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2010 DIGILAW 253 (GUJ)

Kiritbhai Bhogilal Shah v. Bhalaji Somaji Vanzara

2010-05-12

K.M.Thaker

body2010
JUDGMENT K.M. THAKER, J. 1. In present appeal, the appellant has challenged the award dated 4th December, 2006 passed by the M.A.C. Tribunal (3), Gandhinagar in M.A.C.P. No.79 of 1999 whereby the learned Tribunal has awarded Rs.99,000.00 (comprising Rs.25,000/- towards medical bills and treatment, Rs.15,000/- towards pain, shock and suffering, Rs.6,000/- towards actual loss of income, Rs.10,000/- towards repairs/damages to the vehicle, expenses towards attendants and special diet and Rs.54,000/- towards future loss of income) after deducting 10% (towards the extent of negligence attributed to him) from the awarded amount of Rs.1,10,000/-. Aggrieved by the award, the appellant has preferred the present appeal contending, inter alia, that the award is inadequate against the total claim of Rs.3,00,000/-. 2. Mr. Modi, learned Advocate has appeared for the appellant and MR. Parikh, learned Advocate has appeared for the respondent-Insurance Company. 2.1 Since, there is no dispute regarding the factum of the accident, the date of accident, the fact that the appellant sustained injuries on account of the accident which occurred on 15.04.1998, and in view of the statement by appellant's Advocate (which is not disputed by learned Advocate of the Insurance Company) that the Insurance Company has not challenged the award, it is not necessary to narrate and discuss the factual matrix. Heard the learned Counsel for the respective parties. 3. Mr. Modi learned Advocate for the appellant has submitted that the appellant has preferred the appeal for enhancement of the award amount because the compensation awarded by the learned Tribunal is inadequate. He has submitted that the appellant had produced income tax return which reflected that the income of the appellant was to the tune of Rs.86,332/-, however, the learned Tribunal has taken into consideration only Rs.49,000/- as appellant's income. He has submitted that the learned Tribunal has committed error in disregarding the income tax return produced on record by the appellant. Mr. Modi assailed the award on the ground that the learned Tribunal has also erred in determining the extent of disability and has wrongly assessed the extent of disability to the extent of only 7% though the appellant had produced certificate certifying that the claimant's permanent disablement was to the extent of 17%. Mr. Modi has submitted that on this count also, the learned Tribunal has erred in disregarding the certificate issued by Dr. Upadhayay. The another objection raised by Mr. Mr. Modi has submitted that on this count also, the learned Tribunal has erred in disregarding the certificate issued by Dr. Upadhayay. The another objection raised by Mr. Modi against the impugned award is with regard to the learned Tribunal's decision allowing only Rs.6000/- towards actual loss of income. Any other contention has not been raised. 4. At the outset, it needs to be mentioned that so far as the findings recorded by the learned Tribunal with regard to the negligence is concerned, the learned Tribunal has attributed 10% negligence to the claimant. The said finding of the learned Tribunal is not under challenge Therefore, in absence of any challenge against the said finding, the said aspect is not required to be examined. Now, so far as the appellant's challenge against the Tribunal's decision with regard to the determination of income is concerned, it deserves to be noted that Mr. Modi has vehemently and persistently relied upon the xerox copy of the Form No.2 (Income Tax Return) filed by the appellant for the assessment year 1998- 1999 wherein the appellant has declared that for the said period his income was Rs.86,332/-. On the basis of the said document, Mr. Modi has submitted that the income tax return filed by the claimant is a conclusive proof and should have been accepted by the learned Tribunal. However, in present case, though the income tax return reflected that appellant's income was Rs.86,332/-, the learned Tribunal has acknowledged and accepted only Rs.49,000/- as his income, which is contrary to the evidence on record. 5. In this context, it is necessary to note that in para-8 of the impugned award the learned Tribunal has specifically recorded that from the copy of the income tax return for the assessment year 1997-1998, it is established that claimant's income during the said period was Rs.49,000/- p.a. In light of the said observation by the learned Tribunal, the Court repeatedly asked the learned Advocate for the appellant to explain on what basis the learned Tribunal had recorded the claimant's income and how did the Court mention the figure of Rs.49,000/- while recording (in para-8) that in the income tax return for the assessment year 1997-1998 the figure of Rs.49,000/- is shown, by the appellant, as his taxable income. 