Rajasthan High Court - Jodhpur
Om Prakash vs Pukhraj (2025:Rj-Jd:43943) on 7 October, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:43943]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1818/2024
The Oriental Insurance Company Limited, Through Its T.P. Hub,
Divisional Office, 637-B, Bhansali Tower, Residency Road,
Jodhpur.
----Appellant
Versus
1. Om Prakash S/o Late Sh. Jug Raj Sharma, B/c Sevak, R/o
Opposite Jain School, Osian, Distt. Jodhpur.
2. Smt. Kanchan Sharma W/o Late Sh. Ashok, B/c Sevak, R/
o Opposite Jain School, Osian, Distt. Jodhpur.
3. Sidharth S/o Late Sh. Ashok, Minor, Through His Natural
Guardian Mother Smt. Kanchan. B/c Sevak, R/o Opposite
Jain School, Osian, Distt. Jodhpur.
4. Parth S/o Late Sh. Ashok, Minor, Through His Natural
Guardian Mother Smt. Kanchan. B/c Sevak, R/o Opposite
Jain School, Osian, Distt. Jodhpur.
Minors are represented by their natural guardinal mother
Smt. Kanchan.
All by case Sevak, resident of Opposite Jain School,
Osian, District Jodhpur.
5. Pukhraj S/o Bhanwar Lal Vishnoi, R/o Village Ekalkhori,
Tehsil Osian, Distt. Jodhpur. (Driver)
6. Prakash S/o Ghewar Ram Vishnoi, R/o Near Bayasa Than,
Ummed Nagar, Mathaniya, Distt. Jodhpur. (Registered
Owner)
7. Farsa Ram S/o Rana Ram Vishnoi, R/o Village Ramdavas
Kallan, Tehsil Bhopalgarh, Distt. Jodhpur. (Insured)
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 2178/2024
1. Om Prakash S/o Late Shri Jugraj Sharma, Aged About 64
Years, R/o Opp. Jain School, Osian District Jodhpur.
2. Smt. Kanchan Sharma W/o Late Ashok, Aged About 41
Years, R/o Opp. Jain School, Osian District Jodhpur.
3. Sidharth S/o Late Ashok, Aged About 17 Years, The
Appellant No. 3 Is Minor Through Natural Guardian
Mother Smt. Kanchan W/o Late Ashok, Aged 38 Years.
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R/o Opp. Jain School, Osian District Jodhpur.
4. Parth S/o Late Ashok, Aged About 15 Years, The
Appellant No. 4 Is Minor Through Natural Guardian
Mother Smt. Kanchan W/o Late Ashok, Aged 38 Years. R/
o Opp. Jain School, Osian District Jodhpur.
The appellant No.3 & 4 being minor through natural
guardian mother Smt. Kanchan W/o Late Ashok, aged
about 38 years.
----Appellants
Versus
1. Pukhraj S/o Bhanwar Lal, R/o Village Ekalkhori, Tehsil
Osian District Jodhpur. (Driver Of Car No. RJ-19CF-7130)
2. Prakash S/o Ghewar Ram Bishnoi, R/o Near Bayasa Than,
Ummednagar, Mathania, District Jodhpur. (Registered
Owner Of Car No. RJ-19 CF-7130)
3. The Oriental Insurance Co. Ltd., Through Divisional
Manager, Divisional Office 637-B, Bhansali Tower, 3Rd
Floor, Residency Road, Jodhpur. (Insurer Of Car No. RJ-19
CF-7130)
4. Farsa Ram S/o Rana Ram Bishnoi, R/o Ramdawas Kallan,
Jodhpur (Ex-Owner/ Insurance Policy Holder Driver Of Car
No. RJ-19 CF-7130)
----Respondents
For Appellant(s) : Mr. Jagdish Vyas
For Respondent(s) : Mr. Sumer Singh Gour with
Mr. Amit Saran for
Mr. R.S. Choudhary
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
07/10/2025
1. Learned counsel Mr. Jagdish Vyas has put in appearance for
the Insurance Company in S.B. Civil Misc. Appeal No.2178/2024
and counsel Mr. S.S. Gour with counsel Mr. Amit Saran has put in
appearance for the claimants in S.B. Civil Misc. Appeal
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No.1818/2024. Service on the other respondents in both the
appeals, being the driver and owner of the vehicle in question, is
dispensed with as the liability is not under challenge in the present
appeals.
