Rajasthan High Court - Jodhpur
Shamim Bano vs Premchand (2025:Rj-Jd:11311) on 27 February, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:11311]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 544/2025
The Oriental Insurance Company Ltd., Through Its Manager
(Legal) Bhansali Tower, Residency Road, Jodhpur.
----Appellant
Versus
1. Shamim Bano W/o Shri Abid Husain Pathan, Aged About
38 Years, Resident Of Sanisawar Ji Ki Gali, Narlai, Tehsil
Desuri, District Pali Present Mahatma Gandhi Colony,
Ramdev Road, Pali Rajasthan.
2. Arina Khan D/o Shri Abid Husain Pathan, Aged About 16
Years, Minor Through Their Mother Res. No. 1. Resident
Of Sanisawar Ji Ki Gali, Narlai, Tehsil Desuri, District Pali
Present Mahatma Gandhi Colony, Ramdev Road, Pali
Rajasthan.
3. Mohammad Ovesh S/o Shri Abid Husain Pathan, Aged
About 15 Years, Minor Through Their Mother Res. No. 1.
Resident Of Sanisawar Ji Ki Gali, Narlai, Tehsil Desuri,
District Pali Present Mahatma Gandhi Colony, Ramdev
Road, Pali Rajasthan.
4. Premchand S/o Shri Mohan Lal, R/o Bairwa Mohalla,
Mahawati Alwar, District Alwar. (Driver And Owner)
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 411/2025
1. Shamim Bano W/o Aabid Hussain Pathan, Aged About 38
Years, R/o Shanishwar Ji Gali, Narlai, Teh. Desuri, Dist.
Pali, Raj. Presently R/o Mahatma Gandhi Coloney,
Ramdev Road, Pali.
2. Areena Khan D/o Aabid Hussain Pathan, Aged About 16
Years, Minor- Through Legal Guardian Mother Respondent
No. 1 Shamim Bano R/o Shanishwar Ji Gali, Narlai, Teh.
Desuri, Dist. Pali, Raj. Presently R/o Mahatma Gandhi
Coloney, Ramdev Road, Pali.
3. Mohammed Aavesh S/o Aabid Hussain Pathan, Aged
About 15 Years, Minor- Through Legal Guardian Mother
Respondent No. 1 Shamim Bano R/o Shanishwar Ji Gali,
Narlai, Teh. Desuri, Dist. Pali, Raj. Presently R/o Mahatma
(Downloaded on 03/03/2025 at 09:42:22 PM)
[2025:RJ-JD:11311] (2 of 6) [CMA-544/2025]
Gandhi Coloney, Ramdev Road, Pali.
----Appellants
Versus
1. Premchand S/o Mohanlal Berwa, R/o Berwa Mohalla,
Mahavati Alwar, Alwar, Raj.
2. The Oriental Ins. Co. Ltd., Through Divisional Office
Chandel Complex, Mandiya Road, Pali, Raj.
----Respondents
For Appellant(s) : Mr. L.D. Khatri.
For Respondent(s) : Mr. Mahesh Chandra Bishnoi with
Mr. Kuldeep Bishnoi.
HON'BLE MS. JUSTICE REKHA BORANA
Order
27/02/2025
1. The present appeals have been filed against the judgment
and award dated 24.10.2024 passed by the Motor Accident Claims
Tribunal, Pali in MAC Case No.05/2020 whereby award for an
amount of Rs.32,13,400/- with interest at the rate of 6% per
annum from the date of filing of the claim petition i.e. 03.01.2020,
had been passed in favour of the claimants.
2. S.B. Civil Misc. Appeal No. 544/2025 has been filed by the
Insurance Company challenging the Award and S.B. Civil Misc.
Appeal No.511/2025 has been filed by the claimants for
enhancement of the award.
3. Learned counsel for the claimants submits that the learned
Tribunal erroneously ignored the income of the deceased which he
earned as a commission qua the insurance policies while working
as an insurance agent.
[2025:RJ-JD:11311] (3 of 6) [CMA-544/2025]
4. Counsel further submits that the learned Tribunal although
computed the income on basis of the ITR filed on 19.08.2017
(Exhibit-22) but then, the receipts of the commission of
Rs.3,08,105/- qua the insurance policies for the period of April
2017 to March 2018 (Exhibit-23) as placed on record were totally
ignored by the learned Tribunal. He further submits that even the
agricultural income of the deceased was not taken into
consideration by the learned Tribunal. Therefore, the award in
question deserves to be enhanced by adding the commission
amount as well as the agricultural income while computing the
income of the deceased.
