Jammu & Kashmir High Court
Paras Gupta vs Oriental Insurance Company Ltd on 13 February, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 03
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- Mac App No. 102/2021
CM No. 7645/2021
CM No. 805/2022
Paras Gupta, Age-31 Years, .....Appellant(s)
S/o Sh. Rajesh Gupta,
R/o H. No. 240, Sec-7
Channi Himmat, Jammu, J&K
Through: Mr. Sunil Sethi, Sr. Advocate with
Mr. Ankesh Chandel, Advocate.
Vs
1. Oriental Insurance Company Ltd.,
Gangyal Branch, Office-III,
Bye-Pass Road, Jammu, J&K.
2. Oriental Insurance Company Ltd.,
Divisional Office No. II,
Gandhi Nagar, Jammu-180004.
3. Rakesh Manchanda,
R/o H. No. 48 Dhakki Sarajan,
Jammu, J&K.
4. Rajesh Gupta,
S/o Sh. Ved Parkash Gupta,
R/o H. No. 240, Sec-7,
Channi Himmat, Jammu, J&K.
..... Respondent(s)
Through: Mr. Amrit Sarin, Advocate.
Case:- Mac App No. 31/2022
CM No. 1358/2022
The Oriental Insurance Co. Ltd;
TP Hub, Subash Nagar, Jammu.
Through its Dy. Manager Savita Bakshi
Age 56 Years.
.....Appellant(s)
Through: Mr. Amrit Sarin, Advocate.
Vs
1. Paras Gupta S/o Sh. Rakesh Gupta
R/o 264, Krishna Nagar, Jammu
A/P H. No. 204, Sector-7, Channi Himmat, Jammu
Mob-9419206699
2 Mac App No. 102/2021
c/w
Mac App No. 31/2022
2. Rajesh Gupta S/o Sh. Ved Prakash Gupta
R/o 264, Krishna Nagar, Jammu.
A/P H. No. 240, Sector-7, Channi Himmat, Jammu.
(Driver of Vehicle No. JK02M-2525).
3. Rakesh Manchanda,
R/O 48, Dhakki Sarajan, Jammu.
(Owner of Car No. JK02M-2525)
..... Respondent(s)
Through: Mr. Sunil Sethi, Sr. Advocate with
Mr. Ankesh Chandel, Advocate.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
(13.02.2024)
(ORAL)
Mac App no. 102/2021 & Mac App no. 31/2022
01. By this common judgment, the instant appeals filed against
the common award dated 17.09.2021 passed by Motor
Accident Claims Tribunal, Jammu (for short "the
Tribunal") in claim petition titled as "Paras Gupta Vs
Oriental Insurance Company Ltd." are proposed to be
disposed of.
02. The background facts emanating from the record would
reveal that one Smt. Rashi Gupta (for short "the
deceased") died in a motor vehicular accident on
08.07.2021 caused by the vehicle bearing registration No.
JK02M-2525 owned by one Rakesh Manchanda -
respondent herein and by one Rajesh Gupta also
respondent herein. The said vehicle was insured with
Oriental Insurance Company being respondent in Mac App
c/w
No. 102/2021 and appellant in Mac App No. 31/2022. The
claimant being appellant in Mac App No. 102/2021 and
respondent 1 in Mac App No. 31/2022 filed a claim petition
before the Tribunal under and in provisions of Motor
Vehicles Act, 1988 for compensation impleading the above
named Insurance Company as respondent no. 1, the owner
of the offending vehicle, namely, Rakesh Manchanda as
respondent no. 2 and the driver of the offending vehicle,
namely, Rajesh Gupta as respondent no. 3.
03. The Tribunal after entertaining the claim petition
summoned the respondents on 16.10.2003 and thereafter
upon their appearance and filing of objections to the claim
petition framed the following issues:-
"1. Whether an accident took place on 08.07.2001 at
Punjab due to rash and negligent driving of offending
vehicle No. JK02M-2525 by its driver/Respondent No. 3 in
which deceased Rashi Gupta has died and petitioner
Paras Gupta sustained grievous injuries? (OPP)
2. If Issue No. 1 is proved in affirmative whether
petitioner is entitled to the compensation, if so to what
amount and from whom? (OPP)
3. Whether driver of offending vehicle at the time of
accident was not holding a Valid and Effective Driving
Licence? (OPR-1)
4. Relief. O.P. Parties"
04. The claimant led his evidence in support of the case as set
up in the claim petition, whereas, the Insurance Company
as also the other respondents did not lead any evidence as
a consequence whereof, the Tribunal passed the award on
c/w
30.01.2009 in favour of the claimant amounting to Rs.