7.1 The Advocate for the appellant, however, did not give any clarification or reply as to on what basis and from which document the learned Tribunal had derived the said figure of Rs.49,000/-. He also did not show the document which the learned Tribunal had referred to in the award. He consistently insisted that the appellant had produced on record the income tax return for the assessment year 1998- 1999 which reflected appellant's income at Rs.86,332/-. 7.2 When the Court could not receive proper reply from the appellant's Advocate, the same query was put to the learned Advocate for the Insurance Company, who from the record, pointed out that a copy of appellant's another income tax return, pertaining to the assessment year 1997- 1998, was also on record and the learned Tribunal had derived the figure Rs.49,000/- from the said income tax return. Mr. Parikh, learned Advocate for the Insurance Company also produced, a copy of the said income tax return, from his record. The said copy is taken on record of present appeal. 7.3 It is pertinent to note that the copy of the income tax return on which the appellant has placed reliance (i.e. Annexure - B page - 10 of present appeal) appears to have been filed with the Income Tax Authority-Department on or around 30th October, 1998 (i.e. after the date of accident). It needs to be recalled that the date of the accident is 15th April, 1998. Meaning thereby, the income tax return on which the appellant has vehemently relied on, was filed on date subsequent to the date of the accident. 7.4 A document such as Income Tax Return which is filed by the claimant-assessee after the date of accident cannot provide and cannot be accepted and entertained as good evidence regarding income (at the relevant time) of the claimant-assessee unless there is other corroborating evidence regarding income during immediately preceding period. 7.4 A document such as Income Tax Return which is filed by the claimant-assessee after the date of accident cannot provide and cannot be accepted and entertained as good evidence regarding income (at the relevant time) of the claimant-assessee unless there is other corroborating evidence regarding income during immediately preceding period. The document on which the appellant has placed reliance was filed after the date of accident and that therefore, the same could not have been taken into account particularly in absence of other corroborating and substantiating documents/Income-Tax return of immediately preceding period reflecting the assessee's income so that a comparative analysis may be available which would demonstrate whether the claimant's income was in the same range/slab or atleast nearer to the income shown in the Income Tax return filed after the date of the accident. The learned Tribunal has rightly not considered the said document, more particularly when the income tax return of the preceeding year i.e. assessment year 1997-1998 (which was filed on 17th October, 1997 i.e. in the preceding year) was available on record. It is pertinent that the said Income Tax return reflected much less (almost 50% less) income in the preceding year. 6. A glance at the income tax return pertaining to the assessment year 1997- 1998 reflects that in the said return the appellant had shown his income at Rs.49,812/- and thereafter, in the return which the appellant filed after the date of the accident, he showed his income at Rs.86,332/- and the said document is sought to be relied upon by the appellant to assail the impugned award while the appellant conveniently ignores his own income tax return filed prior to the date of accident for the year 1997-1998. Having regard to the fact that the learned Tribunal has not taken into account the income tax return filed subsequent to the date of the accident and instead the learned Tribunal has relied upon the appellant's own income tax return for the period prior to the date of accident, the said decision cannot be faulted. There is no error in said decision of the learned Tribunal. Hence, the said contention fails. The appellant has also assailed the award on the ground that the Tribunal has disregarded the certificate issued by the doctor with regard to the extent of disability. Mr. There is no error in said decision of the learned Tribunal. Hence, the said contention fails. The appellant has also assailed the award on the ground that the Tribunal has disregarded the certificate issued by the doctor with regard to the extent of disability. Mr. Modi has submitted that the certificate produced by the appellant certified that the extent of appellant's disability was about 17%, however, the learned Tribunal has assessed and determined appellant's disability only to the extent of 7%. 9.1 In this context, it is again necessary to recall that the accident had occurred in April-1998 whereas the certificate sought to be relied upon by the appellant has been issued in 2006 i.e. almost after 8 years. In the facts of the case the decision of the learned Tribunal cannot be faulted on the basis of such subsequently (almost 8 years after the accident) issued certificate, and that too by the doctor who had not treated the appellant at relevant time. 9.2 Furthermore, the learned Tribunal has expressly recorded in para-7 of the award that the doctor, who issued the certificate, on which the appellant placed reliance, is not the doctor who had given treatment to the appellant. 