5. Per contra learned counsel for the Insurance Company
submits that the last ITR as filed by the deceased on 19.08.2017
was got exhibited by the claimants themselves and as per the said
ITR, the income of the deceased was mentioned to be
Rs.2,60,098/-. The same was considered by the Tribunal in toto
without any deduction qua the income earned by commission
whereas the income earned by commission could not be termed to
a loss of income. The said income deserved to be deducted.
6. Maintaining challenge to the impugned award on the count of
it being on the higher side, counsel in the alternate, submitted
that even if the Court does not find any ground to reduce the
compensation amount, the same definitely does not deserve any
enhancement too. He submitted that the ITR as placed on record
was a final proof of the income of the deceased and the learned
Tribunal rightly relied upon the same. So far as the amount of the
commission for the period of April 2017 to March 2018 is
concerned, it is no one's case that after the death of the deceased,
[2025:RJ-JD:11311] (4 of 6) [CMA-544/2025]
the commission qua insurance policies is not being paid to the
claimants. Therefore, the same cannot be considered to be a loss
of income and hence, the learned Tribunal rightly computed the
income on basis of the last ITR.
7. So far as the increase in income of the deceased after the
assessment year 2015-16 (as reflected in ITR of Year 2017) is
concerned, counsel submits that it is considering the said fact only
that the future prospects are added while computing the loss of
income and the same having been taken into consideration by the
learned Tribunal, the judgment/award in question does not
deserve any interference or enhancement.
8. Heard learned counsel for the parties and perused the
record.
9. Coming on to the ground qua computation of loss of income,
it is the settled position of law that ITR is a reliable evidence to
assess the income of the deceased, as reiterated by the Hon'ble
Apex Court in a recent judgment passed in the case of S. Vishnu
Ganga & Ors. Vs. Oriental Insurance Company Limited Rep.
by its Divisional Manager & Ors.; 2025 INSC 123 wherein the
Court observed, "It is no longer res integra that Income Tax
Returns are reliable evidence to assess the income of a deceased,
reference whereof can be made to Amrit Bhanu Shali v National
Insurance Co. Ltd., (2012) 11 SCC 738; Kalpanaraj v Tamil Nadu
State Transport Corporation, (2015) 2 SCC 764, and K. Ramya
(supra)."
10. In the present case, ITR for the year 2017-18 (Exhibit-22)
was filed on 19.08.2017 which evidently was filed before the date
of accident i.e. 06.12.2017 and the same remains uncontroverted.
[2025:RJ-JD:11311] (5 of 6) [CMA-544/2025]
Therefore the reliance of the learned Tribunal on the same was
perfectly in consonance with law.
11. So far as the non-consideration of commission qua the
insurance policies for the period of April 2017 to March 2018 is
concerned, this Court is of the clear opinion that; firstly, the same
can not be termed to be a loss of income as admittedly the
commission amount was being paid to the claimants even after
the death of the deceased.
12. Secondly, it is keeping into consideration the potential of an
injured/deceased to have an increase in future in income that the
concept of future prospects is applied while computing the loss of
income. The rationale behind the concept of future prospects is to
suitably compensate the claimants qua the loss of income they
could have earned/benefited of, had the deceased been alive and
had earned in future too. It is because of the said rationale that
the percentage qua future prospects is applied corresponding to
the age of the deceased. In the present matter, the deceased
being of an age between 40 to 50 years, 25% qua future
prospects has been applied in the income of the deceased by the
learned Tribunal. The same being totally in consonance with the
ratio laid down by the Hon'ble Apex Court in the case of National
Insurance Company Ltd. v. Pranay Sethi & Ors.; (217) 16
SCC 680 does not deserve any modification.
13. So far as the alleged income from agricultural activities is
concerned, there being no independent evidence available on
record to substantiate the same, the learned Tribunal rightly
considered the income as reflected in the last ITR to be the
[2025:RJ-JD:11311] (6 of 6) [CMA-544/2025]
income of the deceased. The award does not require any
interference.
14. In view of the above observations, this Court is of the
opinion that the learned Tribunal has rightly computed the loss of
income on basis of the ITR for the year 2017-18 as placed on
record by the claimants. The compensation as awarded by the
learned Tribunal is totally within the parameters as laid down by
the Hon'ble Apex Court qua the loss of income as well as qua the
conventional heads. The same is neither exorbitant nor does it
deserves to be enhanced.
15. Both the appeals as filed by the Insurance Company as well
as claimants are hence, dismissed.
16. Stay petition and pending applications, if any, stand
disposed of.
(REKHA BORANA),J
240-241/KashishS/-
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