2. The present appeals have been filed against the Judgment
and Award dated 19.04.2024 passed by the Motor Accident Claims
Tribunal First, Jodhpur in MAC Case No.257/2021 (NCV
No.257/2021) whereby award for an amount of Rs.49,45,805/-
with interest at the rate of 6% per annum from the date of filing
of the claim petition i.e. 01.02.2021, has been passed in favour of
the claimants.
3. S.B. Civil Misc. Appeal No. 1818/2024 has been filed by the
Insurance Company laying a challenge to the quantum of Award
and S.B. Civil Misc. Appeal No.2178/2024 has been filed by the
claimants for enhancement of the compensation amount awarded
vide the impugned award.
4. Learned counsel for the respondent-Insurance Company
raised the following grounds:
i) The learned Tribunal erred in considering the income from
the shop also while computing the loss of income whereas it was
admitted on record that the shop of the deceased was still running
and hence, the loss, if any, could be computed only to the extent
of managerial loss. In support of his submission counsel relied
upon the Apex Court judgment in New India Assurance
Company Limited Vs. Yogesh Devi Ors.; (2012) 3 SCC 613.
ii) In the claim petition it was nowhere pleaded by the
claimants that the deceased was earning income as a priest too.
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In absence of any such pleading, the income as reflected in the
Income Tax Returns (ITRs) as a priest could not have been taken
into consideration.
iii) Even otherwise the income as a priest as reflected in the
ITRs was shown to be from other sources and not from any
business or profession therefore too, the said income could not
have been termed to an income derived from any
business/profession and hence, could not have been taken into
consideration.
Further, the said income as a priest could not have been
termed to be a regular source of income and therefore too, could
not be considered.
iv) The learned Tribunal erred in considering the complete
income as reflected in the ITR to be a loss of income without
deducting the income as derived from interest on saving accounts
of the deceased. The amount received as interest on bank
deposits could not be computed to be a loss of income.
v) The learned Tribunal erred in deducting 1/4th of income qua
personal expenses of the deceased considering the number of
dependents/claimants to be 4 whereas as was admitted on record,
the father of the deceased was not his dependent, being an
earning member. The deduction qua personal expenses ought to
be 1/3rd. In support of his submission counsel relied upon the
Apex Court judgment in Sarla Verma & Ors. Vs. Delhi
Transport Corporation.; (2009) 6 SCC 121.
5. Per contra learned counsel for the claimants while praying for
enhancement of the compensation amount argued that ITR qua
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the assessment year of 2020-21 (Exhibit-25) was wrongly not
relied upon by the learned Tribunal only on the count of the same
having been filed after the death of the deceased. The deceased
expired in the month of December 2021 and hence, the income as
reflected in the ITR of 2020-2021 clearly comprised his income
from the month of April to December, 2021 too. The said ITR
therefore, ought to have been taken into consideration.
6. In support of his submission counsel relied upon the Hon'ble
Apex Court judgment in United India Insurance Co. Ltd. Vs
Indiro Devi & Ors,; AIR 2018 SC 3107 and a judgment passed
by a Co-ordinate Bench of this Court in Sudha & Ors. Vs.
Prakash Chandar & Ors. 2024: RJ-JD-42872.
7. Learned counsel further submitted that interest @ 6% per
annum as awarded by the learned Tribunal was on the lower side
and the impugned award deserves enhancement qua the interest
part too.
