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2001 DIGILAW 235 (MAD)

Oriental Insurance Co. Ltd. v. Kousalya Kawar

2001-02-22

A.SUBBULAKSHMY, P.SHANMUGAM

body2001
Judgment : P. Shanmugam, J. 1. The Insurance Company/respondent before the Motor Accidents Claims Tribunal (M.C.O.P. No.3761 of 1998) is the appellant in C.M.A.No.1640 of 2000 and third respondent in C.M.A.No.2 of 2001 filed by the claimants for enhancement of compensation. 2. Themotor accident claim arises under the following circumstances: The first claimant's husband, deceased Shanthilal, while travelling in a car bearing Regn. No.TN-20-3015 from Chennai to Arcot on 14.12.1997 at 9.45 a.m., was involved in a head-on collision with a lorry bearing Regn. No.TN-1-GB-3060 near Kancheepuram. Shri Shanthilal and another passenger of the car along with the driver died on the spot. The legal representatives of the deceased Shanthilal as claimants 1 to 4 have filed O.P.No.3761 of 1998 claiming a compensation of Rs.76,00,000. The Tribunal granted an award of Rs.23,64,000. Aggrieved by this, the Insurance Company, who have obtained permission under Section 170 of the Motor Vehicles Act to defend the case on merits, have filed this appeal. 3. Learned counsel appearing for the appellant seriously disputed the quantum of compensation awarded as one grossly disproportionate and excessive and made without reference to the materials on record. According to him, Ex.P.8, Income Tax and Auditor's report were created subsequent to the accident, so as to boost all the earnings of the deceased, to suit their convenience and for the purpose of this case. He also submitted that P.W.1 who was the only witness examined in support of the claimants has clearly stated in the cross-Examination that she was not aware of any income tax assessment during the lifetime of the deceased and she does not have any documentary proof of the alleged income. Whileso, the Tribunal simply held on the basis that the deceased was having connection with the chit fund business and without any further proof on the income, determined the earnings at Rs. 15,000 per month, and consequently erred in coming to the huge figure of Rs.23,04,000 as loss of earning. The Insurance Company has not seriously disputed the rest of the compensation awarded under other heads. 4. Mr. M. Swamikannu, learned counsel appearing on behalf of the claimants submitted that the deceased was a businessman. 15,000 per month, and consequently erred in coming to the huge figure of Rs.23,04,000 as loss of earning. The Insurance Company has not seriously disputed the rest of the compensation awarded under other heads. 4. Mr. M. Swamikannu, learned counsel appearing on behalf of the claimants submitted that the deceased was a businessman. Ex.P.8 shows that he had permanent income tax account number and therefore, he should have been an assessee prior to 1992-1996 and that he is also doing pawn broker business and was involved in a chit fund company and therefore, the assessment of income for Rs. 15,000 was fair and reasonable. He further submitted that the deceased was only 43 years old at the time of his death and his future earnings should have been taken into account. Therefore, the determination of compensation is very fair and should not be interfered with. He also submitted that the second claimant, the only son, is now dead and he has filed an application to bring the legal representatives on record and the same can be ordered and that he shall file his appearance on behalf of them. 5. Wehave heard the counsel on both parties, called for the records and gone through the same. 6. Insofar as the nature of the accident and the negligence aspect is concerned, no serious argument is advanced on the side of the Insurance Company and therefore, we do not propose to consider the same. 7. Nature of Proof : On the question of quantum, the primary concern is the determination of income of the deceased at the time of the accident. In support of this, claimants have filed Ex.P.8, the Income Tax and Auditor's report, Exs.P.9 and P.10, the annual reports of Mahaveer Chit Fund Co., besides the oral evidence of P.W.1, the wife of the deceased, the first claimant in the O.P. 8. Ex.P.8consists of three counterfoils of tax payers' record for the assessment period of 1995-96, 1996-97 and 1997-98, all dated 20.1.1998 and three copies of "Statement of Affairs" firm Ostwal Associates, Chartered Accountants. As per these counterfoils, the income tax paid for the relevant period were Rs.12,346, Rs.13,957 and Rs.17,504 respectively. As per this statement, Late Shanthilal had a net income of Rs.97,590, Rs. 1,05,030 and 1,20,040 respectively for these three years. The statements were prepared on 17.1.1995, 19.1.1998 and 20.1.1998 respectively. As per these counterfoils, the income tax paid for the relevant period were Rs.12,346, Rs.13,957 and Rs.17,504 respectively. As per this statement, Late Shanthilal had a net income of Rs.97,590, Rs. 1,05,030 and 1,20,040 respectively for these three years. The