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2013 DIGILAW 48 (CAL)

Fatema Bibi v. Oriental Insurance Co. Ltd.

2013-01-30

J.BHATTACHARYA, MRINAL KANTI SINHA

body2013
JUDGMENT : J. Bhattacharya, Mrinal Kanti Sinha, JJ. This miscellaneous appeal is directed against the judgment and award dated 19.1.2010 passed by the learned Judge. Motor Accidents Claims Tribunal, 6th Court at Alipur in M.A.C. Case No. 7 of 2008, at the instance of the claimants-appellants. The appellants' application u/s 166 of the Motor Vehicles Act was allowed on contest against the insurance company and ex parte against the rest. The learned Tribunal held that the son of the appellants died in the motor accident on 9.9.2007 due to rash and negligent driving of the offending vehicle bearing No. WB 19-A 4259 by the driver. Though the claimants claimed Rs. 9,00,000 towards compensation for the loss of their son in the said accident but the learned Tribunal allowed the claimants' claim to the extent of Rs. 3,88,500 together with simple interest at the rate of 5 per cent per annum from the date of filing of the application till the date of realization thereof. 2. Appellants are aggrieved as their entire claim was not allowed. The appellants claimed the said compensation amount by contending that their son used to earn Rs. 9,000 per month from his business. At the time of his death their son was aged about 25 years. 3. Learned Tribunal, while computing the compensation amount payable to the claimants disbelieved the claimants' claim regarding their son's income of Rs. 9,000 per month. The learned Tribunal, in fact, computed the compensation amount by accepting the earnings of the deceased as Rs. 6,000 per month. 4. Let us now consider as to how far the learned Tribunal was justified in computing the compensation amount payable to the claimants on the basis of the presumption regarding deceased's income of Rs. 6,000 per month. 5. In support of the appellants' claim for their son's income of Rs. 9,000 per month, the appellants produced the income tax return for the assessment years 2006-2007 and 2007-2008. Both these returns were marked exhibits on proof thereof. It appears from Exh. 8, being the income tax return for the year 2006-2007, that the deceased himself declared his income for the said assessment year as Rs. 96,000 and odd. The other return being Exh. 10 for the assessment year 2007-2008 shows that the deceased declared his income for the said assessment year as Rs. 98,000 and odd. It appears from Exh. 8, being the income tax return for the year 2006-2007, that the deceased himself declared his income for the said assessment year as Rs. 96,000 and odd. The other return being Exh. 10 for the assessment year 2007-2008 shows that the deceased declared his income for the said assessment year as Rs. 98,000 and odd. Though it is true that the balance-sheet relating to the profit and loss of the business of the deceased was not submitted but we can safely presume that the deceased who was a businessman did not declare inflated income in his tax return, as normally a businessman and/or a professional declares lesser amount of their income in his/her income tax return by concealing their actual income for reducing their tax liability. 6. As such, for the purpose of assessment of compensation under Motor Vehicles Act, we can safely proceed on the basis of the income disclosed by the deceased in his income tax return as his actual income for those assessment years. Thus, we hold that the income of the deceased for the year immediately before his death was not less than Rs. 8,000 per month. If that be so, then his annual income should have been assessed at Rs. 96,000. Since the deceased was a bachelor, we, by relying upon the decision of the Hon'ble Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 held that 50 per cent of the total income will be deducted from the total income of the deceased on account of his personal and living expenses. Thus, the total loss of dependency of the dependant was Rs. 48,000. 7. The learned advocate appearing for the appellants submits that considering the future prospects of the deceased, 30 per cent of his total income should be added for computing the compensation amount payable to the claimants. In support of such submission, he has relied upon a decision of the Hon'ble Supreme Court in the case of Santosh Devi Vs. 48,000. 7. The learned advocate appearing for the appellants submits that considering the future prospects of the deceased, 30 per cent of his total income should be added for computing the compensation amount payable to the claimants. In support of such submission, he has relied upon a decision of the Hon'ble Supreme Court in the case of Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) 6 SCC 421 wherein it was held that it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes a victim of accident then the same formula deserves to be applied for calculating the amount of compensation. 8. Mr. Pahari, learned advocate appearing for the insurance company, did not dispute such proposition of law which was enunciated by the Hon'ble Supreme Court in the said decision cited by the learned advocate appearing for the appellants. 9. He, however, submits that such enhancement of 30 per cent on account of future prospects can be allowed provided the claimants can prove that the deceased had future prospects in his business. He further submits that in the present case, the claimants have failed to lead any evidence showing that the deceased had future prospects in his business. He thus submits that any increment of income of the deceased on account of future prospects cannot be allowed in the instant case. 10. In support of his submission he has relied upon a decision of the Hon'ble Apex Court in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others, (2006) 3 SCC 242 wherein it was held that mere assertion of the claimants that the deceased would have earned more than Rs. 8,000 to Rs. 10,000 per month during the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the Tribunal. 11. By applying the said principle which has been laid down by Hon'ble Supreme Court in the said decision of Bijoy Kumar Dugar Vs. 8,000 to Rs. 10,000 per month during the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the Tribunal. 11. By applying the said principle which has been laid down by Hon'ble Supreme Court in the said decision of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others, (2006) 3 SCC 242 we have no hesitation to hold that the increase of the total income to certain percentage on account of future prospects cannot be allowed in the present case as the claimants have not proved by evidence that the deceased had future prospects in his business. 12. Accordingly, we hold that the compensation should be calculated on the basis of the actual loss of dependency of the claimants, i.e., Rs. 48,000 per annum. 13. Having regard to the fact that the mother of the deceased was aged about 47 years at the time of the death of her son and the father of the deceased was aged about 57 years at the time of the death of his son, the average age of the parents at the time of the death of the deceased will be 52 years and as such, the appropriate multiplier, in our view, will be 11 in the present case. Thus, if the annual loss of income of the deceased of Rs. 48,000 is multiplied by 11 then the total compensation will be Rs. 5,28,000. In addition to the said amount of Rs. 5,28,000, the claimants are also entitled to get an additional sum of Rs. 4,500 towards the statutory compensation. 14. Having regard to the fact that the claimants have lost their only earning member in their family, we, by taking note of the decision of the Hon'ble Supreme Court in the case of Amrit Bhanu Shali and Others Vs. National Insurance Co. Ltd. and Others, (2012) 11 SCC 738 are inclined to award a further sum of Rs. 26,000 towards loss of affection of the son. Thus, the insurance company is liable to pay Rs. 5,58,500 to the claimants on account of compensation. 15. Admittedly, the awarded sum of Rs. 3,88,500 has already been paid by the insurance company to the claimants in pursuance of the award passed by the Claims Tribunal. 16. As such, the insurance company is directed to pay the balance compensation of Rs. 1,70,000. 5,58,500 to the claimants on account of compensation. 15. Admittedly, the awarded sum of Rs. 3,88,500 has already been paid by the insurance company to the claimants in pursuance of the award passed by the Claims Tribunal. 16. As such, the insurance company is directed to pay the balance compensation of Rs. 1,70,000. The insurance company is, thus, directed to pay the said amount of compensation of Rs. 1,70,000 together with interest at the rate of 9 per cent per annum from the date of presentation of the claim petition till the date of realization thereof. 17. Such payment should be made to the claimants in equal share by account payee cheque to be deposited with the Tribunal within 30 days from the date of communication of this order. 18. The appeal is thus disposed of. Let the L.C.R. be sent down to the court below immediately.