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Rajasthan High Court · body

2011 DIGILAW 2056 (RAJ)

Renu Kothari v. Jogendra Singh

2011-09-22

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—These two appeals have been filed by the appellants aggrieved by the quantum of compensation awarded by the learned Motor Accident Claims Tribunal, Jaipur vide award dated 20/11/2001. Two separate claim petitions were filed by the appellants before the learned Tribunal, one as dependents of deceased-Vinaychand Kothari in Appeal No.2139/2001 arising out of MACT Case No.1245/1996 and another as dependents of deceased-Vimalchand Kothari arising out of MACT Case No.1246/1996. Both the deceased were two real brothers. On 21/4/1996 both were travelling in bus No.RJ.11.P-0014, which was going from Jaipur to Agra. At about 6.00 a.m. when the said bus was crossing through Agra-Fatehpur Sikri Marg situated at Patholi (Shahganj), it collided with Truck No.UP-80 E-9376, which was standing near the road, as a result of which, they died on the spot. Learned Tribunal has awarded an amount of compensation of Rs.4,35,000/- for the death claim of deceased-Vinaychand Kothari and Rs.1,92,000/- for the death claim of deceased- Vimalchand Kothari. 2. It should be noted that deceased- Vinaychand Kothari was married. He died leaving behind him one daughter and wife apart from liability of maintaining father and younger brother while deceased-Vimalchand Kothari was unmarried when he died. 3. Shri K.N. Tiwari, learned counsel for the appellants has argued that the learned Tribunal has erred in law in not accepting the income-tax returns filed by the appellants on record of deceased-Vinaychand Kothari for the assessment year 1996-97 in which his total yearly income was shown as Rs.71,555/- and on that basis, his monthly income was Rs.6700/- but the learned Tribunal has committed illegality in accepting his monthly income as only Rs.2500/-. Alternatively, learned counsel argued that the income-tax return of the previous assessment year 1995-96 was also on record as Exb.P.13 according to which, yearly income of deceased-Vinaychand Kothari was shown as Rs.54,895/-, which could not have been ignored as it was filed before the death of deceased-Vinaychand Kothari and on that basis also, income of deceased-Vimalchand Kothari was not less than Rs.4500/- per month. Similarly, in the case of deceased-Vimalchand Kothari, learned Tribunal erred in accepting his monthly income as Rs.2500/- whereas, as per the income-tax returned filed on record for the assessment year 1995-96, his yearly income was Rs.49,948/-, which comes to not less than Rs.4000/- per month. Similarly, in the case of deceased-Vimalchand Kothari, learned Tribunal erred in accepting his monthly income as Rs.2500/- whereas, as per the income-tax returned filed on record for the assessment year 1995-96, his yearly income was Rs.49,948/-, which comes to not less than Rs.4000/- per month. Counsel for the appellants further argued the learned Tribunal erred in law in not granting benefit to the appellants for the death claims of both the deceased i.e. Vinaychand Kothari & Vimalchand Kothari in the head of 'future prospect', who died at a very young age of 24 years & 22 years, respectively. Learned counsel for the appellants argued that the learned Tribunal erred in law in applying the multiplier of 8 for the death claim of deceased-Vimalchand Kothari as his age at the time of accident was 22 years when multiplier of 17 was applied for the death claim of deceased-Vinaychand Kothari. Merely because deceased-Vimalchand Kothari was unmarried, learned Tribunal could not have applied the multiplier of 8 in his case. Learned counsel for the appellants has cited the judgments of Supreme Court in Sarla Verma & Others vs. Delhi Transport Corporation & Another : (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC) to argue that according to that judgment, benefit of future prospects should be granted by adding 50% of the total income of the deceased. Since there are large number of dependents, therefore, there could have been at the maximum 1/4th deductions towards the self expenses. It was therefore prayed that the appeals be allowed and the compensation be enhanced granting the aforesaid benefit to the appellants. 