(Per : HONOURABLE MR.JUSTICE C.L. SONI)
1. This appeal is filed by the Insurance Company against the judgment and award dated 2.3.2005 passed by the Motor Accident Claims Tribunal (Aux.) Court No.15, Ahmedabad in Motor Accident Claim Petition No.326 of 2000.
1.1. The claim petition was filed by the heirs of deceased Shaileshbhai Jayantilal Barot.
2. As per the case in the claim petition, deceased Shaileshbhai was pillion rider on a scooter bearing Registration No.GJ-1-AK 4427 driven by one Harshadbhai Gajjar. On 10.1.2000, at about 4 O'clock, in the afternoon, when the scooter was going on Gandhinagar- Vijapur Highway and reached near Pethapur cross road, it slipped because of excessive speed, resulted in causing serious injuries to deceased Shaileshbhai. Deceased Shaileshbhai succumbed to his injuries on 13.1.2000. It is this accidental death of Shaileshbhai, which gave rise to the filing of the claim petition by the claimants who are widowed mother, widowed wife of deceased Shaileshbhai, minor daughter and son. The claimants claimed Rs.25,00,000/- as compensation. As per the further case of the claimants, deceased Shaileshbhai was doing business of tiles and ceramics and earning about Rs.2 lakh per year.
2.1. The claim petition was resisted by the appellant as also by respondent No.5, who were opponent Nos.2 and 1 respectively in the claim petition. The appellant filed its written statement at Exh.14 inter alia, stating that the scooter was not involved in the accident and liability of the Insurance Company was strictly limited to the terms and conditions of the insurance policy.
2.2. Before the Tribunal, widow of deceased Shaileshbhai was examined at Exh.35. One Mr. Manoj D.Trivedi was also examined at Exh.50 on behalf of the claimants who was stated to be eye witness to the incident. FIR lodged in respect of the accident was produced at Exh.28 and panchnama was produced at Exh.29. The claimants also produced documentary evidence to establish the income of deceased Shaileshbhai. On the basis of the evidence available on record, the Tribunal ultimately partly allowed the claim petition and held the claimants entitled to recover an amount of Rs.18,85,000/- by way of compensation from the appellant and other opponents of the claim petition jointly and severally with interest at the rate of 9% per annum from the date of filing of the petition till realization.
3. We have heard learned advocates for the parties.
3.1. Learned advocate Mr. K.K. Nair appearing for the appellant Insurance Company has submitted that there there was no evidence to establish that the scooter on which deceased Shaileshbhai was a pillion rider was involved in the accident. He submitted that the Tribunal has committed error in relying on the FIR, panchnama and the evidence of so-called eye witness.
3.2. As regards the quantum of compensation awarded by the Tribunal, learned advocate for the appellant submitted that the Tribunal has committed grave error in placing reliance on income tax returns filed after happening of the accident. He submitted that the accident had taken place on 10.1.2000 and the deceased died on 13.1.2000 and Exh.38 is in respect of return of the assessment year 1998-99, which was for Rs.,95,511/-, was filed on 31.3.2000 i.e. after death of the deceased. He further pointed out that Exh.39 also could not have been considered because the said return was also filed for the assessment year 1999-2000 for Rs.1,16,789/-, on 30.6.2000 after the death of the deceased. He further pointed out that Exh.36 was return for 10 months for the assessment year 2000-2001, which shows the income of the deceased of Rs.1,22,544/- but filed on 31.5.2001. He also submitted that except the return at Exh.37, in all other returns at Exhs.38,39 and 36, signature of the widow of the deceased was there, which would go to show that heir of deceased Shaileshbhai filed the aforesaid return after his death.
3.3. Learned advocate Mr. Nair pointed out that income tax return of the firm named M/s. K.B. Ceramics reveals that the income for the year 1998-1999 of the partnership firm was Rs.36,788/- and for 1999-2000 as per income tax return Exh.42, the income shown is Rs.34,785/-. From the above document, Mr. Nair, therefore, submitted that the income of the deceased in no circumstances could have been taken beyond Rs.3,000/- per month from the partnership. Mr. Nair relied on the judgment of the Hon'ble Supreme Court in the case of V. Subbulakshmi and Ors. v. S. Lakshmi and Anr. reported in 2008 ACJ 936, to point out that the returns filed after the date of the accident cannot be taken into consideration. Mr. Nair , therefore, urged that substantial reduction in the amount of compensation is called for considering the documentary evidence as regards the income of the deceased on record. Mr. Nair also pointed out that the Tribnual while working out loss of dependency, has not deducted any amount towards income tax. He, therefore, submitted that reasonable amount towards income tax is required to be deducted from the ultimate figure which would be the income of the deceased.
