Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 1715 (RAJ)

MEHAR CHAND v. KESHORAM

2004-12-02

DALIP SINGH

body2004
Judgment DALIP SINGH, J. ( 1 ) THIS appeal has been filed against the award dated 13. 9. 1994 passed by the Motor Accidents Claims tribunal, Jaipur City, Jaipur (hereinafter referred to as the Tribunal), in the Claim petition No. 914 of 1989 filed by appellants for the compensation on account of the accident in which the deceased Surendra kumar Jain, son of appellant Nos. 1 and 2, husband of appellant No. 3 and father of appellant No. 4 died as a result of the injuries suffered by the deceased in the said motor accident which occurred on 7. 3. 1989. ( 2 ) THE facts of the case are that on 7. 3. 1989 deceased along with his wife rajeshwari Jain, appellant No. 3 and the daughter Priyanka, appellant No. 4 and the sister of the deceased Maya Devi were travelling in a car bearing registration No. RNE 5151 from Jaipur to Delhi, which met with an accident by colliding with a truck coming from the opposite direction bearing registration No. UHN 2365. The learned Tribunal found that the driver of the truck was driving the same rashly and negligently and was responsible for the said accident in which on account of the injuries suffered by the deceased he died as a result thereof. ( 3 ) THE submission of learned counsel for the appellants is that Tribunal ignored the material evidence that was produced before it to show the income of deceased who was a jeweller and running the firm in the name and style of firm Adinath in the Ram Bagh Palace Hotel, Jaipur. The further submission of the learned counsel for the appellants is that the learned Tribunal has awarded a consolidated figure of rs. 5,00,000 (rupees five lakh) on account of loss of income without going into the details of the evidence and that the said amount of compensation in the facts and the circumstances of the present case is wholly inadequate. ( 4 ) LEARNED counsel for the appellants has submitted that it has come on record that on the basis of the income tax returns and the statements of the chartered accountant, Mr. V. N. Bhargava, AW 4, who proved the income tax returns of the firm (Exh. P5 and Exh. P11) which went to show that in fact, the firm earned profit of nearly Rs. V. N. Bhargava, AW 4, who proved the income tax returns of the firm (Exh. P5 and Exh. P11) which went to show that in fact, the firm earned profit of nearly Rs. 8,50,000 in the year 1989-1990, as such, learned counsel for the appellants further submits that the income of the deceased was based upon the said returns can safely be calculated as Rs. 8,50,000 annually. ( 5 ) LEARNED counsel for the respondents has argued that the deductions under section 80-HHC which were allowed as per exh. P5 and Exh. P11 for the assessment year was amounting to Rs. 8,54,000 should not be taken into account for the determination of the income. In reply, the learned counsel for the appellants has submitted that section 80-HHC of Income Tax Act, 1961 refers to the deductions which are admissible on the extent of profits which have been earned by a resident of India engaged in the business of any merchandise and as such the submissions of the learned counsel for the appellants is that the profits earned as a result of export have been exempted from the liability of the tax and, as such, being in the nature of the profits, the same amount to income. ( 6 ) HAVING considered the submissions on this aspect of the matter, I am coming to hold that the income of the firm in which the deceased was a partner was Rs. 8,50,000 as shown (Exhs. P5 and P 11) in the income tax returns. The amount of Rs. 8,50,000 for which deduction under section 80-HHC was claimed would be counted as income of the firm for the purpose of assessing and computing the compensation even though the said may not be income liable to tax under Income Tax Act, 1961. The consideration in the two situations being different, in the one case for liability of tax and in the other for determining the loss to the estate and consequential dependency. ( 7 ) LEARNED counsel for the respondents has then submitted that as per the evidence on record in the form of Exh. P4, i. e. , the certificate of registration as well as the assessment order, Exh. P3 which goes to show that deceased was a partner having 50 per cent share in the firm. ( 7 ) LEARNED counsel for the respondents has then submitted that as per the evidence on record in the form of Exh. P4, i. e. , the certificate of registration as well as the assessment order, Exh. P3 which goes to show that deceased was a partner having 50 per cent share in the firm. Consequently, the entire income of the firm cannot be treated to be the income of the deceased. The arguments of learned counsel for the respondents appear to be just and proper and consequently, income of the deceased would be 50 per cent of the income of the firm which in the facts and circumstances of the present case based upon the income as shown in the income tax return can be calculated as Rs. 4,25,000 per annum being 50 per cent of Rs. 8,50,000 the income of the firm. ( 8 ) HAVING arrived at the annual income of the deceased to be Rs. 4,25,000 per annum, it has also to be seen that the entire income which the deceased earned as a partner in the firm cannot be treated as his contribution towards the family. Being the income derived at from the business of the firm, it is safe to accept that the deceased would also be contributing a sufficient amount to the