Delhi High Court
Himani Paliwal @ Himani Thakur & ... vs Rakesh & Ors (M/S Oriental ... on 12 February, 2020
$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 12.02.2020
+ MAC.APP. 966/2019
HIMANI PALIWAL @ HIMANI THAKUR & ORS... Appellants
Through: Mr. Nandan K. Jha, Adv.
versus
RAKESH & ORS (M/S ORIENTAL INSURANCE CO. LTD)
..... Respondents
Through: Mr. Pankaj Seth, Adv. with
Mr. Gautam Narayan, ASC for GNCTD.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
CM APPL. 55609/2019
1. Allowed, subject to all just exceptions.
2. The application stands disposed-off.
CM APPLs. 55610/2019, 55611/2019 (delay)
3. Issue notice.
4. Mr. Pankaj Seth, Advocate, accepts notice on behalf of the non-
applicant.
5. For the reasons mentioned in the applications, the delay is condoned,
subject to the applicant planting 30 trees at the „Insaaf Bagh' area of the
Central Ridge. The applicant shall appear before the DCF (South) on
25.02.2020 at 11.00 am, who shall indicate to him, the forest lands under his
care, where the trees may be planted. The trees shall be of deciduous
indigenous variety and they shall have a nursery age of three and a half
years and shall have a minimum height of at least six feet. The applicant
may water and nurse trees for the next six months. Water will be supplied by
the Forest Department, GNCTD. Depending upon the soil type and
topography, the DCF may consider the following types of trees for
plantation:-
(i) Gular (Cluster Fig) (ii) Kadamba (Burflower Tree)
(iii) Pilkhan (White Fig) (iv) Jaamun (Black Plum)
(v) Bargad (Banyan Tree) (vi) Mango
(vii) Amaltas (Golden Shower) (viii) Mahua (Butter Tree)
[Indian Laburnum]
(ix) Putranjiva (x) Badh
(xi) Sagwan (Teak Wood) (xii) Safed Siris (Albizia Procera)
(xiii) Kala Siris (xiv) Anjeer
(xv) Kathal- Jackfruit (xvi) Palash
(xvii) Arni (xviii) Bistendu
(xix) Rohida (xx) Medshingi
(xxi) Palash/Tesu/Dhak (xxii) Hingot
(xxiii) Ronjh (xxiv) Khejri
6. Compliance Report alongwith photographs shall be filed both by the
applicant and the DCF before the next date.
7. Mr. Gautam Narayan, the learned Additional Standing Counsel for the
GNCTD has been called and apprised of this order. He assures the Court of
due compliance.
8. In case of default in compliance of the aforesaid order, the case would
be liable to be dismissed.
9. List for compliance on 17.03.2020.
MAC.APP. 966/2019
10. This appeal impugns the order dated 12.04.2018 passed by the learned
MACT in MACT Case No. 56355/16 on the ground that the ITR for AY
2013-14 of the deceased just prior to his demise, which shows his gross
income as Rs. 2,94,991/-, was disregarded only on the ground that the same
was not proven through the office of the Income Tax Officer.
11. The learned counsel for the petitioner relies upon the dicta of the
Supreme Court in Malarvizhi & Ors. v. United India Insurance Co. Ltd. And
Anr., 2019 SCC OnLine SC 1579 which has held, inter alia:
"... the income tax return is a statutory document on which
reliance is placed to determine annual income of the
deceased....".
12. Apropos the issue of relying upon ITRs for the calculation of loss of
dependency, this Court in Royal Sundaram General Insurance Co. Ltd. v.
Kamlesh Devi & Ors., MAC APP. 17/2019, decided on 06.09.2019, has held
as under:-
"6. What emanates from the above is that the ITR for
Assessment Year 2015-16 was taken into consideration
although the deceased passed away in the Assessment Year
2017-18. In effect, the considered ITR related to
approximately 15 months prior to his demise. The deceased
was within his statutory rights to file ITRs for Assessment
Years 2016-17 and 2017-18, which were filed after the 2015-
2016 ITR's, but because of his demise, his claimants had filed
the said ITR's.
7. The ITRs for the subsequent years show a quantum
jump of approximately 20% from the previous years which
were filed by the claimants, whereas for the preceding year,
the increase was merely under 10%. The ITRs of the deceased
filed on record show his increase in earnings as under:
Assessment Absolute Year on Year Year on Year
Year Income (in Change (in Rs.) Change (%)
Rs.)
2013-14 3,06,000 11,000 3.5%
2014-15 3,17,000 57,000 18%
2015-16 3,74,000 44,000 12%
2016-17 4,18,000 88,000 21%
2017-18 5,06,000
8. The deceased was stated to be a priest in a religious
place, therefore, his earning would largely be dependent upon
the donations or contributions made to the religious
institution. However, the learned counsel for the respondent
submits that the deceased was a trader i.e. supplier of man
power and his record would show that his earnings were
primarily from supply of man power. However, this issue was
never raised by the claimants, therefore, it was not dealt with
by the learned Tribunal. ITRs filed shows his relevant income
upto his demise as under:
Assessment Gross Total
Year Income (in rupees)
2014-15 3,17,833
2015-16 3,74,623
2016-17 4,18,630
2017-18 5,06,210
9. What emanates from the above is that the increase in
his income between Assessment Years 2013-14 and 2014-15
was 3.5%. For the subsequent years, there were increase in
income as 18%, 12% and 21%. There is an increase and a
decrease in the amounts.
10. The returns were filed within the permissible statutory
period, there is no reason to doubt the same. Accordingly, the
income of the deceased as for the Assessment Year 2016-17
i.e. which shows an increase of 12% will be taken into
consideration instead of for the year 2015-16, i.e. Rs.
3,74,267/- from Rs. 4,18,630/-. However, Mr. Gupta, the
learned counsel for the insurance company states that this
gross income includes income from other sources Chapter (iv)
F i.e. Rs. 1,980/-. Therefore, the same would be required to be
deducted. It was so ordered."
13. SLP (Civil) No(s). 30009-30010/2019, against the said judgment was
dismissed by the Supreme Court on 06.01.2020.
14. In the circumstance, the case is remanded to the learned Tribunal only
to enable the appellants-claimants to establish the veracity of the ITRs. If the
ITRs are verified, the "loss of dependency" shall be calculated on the basis
of the ITR earnings of the deceased.
15. Since the accident occurred about 8 years ago on 13.06.2013, it would
be in the interest of justice that the lis should be settled as soon as possible.
The Court would request the learned Tribunal to dispose-off the claim
petition, preferably within a period of three months from the date when the
case is next listed before it. The parties shall appear before the learned
Tribunal on 02.03.2020. The learned counsel for the parties ensure the
Court that they shall not take any adjournment and assist the learned
Tribunal for expeditious disposal of the case.
16. The amount already deposited, would of course be set-off against any
enhanced amount.
17. The appeal is disposed-off in the above terms.
18. A copy of this order be given dasti under the signature of the Court
Master to the learned counsel for the parties.
NAJMI WAZIRI, J
FEBRUARY 12, 2020
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