `5,81,152/- (Rupees Five Lacs Eighty One Thousand One Hundred Fifty Two Only) which income has been taken from the income tax return of respondent No.1 for the assessment year 2011-12. He submits that the income tax return for the assessment year 2011-12 was filed by the said respondent No.1 after the date of the accident and cannot be relied upon. He submits that the income should be taken based on the last assessment year i.e. 2010-11 as that return was filed prior to the accident or at best based on the average of last three years. He relies upon the judgment of the Supreme Court in the case of V.Subbulakshmi & Ors. vs. S.Lakshmi & Anr., AIR 2008 SC 1256.

7. Learned counsel appearing for the respondents has explained that a dip in the income has taken place in the assessment year 2011-12 on account of certain personal family problems that were faced by respondent No.1 in that financial year. He further submits that the submission of the learned counsel for the appellant cannot be accepted merely because the income tax return for the financial year 2011-2012 was filed after the accident because the receipts by respondent No.1 are subject to TDS and cannot be manipulated subsequent to close of the financial year.

8. In my view there is no merit in the contention of the appellant. Copies

of the income tax returns for the assessment years 2009-10, 2010-11 and 2011-12 were placed on record by PW-3 Mr.Sanjeev Chauhan, Inspector (Income Tax) and were marked as Ex.PW-3/1 collectively. A perusal of this record shows that the income tax return for the assessment year 2011-12 is shown to be `5,81,152/-(Rupees Five Lacs Eighty One Thousand One Hundred Fifty Two Only) from the head of business. For the assessment year 2010-2011 the gross income is shown as `1,44,330/-, while for the assessment year 2009-2010 the aggregate income is shown as ` 4,11,340/-. The dip in the income for the assessment year 2010-11 has been duly explained by respondent No.1.

9. There is also merit in the contention of the learned counsel for respondent No.1 that the income of respondent No.1cannot be manipulated as the same was subject to TDS. A perusal of the returns of respondent No.1 for the financial year 2011-12 would show that though the total tax payable by respondent No.1 is `35,057/-, tax has been deducted at source amounting to `58,118/-. The accident took place on 31.01.2011. The Income Tax Return for assessment year 2011-12 was filed on 07.10.2011. Most of the TDS would have been deducted by third parties before the accident. Deduction of tax at source by third parties could not have been manipulated by respondent No.1. Further, a perusal of evidence of PW-1, namely, respondent No.1-Sh. Ram Sujan Mehto (PW-1) would show that there was no cross-examination done on this issue. Hence the finding of the tribunal on the annual income of respondent No.1 as per income tax return i.e. Rs.5,81,152/- (Rupees Five Lacs Eighty One Thousand One Fifty Two Only) cannot be said to be improper or incorrect. Merely because the return was filed after the accident, cannot be the basis for disbelieving the income

shown in the return.

10. Reliance of the learned counsel for the appellant on the judgment of the Supreme Court in the case of V.Subbulakshmi & Ors. vs. S.Lakshmi & Anr.(supra) is misplaced. The observations of the Supreme Court are as follows:-

"14. ...The accident took place on 7.51997. Income tax returns were filed on 23.6.1997. The Income Tax Returns (Exp.P-14), therefore, have rightly not been relied upon. ...."

11. However, in the facts of the present case as is obvious there are reasons to accept the income as is shown in the income tax return filed by respondent No.1. The extent of income is also in consonance with his income as per in income tax return for the assessment year 2009-2010.

12. There is accordingly no merit in the present appeal. The same is dismissed.

JAYANT NATH (JUDGE)

JULY 16, 2014 rb