3.4. Learned advocate Shri Hiren Modi appearing for the claimants in reply submitted that the Tribunal has not committed any error in coming to the conclusion that the scooter was involved in the accident and it was because of the negligence on the part of the driver of the scooter, deceased Shaileshbhai had received serious injuries and succumbed to the injuries. He pointed out that the Tribunal has believed the version of the eye witness and has properly appreciated the panchnama on record for coming to the conclusion that the driver was driving the scooter at excessive speed and he was responsible for the injuries sustained by deceased Shaileshbhai. He, therefore, submitted that the Claims Tribunal has not committed any error in arriving at the conclusion as regard negligence of the driver of the scooter.
3.5. As regards the quantum of compensation, learned advocate Mr. Modi submitted that deceased Shaileshbhai was having the income from two partnerships. Widow of deceased Shaileshbhai in her deposition at Exh.35 has clearly proved the income of deceased Shaileshbhai from the above-said two partnerships. He pointed out that widow Pritiben had to sign the returns filed after the accident. The income reflected in the returns filed after the accident were very much from the partnership business carried on by deceased Shaileshbhai. He submitted that simply because the returns at Exhs.38,39 and 36 were filed after the accident, that itself is no ground to discard such evidence for the purpose of calculating the income of the deceased if genuineness of filing of such income tax return is not doubted. Mr. Modi further submitted that to arrive at correct datum figure, as regards the income of the deceased, the Tribunal has considered the income tax returns produced on record which were reflecting true and correct income of the deceased in consonance with the income of the partnership firm, which was the base of the income of deceased Shaileshbhai. He further submitted that the Tribunal has taken note of rising trend of income of deceased Shaileshbhai after the income for the year 1996-97 on the basis of the returns subsequently filed as regards the income of deceased Shaileshbhai from the partnership firm and considering the future prospects of income of deceased Shaileshbhai has taken Rs.10,000/- per month as income of the deceased for the purpose of calculating the loss of dependency. The Tribunal has thus not committed any error in arriving at the income of the deceased at Rs.10,000/- per month.
3.6. Learned advocate Mr. Modi has further pointed out that the Tribunal ought to have applied multiplier 16 instead of 15 considering the age of deceased Shaileshbhai as per the decision in the case of Sarla Verma Vs. Delhi Transport Corporation reported in (2009)6 SCC 121. Mr. Modi has also pointed out that the Tribunal also ought to have deducted 1/4th from the income arrived at by the Tribunal towards the personal expenses instead of 1/3rd as the claimants are more than four in number and as per the above decision, 1/4th is required to be deducted towards the personal expenses and not 1/3rd.
4. On the issue of negligence, we find that the claimants have examined one Manoj Devendrabhai Trivedi at Exh.50. The said witness has deposed that he was travelling in a jeep when the accident had occurred. The scooter on which the deceased was sitting as pillion rider was going ahead of the jeep. The scooter was being driven in full speed and since there was a ditch on the road, the scooter had slipped at the spot between Kailashdham to Pethapur and both the persons on the scooter had fallen down and the driver of the scooter had stood up, whereas the pillion rider was lying on the road and he was lifted and placed in the jeep and was taken to the hospital at Gandhinagar. Though this witness was cross-examined at length but evidence that he had seen the accident could not be controverted. We have also on record the copy of the FIR at Exh.28 giving information about the accident and resultant injuries to the deceased, wherein the reference of the very scooter was mentioned. Panchnama pursuant to the FIR drawn on 11.1.2000 is at Exh.29, which also shows the very scooter was lying on the road in a damaged condition. We have, therefore, no reason to doubt that the scooter was not involved in the accident and the injuries sustained by the deceased was not because of the accident of this very scooter. Therefore, we do not accept the contention of the learned advocate appearing for the appellant to the effect that there was no involvement of the scooter and there was no negligence on the part of the driver of the scooter.
5. We may now consider the issue about the quantum of compensation awarded by the Tribunal. Pritiben, widow of deceased Shaileshbhai has examined herself at Exh.35. She has stated in her deposition that the deceased had income from two different partnership firms. She has further stated that the deceased was filing income tax returns. She has also stated that after the death of the deceased, she was required to submit the returns in respect of the income of her husband. As per her deposition, deceased Shaileshbhai was aged 31 years and he was doing business of tiles. She has produced on record the income tax returns at Exhs.36,37,38 and 39. She has also produced on record the income tax returns of two firms at Exhs.42 and 43. Exh.37 is the income tax return for the accounting year 1996-1997. The said return was filed on 11.3.1998. In the return, the income of the deceased is shown to be Rs.38,520/-. This income is shown from partnership firm. It comprises of salary and profit from the firm. Exh.38 is the return of income for the accounting year 1997-1998 but filed on 31.3.2000 for the income of Rs.95,511/-. Income tax shown to have been paid is of Rs.4,562/-. Exh.39 is the income tax return for the accounting year 1998-1999, filed on 30.6.2000 for the income of Rs.1,16,789/- and the tax shown to have been paid is Rs.7,760/-. Exh.36 is the income tax return for the accounting year 1999-2000, but this return was filed on 31.5.2001 and the income tax shown to have been paid is Rs.13,368/-. Exh.41 is the income tax return filed by M/s. K.B. Ceramic, partnership firm, wherein deceased Shaileshbhai was partner. The said return was filed for the accounting year 1997-1998 on 2.11.1998, wherein the income of the partnership firm is shown as Rs.36,788/-. Exh.42 is the income tax return of the same firm for the accounting year 1999-2000 filed on 31.10.2000, for the income of Rs.34,785/-. Exh.43 is the income tax return of another firm M/s. K.J. Tiles and Marbles for the accounting year 1996-1997 filed on 1.3.1998 for the income of Rs.31,500/-.
