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2011 DIGILAW 2383 (RAJ)

Raj Kumari Saraogi v. Ramdev

2011-11-08

MOHAMMAD RAFIQ

body2011
RAFIQ, J.—This appeal has been filed by the appellants aggrieved by the award of the Motor Accident Claims Tribunal Kishangarh, Ajmer dated 13.9.1997 with the prayer that quantum of compensation be increased by accepting income of deceased Nirmal Kumar Saraogi as per the income-tax returns. Referring to paras 29 to 35, learned counsel for the appellants has argued that according to the income-tax returns for the assessment-year 1993-94, his total income was Rs.78,923.39. Tribunal has ignored part of the income tax return for the year 1994-95 Exh.22 and statement of computation of income Exh.21 on the plea that deceased died on 12.10.1993 and income may have been increased but for the earlier years he was alive and his annual income in Return of that year was indicated as Rs.78,923.39. Tribunal deducted the income received by way of interest and dividends of commission on the premise that the same continued to be received by the claimants even after the death of deceased Nirmal Kumar Saraogi and thus accepted the net income of the deceased to be Rs.68,175.35. Learned counsel argued that the learned Tribunal has misread the statement of widow of the deceased AW1 Smt.Raj Kumari that business of the firm of the deceased was taken over by his sons Sanjeev Saraogi and Subodh Saraogi, aged 38 & 28 years respectively, and therefore, held that there was no loss of income and on that premise, the Tribunal held that at the maximum, Rs.3,000/- per month should be taken as loss of income by way of depriving managerial expertise of deceased. Learned counsel argued that sons of the deceased were having separate business in the name and style of Wheels & Wares, Madan Mohan & Company Shilong, M.M. Automobiles, M/s.Madan Mohan & Company Barapeta and Tarabari Hat but out of those, two proprietary firms were being run and managed by the deceased. Adopting the theory of loss of managerial skill by the Tribunal and on that basis, reducing the income is wholly illegal. Learned counsel in this respect referred to the statement of AW1 Smt.Raj Kumari and argued that according to this witness, her husband used to run business of all his firms independently. Adopting the theory of loss of managerial skill by the Tribunal and on that basis, reducing the income is wholly illegal. Learned counsel in this respect referred to the statement of AW1 Smt.Raj Kumari and argued that according to this witness, her husband used to run business of all his firms independently. Learned counsel for the appellants argued that for loss of consortium, only a sum of Rs.10,000/- has been awarded and Rs.3,000/- has been awarded for transportation and funeral expenses whereas, AW1 Smt.Raj Kumari has stated that dead body had to be brought from Kishangarh to Jaipur, where funeral took place and that due to death of her husband, the matrimonial life has been ruined. 2. Learned counsel for the respondents has opposed the appeal and argued that deceased and his two sons used to run all the business as family business. Not much loss caused to the claimants as the firm continued to earn income since business of all those firms was taken over by two sons of the deceased, who are claimants. Learned counsel in this connection supported the conclusions arrived at by the learned Tribunal especially those in paras 29 to 32 and argued that the Tribunal has rightly accepted the income of the deceased to be Rs. 3,000/- per month and on that basis deducted 1/3rd towards his own expenses assessing contribution to the family members by the deceased to Rs.2,000/- per month. No fault can be found with the said finding. 3. Upon hearing learned counsel for the parties and perusing the award, I find that the finding recorded by the Tribunal that even though those firms were proprietary firms, and the firms were taken over by the sons of the deceased therefore net income of the deceased even though approved by the income tax returns to be Rs.68,175.35 cannot be a basis for computation of compensation, cannot be sustained. Tribunal, in my view, was not justified in computing the compensation by only taking into consideration the element of loss of managerial skill. If those firms were being run by the deceased as a proprietary firm and after his death, his firms were taken over by two sons, it does not mean that his liability to the family was only to the extent of managerial skill. If those firms were being run by the deceased as a proprietary firm and after his death, his firms were taken over by two sons, it does not mean that his liability to the family was only to the extent of managerial skill. In other words, if the sons were looking after their own personal business and father was doing the business separately, therefore income that was received from the firm was income of each other separately. Learned Tribunal on the basis of the statement of income tax and income tax returns already made deductions of Rs.2,894.05 as the commission, which the deceased used to receive from National Insurance company and a sum of Rs.7,854.29 by way of interest and dividends etc. and thereafter accepted Rs.68,175.35 as the net income from the firms and managerial income would come approximately to Rs.5,500/- per month. 4. In the circumstances, there was no basis to accept the managerial income of Rs.3,000/- only ignoring rest of the income. However, to be on safer side, income of the deceased should be accepted as Rs.4,500/- per month and on that basis reducing 1/3rd for self expenses, the amount comes to Rs.3000/- per month and after applying the multiplier of 11, the amount comes to Rs.3,96,000/- (3000x12x11= 3,96,000/-), Rs.25,000/- is awarded towards loss of consortium and Rs.5,000/- is awarded for transportation and funeral expenses. Thus, the award of Rs.2,49,000/- is enhanced to Rs.4,26,000/- (396000+25000+5000 = 4,26,000) after adjusting Rs.25,000/- paid to the claimants towards 'no fault liability'. The appellants shall be entitled to receive interest @7.5% on the enhanced amount of compensation of Rs.1,77,000/- (426000-249000=177000) from the date of filing of the claim petition, which should be paid within a period of three months. 5. The appeal is thus allowed. Record be transmitted to the Tribunal forthwith.