Research › Search › Judgment

Madras High Court · body

2022 DIGILAW 1890 (MAD)

G. Thenmozhi Suguna v. D. Kumaresan

2022-07-05

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT : S. Sounthar, J. (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to allow the present appeal award enhanced compensation in judgment and decree dated 21.04.2015 in M.C.O.P.No.244 of 2012 passed by the Motor Accident Claims Tribunal (Special District Judge), Erode, as prayed for in this Civil Miscellaneous Appeal with cost.) 1. Aggrieved by the quantum of compensation awarded by the Motor Accident Claims Tribunal, (The Special District Judge), Erode, in M.C.O.P.No.244 of 2012, the appellants herein, being the wife and minor daughter of the victim, filed this appeal. 2. According to the appellants the husband of the first appellant and father of the second appellant, namely David was 39 years old at the time of accident and he was engaged in the business of Air conditioner sales and services under the name and style of Blue Bell Engineering Service at Chennai as the proprietor thereof and earning a monthly income of Rs.60,000/- per month. According to them on 11.02.2012, when the deceased was riding a two wheeler bearing registration No.TN 18.Z.6710 at extreme left side of the Pattaravakkam to E.B.Road, a mobile crane vehicle, bearing the registration No.TN.20.AK.9534, which was driven by the 1st respondent owned by the 2nd respondent and insured with the 3rd respondent, hit the vehicle of the deceased from behind. The appellants claimed that the first respondent had driven the vehicle in a rash and negligent manner and hence it resulted in fatal accident. 3. Before the Tribunal, the 1st respondent remained ex-parte, the 2nd and 3rd respondent filed their separate counter and opposed the claim petition. The respondents 2 and 3 denied the manner of accident as claimed by the appellants and they also denied the age and income of the deceased. 4. The Tribunal on the basis of evidence of eye witness P.W.2, came to the conclusion that the accident took place due to rash and negligent driving of 1st respondent. However, the Tribunal held that the 1st respondent did not possess heavy vehicle license at the time of accident, though he possessed licence to drive light motor vehicles. Treating the same as violation of the policy condition, the Tribunal applied the doctrine of pay and recovery and thereby, directed the 3rd respondent-Insurance Company to pay the compensation at the first instance to the appellants and recover the same from the owner/second respondent. 5. Treating the same as violation of the policy condition, the Tribunal applied the doctrine of pay and recovery and thereby, directed the 3rd respondent-Insurance Company to pay the compensation at the first instance to the appellants and recover the same from the owner/second respondent. 5. As against the claim of Rs.1 crore made by the appellants, the Tribunal awarded a compensation of Rs.11,15,000/- and aggrieved by the quantum of compensation, the appellants/claimants have come up with this appeal. 6. The insurance company and the contesting respondents have not questioned the award by way of appeal or cross objection and therefore the other findings of the Tribunal had become final. We are only concerned with the quantum of compensation in this Appeal. 7. As stated earlier, the deceased was engaged in a business of Air conditioner sales and services in the name and style of Blue Bell Engineering Service at Chennai as a proprietor thereof. In order to prove his income, the appellants marked Ex.P14-Income Tax return for assessment year 2009-10, relevant to the financial year 2008-09 and Ex.P15-Income Tax return for the assessment year 2010-11, relevant to the financial year 2009-10 and Ex.P16- Income Tax return for the assessment year 2011-12, relevant to the financial year 2010-11. These documents are only office copies retained by the deceased assessee. In order to prove the authenticity of the documents, the appellants examined official of Income Tax Department as P.W.3, through him they marked the copy of Ex.P14 as Ex.P22 and copy of Ex.P15 as Ex.P23. However, the copy of Ex.P16 has not been marked through the Income tax officials. So it is not clear, whether Ex.P16 was really filed or not therefore, the same is not taken into consideration. As far as Ex.P14 and Ex.P15 are concerned, the same was filed with the Income Tax Department and copy of the same was marked through the official witness P.W.3 as Ex.P22 and Ex.P23. The perusal of Ex.P22 and Ex.P23, which is equivalent to Ex.P15 and Ex.P16 shows that deceased assessee declared the business income of Rs.3,43,804/-for the financial year 2008-09 and paid a tax of Rs.24,865/-. For the financial year 2009-10, he declared the business income as Rs.4,50,767/- and paid a tax of Rs.47,475/-. The perusal of Ex.P22 and Ex.P23, which is equivalent to Ex.P15 and Ex.P16 shows that deceased assessee declared the business income of Rs.3,43,804/-for the financial year 2008-09 and paid a tax of Rs.24,865/-. For the financial year 2009-10, he declared the business income as Rs.4,50,767/- and paid a tax of Rs.47,475/-. If the average amount for these two years is taken into consideration after deduction of income tax paid, the average annual income from the business of the deceased would be Rs.3,61,115.50/-. 