2017(3) ALL MR 223
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A. S. CHANDURKAR, J.
The Oriental Insurance Company Ltd. Vs. Smt. Ramilaben wd/o. Jayantilal Patel & Ors.
First Appeal No.589 of 2004
12th January, 2017.
Petitioner Counsel: Mr. D.N. KUKDAY
Respondent Counsel: Mr. G.E. MOHARIR
(A) Motor Vehicles Act (1988), Ss.166, 168 - Compensation - Income of deceased - Income tax return filed before death of deceased is to be considered for determining loss of income and not the return filed after his death. 2008(2) ALL MR 763 (S.C.), 2004 ACJ 782 Rel. on. (Para 7)
(B) Motor Vehicles Act (1988), Ss.166, 168 - Compensation - Income of deceased - From interest of savings - Necessity of exclusion - No evidence as to actual savings except a statement of claimant that deceased used to spend Rs.5000/- p.m. and rest are saved - Income tax return also not figuring out savings of deceased - In absence of any evidence of savings, there cannot be any exclusion. (Para 9)
V. Subbulakshmi & ors. Vs. S. Lakshi & another, 2008(2) ALL MR 763 (S.C.)=AIR 2008 SC 1256 [Para 3,7]
Sutinder Pal Singh Arora & ors. Vs. Ashok Kumar Jain & ors., 2004 ACJ 782 [Para 3,7]
Suchitra Sinha & ors. Vs. Baijnath & ors., 2005 (II) ACC 543 [Para 3,7]
Oriental Insurance Co. Ltd. Vs. Rekha Gupta & ors., 1996 ACJ 266 [Para 3,8]
Seema & ors. Vs. Rameshchandra & ors., 2007 (IV) ACC 172 [Para 3,7]
New India Assurance Co. Ltd. Vs. Pramila & ors., 2006 (IV) ACC 114 [Para 3,9]
JUDGMENT :- The present appeal filed under Section 173 of the Motor Vehicles Act, 1988 [for short "the said Act"] takes exception to the Award dated 13th February, 2004 passed by the learned Member, Motor Accident Claims Tribunal, Nagpur, in Claim Petition No. 844 of 2002.
2. In an accident that occurred on 22nd August, 1999, one Jayantilal, the husband of respondent no.1 and father of respondent nos. 2 and 3 expired. Said accident occurred when Jayantilal was riding his two wheeler and was dashed by a truck. The said truck was insured with the appellant herein. The respondent nos. 1 to 3 filed claim petition under Section 166 of the said Act seeking compensation of Rs.19,42,748-00. This claim was opposed by the appellant. After the parties led evidence, learned Member of the Claims Tribunal partly allowed the claim petition and awarded compensation of Rs. 15,84,225-00. Hence this appeal.
[a] The Claims Tribunal was not justified in taking into consideration the Income Tax Returns that were filed after the death of Jayantilal. It was submitted that the Claims Tribunal took into consideration the Income Tax Return for the year 1999-2000 indicating net income of Rs.1,58,415-00 which return had been filed after the death of Jayantilal. Even otherwise, the average annual income on the basis of income tax returns filed during the lifetime of the victim ought to be taken. This submission was sought to be buttressed by relying upon the law laid down in the following decisions:-
 V. Subbulakshmi & ors. Vs. S. Lakshi & another [AIR 2008 SC 1256] : [2008(2) ALL MR 763 (S.C.)],
 Sutinder Pal Singh Arora & ors. Vs. Ashok Kumar Jain & ors [2004 ACJ 782],
 Suchitra Sinha & ors. Vs. Baijnath & ors. [2005 (II) ACC 543],
 Oriental Insurance Co. Ltd. Vs. Rekha Gupta & ors. [1996 ACJ 266]], and
 Seema & ors. Vs. Rameshchandra & ors. [ 2007 (IV) ACC 172].
[b] The amount of interest from savings of the deceased could not be treated as loss of earning to the members of the family, inasmuch as, by virtue of such investment, the amount of interest continued to be available to the members of the family of the deceased even after death of the victim. In support of said submission, learned counsel placed reliance on New India Assurance Co. Ltd. Vs. Pramila & ors. [2006 (IV) ACC 114].
4. Per contra, Shri G. E. Moharir, learned counsel for the respondent nos. 1 to 3, supported the impugned award. He submitted that the finding recorded by the Claims Tribunal that the income of the deceased had been progressively increasing was supported by necessary evidence on record. The trend of payment of Income Tax on the basis of returns filed on record substantiated the same. Merely because the last return was filed after the death of the victim, the same could not be excluded from consideration. It was then submitted that there was no specific evidence with regard to the actual savings of the deceased or the receipt of interest thereon and hence the submission that the amount of income from interest on savings of the deceased was required to be excluded from the amount of total loss of income was not liable to be accepted.
