Moti Lal Sarraf v. New India Insurance Company Ltd.
2022-05-18
AJAI TYAGI, K.J.THAKER
body2022
DigiLaw.ai
JUDGMENT : 1. This appeal, at the behest of the claimants, challenges the judgment and order dated 15.01.2010 passed by Motor Accident Claims Tribunal/Special/Additional District Judge, Ballia (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 31 of 2007 awarding a sum of Rs.1,24,500/-with interest at the rate of 6% p.a. as compensation. 2. Heard Sri Satyendra Narayan Singh, learned counsel for the appellants; Sri Aijaz Ahmad Khan, learned counsel for the respondent no. 1-New India Insurance Company Ltd. None appears for the remaining respondents. 3. The brief facts as culled out from the record are that on 17.01.2007 when deceased was driving his Indica Car No. U.P.-60-H-4901 owned by him and was travelling on Varanasi Ghazipur road, D.C.M. Truck No. U.P.-65-H-8205 coming from opposite side, which was driven rashly and negligently, dashed against the said car at about 10.00 p.m. In this accident, Anand Kumar and Jatin Kumar died on spot and Kumari Drishya Verma and Abhishek Verma sustained grievous injures. Deceased was a healthy person who was partner in J.J. Honda agency Ballia and was dealing in the business of purchase and sale of silver-golden ornaments, in retain which is his ancestral occupation. He was earning Rs. 1,77,578 annually and was paying income tax. He was unmarried. Claimant/appellant no. 1-Moti Lal Sarraf is the father, Claimant/appellant no. 2-Smt. Tara Devi is the mother and Claimant/appellant no. 3- is the sister of the deceased. 4. The accident is not in dispute, the liability of owner/insurance company to pay the compensation is also not disputed. The finding regarding negligence has attained finality. So now it is the dispute of quantum of compensation which is left to be decided in this appeal. 5. Learned counsel for the appellants submitted that the deceased was a business man he was engaged in jewelry business. It is also submitted that the deceased was income tax payee and his income tax return has been filed on record, but the learned Tribunal did not consider the income mentioned in income tax return on the ground that source of income is not proved by the appellants which was not required. Hence, learned Tribunal has awarded a very meagre amount of compensation. Learned counsel also submitted that it is also opined by the learned Tribunal that income tax return of only one year is filed.
Hence, learned Tribunal has awarded a very meagre amount of compensation. Learned counsel also submitted that it is also opined by the learned Tribunal that income tax return of only one year is filed. Learned Tribunal did not consider the fact that the income at the time of death of the deceased was relevant. It is further submitted that learned Tribunal not given any amount for loss of future income and multiplier of 5 is applied on the basis of age of the parents of the deceased wife, multiplier should have applied according to the age of the deceased. It is next submitted by learned counsel for the appellants that only Rs. 2,000/-were granted for funeral expenses and of Rs. 2,500/-were granted for loss of estate. No amount is granted for the loss of love and affection. 6. Learned counsel for the Insurance Company vehemently objected the submissions made by the appellants and further submitted that income of deceased mentioned in income tax return is not proved. Moreover, income tax return is in the name of firm and the shop of deceased is not disclosed. Hence, learned Tribunal rightly consider notional income of the deceased but learned counsel very fairly submitted that the multiplier should be applied according to the age of the deceased. 7. We have perused the record and impugned judgment. 8. The deceased died on 17.01.2007, hence income of financial year 2005-06 may be relevant. Appellants have filed the copy of income tax return of the deceased pertaining to the financial year 2005-06 which is paper no. 14-C on the record. This goes to show that it is not in the name of firm but it is "individual". This document shows the annual income of the deceased at Rs. 1,77,578/-Learned Tribunal has ignored the income tax return on the ground that registration certificate of business and details of account showing the income of the deceased have not been filed and there is no proof of his income from business of sale and purchase of ornaments. On the basis of above observation, learned Tribunal has refused to rely on the annual income of the deceased on the basis of income tax return. This is not only absurd but not germane to the compensatory jurisprudence with regard to the Motor Accident Claim Petition under Section 166 of the Motor Vehicles Act, 1988.
On the basis of above observation, learned Tribunal has refused to rely on the annual income of the deceased on the basis of income tax return. This is not only absurd but not germane to the compensatory jurisprudence with regard to the Motor Accident Claim Petition under Section 166 of the Motor Vehicles Act, 1988. The income tax return is the face of income of assessee. This is authentic document of income which cannot be ignored by any Court/Tribunal or Authority. Hence, learned Tribunal has fallen error by not placing the reliance of income tax return which is not controverted by the Insurance Company and is against the judgment of Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830 . Hence, learned Tribunal has not awarded just compensation. Annual income of the deceased for financial year 2005-06 is shown Rs. 1,77,578/-in the copy of income tax return, filed by the appellants on record which is not shown taxable. Hence we hold the monthly income of the deceased at Rs. 15,000/- per month rounded off. 9. Learned Tribunal has not awarded any sum for future loss of income file but judgment of Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 ACJ 1298 was in vogue when the impugned judgment was delivered. After the aforesaid judgment, Hon'ble Apex Court has held in National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 2017 LawSuit (SC) 1093 that case of self employed persons, if he is below 40 years of age, 40% would be added for future loss of income. 10. Learned counsel for Insurance Company submitted that the deceased was unmarried and nobody was dependent upon him, hence, 1/2 should be deducted for personal expenses of the deceased. Per contra learned counsel for the appellants submitted that the learned Tribunal has rightly deducted 1/3 of income for personal expenses but we unable to concur the submissions made by the appellants. As per the judgment of Apex Court Munna Lal Jain And Another Vs. Vipin Kumar Sharma and Others reported in (2015) 6 SCC 347 1/2 would be deducted for personal expenses because the deceased was unmarried. 11.