8. Heard the counsels. Perused the record.
9. Coming on to the first ground- Whether the income derived
from the shop could have been considered despite it being
admitted on record that the shop was still running and was
deriving income?
10. AW-1 specifically admitted in his cross-examination that the
shop was still running and he had employed a regular person for
the said purpose. The version of the Insurance Company was that
the shop is being run by wife of the deceased. However, the said
version cannot be said to be proved in absence of any cross-
examination of witness AW-1 on the said aspect. But the fact of
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the shop being run even after the death of the deceased is not
controverted.
11. In that situation of the matter, as held by the Hon'ble Apex
Court in Yogesh Devi (supra), the loss could be computed only to
the extent of the service of a manager or the salary payable to the
person engaged to manage the asset. The Hon'ble Apex Court,
while dealing with the concept of managerial loss, in the case of
Yogesh Devi (supra) wherein the deceased owned an agricultural
land and three buses, held as under:
"13. Coming to the case on hand, the claim is based on
the assertion that the deceased owned agricultural land
apart from the abovementioned three minibuses. The High
Court rejected the claim insofar as it is based on the
income from the land, on the ground that the income
would still continue to accrue to the benefit of the family.
Unfortunately, the High Court failed to see that the same
logic would be applicable even to the income from the
abovementioned three buses. The asset (three
minibuses) would still continue with the family and
fetch income. The only difference, perhaps, would be
that during his lifetime the deceased was managing
the buses, but now, the claimants may have to
engage some competent person to manage the
asset, which, in turn, would require some payment
to be made to such a manager. To the extent of such
payment, there would be a depletion in the net
income accruing to the claimants out of the asset.
Therefore, the amount required for engaging the
service of a manager and the salary payable to a
driver - as it is asserted that the deceased himself
used to drive one of the three buses - would be the
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loss to the claimants. In the normal course the
claimants are expected to adduce evidence as to what
would be the quantum of depletion in the income from the
abovementioned asset on account of the abovementioned
factors. Unfortunately, no such evidence was led by the
claimants."
12. Applying the above ratio to the present matter, the issue
would now be of the computation of the managerial loss. AW-1
has not been cross-examined on the aspect as to what salary he
was paying to the person deployed by him to run the shop. In that
event, this Court deems it proper to ascertain the said amount to
be Rs.10,000/- per month, keeping into consideration that the
shop in question being a 'Prasad Shop' which definitely runs for
more than 14 hours a day, any person hired to run the said shop
cannot be assumed to be paid anything less than Rs.10,000/- per
month. In the times of regular increasing inflation rates, it cannot
be assumed that any person could be hired on a full time job for
anything less than that. The managerial loss qua the shop
therefore is apt to be computed @ Rs.10,000/- per month, that is,
Rs.1,20,000/- per annum.
13. Coming on to the next ground- Whether the income of the
deceased as a priest could have been taken into consideration in
absence of any pleading qua the same?
14. True it is that no specific averment regarding the income as a
priest was made in the claim petition. But then, in his
examination-in-chief, AW-1 Om Prakash Sharma, the father of the
deceased specifically deposed that the deceased worked as a
priest and also earned from his shop as well as his agricultural
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activities. Furthermore, all the ITRs exhibited on record from the
assessment year 2017-18 to the assessment year 2020-21
(Exhibit 19 to 25) specifically reflect the income of the deceased
as a priest too. Furthermore, despite AW-1 having specifically
deposed about the said income, no cross-examination on the said
aspect was made on behalf of the Insurance Company. Meaning
thereby, the evidence on the said aspect remained
uncontroverted. In the said circumstances, this Court is of the
clear opinion that when specific oral evidence substantiated by
documentary evidence was available on record to show that the
deceased derived a regular income as a priest, the learned
Tribunal rightly considered the same while computing the loss of
income as there was no reason to discard the said evidence.
15. Coming on to the issue - Whether ITR for the assessment
year 2020-2021 (Exhibit-25) ought to have been considered by
the learned Tribunal ?