4. Shri Tripurari Sharma and Shri Akshat Choudhary, learned counsel appearing for the respondent-Insurance Company have opposed the appeals and argued that it has not been proved in evidence that deceased actually had the income as shown in the income-tax returns and income-tax authorities assessed their income on that basis. Learned counsel argued that the Tribunal has correctly accepted income of these deceased at Rs.2500/- per month because both of them in their income-tax returns described M/s.G.V. Jewellers as proprietor firm. Tribunal has, therefore, rightly accepted their income to be Rs.2500/- per month. Learned counsel argued that the Tribunal has correctly accepted income of these deceased at Rs.2500/- per month because both of them in their income-tax returns described M/s.G.V. Jewellers as proprietor firm. Tribunal has, therefore, rightly accepted their income to be Rs.2500/- per month. In this connection, learned counsel referred to the discussion made by the learned Tribunal at page 6 of the award dated 20/11/2001 on the basis of Exbs.10, 11 and 12 and holding that deceased Vinaychand Kothari and Vimalchand Kothari were partners of that firm, therefore their income was from the same same firm. If income of one year is computed on that basis, each of the deceased could not have been earning more than Rs.1900/- per month. It was further held that on comparison of the income-tax returns of the previous years and as per the definite trend of increase in their income, they were entitled to the benefit of future prospects however looking to the fact that both the deceased were in the almost equal age of 24 and 22 years and that there was possibility of future prospects and their income would have increased to Rs.2500/- per month and on that basis computation was made. Learned counsel for the insurance company cited the judgment of Supreme court in the case of National Insurance Co.Ltd. vs. Shyam Singh and ors. : in SLP (c) No.21418 of 2010 decided on 4/7/2011 = 2011(2) CCR 1132 (SC). Shri Tripurari Sharma, learned counsel also placed reliance on the judgments of Supreme Court in U.P. State Road Transport Corporation vs. Shanti Devi and others : 2009 ACJ 1119 = 2009(1) CCR 274 (SC) & P.S. Somanathan & Ors. vs. District Insurance Officer and Anr. : MACD 2011 (SC) 19 = 2011(1) CCR 299 (SC). 5. I have given my anxious consideration to the rival submission of the parties and perused the material which has been placed on record. 6. Even if Tribunal was justified in not accepting the income-tax returns of the year 1996-97, because they were filed after the death of deceased but there was no justification for the Tribunal not to have accepted the income-tax returns for the previous assessment year 1995-96. Both the income-tax returns were in the own hand writings of both the deceased and were duly acknowledged by the income-tax authorities. Both the income-tax returns were in the own hand writings of both the deceased and were duly acknowledged by the income-tax authorities. Mere non-production of the income-tax assessment orders cannot be a reason for proceeding on the assumption that the income would not have accepted by the income-tax authorities. Tribunal in my considered view, in not accepting the income of the deceased for the previous assessment year 1995-96 was mislead by the fact that they have declared themselves as proprietor of the firm whereas, actually Tribunal in award itself has stated that there were three partners of the firm i.e. two sons-deceased and their father. Income-tax returns were filed separately by each one of them therefore, it denotes their individual income received by them out of the income of the firm itself. 7. If that criteria is applied, deceased-Vinaychand Kothari whose annual income was Rs.54,895/- as per the income-tax returns of the year 1995-96, must be held to have been earning Rs.4500/- per month. Similarly, deceased-Vimalchand Kothari whose annual income was Rs.49,948/- as per the income-tax returns of the year 1995-96, must be held to have been earning Rs.4000/- per month. 8. Thus, applying the ratio of the judgment of Supreme Court in Sarla Verma and keeping in view the finding recorded by the learned Tribunal, the income tax returns of the deceased for the previous years and as per the definite trend of increase of income every year, it must be held that deceased, who were aged 24 and 22 years at the time of accident, even if it is noted that they did not have a permanent job, yet considering their age, it must be held that they would have definitely progressed in their career and their income would have certainly been increased on that basis, atleast 25% of their income should be added under the head of future prospects. Thus, income of deceased-Vinaychand Kothari is assessed at Rs.5125/- per month and income of deceased-Vimalchand Kothari is assessed at Rs.5000/- per month. 9. The multiplier of 17 in the case of deceased-Vinaychand Kothari, has rightly been applied and therefore on that basis 1/3rd was rightly deducted for the self expenses of Vinaychand Kothari. He would have on that income contributed to his family amounting to Rs.10,45,500/- (5125x12x17 = 10,45,500/-) and appellants in that case should have been awarded Rs.10,45,500/-. 