statements were prepared on 17.1.1995, 19.1.1998 and 20.1.1998 respectively. The counterfoils as well as the statement show the payment of interest for default in furnishing the return of income under Section 234-A and interest for default in payment of advance tax under Section 234-B. P.W.1, in her evidence, during cross-examination, has stated that only after the death of her husband, income tax returns were filed. She was not aware whether the returns were filed during his lifetime. However, there are no records in her house relating to the payment of income tax. She further states that she does not know on what basis the statement of accounts were prepared by the auditor. According to her, except Ex.P.8, there are no other records to support the contention that he is earning Rs.35,000 to Rs.45,000 per month. She does not know the income that her husband was getting from the chit fund company. Therefore, there is no evidence excepting the assessment returns and payment of tax in January, 1998 for the period 1995 to 1998. She has categorically stated that she does not know on what basis the returns were prepared and that there are no records in her house relating to these returns. Ex.P.9 is the fourth annual report of Jai Mahaveer Chit Fund Private Limited, in which the deceased was shown as one of the Board of Directors. As per this annual return, the net profit of the company upon 31.7.1997 is Rs.15,183. There is no record to show any other income earned by the deceased form pawn broker business. As a matter of fact, Ex.P.2 statements on individual income is supposed to include his income from his business and his properties. Therefore, the claim that there are other income besides it cannot be accepted. If really the case of the claimant is that the deceased was doing pawn broker business, there should be some records to establish that she is doing business and also income of that business. There are no corroborative documentary or oral evidence to prove the business income of the deceased. If really the case of the claimant is that the deceased was doing pawn broker business, there should be some records to establish that she is doing business and also income of that business. There are no corroborative documentary or oral evidence to prove the business income of the deceased. We are unable to accept Exs.P.8 to P. 10 as evidence for the income of the deceased Shanthilal to the extent of Rs. 15,000 per month. Assuming that the average of these three years is taken, it is only Rs.8,962 per month, and the learned Judge, has taken the interest for default payment also as tax for considering the income. We are also of the view that Ex.P.8 was brought into existence immediately after the demise of the said Shanthilal and before filing of the O.P. for the purpose of claiming huge amount as compensation of Rs.76,00,000 to support the said claim. In the light of the categorical admission that there are no documentary evidence and analysis as to how and on what basis the income tax returns were filed, we have rejected them as self-serving documents made up for the purpose of the case. 9. TheTribunal, under Section 169, held enquiry for passing the Award by following a summary procedure. The rules of evidence may not be given up altogether. A document before it can be relied upon are to be properly proved for its genuineness and its probative value. Similarly, the burden of proof lies on the claimants to establish their claim. The Tribunal has to decide the case on the basis of evidence and document on record. In our view, the Tribunal has ignored to consider the probative value of the evidence available. In case of fatal accident of this nature, where a huge claim of Rs.76,00,000 has been made, the determination of annual income of the deceased assumes significance since the compensation follows the multiplier method. There seems to be an impression gaining ground that cases under the Motor Vehicles Act do not require much effort or application of law. The sooner we dispel this easy approach, the better it will be for the litigant public. Though the rule of evidence may not be strictly applicable, a document required to be proved before it can be relied upon cannot be a mere technical rule. The sooner we dispel this easy approach, the better it will be for the litigant public. Though the rule of evidence may not be strictly applicable, a document required to be proved before it can be relied upon cannot be a mere technical rule. It is required to be proved by examination of the concerned who can be cross-examined to prove its worthiness or reliability. In this case, an income tax chalan for payment of tax and statement of income has been furnished. These relate to the payment made and prepared subsequent to the accident in the name of the deceased. Neither the remitter nor the auditor who had prepared the statement was examined. P.W.1 does not know on what materials they were prepared. Inspite of the objection that these documents were got up for the purpose of the