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2012 DIGILAW 361 (RAJ)

National Insurance Co. Ltd. v. Satya Devi

2012-02-08

NISHA GUPTA

body2012
Hon'ble GUPTA, J.—This appeal has been filed under Section 173 of the Motor Vehicles Act against the award dated 15.9.1999 passed in MAC No. 982/1999, whereby it was directed to the appellant company to make payment of compensation of Rs. 10,59,625/- failing which, the claimants were entitled to get interest @ 12% per annum from 5.5.1999 till the date of realisation. 2. The brief facts of the case are that on 14.2.1999, Tek Chand, deceased was coming to his home from Punjab Hotel, Chuna Phatak, Hanumangarh, Junction, when he reached near Gaggar Bridge, a Hero Honda Motor Cycle No. RJ 31 M-7884 came at high speed and came on the wrong side and hit the moped, as a result of which Tek Chand sustained injuries and during the course of treatment, he died. 3. Learned Tribunal assessed his income as Rs. 9,500/- per month and awarded compensation accordingly. 4. Heard learned counsel for the parties and perused the relevant record, specially the impugned judgment and award. 5. The first objection of the present appellant is that the accident took place at Hanumangarh Junction and the claimants were also residing there. Hence, the court at Jaipur had no jurisdiction and on the jurisdictional error, this judgment and award deserves to be set aside. 6. Per contra, learned counsel for the respondent submits that Satya Devi, wife of deceased, who was the claimants No. 1, and the respondent No. 2, who is the son of he deceased, are residing at Mansarovar, Jaipur and hence the court at Jaipur had jurisdiction. 7. Learned Tribunal has considered the statement of AW-1 Satya Dev, who has stated that she is residing at Jaipur and her elder son is also residing at Jaipur and he is learning some work. Voters list Ex. 10 has also been placed on record, which goes to show that the name of the Satya Dev, wife of deceased and Vikas have been entered at Mansarovar, Jaipur. Voters list Ex. 10 has also been placed on record, which goes to show that the name of the Satya Dev, wife of deceased and Vikas have been entered at Mansarovar, Jaipur. The relevant provisions for deciding the jurisdiction, has been given under Section 166(2) of the Motor Vehicles Act, 1988, which reads as under:- "166(2).- Every application under sub-section(1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimants resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed. Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant." 8. A bare reading of the above provision goes to show that the claimants, who are residing at a particular place, can prefer a claim petition within the local limits of Claims Tribunal where he is residing. Undoubtedly, claimant Satya Devi has stated that she was residing at Jaipur and it has been further corroborated by the voters list Ex. 10. There is no reliable rebuttal of this fact on the record and hence the learned Tribunal has rightly decided the matter and there is no lack of jurisdiction to the Tribunal situated at Jaipur. 9. The second contention of the present appellant is that the learned Tribunal has not rightly assessed the income of the deceased. The claimants have not adduced any legal or reliable evidence regarding income of the deceased and hence he should be treated as non-earning member and on notional income, the compensation should have been assessed. 10. Per contra, counsel for the respondent has submitted that there was ample evidence before the learned Tribunal that deceased was earning Rs. 9000-10,000/- per month. He was running a hotel in the name of Punjab Hotel. 11. AW-1 Satya Devi has stated that her husband was earning Rs. 9,500 - 10,000/- per month and AW-3 Anil Kumar, who was accountant and assistant in Punjab Hotel, has also stated that income of Tek Chand- deceased was about Rs. 10,000/- per month. 9000-10,000/- per month. He was running a hotel in the name of Punjab Hotel. 11. AW-1 Satya Devi has stated that her husband was earning Rs. 9,500 - 10,000/- per month and AW-3 Anil Kumar, who was accountant and assistant in Punjab Hotel, has also stated that income of Tek Chand- deceased was about Rs. 10,000/- per month. He has also placed on record balance-sheets and cash-book on record as Ex. 15 to Ex. 17 and on the basis of these oral and documentary evidence, the learned Tribunal has assessed the income of the deceased as Rs. 1,03,762/- in the year 1998-99 and dependency has been calculated as Rs. 69,175/-. 12. The contention of the present appellant is that no documentary evidence has been placed on record which can prove the income of the deceased and Ex. 15 to 17 are fake one as they were prepared after the death of the deceased. 13. It is not in dispute that Ex. 15 has been prepared on 15.3.1999 admittedly after the death of deceased. Same is the position with regard to Ex. 16. Learned counsel for the respondent has submitted that it has been prepared on day-to-day basis but a bare perusal of Ex. 16 goes to show that some dates have been entered in this cash-book. It has not been maintained on daily basis and apart from this, it contains only entries regarding payments to the wife of deceased or to deceased himself. Nothing has been entered in the cash-book regarding cash payments to bring any raw material for the hotel or salary to the employees. It has also been stated that six employees working at hotel but no employee has been produced. It was stated by AW-3 Anil Kumar that hotel was started in April, 1998 and it was having a registration certificate, which was the best evidence in the possession of the respondents to prove the existence of the hotel but no registration certificate was placed on record. At the same time, it has been stated that the deceased was used to pay income tax and an entry to this effect has also been made in Ex. 16 dated 15.12.1998 but no income tax return has been filed. Even Ex. At the same time, it has been stated that the deceased was used to pay income tax and an entry to this effect has also been made in Ex. 16 dated 15.12.1998 but no income tax return has been filed. Even Ex. 5, which was placed on record, has not been audited by any competent authority and hence these documents do not conspire confidence and cannot be termed as reliable evidence. Rather, these seem to be designed for the sake of creating evidence to prove the income of the deceased. 