Ravind Jain & Ors vs Raman K Sharma & Ors
2014 Latest Caselaw 4447 Del

$~A-5
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 15.09.2014
+     MAC.APP. 433/2010

    RAVIND JAIN & ORS                         ..... Appellant
                    Through Mr.Navneet Goyal, Adv.
             versus
    RAMAN K SHARMA & ORS                      ..... Respondent
                    Through Ms.Manjusha Wadhwa and Ms.Harsh
                            Lata, Advocates for R-3/Insurance
                            company
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By the present appeal the appellant seeks enhancement of the compensation awarded by the Tribunal as per award dated 27.3.2010.

2. The brief facts which led to filing of the claim petition are that Shri Sumati Kumar Jain was with his family coming from Nainital to Delhi on 19.5.2007. At Kala Dungi, Nainital the driver of the said vehicle lost control of the vehicle due to fast and rash driving. The vehicle hit against a parapet wall which broke. The vehicle overturned resulting in death of the deceased Sumati Kumar Jain.

3. The controversy centres around the compensation awarded. The Tribunal awarded the following compensation:-

           1.     Loss of dependency          5,70,310/-
           2.     Loss of consortium            10,000/-
           3.     Loss of estate                10,000/-


            4.     Loss of love and            30,000/-
                  affection
           5.     Funeral expenses             5,000/-
                  Total                     6,25,310/-

4. The Tribunal noted that the deceased was doing business of spare parts. Relying on the Income Tax Returns Ex.PE-34 and PE-35 and the returns of the Firm Jain Diesel Ex.PE-42 the Tribunal noted that the income from business of Jain Diesel a partnership firm in which the deceased was a partner was Rs.3,62,228/- and maximum salary shown was Rs.1,97,391. As the three partners each were having a share of 33.34% each the annual salary of the deceased was taken as 1/3rd of 1,97,391/- i.e. Rs.65,797/- rounded off to Rs.65,800/-. The Tribunal accepted this as the contribution of the deceased in running the business. The Tribunal deducted 1/3rd towards personal and living expenses. The Tribunal also noted that the deceased was around 49 years of age at the time of his death. Using a multiplier of 13 loss of dependency was calculated as Rs.5,70,310/-.

5. Learned counsel for the appellant submits that the computation of income is totally erroneous. He relies upon Ex.PE-34 and PE-35 to argue that the appropriate basis for assessing the income of the deceased would have been his Income Tax Returns and not relying upon the IT Returns of the firm only as done by the Tribunal. He states that Ex.PE34 pertains to the ITR of the deceased for the Assessment Year 2006-07 which shows a gross income of Rs.3,61,202/- Similarly Ex.PE-33 pertains to the Assessment Year 2005-06 which shows an income of Rs.2,43,853. He submits that this would be the appropriate figure for the purpose of determining the income of the deceased

and that the Tribunal has wrongly taken the income as Rs.65,800/-. He further points out that the deceased at the time of his death was 49 years old and hence the assessed income should have been enhanced by 30% for future prospects. He lastly submits that compensation under the non-pecuniary heads have also been awarded on the lower side.

6. Learned counsel appearing for the respondent submits that there is no proof of the nature of work done by the deceased. He also submits that the sons of the deceased were 23 and 24 years old and not dependent on the father. Hence, loss of dependency has to be taken as 50% and not at 1/3 while computing loss of dependency.

7. A perusal of the Award shows that the Tribunal has referred to Ex.PE-34 and Ex.PE-35 the personal IT Returns of the deceased for the Assessment Year 2005-06 and 2006-07 but has completely ignored the said figures. It has merely relied upon the IT Return Ex.PE-42 which pertains to the firm Jain Diesel which shows a gross total income of Rs.3,62,228/- and balance sheet shows maximum salary or earning as Rs.1,97,391/- to assess the income as Rs.65,800/- per annum.