case, the Tribunal held that there are no direct evidence regarding income, yet on the possibility of the deceased getting future income. This is hardly a judicial determination but an arbitrary way of disposal of a relevant objection. The Tribunal failed to see that anybody can pay income tax by challan and get a statement prepared, after the accident, for the previous three years. The Tribunal ought to have seen whether the claim is genuine and the document is reliable without any other supporting, direct evidence. The Supreme Court, in Petlad Turkey R.D. Works v. Workers Union, A.I.R. 1960 S.C. 1006, administered a warning for relying on balance sheet prepared by companies. Their lordships observed as follows:- "It has to be borne in mind that in many cases, the Directors of Companies may feel inclined to make incorrect statements in the balance-sheets for ulterior purpose. While that is no reason to suspect every statement made in these balance sheets, the position is clear that we cannot presume the statement made therein to be always correct. The burden is on the party who asserts a statement to be correct to prove the same by relevant and acceptable evidence, the mere statement of balance-sheet is of no assistance..." (Italics added) This principle of law fully applies to this case. The mere filing of statement and challan is of no assistance without proof. They cannot be presumed to be correct, especially when it is a document prepared after the accident in reference to an earlier period. The mere filing of statement and challan is of no assistance without proof. They cannot be presumed to be correct, especially when it is a document prepared after the accident in reference to an earlier period. Obviously, this is with a mind to show the income and therefore, the Tribunal ought to have appraised it judicially. 10. P.W.1, in her chief examination, has stated that he was having a passport and that he is a diploma holder in Motor Industries. He is also one of the directors of Mahavir Chit Funds, and earning a sum of Rs.380 (1996-97) and Rs.2,278 (1997-98) as per the statement corroborated by the Annual Report Ex.P.9. Considering these facts, learned counsel appearing for the appellant finally concedes that the court can, on the basis of the standing of the deceased as a director of Mahaveer Chit Fund and qualified with diploma in motor industries and the claim of the wife that he was connected with the business of Mahaveer Chit Fund business, the income of Rs.5,000 per month can be taken as fair and reasonable in the circumstances. In the light of this submission, while rejecting the documentary evidence filed on behalf of the claimants and taking into account the fact that the claimant would have been earning some amount on the basis that he has standing as a director of Mahaveer Chit Fund Company, we fix the monthly earning of the deceased at Rs.5,000 . 11. Since there are four members in his family, we reduce Rs. 1,000 towards his personal expenses and fix his contribution to the family at Rs.4,000 per month. The deceased claims to have died at the age of 43 years, and therefore, the multiplier that could be applied in this case is 15. Therefore, the annual income could be arrived at is Rs.7,20,000. The Tribunal has awarded a sum of Rs.20,000 towards loss of consortium and for two daughters and a son, it has awarded a sum of Rs.15,000 for loss of love and affection and a sum of Rs.5,000 towards funeral expenses, which we are not interfering with excepting the award of Rs.20,000 towards loss on future expectation. Therefore, the claimants are entitled for a sum of Rs.7,60,000 (Rupees Seven Lakhs and Sixty Thousand Only). Out of this amount, the first claimant, the wife of the deceased shall be entitled to a sum of Rs.3,10,000. Therefore, the claimants are entitled for a sum of Rs.7,60,000 (Rupees Seven Lakhs and Sixty Thousand Only). Out of this amount, the first claimant, the wife of the deceased shall be entitled to a sum of Rs.3,10,000. Remaining each shall be entitled to a sum of Rs. 1,50,000 with interest at the rate of 12% per annum. The appeal is allowed to that extent. Consequently, no orders are necessary in CMP Nos. 15366, 18642 of 2000 and 1245 and 1246 of 2001. No costs. 12. The second claimant said to have been died and the petition to implead the legal representatives of the deceased is ordered. The share of the legal representatives shall be equally distributed to the legal heirs of the second claimant. Out of Rs. 1,50,000 awarded, the apportionment of the legal heirs of the second claimant, a sum of Rs. 1,00,000 will be given to the wife of the second claimant and the remaining sum of Rs.50,000 shall be deposited in any one of the nationalised Banks in reinvestment scheme, towards the share of the minor. The appellant is entitled to withdraw the excess amount, than what is ordered by this Court. 13. The claimants have also filed Cross Appeal in CMA No.2 of 2001. In view of our finding in CMA No. 1640 of 2000, this C.M.A.No.2 of 2001 is dismissed.