9. The multiplier of 17 in the case of deceased-Vinaychand Kothari, has rightly been applied and therefore on that basis 1/3rd was rightly deducted for the self expenses of Vinaychand Kothari. He would have on that income contributed to his family amounting to Rs.10,45,500/- (5125x12x17 = 10,45,500/-) and appellants in that case should have been awarded Rs.10,45,500/-. However, keeping in view the principles of law enunciated by the Hon'ble Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Miss) and others : (1994) 2 SCC 176 = RLW 1995(2) SC 19, this amount appears to be somewhat on higher side. As per the current rate of interest of the bank @7% p.a., if the aforesaid amount is invested in the bank, monthly interest would much more than on Rs.5125/-. In order therefore to arrive at a reasonable and rationale amount of compensation and counter balance against that factor, reasonable amount of compensation should be Rs.9,00,000/-. Dispute however remains about the incorrect multiplier of 8 having been applied in the death claim of deceased-Vimalchand Kothari, who although young but was unmarried. Apart from factor of dependency of his father and mother, when the claim of younger brother is analysed in the light of the fact that he was taken as dependent of both deceased Vinaychand Kothari and Vimalchand Kothari, who died in the same accident. Therefore, in the case of deceased-Vimalchand Kothari, appellants should have been awarded Rs.4,80,000/- (5000x12x9 = 4,80,000/-). 10. Supreme Court while in P.S. Somanathan supra was dealing with a case where deceased was 33 years of age and the High Court has applied the multiplier of 5 instead of 6, reversing the order of the High Court held that High Court should have computed the compensation on the age of the deceased, who was looking after the entire family. Supreme Court in this case relied on the judgment of Sarla Verma supra wherein, factors of age of deceased, income of the deceased and number of dependents were also taken into consideration. 11. In Ramesh Singh and another : (2008) 2 SCC 667 too, deceased was 22 years of age as in the present matter leaving aged parents as sole dependents. The question before the Supreme Court was whether multiplier to be determined by the age of deceased or the the claimant. 11. In Ramesh Singh and another : (2008) 2 SCC 667 too, deceased was 22 years of age as in the present matter leaving aged parents as sole dependents. The question before the Supreme Court was whether multiplier to be determined by the age of deceased or the the claimant. It was held by the Supreme Court that choice of multiplier is determined by the age of the deceased or the claimants, whichever age is higher. If a young man is killed in the accident leaving behind aged parents, who may not survive long enough to match with a high multiplier provided by Schedule-II appended to the Motor Vehicles Act 1988, then the court has to offset such high multiplier and balance the same with the short life expectancy of the claimants. 12. In Shyam Singh supra, judgment relied upon by the learned counsel for the respondents, Supreme Court held that deceased was 19 years of age and his parents were 56 and 55 years, respectively, it was held that in case where an unmarried young man dies, the average age of the parents will be taken for determining the multiplier and not the age of the deceased. If a young man is killed in the accident leaving behind aged parents who may not survive long enough to match with a high multiplier provided by Schedule II, then the court has to offset such high multiplier and balance the same with the short life expectancy of the claimants. Multiplier of 8 therefore ought to have been taken taking average age of the parents of the deceased, who were 55 and 56 years. 13. In Ramesh Singh supra, age of the father of the deceased was 55 years and multiplier of 8 was held to be correctly applied. In the present case too, the age of the father of the deceased was 53 years and mother 50 years apart from the fact that one more dependent Vijaychand Kothari younger brother of the deceased was also a claimant. Taking into consideration these facts, multiplier of 8 is required to be slightly modified upwords. The correct multiplier for deceased-Vimalchand Kothari would 9. 14. In the result, the appeals are allowed. Taking into consideration these facts, multiplier of 8 is required to be slightly modified upwords. The correct multiplier for deceased-Vimalchand Kothari would 9. 14. In the result, the appeals are allowed. Appellants are entitled for amount of compensation for Rs.9,00,000/- for the death claim of deceased-Vinaychand Kothari whereas, they are entitled for amount of compensation for Rs.4,80,000/- for the death claim of deceased-Vimalchand Kothari with interest @ 7.5% only on enhanced amount of compensation from the date of filing of the claim petition i.e. 15/7/1996. 50% of the amount of compensation in the death claim of deceased-Vinaychand Kothari, be disbursed to his widow and one daughter and remaining 50% to his father, mother and younger brother in equal proportion. However, in the case of death claim of deceased-Vimalchand Kothari, the aforesaid amount of compensation be disbursed in equal proportion to all the claimants.