As per the judgment of Apex Court Munna Lal Jain And Another Vs. Vipin Kumar Sharma and Others reported in (2015) 6 SCC 347 1/2 would be deducted for personal expenses because the deceased was unmarried. 11. Learned Tribunal has fallen an error again for applying multiplier on the basis of age of the parents of the deceased Hon'ble Apex Court has held in Munna Lal Jain (Supra) that the multiplier would be applied according to the age of the deceased. As per the judgment of Sarla Verma (Supra), keeping in view 26 years age of the deceased multiplier of 17 would be applicable. Appellants would be entitled to get Rs. 20,000/-for funeral expenses and mother of the deceased being Class-I heir would also get Rs. 50,000/- as filial consortium. 12. Despite the fact that the decisions even in the date when the judgment was pronounced namely Sarla Verma (Supra) were very clear that the income tax returns have to be look into a holistic approach. We are fortified in our view by the judgment of Apex Court in Malarvizhi & Ors. Vs. United India Insurance Company Limited & Anr., reported in 2020 0 AIR (SC) 90 relied by the learned counsel for the appellants will enure for the benefit of the claimants, hence income tax returns are statutory document on which reliance may be placed to determine annual income of the deceased. The Insurance Company has not laid any rebuttal evidence and the Tribunal has failed to consider the potential of a man to earn relying on the decision of the Apex Court in brushing a side the income tax returns goes to show that the Tribunal has made the judgement venerable, just returning of filing that his share or income in the said commercial organization can also not be estimated, the proof is very clear that the income tax returns which were produced by the appellants were in the name of not the firm but it was individual in the name of the deceased. This is an error which is apparent on the face of the record proof of income is not necessary once income tax returns are filed details of account has not to be filed. This is not taking holistic view of the matter the decision relied by the Tribunal in deducting 1/3 and fixing the income at Rs. 3,000/-per month is again bad.
This is not taking holistic view of the matter the decision relied by the Tribunal in deducting 1/3 and fixing the income at Rs. 3,000/-per month is again bad. The multiplier of parents would not have been applied after the judgment of Sarla Verma (Supra), the judgment is after the judgment of Sarla Verma (Supra) shows that the Tribunal has misdirected itself in awarding multiplier of 5 and added what can be said to be meagre amount under the head of funeral expenses and loss of estate, this itself makes the judgment venerable. We are again fortified in our view the judgment of Apex Court in Smt. Meena Pawaia & Ors. Vs. Ashraf Ali & Ors. reported in 2021 0 Supreme (SC) 694 and the judgement in National Insurance Company Ltd. Vs. Indira Srivastava and Others reported in (2008) 2 Supreme Court Cases 763 and a recent decision of this Bench in Panchratni and 5 Others Vs. Smt. Manju Singh and 2 Others in First Appeal From Order No. 2386 of 2013 decided on 25.03.2022 will also enure for the benefit of the appellants. The judgement of Apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas reported in 1993 (0) AIJEL-SC 9412 and the judgment of Gobald Motor Service Ltd. and another Vs. R.M.K Veluswami and other, 1962 SCR(1) 929 should have been made applicable for granting future loss of income which has not been done. We, therefore, recalculate the income as fallows and as reasoned above. 13. On the basis of above discussions the amount of compensation payable to the appellants is computed herein below: (i). Monthly income Rs.15,000/-. (ii) Added 40% for future loss of income=Rs. 6,000/-. (iii). Total income : Rs.15,000+6,000=21,000/-. (iv). After 1/2 deduction for personal expenses=Rs.21,000-10,500=10,500/-. (v). Annual income Rs. 10,500X12=1,26,000/-. (vi). Multiplier applicable : 17. (vii). Loss of dependency Rs. 1,26,000X17=21,42,000/-. (viii). Amount under non pecuniary heads Rs. 20,000+50,000= 70,000/-. (ix). Total compensation Rs. 21,42,000+70,000=22,12000/-. 14. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under: "13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest.
Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under: "13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court." 15. Learned Tribunal has awarded rate of interest as 6% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment. 16. In view of the above, the appeal stands partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 08 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited. Statutory amount be remitted to the Tribunal. 17. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs. 50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income-Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No. 23 of 2001 (Smt. Sudesna and others Vs.
The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No. 23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount. 18. The Tribunal shall follow the guidelines issued by the Hon'ble Apex Court in Bajaj Allianz General Insurance Company Pvt. Ltd. Vs. Union of India and Others, vide order dated 27.01.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. Since long time has elapsed, the amount be deposited in the Saving Bank Account of claimant(s) in a nationalized Bank without F.D.R. 19. We request the Registrar General to circulate a copy of this judgement as we have relied on the recent guidelines issued by the Apex Court in Bajaj Allianz (Supra) and the recent judgment of Gujarat High Court The Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No.4800 of 2021 decided on 05.04.2022. 20. We also request the Registrar General to send the copy of this judgment to the concerned Judge, if he still in service, so that he may not commit such mistakes in future, which are so apparent that it burdens the High Court.