20,96,955/- along with an interest @ 7.5% from the
date of filing of the claim petition till its liquidation while
holding that the accident took place due to the rash and
negligent driving of the driver of the offending vehicle
wherein the deceased died and that the driver of the
offending vehicle was possessed of an effective and valid
driving licence and that the vehicle was insured with the
Insurance Company, as such, Insurance Company is liable
to indemnify the insured owner of the offending vehicle.
05. The Insurance Company feeling aggrieved of the award
dated 30.01.2009, preferred an appeal before this Court
being MA No. 148/2009 which appeal came to be disposed
of by remanding the matter back to the Tribunal for
considering the quantum of compensation to be paid to the
claimant for the death of the deceased as also for the
injuries suffered by him as also requiring the claimant to
prove the partnership business the deceased claimed to
have been in while upholding the findings recorded by the
Tribunal qua the rash and negligent driving of the offending
vehicle on the date of accident by the driver, the validity of
the insurance policy of the offending vehicle as also the
driving licence of the driver of the offending vehicle.
c/w
06. The Tribunal upon receipt of the matter from this Court on
remand proceeded with a matter wherein, in the meantime,
the claimant filed an application for amendment of the
claim petition for award of just compensation which
amendment application came to be allowed by the Tribunal
on 26.10.2019, whereupon the claimant filed an amended
claim petition along with a copy of partnership deed
claiming the deceased was a partner therein along with two
persons/partners, namely, Munish Gupta and Naresh
Gupta under the name and style of M/s Rajdhani Food
Industries, Narwal, Jammu.
07. The claimant during the course of proceedings of the
amended petition before the Tribunal, produced two
witnesses in support of the plea of partnership of the
deceased being Munish Gupta and Naresh Gupta. Besides,
producing the above named witness for proving the
existence of partnership business of the deceased, the
claimant have had also placed on record the income tax
return of the deceased for the year 2001 in order to prove
the fact regarding her gross total income for the year 2000-
2001 and in order to prove the same the claimant examined
the Income Tax Officer namely Mr. I. S. Chawla.
08. After the closure of the evidence of the claimant, the
respondents including Insurance Company, however, did
c/w
not lead any evidence in the matter despite grant of
opportunities by the Tribunal whereafter the Tribunal
passed the award dated 17.09.2021 holding the claimant
entitled to the compensation to the tune of Rs.
16,20,000/- with interest @ 7.5% per annum.
09. The claimant/appellant herein in Mac App No. 102/2021
challenged the impugned award fundamentally on the
premise that the Tribunal awarded lesser amount of
compensation to him contrary to law and facts without
taking into consideration the evidence led by the
claimant/appellant herein in its true and correct
perspective.
10. The Insurance Company-appellant in Mac App No.
31/2022 has challenged the impugned award, inter alia, on
the grounds that the same is bad both on facts and law and
that the Tribunal on remand of the case by this Court had
been directed to adjudicate upon the matter regarding the
quantum of compensation on the basis of the earnings of
the deceased and that the Tribunal on surmises and
conjectures taking the income of the deceased at Rs.
1,58,023/- per month and the Tribunal in fact was required
to have taken a notional income of the deceased i.e. Rs.
3000/- per month.
c/w
Heard learned counsel for the parties and perused the
record.
11. The facts that the deceased was of the age of 34 years at
the time of accident caused by the offending vehicle owned
by above named owner and caused by above named driver
as also the offending vehicle being insured with the
appellant-Insurance Company is not in dispute.
