Allahabad High Court
Smt. Anamika Bhardwaj And Others vs Ashok Gulati And Others on 15 February, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 3251 of 2010 Appellant :- Smt. Anamika Bhardwaj And Others Respondent :- Ashok Gulati And Others Counsel for Appellant :- Hitesh Pachori Counsel for Respondent :- Anuj Srivastava Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. Heard Sri Hitesh Pachori, learned counsel for the appellants, Sri Anuj Srivastava, learned counsel for the respondent and perused the record.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 17.7.2010 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.11, Agra (hereinafter referred to as 'Tribunal') in Claim Petition No. 260 of 2007 awarding a sum of Rs.4,52,000/- to the claimants as compensation for the death of their sole bread winner with interest at the rate of 6%.
3. The accident is not in dispute. The Insurance Company has not challenged the liability imposed on them. The only issue to be decided is the quantum of compensation awarded.
4. It is submitted by learned counsel for the appellant that the deceased was 29 years of age at the time of accident and was having his own business namely he was the owner of M/s Sheetal Drugs Distribution. The Tribunal has considered the income of deceased to be Rs.36,000/- per annum, deducted 1/3 towards personal expenses, considered the dependency as Rs. 24,000/- per annum, granted multiplier of 17 and added Rs. 44,500/- towards non pecuniary damages.
5. Learned counsel for the appellant has taken us through the record and we are satisfied that the documentary evidence has been brushed aside by the learned Tribunal without assigning proper reasons. Income Tax Return in the name of the deceased for the Assessment Year 2006-07 which was on record demonstrates that the income of the deceased was Rs.1,62,500/- per year. The earlier Income Tax Return for the Assessment Year 2005-06 shows that the income of the deceased was Rs.1,10,150/-. There are documentary evidence namely Form 20 etc. This fact has been disbelieved by the Tribunal though the drug license and its photo copy has been filed. The name of the firm was Sheetal Medical Stores. The Tribunal has disbelieved the Income Tax Return as it came to the conclusion that chalan of paying the tax was not filed. The Tribunal came to the conclusion that the income was Rs.1,06,665/-, out of which, LIP was of 44,341/- and, therefore, the Tribunal has felt that income of the deceased was Rs.62,324/-. It was further concluded by the Tribunal that tax of Rs.19150/- was being paid but it was not clear as to how much amount he had invested and, therefore, the Tribunal disbelieved this fact. The Tribunal disbelieved investments made by the deceased in Bajaj Allianz and, therefore, held that in view of the judgment of Laxmi Devi & Others vs Mohammad Tabbar & Another, 2008 ACJ 01844 only Rs.3,000/- should be considered as his income. This is an error apparent on record as P.W.1 has categorically mentioned that her husband was in the business of medicine. Th license even according to Tribunal was dated 1.12.2002. This fact should have been considered by the Tribunal. The deceased was a young man of 29 years. The approach of the Tribunal is against the beneficial piece of legislation and cannot be accepted. This is an error apparent on the face of record which will have to be answered by this Court.
6. The Apex Court has time and again held that if documentary evidence to show income is not produced but if the Income Tax Returns are there, they are the proof of the income of the deceased/injured. The Tribunal has committed a grave error in relying on the judgment in Laxmi Devi & Others vs Mohammad Tabbar & Another, 2008 ACJ 01844 despite the fact that there are documentary evidence proved, the Tribunal erroneously considered his income to be Rs.100/- per day.
7. Hence, we are unable to accept the submission of Sri Anuj Srivastava, learned counsel for the respondent that the income which has been considered by the Tribunal is just and proper. The finding is absolutely perverse as Tribunal is not supposed to go by the investment of the person for starting a business but the income generated by him. The income of the deceased has been proved by the oral testimony of P.W.1 and P.W.2 and Income Tax Returns. The Tribunals are supposed to take a practical view and not pedantic view. The decision in Laxmi Devi (Supra) is applied where the income is not at all proved and where there is no semblance of any earning.
8. In view of the above, we are of the view that the income of the deceased would be as per the Income Tax Returns for the Assessment Year 2006-07, namely, Rs.1,62,500/- per year.
9. It is submitted by learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income which is required to be granted. It is further submitted by learned counsel for the appellants that the amount under non-pecuniary heads and the rate of interest awarded by the Tribunal are on the lower side and are required to be enhanced in view of the latest the decisions of the Apex Court.
10. As far as grant of future prospects are concerned, Tribunal has not granted any amount for that, therefore, we grant addition of 40% should be added towards future loss of income of the deceased as the deceased was below 40 years of age and was having his own business. We are even fortified in our view by the decision of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021 SC 359 & Anita Sharma v. New India Assurance Co. Ltd. (2021) 1 SCC 171. Recent decision of the Division Bench of this Court in F.A.F.O. No. 1070 of 2017 (Smt. Upasana And 4 Others v. National Insurance Company Ltd. And 2 Others) decided on 11.2.2022 will also come to the aid of the appellants herein.
11. The deceased was survived by his widow and a minor son, hence, deduction towards personal expenses of the deceased would be 1/3rd as has been done by the Tribunal. Multiplier of 17 applied by the Tribunal is just and proper. The Tribunal added Rs. 45,000/- for non pecuniary damages. We see no reason why the principle enunciated by the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093 should not be made applicable wherein the Apex Court has granted Rs.70,000/- towards non pecuniary damages. We grant Rs.70,000/- towards non pecuniary damages on which the claimants shall also be entitled to 10% rise in every three years as held by the Apex Court in Pranay Sethi (Supra) and, therefore, we make the figure to Rs. 1,00,000/- for non pecuniary damages.
12. Hence, the total compensation payable to the appellants is computed herein below:
i. Annual Income: Rs.1,62,500/-
ii. Percentage towards future prospects : 40% namely Rs.65,000/-
iii. Total income : Rs.1,62,500 + 65,000 = Rs.2,27,500/-
iv. Income after deduction of 1/3rd : Rs.1,51,670/- (rounded figure) v. Multiplier applicable : 17 vi. Loss of dependency: Rs.1,51,670 x 17 = Rs.25,78,390/-
vii. Amount under non pecuniary heads : Rs.1,00,000/-
viii. Total compensation : Rs.25,78,390/-
13. As far as issue of rate of int has held as under :
"13. The aforesaid features equally apply to the contentions urged on behalf of the claimterest 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 Courants asn to allow the interest in this matter at any rate higher than 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 reasothat allowed by High Court."
14. No other grounds are urged orally when the matter was heard.
15. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 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.
16. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment be passed by Tribunal.
17. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, 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 claimant 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. Hari Singh and another) while disbursing the amount.
18. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.
19. This Court is thankful to both the counsels for getting this old matter decided.
Order Date :- 15.2.2022 DKS