8. The Tribunal refused to take into consideration the Income Tax returns marked by the appellants and proceeded to fix a notional income as Rs.6,000/- per month and granted compensation based on that notional income. The Tribunal rejected the Income Tax return mainly on the ground that appellants failed to produce the supportive documents like Data Book, Ledger book, Accounts book relating to the business of the deceased. It is pertinent to note that Motor Vehicle Act is a welfare legislation and the standard of proof expected is not as strict as in the case of Civil cases. If the claimants prove the income of the deceased by preponderance of probabilities the onus on them said to be discharged. It is not necessary that claimants must prove their case strictly beyond all reasonable doubt. As per the documentary evidence Ex.P22 and Ex.P.23 coupled with the oral evidence of Income Tax official, the deceased paid an income Tax of Rs.24,474/- for the financial year 2008-09 by showing his business income at Rs.3,43,804/-. Likewise for the financial year 2009-10, the deceased had paid an Income Tax of Rs.47,475/- by showing his business income as Rs.4,50,767. A normal prudent man will not boost his income and pay more tax disproportionate to his income. In fact the tendency of the human being would be to reduce the tax burden by prudently investing his income, under various heads available for tax exemption. It is highly unacceptable to say that the deceased would have foreseen his death in road accident at a future date and purposefully would have boosted his income and paid more tax wantonly, even in the year 2008-09 and 2009-10. It is highly unacceptable to say that the deceased would have foreseen his death in road accident at a future date and purposefully would have boosted his income and paid more tax wantonly, even in the year 2008-09 and 2009-10. As mentioned earlier, the accident took place only on 11.02.2012 and Ex.P.22 and Ex.P.23 came into existence well prior to the date of accident, therefore, we cannot infer any sniffer designs or foul play on the part of the deceased in paying more Income Tax disproportionate to his income. For the above said reasons, we hold that the business income mentioned in Ex.P.22 and Ex.P.23 can be safely taken into consideration for the purpose of fixing the annual income of the deceased on the date of the accident, especially when there is no evidence to show business was continued by 1st claimant/widow of deceased. 9. While rejecting the Ex.P.22 and Ex.P.23, the Income Tax returns of the deceased, the Tribunal relied on the following observations of the Apex Court in AIR 1960 Supreme Court, Page 106 in para 4: "4...It has to be borne in mind that in many cases the Directors of the Companies may feel inclined to make incorrect statements in these balance-sheets for ulterior purposes. While that is no reason to suspect ever statement made in these balance-sheets, the position is clear that we cannot presume the statements made therein to be always correct. The burden is on the party who asserts a statements to be correct to prove the same by relevant and acceptable evidence. The mere statements of the balance -sheet is of no assistance to show...". "6. This question as regards the sufficiency of the balancesheet itself to prove the fact of utilization of any reserve as working capital was also considered by us in Management of Trichinopoly Mills Lts. The mere statements of the balance -sheet is of no assistance to show...". "6. This question as regards the sufficiency of the balancesheet itself to prove the fact of utilization of any reserve as working capital was also considered by us in Management of Trichinopoly Mills Lts. V. National Cotton Textile Mills Workers Union, Civil Appeal No.309 of 1957: ( AIR 1960 SC 1003 ) and it was held that the balance-sheet does not by itself prove any such fact and that the law requires that such as important fact as the utilization of a portion of the reserve as working capital has to be proved by the employer by evidence given on affidavit or otherwise and after giving an opportunity to the workmen to contest the correctness of such evidence by cross-examination." The above said case law is not applicable to the facts of the present case. In the above said case, Industrial Tribunal relied on the balance-sheet of the company and the same was taken into consideration for the purpose of arriving at working capital. In that context the Supreme Court said a mere entry in the balance sheet cannot be presumed as correct unless it is corroborated by other evidence. In the case on hand, the Income Tax return was filed by the deceased and he is no longer available to come and support his statement in the Income Tax return by any other evidence. The claimants who are poor widow and minor child may not be in possession of all the documents relating to the business of the deceased to corroborate the entry in the Income Tax return by other documents. Further, as stated earlier by declaring his income deceased paid Income Tax proportionate to the income so declared. The fact deceased assessee paid Income Tax on the declared income is sufficient to prove that he really received the income he declared in the Income Tax return. Unless there is any other evidence to doubt his declared income, the same can be presumed as correct. 