12. It is also not in dispute that after the passing of the earlier
award by the Tribunal on 30.01.2009, the same came to be
called in question by the Insurance Company before this
Court in MA No. 148/2009, which appeal upon being
disposed of on 27.03.2019 and came to remanded back to
the Tribunal having taken cognizance of the facts and
circumstances of the case and the evidence on record with
following observations at paras (10), (11), (12), (13), (15) &
(16) which being relevant herein are extracted and
reproduced hereunder:-
"10. Moreover, the Tribunal has relied on the
solitary income tax return for the year 2000-2001 and
awarded Rs. 20,81,955/- besides Rs. 15,000/- as
funeral expenses acted beyond these pleadings as the
petitioner has claimed only Rs. 4 lacs as
compensation for the death of this mother and his
father being the husband of the deceased could not be
the claimant, as he is a tort feasor. Regarding the
evidence of the income of the deceased PW, Baldev Raj
is the father of the deceased and maternal grandfather
of the claimant has been cross examined with respect
to the business income of his daughter, but has
c/w
feigned ignorance about the partners in the business,
though the address of the claimant and the father was
given in the claim petitioner as 26A Krishna Nagar,
Jammu, but in the copy of the „saral‟ i.e. income tax
return the address of the deceased is 1-A/D Gandhi
Nagar. PW, Baldev Raj pleaded ignorance about the
business of his daughter. He also pleaded ignorance
of her other partners in the business, and also
pleaded ignorance whether the business is still
continuing and whether she was a sleeping or active
partner in the said business. The statement of PW,
Baldev Raj, is such, on which no reliance can be
placed because he does not know the nature of
business why even after the marriage the address of
the deceased remain unchanged in the income tax
return, is still a mystery which the Tribunal should
have made sure to investigate but it acted as a silent
spectator and allowed the witness to beat about the
bush regarding all the relevant questions put to him.
Since the „Saral‟ form of income tax on which
individual income tax return is filed does not provide
the details of the partners, or the nature of business
because Firm being a separate entity and must be
filing separate returns, therefore, the learned Tribunal
had to seek the information either from PW J. S.
Chawala or the PW, Baldev Raj. This was necessary to
know the source of income and nature of business.
The claimant has not justified even the amount he
has claimed; in the absence of that the amount
awarded in addition to the one claimed is not justified
on any ground whatsoever. In Gobald Motor Service
Ltd. and anr. Vs. R.M.K. VeluSwami, AIR 1962 SC
1, their Lordships held as under;
"In calculating the pecuniary loss
to the dependants many imponderables enter
into the calculation. Therefore, the actual
extent of the pecuniary loss to the
dependants may depend upon data which
cannot be ascertained accurately, but must
necessarily can be estimate, or even partly a
conjecture. Shortly, stated, the general
principle is that eh pecuniary loss can be
ascertained only by balancing on the one
hand the loss to the claimants of the future
pecuniary benefit and on the other any
c/w
pecuniary advantage which from whatever
source comes to them by reason of the death,
that is, the balance of loss and gain to a
dependant by the death must be
ascertained."
11. Thus, for arriving at just compensation, it
is necessary to ascertain the net income of the
deceased available for the support of himself and his
dependants at the time of this death and the amount,
which he was accustomed to spend upon himself.
This exercise has to be on the basis of the data,
brought on record by the claimant, which again
cannot be accurately ascertained and necessarily
involves an element of estimate or it may pertly be
even a conjecture.
12. But there is not even a whisper about any
of these imponderables in either the statement of the
claimant or in the award of the Tribunal.
13. The Tribunal on its own estimated the
amount of loss on the basis of income tax return and
awarded Rs. 20,96,955/- and 7.5% interest per
annum with effect from 02.05.2003, the date the
claim petition was filed against the consolidated
amount of Rs. 4 lacs claimed by the petitioner‟s son
for the death of his mother. Since the Tribunal
awarded higher amount as against the claim as to
have the amount of more than Rs. 20 lacs against the
claim of Rs. 4 lacs.
15. Since the case is being remanded, it is not
necessary to refer the judgments on which reliance
has been placed by the parties.
16. However, it is made clear that if the
claimant is reluctant to produce the partnership in
which is mother was a partner and who succeeds her
the Tribunal will be justified in restricting the award
amount claimed."
13. Perusal of the record reveals that the claimant after the
remand of the case by this Court amended the claim
c/w
petition before the Tribunal by laying a motion which came
to be allowed in terms of order dated 26.10.2019.
14. Record also reveals that the claimant in consonance with
the aforesaid observations made by this Court in the earlier
appeal filed by Insurance Company had filed the income tax
return of the deceased of the year 2000-2001 in order to
prove the income of the deceased, besides producing the
partnership deed claimed to have been entered into by the
deceased with two persons, namely, Munish Gupta &
Naresh Gupta qua the partnership firm, namely, M/s
Rajdhani Food Industries, Narwal, Jammu.