5. With the assistance of learned counsel for the parties, I have perused the records of the case and I have given due consideration to their respective submissions. The following points arise for consideration:-
[a] Whether the Income Tax return filed after the death of the victim has to be excluded from consideration while determining the loss of dependency?
[b] Whether the interest earned on savings of the victim is liable to be deducted from the income of the deceased?
[c] Whether the Award passed by the Claims Tribunal is liable to be interfered with?
6. The basic facts as regards occurrence of accident, the offending vehicle being insured with the appellant as well as age of the victim are not in dispute. The date of birth of Jayantilal was 19th June, 1959 and he was aged about forty years when the accident occurred. The multiplier of fifteen has, therefore, been rightly applied by the Claims Tribunal.
7. As to Point No.1 : The question to be determined is with regard to loss of income to the claimants on account of death of Jayantilal. In support of the claim for compensation, the claimants had placed on record Income Tax Return for the year 1999-2000 at Exh.31, in which the net income was shown as Rs.1,58,415-00. Subsequently as per Exh.37, the Income Tax Returns for the years 1997-98 and 1998-99 were placed on record. It is not in dispute that the Income Tax Return for the year 1999-2000 dated 6th September, 1999 [Exh.31] was filed after the death of Jayantilal. In V. Subbulakshi & ors., [2008(2) ALL MR 763 (S.C.)] [supra], the view taken by the High Court of not relying upon Income Tax Returns that were filed after the death of the victim while determining his income has been approved. Similar view has been taken by the Madhya Pradesh High Court in Sutinder Pal Singh Arora, Suchitra Sinha & ors., and Seema & others [supra]. Considering the aforesaid position of law, the submission made on behalf of the appellant that the Income Tax Return for the year 1999-2000 ought to be excluded from consideration on the ground that the Return was filed after the death of Jayantilal deserves to be accepted. Therefore, the loss of income would have to be assessed on the basis of the Income Tax Returns filed during the lifetime of Jayantilal.
8. Though it was urged on behalf of the appellant by placing reliance upon the judgment of the Delhi High Court in Rekha Gupta & ors. [supra] that the average income on the basis of Income Tax Returns has to be taken into consideration, it is to be noted that the Returns filed prior to the death of Jayantilal indicate a steady increase in his income. Considering the fact that the accident in question occurred on 22nd August, 1999 and the Income Tax Return for the year 1998-99 reflects net income of Rs. 1,31,585-00, I am inclined to take into consideration said net income as the income of the deceased when the accident occurred. Hence, an amount of Rs.1,31,585-00 is taken into consideration as the income of the deceased. After deducting one-third amount for personal expenses which comes to Rs.43,861-00, the annual loss of income comes to Rs. 87,724-00. Thereafter, by applying the multiplier of fifteen considering the age of the deceased, the total amount of compensation comes to Rs.13,15,860-00 [thirteen lakhs fifteen thousand eight hundred and sixty only]. This would be the amount of compensation to which the claimants would be entitled. Point no.1 stands answered accordingly.
9. As to Point No.2 : As regards income of interest from savings of the deceased and the necessity for exclusion of said amounts from the income of the deceased, it can be seen that in the deposition of respondent no.1, there is a statement made that Jayantilal was spending an amount of Rs.5,000-00 for domestic work and rest was being shown as savings. Except this statement, there is nothing further on record to indicate the actual savings of the deceased. The Returns taken into consideration also do not indicate the figure of the savings. In the decision in Pramila & others [supra][, the interest earned on such savings of the deceased was excluded from consideration in view of the fact that the amount of interest was clearly disclosed in the Income Tax Returns. This aspect is clear on perusal of para 10 of the said judgment. In absence of any such material on record, this submission made on behalf of the appellant cannot be accepted. Point No.2 stands answered accordingly.
10. As to Point No.3 : Thus, in view of aforesaid discussion, I find that the Award passed by the Claims Tribunal deserves to be partly modified. It is held that respondent nos. 1 to 3 are entitled for a total compensation of Rs.13,15,860-00 [rupees thirteen lakhs fifteen thousand eight hundred and sixty only] with interest at the rate of nine per cent per annum from 10th December, 2002, as directed in the impugned award. The point no.3 as framed is answered accordingly. The award passed by the Claims Tribunal is modified in aforesaid terms. The First Appeal is partly allowed with no order as to costs.
11. The appellant has deposited the entire amount of compensation as awarded by the Claims Tribunal in this Court. After paying the respondent nos. 1 to 3, the balance amount of compensation in terms of this judgment along with accrued interest on said figure shall be repaid to the appellant.