14. It has been submitted by the learned counsel for the respondent that if income tax returns have not been filed, possibility of income cannot be ruled out and he has placed reliance on the judgment delivered in the case of Vimla Devi (Smt.) & Ors. vs. Managing Director & Ors. (2010 RAR 241 (Raj.) and Oriental Insurance Company Ltd. vs. Bhupender Kaur & Ors. (III (2003) ACC 50 (DB)). 15. There is no fault in the finding of the above and it can safely be inferred that non-payment of income-tax cannot rule out possibility of income but here it is not a case of non-payment of income tax, rather, income tax has been paid according to the statement of AW-3 but no documentary evidence to support the income of the deceased has been placed on record. Not only documentary evidence regarding income tax has not been produced but also the registration certificate or the licence of the hotel from the concerned municipality and salary slips of workers etc. were placed on record and no reason has been assigned for the placing these documents on record. 16. Learned counsel for the respondent has submitted that it is not necessary to produce documentary evidence. If documentary evidence has not been produced, oral evidence cannot be rejected out rightly. 17. There is no doubt about the above submission. Here, in the present case, oral evidence, which was produced by the claimants in support of the income of the deceased, is totally unreliable and the documents produced as Ex. 15 to 17 also do not inspire confidence. There is vast different between stating a fact and proving the same. 17. There is no doubt about the above submission. Here, in the present case, oral evidence, which was produced by the claimants in support of the income of the deceased, is totally unreliable and the documents produced as Ex. 15 to 17 also do not inspire confidence. There is vast different between stating a fact and proving the same. Merely because a statement has been made by a party, it cannot be taken as a gospel truth and unless some fact is supported by evidence, either oral or documentary, it cannot be taken on its face value. 18. Here, in the present case, nothing has been placed on record that the deceased was earning Rs. 9000-10,000/- per month and AW-3 Anil Kumar seems to be a tutored witness. The fact that AW-3 Anil Kumar was working with Tek Chand has not been supported by any documentary evidence or even there is no iota of evidence, which can suggest that deceased Tek Chand was having hotel in the name of Punjab Hotel. 19. Per contra, NAW-1 Manoj Shekhawat, Investigating Officer appointed by the appellant-company has stated that on investigation he found that there is no hotel (Dhaba) in the name of Punjab Hotel. Only one dhaba he found in Hanumangarh Junction is in the name of New Punjab Hotel, owner of which was Rajkumar. Photograph of dhaba, enquiry report Ex. NA 1 to 4 have also been placed on record. 20. Hence, the conclusion of the learned Tribunal that the income of deceased Tek Chand was Rs. 1,03,762/- is without any legal basis and it could be concluded that income of the deceased was not proved before the Tribunal. 21. Learned counsel for the appellant has submitted that in absence of evidence about the income of the deceased, the compensation should be awarded on fixed notional income and he has placed reliance on the judgment delivered in the case of Uttaranchal Transport Corporation Ltd. vs. Vimla Devi & Ors. ( 2009 ACJ 1257 ) and Ponnumany & Anr. vs. V.A. Mohanan & Ors. ( 2008 ACJ 1338 ). 22. The concept of notional income has been invested to meet out some contingencies where the income of victim is either unknown or has not been proved or there are facts of the case emerging that victim was unemployed because of his age or otherwise. vs. V.A. Mohanan & Ors. ( 2008 ACJ 1338 ). 22. The concept of notional income has been invested to meet out some contingencies where the income of victim is either unknown or has not been proved or there are facts of the case emerging that victim was unemployed because of his age or otherwise. In the present case income of the deceased has not been proved and the learned Tribunal has not considered the matter in right perspective. Learned counsel for the respondent has placed reliance on the judgment delivered in the case of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. (2009(11) ACC 161 (SC) = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC), where broad principles for assessing the compensation under the Motor Vehicles Act have been elaborately discussed and developed by the Apex Court. 23. Looking at the above, compensation awarded by the learned Tribunal for loss of dependency to the tune of Rs. 10,37,625/- is faulted and cannot be sustained looking to the fact that income of the deceased has not been proved by reliable evidence. Therefore, there is no option for the court but to take into consideration the income of the deceased on notional basis. Hence, taking income of the deceased as Rs. 15,000/- per annum as provided in the Second Schedule of the Motor Vehicles Act, 1988, and looking to the age of deceased, applying the multipliers 13, the compensation in the head of loss of dependency comes to Rs. 15,000 x 13 = Rs. 1,95,000/-. 24. In the result, the appeal succeeds and is allowed. The claimants-respondents are entitled to the compensation to the tune of Rs. 1,95,000/- in head of loss of dependency. The appellant is entitled to recover the excess amount already paid to the claimants.