15. Record further reveals that the claimant further in order to
prove the fact of the income of the deceased out of said
partnership business had examined the above named two
partners of the deceased, whose statement tend to show
that they admitted that the deceased was their partner in
the partnership-business while stating that the deceased
was a person of great intellect well-educated lady having
earned a gold medal from the University of Jammu and had
been conducting the partnership business along with them
in equal proportions and was earning good profits out of the
said business.
16. Record further reveals that insofar as the income tax
return of the deceased filed by the claimant for the year
c/w
2000-2001 is concerned, the Tribunal had sought the
record pertaining to the income tax details of the deceased
being Form no. 2-D from the department in response to
which the department had replied that the record
pertaining to the said period is not with them and, as such,
had not produced the said record whereafter the Tribunal
had summoned the Senior Tax Assistant, namely, Mr. I. S.
Chawla who, at the relevant point of time, had been
working as Income Tax Officer of the Ward and the said
Income Tax Officer appeared before the Tribunal along with
the record pertaining to the year 2000-2001 of the deceased
wherein the total income of the deceased had been referred
to as Rs. 2,08,196/- and having paid an income tax thereon
amounting to Rs. 23,946/-.
The income tax return/Saral Form of the deceased on
record with the Tribunal was endorsed to be correct by
the said Income Tax Officer and was marked as "A".
The said Income Tax Officer during cross-examination
by counsel for the Insurance Company had endorsed
the statement made by him in the Examination-in-
Chief qua the income tax return of the deceased.
17. Perusal of the record further tends to show that the
Insurance Company did not contest the evidence led by the
claimant in support of his claim set up in the amended
c/w
claim petition in particular the income of the deceased
reflected in the Income Tax return and even did not get the
said evidence discarded, discredited or rebutted.
The Tribunal, thus, rightly held that the deceased was
an earning lady and a tax payer while relying upon the
evidence led by the claimant in the shape of the income
tax return of the deceased for the year 2000-2001
wherein the fact of gross-income of the deceased
reflected therein in the said income tax return was
established and proved as also the payment of tax
deducted there from paid to the Income Tax
Department by the deceased fairly and reasonably
treating the income of the deceased to be at Rs.
1,36,617/- out of the earnings of the deceased of Rs.
1,58,023/- after deducting the amount of tax of Rs.
21,406/- as per the said Income Tax return.
18. The Tribunal after having held the deceased to have been
earning the aforesaid amount consequently proceeded to
determine the amount of compensation payable to the
claimant taking into consideration the relevant factors
being the undisputed age of 34 years of the deceased on the
date of the accident and consequently in light of the
principles of law laid down by the Apex Court in case titled
as "Sarla Verma & Ors. Vs Delhi Transport Corp. & Anr."
c/w
reported in AIR 2009 Supreme Court 3104 and held the
claimant entitled to the compensation in terms of the
impugned award.
19. The Tribunal in view of the aforesaid facts and
circumstances cannot be said to have faulted. The
impugned award, thus, does not call for any interference
insofar as challenge thrown by the appellant-Insurance
Company in Mac App No. 31/2022 is concerned.
Resultantly, the said appeal fails and is dismissed.
20. Insofar as the appeal preferred by the claimant being Mac
App No. 102/2021 is concerned, in view of the aforesaid
analysis, the Tribunal cannot, but, said to have passed the
award being based on just compensation. The plea raised
by the appellant-claimant that the compensation awarded
is on a lesser side while placing reliance on the Apex Court
judgment titled as "Smt. Anjali & Ors Vs Lokendra
Rathod & Ors." reported in AIR 2023 (SC) 44 is not
entertainable, in that, the said judgment is quite
distinguishable having regard to the facts and
circumstances of the case. Resultantly, the appeal filed by
the claimant as well fails and is, accordingly, dismissed.
21. In view of the dismissal of the appeal preferred by the
Insurance Company in Mac App No. 31/2022 wherein the
appellant-Insurance Company is stated to have deposited
c/w
the award amount before this Court pursuant to the orders
of this Court, the said award amount is directed to be
released in favour of the claimant upon his proper
verification and identification along with the interest, if any,
accrued thereon.
(JAVED IQBAL WANI)
JUDGE
JAMMU
13.02.2024
Bunty
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