10. The fact deceased assessee paid Income Tax on the declared income is sufficient to prove that he really received the income he declared in the Income Tax return. Unless there is any other evidence to doubt his declared income, the same can be presumed as correct. 10. The Tribunal also relied on the following observations of the Division Bench of this Court in a case law reported in 2001 (3) CTC 720 , which is a follows: "In the light of the categorical admission that there are no documentary evidence and analysis as to how and on what basis the income tax returns were filed, we have rejected them as self-serving documents made up for the purpose of the case." The above said case law is not applicable to the facts of the case. In the above said case law, after the death of the deceased, Income Tax returns were filed cumulatively for 3 years in the name of the deceased. Therefore, the Division Bench of this Court said the Income Tax returns which were prepared subsequent to the accident in the name of the deceased cannot be relied on without any supporting documentary evidence and consequently, the same was rejected as self-serving documents. In the present case the Income Tax returns relied on by the claimants were filed well prior to the accident even during the life time of the deceased and therefore absolutely there is nothing on record to impeach those documents. The Tribunal erred in applying the above said two case laws and rejecting the Income Tax returns Ex.P.22 and Ex.P.23 marked by the claimants. 11. The average annual income for the deceased as per the Ex.P.22 and Ex.P.23 would be Rs.3,97,285/-. The average income after deduction of income tax paid would be Rs.3,61,115/-. If 1/3rd of that amount is deducted towards the personal expenses of the deceased, the annual contribution of the deceased to his family would be Rs.2,64,856/-. The Tribunal fixed age as 39 years for the deceased, therefore, the claimants are entitled to only 40% enhancement towards future prospects. The Tribunal has wrongly awarded 50% of the enhancement towards future prospects and the same is reduced to 40%. After addition of 40% future prospects, the annual contribution to the family would be Rs.3,70,798.80/- [Rs.2,64,856/- + Rs.1,05,942.40/- (40% of Rs.2,64,856/-) rounded off to Rs.3,70,799/-]. The Tribunal has wrongly awarded 50% of the enhancement towards future prospects and the same is reduced to 40%. After addition of 40% future prospects, the annual contribution to the family would be Rs.3,70,798.80/- [Rs.2,64,856/- + Rs.1,05,942.40/- (40% of Rs.2,64,856/-) rounded off to Rs.3,70,799/-]. As per Sarala Varma case, multiplier applicable to the age of deceased would be 15. Hence the appellants are entitled to a sum of Rs.55,61,985/- (Rs.3,70,799/- X 15) towards loss of dependency. The Tribunal awarded a sum of Rs.10,000/- towards loss of consortium to the first appellant wife and the same is enhanced to Rs.40,000/-. The Tribunal has not awarded any amount towards loss of love and affection to the minor second appellant. Therefore, a sum of Rs.40,000/- should be added towards loss of love and affection. The award of the Tribunal in respect of other conventional heads are confirmed. 12. The award passed by the Tribunal is enhanced and modified as follows: S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award Confirmed or Enhanced or Granted or Reduced 1. Loss of Consortium 10,000/- 40,000/- Enhanced 2. Funeral Expenditure 10,000/- 10,000/- Confirmed 3. Loss of estate 10,000/- 10,000/- Confirmed 4. For Transportation 5,000/- 5,000/- Confirmed 5. Loss of Income 10,80,000/- 55,61,985/- Enhanced 6. Loss of love & affection - 40,000/- Granted Total Rs.11,15,000/- Rs.56,66,985/-rounded off to Rs.56,67,000/- Enhanced by Rs.45,52,000/- 13. In the result, this Civil Miscellaneous Appeal is partly allowed and the award of Rs.11,15,000/- granted by the Tribunal is enhanced to Rs.56,67,000/-. The appellants are entitled to an interest at the rate of 7.5% from the date of petition namely 02.04.2012 to date of actual payment of the amount, excluding default period 24.01.2013 to 06.08.2013. The 3rd respondent-Insurance Company is directed to deposit the above said enhanced amount within a period of 12 weeks from today, less amount, if any, is deposited already at the first instance and recover the same from the second respondent. The first appellant is entitled to a sum of Rs.20,00,000/- together with interest and she is entitled to withdraw the same. The minor/second appellant is entitled to a sum of remaining Rs.36,67,000/- along with proportionate interest and the same shall be invested in any one of the nationalized bank, till she attains majority. The first appellant is entitled to a sum of Rs.20,00,000/- together with interest and she is entitled to withdraw the same. The minor/second appellant is entitled to a sum of remaining Rs.36,67,000/- along with proportionate interest and the same shall be invested in any one of the nationalized bank, till she attains majority. The 1st appellant who is natural guardian of second appellant is permitted to withdraw the accrued interest, once in 6 months towards welfare of the minor second appellant. No Costs.