8. Ex.PE-34 which pertains to the income of deceased in the Assessment Year 2006-07. It shows income from business or profession to be Rs.2,46,081/-. Other income is then added making it Rs.3,61,202/-.. Rs.13,295/- is also shown to have accrued on account of capital gains. Rs.1,01,826/- is shown to be an income from other sources to be added. This income has not been explained properly and but would pertain to the income of one of the minor sons.

9. PW-7 Mrs.Ravind Jain widow of deceased has in her evidence by way

of affidavit averred that the income of her deceased husband was Rs.40,000/- per month. She has exhibited the various IT Returns of her late husband Ex.PE30 to PE35 pertain to the deceased Sumati Kumar Jain for the Assessment Years 2003-2004 to 2007-2008 respectively. Ex.PE36 to PE39 pertain to IT returns of Sumati Kumar Jain HUF and Ex.PE40 to PE42 pertain to Jain Diesel, a partnership firm. In my opinion, the IT Return of the deceased as an individual would be the relevant IT Return to determine his income.Exclusively relying upon the IT Return Ex.PE-42 pertaining to the firm Jain Diesel is inappropriate as it does not reveal the full income of the deceased. The said return would not give the correct income of the deceased.

10. For the purpose of computing the income of the deceased, I rely on the IT Returns for the Assessment Year 2006-07 (Income from 1.4.2005 to 31.3.2006). Ex.PE35 the last return of the deceased for the Assessment Year 2007-2008 is only an acknowledgement and not the IT Returns. However, the figures are more or less the same as shown in Ex.PE34, the IT Return for Assessment Year 2006-2007. I assess the income based on the said Return which shows income of business and profession as Rs.2,46,081/-. Other entries i.e. income from capital gains and income from other persons which are added would not be the income of the deceased and can be ignored. Hence, based on the said IT Return the income of the deceased would be Rs.2,46,081 per annum. On this the deceased paid Income tax of Rs.25,927/-. Hence, net income comes to Rs.(Rs.2,46,081 - Rs.25,927) =Rs.2,20,154/-.

11. Coming to future prospects the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 has held that where the deceased is from 40-50 years future prospects of 30% are to be added to the

income of the deceased. Accordingly, the assessed income would be increased by 30% on account of future prospects.

12. The loss of dependency would hence now come to Rs.24,80,402/- (Rs.2,20,154/- + 30% -1/3) x 13.

13. There is no merit in the submission of learned counsel for the respondent that no proof has been shown of the nature of work being done by the deceased or that the sons are 23 and 24 years old were not dependent upon the deceased. PW-7 Smt.Ravind Jain the widow of the deceased has confirmed that her husband was a businessman and was a partner of Jain Diesel. In her cross- examination she confirms that her husband was doing the business of spare parts. She has also said that presently the business is being looked after by her son Dheeraj Jain who had to leave his studies to take care of the business. In the light of the unrebutted evidence it is clear that the son of the deceased was studying and has only started business after the death of the deceased. Hence, the widow and the sons were dependent on the deceased as the son was studying on the date of the accident. From the cross-examination it is clear that the deceased was in the business of spare parts.

.

14. Coming to the non-pecuniary damages the Tribunal has awarded Rs.10,000/- for loss of consortium and Rs.30,000/- for loss of love and affection. I enhance the compensation for loss of consortium to Rs.1,00,000/- and for loss of love and affection to Rs.1,00,000/-.

15. Total compensation now payable would read as under:-

           1.     Loss of dependency       Rs.24,80,402/-
           2.     Loss of consortium           1,00,000/-


            3.     Loss of estate                10,000/-
           4.     Loss of love and            1,00,000/-
                  affection
           5.     Funeral expenses               5,000/-
                  Total                   Rs.26,95,402/-

16. The respondent No.3/Insurance company may deposit the additional compensation amount alongwith interest @7.5% per annum from the date of filing the claim petition till deposit in Court. On receipt of the same the Tribunal may proportionately release the same to the claimants in the same proportion as directed by the Tribunal.

17. Appeal stands disposed of.

JAYANT NATH, J SEPTEMBER 15, 2014 n