investment and for the running of the business of the firm and in the facts and circumstances of this case, the said figure of Rs. 4,25,000 the annual income be reduced to half in place of 1/3rd which is normally accepted as the amount spent or retained by an individual for his own expenses in case of salaried person. When the amount of Rs. 4,25,000, is reduced to the half as the dependency of the family, the same come to Rs. 2,12,500 per annum. The age of the deceased at the time of the accident was 30 years and as per the provisions contained in the Second Schedule appended to the Motor Vehicles Act, 1988 in the case of person between the age group of 30 and 35 years, the multiplier of 17 has been prescribed. The annual income of Rs. 2,12,500 deserves to be multiplied by 17 which come to Rs. 36,12,500 (rupees thirty-six lakh twelve thousand and five hundred only ). The annual income of Rs. 2,12,500 deserves to be multiplied by 17 which come to Rs. 36,12,500 (rupees thirty-six lakh twelve thousand and five hundred only ). ( 9 ) LEARNED counsel for the appellants has submitted that keeping in view the decision of the Supreme Court in the case of General Manager, Kerala State Road trans. Corpn. v. Susamma Thomas, 1994 acj 1 (SC), wherein their Lordships have held that while calculating the quantum the future prospects of the income, etc. , should also be taken into account. Learned counsel for the appellants further submits that it has come in the evidence that the business of the deceased was growing and even now the business of jewellery in Jaipur has developed and, as such, it would be safe to conclude that the income of the firm in the year 1989 would have increased with time and that benefit should also be allowed to the family taking into consideration future prospects of earning. ( 10 ) IN reply to the aforesaid argument, learned counsel for the respondents has submitted that it is well settled that the just and proper compensation be awarded and it should not come as a bounty. Learned counsel for the appellants placed reliance on the judgment of their Lordships of the honble Supreme Court rendered in the case of Lata Wadhwa v. State of Bihar, 2001 ACJ 1735 (SC ). ( 11 ) I have given my thoughtful consideration to the aforesaid arguments and I am of the opinion that in the facts and circumstances of case where an amount of rs. 5,00,000 (rupees five lakh only) has already been paid as early as in the year 1995, there is no reason to enhance the amount of Rs. 36,12,500 (rupees thirty-six lakh twelve thousand and five hundred only) which has been arrived at and which appears to be just and proper in the facts and circumstances of the present case. The amount of Rs. 5,00,000 which has already been paid to the claimants is liable to be deducted from the aforesaid amount of rs. 36,12,500 and respondents would be liable to pay Rs. 31,12,500 (rupees thirty-one lakh twelve thousand and five hundred only) for the loss of income on account of the death of the deceased. The amount of Rs. 5,00,000 which has already been paid to the claimants is liable to be deducted from the aforesaid amount of rs. 36,12,500 and respondents would be liable to pay Rs. 31,12,500 (rupees thirty-one lakh twelve thousand and five hundred only) for the loss of income on account of the death of the deceased. ( 12 ) LEARNED counsel for the respondents has argued that after the death of the deceased the wife of the deceased Rajeshwari has become the partner in the firm to the extent of 25 per cent share and submits that in view of the aforesaid position, there is no necessity of taking into account the prospects of future enhancement of income. In reply to the aforesaid, learned counsel for the appellants has submitted that this court in the case of Chander v. Bhawani singh, 1989 ACJ 106 (Rajasthan), in para 7 of the said judgment has held that the income derived at by the dependant (wife), the (widow) by running the business (shop)to maintain the family cannot be said to be income derived by her on account of the death of her husband and, therefore, the same cannot be deducted. ( 13 ) I am respectfully in agreement with the aforesaid proposition. However, in the facts and circumstances of the present case, I am of the opinion, that an amount of Rs. 36,12,500 is just and proper compensation which would meet the ends of justice. ( 14 ) THE appeal is allowed as indicated above and the amount of compensation to be paid to the appellants is enhanced from Rs. 5,00,000 (rupees five lakh only)to Rs. 36,12,500 (rupees thirty-six lakh twelve thousand and five hundred only ). Since amount of Rs. 5,00,000 has already been paid to the appellants, the appellants would be entitled to receive the amount of Rs. 31,12,500 (rupees thirty-one lakh twelve thousand and five hundred only)the enhanced amount in this appeal from the respondents. The respondents would pay the said amount to the appellants by way of DD/crossed cheque or deposit it with the Tribunal within a period of three months from today along with the interest to be paid on the said amount at the rate of 6 per cent per annum from the date of filing of this appeal, i. e. , 12/12/1994. However, in case, the respondents fail to pay or deposit the said amount within the stipulated period of 3 months, the appellant would be entitled to recover the same along with the interest to be paid at the rate of 9 per cent per annum w. e. f. the date of filing of the claim petition, i. e. , 12/9/1989. There is no order as to costs. Appeal allowed.