5.1. Combining the income of the two partnership firms from the income tax return at Exhs. 41 and 43, which were filed before the accident, total income of the two partnership firms would come to Rs.71,573/-. Individual income tax return filed for the income of deceased Shaileshbhai before his death is Exh.37, which reflects his income at Rs.38,520/-. Other returns since filed after the death of deceased Shaileshbhai cannot be considered in view of the decision in the case of V.
Subbulakshmi (supra) because it is either not shown that any advance tax was paid in connection with the income for the respective years, stated in those income tax returns or those income tax returns were filed within the time available with the deceased under the law.
5.2. It appears that the total income of both the firms was not more than Rs.71,573/- in a year in any case. It has also come in evidence that the deceased had no other income except the income from the business of the partnership firm. The deceased had 50% share in the partnership firms, as stated by widow Pritiben. Therefore, considering the total income of both the partnership firms and considering the income tax return at Exh.37 filed by the deceased on 11.3.1998, for the accounting year 1996-1997, in no circumstances, the income of the deceased could be taken as more than Rs.38,520/- as could be seen from the return at Exh.37. However, considering the fact that the deceased appeared to be the main person looking after the activities of the firms, we deem it proper to take round figure of Rs.40,000/- to be the income of deceased Shaileshbhai per year.
6. From the evidence of widow Pritiben as also from the returns filed by two partnership firms, it is clearly proved that the deceased was in the business of tiles and marbles. The deceased, therefore, had good future prospects in such kind of business. Therefore, if future prospects in the income of the deceased are concerned, the income of the deceased could be taken 1 ½ times the income arrived at by us on the basis of the income tax returns. Such would come to Rs.60,000/- per year. The Tribunal has deducted 1/3rd towards the personal expenses of the deceased. However, considering the number of claimants who were between 4 to 6, as per the decision in the case of Sarla Verma (supra), 1/4th towards the personal expenses was required to be deducted instead of 1/3rd. We would thus deduct 1/4th from the aforesaid figure towards the personal expenses of the deceased and therefore, Rs.45,000/- would be left for the claimants.
7. The Tribunal has applied multiplier of 15. The deceased was aged 31 years. As per the decision in the case of Sarla Verma (supra), considering the age of the deceased, multiplier of 16 should have been applied instead of 15. Therefore, we apply multiplier of 16 to the aforesaid figure. Therefore, loss of dependency would now be worked out as Rs.45,000/-x 16= Rs.7,20,000/- (Rupees Seven Lakh Twenty Thousand only).
8. We find that the amounts awarded by the Tribunal on the other heads are just and proper. Thus, the claimants will now be entitled to the following amounts:-
(1) Rs.
7,20,000/- For loss of Dependency (2) Rs.
10,000/- For expectation of life (3) Rs. 20,000/- For Consortium (4) Rs.
05,000/- For Funeral expenses (5) Rs.
15,000/- For transportation and other misc. expenses (6) Rs.
35,000/- For medical expenses _________________ Rs.8,05,000/- Total _________________ Thus, the claimants are entitled to Rs.8,05,000/- as compensation to be recovered from the appellant, instead of Rs.18,85,000/- awarded by the Tribunal. The appeal is therefore, required to be partly allowed.
9. In the result, the appeal is partly allowed. The respondents-claimants are held entitled to Rs.8,05,000/- by way of compensation from the appellant with proportionate costs and interest at the rate of 9% per annum from the date of filing of the claim petition till its realization.
10. It is stated before us that the Insurance Company has deposited Rs.25,00,000/- which was invested in Fixed Deposit Receipt. The claimants, therefore, shall be entitled to the aforesaid amount as awarded by us from the amount available with the Tribunal. The remaining amount shall be made available to the appellants by the Tribunal. Effect of this judgment shall be given by the Tribunal within a period of two months from the date of availability of the copy of this judgment with the Tribunal Sd/-
(JAYANT PATEL, J.) Sd/-
(C.L.
SONI, J.) omkar