16. This Court is of the opinion that even if the complete income
as reflected in the said ITR could not have been taken into
consideration, the same been filed after the death of the
deceased, but then, the regular increase in income in the
preceding years could not have been totally ignored. It is evident
that every ITR as placed on record reflected regular increase in
the income. As held by the Hon'ble Apex Court in the recent
judgment of S. Vishnu Ganga & Ors. Vs. Oriental Insurance
Company Ltd. & Ors.; 2025 SCC OnLine SC 182, the income
tax return is reliable evidence to access the income of the
deceased, some income in addition to the income as reflected in
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Exhibit-23 definitely needs to be taken into consideration. The
reason behind the same is that the Income tax return (Exhibit-25)
reflects the income from the month of March 2020 till April 2021.
The deceased expired in the month of December 2021 and hence,
the ITR of financial year 2020-21 (Exhibit-25) cannot be
completely ignored.
17. Taking a holistic view, this Court deems it appropriate to
compute the income as a Priest to be Rs.1,45,780/- (i.e. the
average income of financial years 2019-2020 & 2020-2021).
18. So far as the income from the sale of milk and its products is
concerned, this Court deems it apt to compute the same
to be Rs.36,350/- (i.e. the average of income qua financial years
2019-2020 & 2020-2021).
19. Summing up the above heads of income, the total loss of
income comes out to be Rs.1,20,000 + Rs.1,45,780 + Rs.36,350
= Rs.3,02,130/-. Accordingly, the monthly income of the deceased
deserves to be computed as Rs.25,178/-.
20. So far as the deduction qua personal expenses is concerned,
this Court is of the clear view that father of the deceased cannot
be termed to be a dependant, he being admittedly, earning. In
that view, deduction qua the personal expenses ought to be 1/3rd
and the impugned Award deserves modification to that extent.
21. So far as the amount qua the head of 'consortium' is
concerned, the same does not deserve any interference, it being
totally in consonance with law.
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22. Consequently, the impugned Judgment/Award dated
19.04.2024 passed by the Motor Accident Claims Tribunal First,
Jodhpur in MAC Case No.257/2021 is modified to the extent that
the appellants-claimants be entitled to the following
compensation:
1. Income per month (after addition of Rs.23,501/-
future prospects (40%) and deduction
for personal and living expenses (1/3rd)
in the monthly income of Rs.25,178/-)
2. Loss of Annual Income (as per the age 23,501 x 12 x 15=
of 39 years of the deceased, multiplier Rs.42,30,180/-
of 15)
3. Under the head of 'consortium' (As Rs.1,76,000/-
awarded by Tribunal)
4. Under the head of 'Funeral expenses' Rs.16,500/-
(As awarded by Tribunal)
5. Under the head of 'Loss of Estate' (As Rs.16,500/-
awarded by Tribunal)
6. Total amount of compensation Rs.44,39,180/-
7. Amount awarded by Tribunal Rs. 49,45,805/-
8. Reduction in amount of compensation Rs. 49,45,805/-
(-) Rs. 44,39,180/-
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Rs. 5,06,625/-
23. The respondent Insurance Company is directed to deposit
the amount of compensation (if not deposited yet) with the
Tribunal within a period of two months from the date of receipt of
the copy of this order, failing which, the same shall carry interest
@ 7.5% per annum from the date of this order till actual
realization. Upon deposition, the learned Tribunal is directed to
disburse the same to the appellants-claimants in terms of the
award however with a modification that Claimant No.1 shall be
entitled only to the Consortium amount. The remaining amount as
directed by the learned Tribunal to be paid in cash to him (through
savings account) shall be divided equally between the two children
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(Claimants No.3 & 4) and paid to them in cash (through savings
account).
24. Both the appeals are partly allowed with above terms.
25. Pending applications, if any, stand disposed of.
(REKHA BORANA),J
103-104-Devanshi/Vij-
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