9.3 Mr. Parikh submitted that the doctor was not examined as a witness, and therefore also the certificate could not have been considered. It is not in dispute that the doctor who issued the certificate i.e. Dr. Aditya I. Upadhayay was not examined by the appellant herein as his witness and/or as witness in support of the document/certificate. 9.4 A glance at the certificate makes out an interesting reading inasmuch as the certifying doctor has put a note/remark in the certificate, which reads thus:- "On examination : X-ray is taken by me today shows union of fracture and no implants inside. Complaints are examined which are found true. I have referred Dr. R.C. Patel's certificate." (emphasis supplied) 9.5 Thus, the doctor issued the certificate on the basis of x-ray and by referring to another certificate issued by some other doctor. Hence, the observations recorded by the learned Tribunal in the award that the doctor is not the doctor who treated the appellant at the time of accident, cannot be faulted. It is also a fact that the appellant conveniently did not examine the said doctor as regarding his accident and/or treatment and/or even as a witness regarding the certificate. Hence, the observations recorded by the learned Tribunal in the award that the doctor is not the doctor who treated the appellant at the time of accident, cannot be faulted. It is also a fact that the appellant conveniently did not examine the said doctor as regarding his accident and/or treatment and/or even as a witness regarding the certificate. As a result of such convenient action of the appellant, the Insurance Company did not get the opportunity to subject the said doctor to cross examination. 9.6 Furthermore, the certificate has been issued almost 8 years after the date of accident. Under the circumstances, when the learned Tribunal has, after consideration of the certificate, observed that the certificate does not inspire confidence and does not appear to be wholly reliable and when the Tribunal has assessed the extent of disability at 7%, in absence of any other strong evidence, particularly contemporaneous evidence and/or evidence of the doctor who had treated the appellant, this Court is not inclined to take any contrary view or to hold that the decision of learned Tribunal is erroneous. 9.7 It is also appropriate to note that even in his oral evidence the appellant has nowhere stated that he was admitted in the hospital as indoor patient even for a single day. The injury which the appellant had suffered is a fracture of his lower limb. Thus, on overall consideration of the facts and circumstances of the case, the appellant has not been able to make out any strong case to interfere with the conclusions of the learned Tribunal, including the conclusion regarding quantification. The appellant has not been able to make out any case against the said conclusion of the learned Tribunal and this Court is, therefore, unable to take contrary view or to hold that the Tribunal has committed any error in determining the extent of appellant's disability. 7. Now, so far as the appellant's challenge against the learned Tribunal's decision with regard to the actual loss is concerned, as noted earlier, the learned Tribunal, on the basis of the appellant's income tax return, determined the appellant's income at Rs.49,000/- p.a. i.e. about Rs.4,000/- p.m. Having regard to the nature and extent of the injury, the learned Tribunal has awarded Rs.6,000/- towards actual loss of income which would come to about 45 day's loss of income. 8. 8. In the facts and circumstances of the case, the said assessment does not appear to be erroneous or arbitrary and it does not call for any interference. The learned Advocate for the appellant has not been able to show any material from the record which could convince the Court to take any different view and to hold that the appellant was unable to attend to his business for more than 45 days or that he suffered loss of actual income for more than the said period of 45 days. Lastly, the appellant has also challenged the learned Tribunal's decision of awarding interest at the rate of 6%. The appellant has submitted that the learned Tribunal ought to have awarded interest at the rate of 7%. The learned Tribunal has, upon taking into account the facts and circumstances of the case, awarded interest at the rate of 6% and this Court does not see any reason to interfere with the said decision. In view of the foregoing discussion, it emerges that the award does not suffer from any infirmity, either of law or of facts or in appreciating the evidence on record. The appellant has failed to make out case for interference. Hence, the appeal fails and the same is rejected. No costs. Appeal dismissed.