Gauhati High Court
Smt. Bandana Chakraborty 2 Ors vs The Reliance General Insurance Co. Ltd ... on 9 April, 2019
Equivalent citations: AIRONLINE 2019 GAU 165, 2019 AAC 1244 (GAU)
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GAHC010164182010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp. 131/2010
1:SMT. BANDANA CHAKRABORTY 2 ORS,
W/O LATE SWAPAN CHAKRABORTY
2: MASTER SWARUP CHAKRABORTY
S/O LATE SWAPAN CHAKRABORTY.
3: SMT. SOVA RANI CHAKRABORTY
W/O LATE ANANDI RANJAN CHAKRABORTY
ALL ARE R/O C.K.B. ROAD SRIPURIA
P.O.
P.S. and DIST. TINSUKIA
ASSAM APPELLANT NO 2 BEING MINOR IS REPRESENTED BY HIS
MOTHER AND NATURAL GUARDIAN SMT. BANDANA CHAKRABORTY
THE APPELLANT NO.
VERSUS
1:THE RELIANCE GENERAL INSURANCE CO. LTD and ANR
RELIANCE HOUSE 5TH FLOOR, 34 J.L NEHRU ROAD, KOLKATA-700071
(INSURER OF THE VEHICLE)
3:MANAGER KHARJAN TEA ESTATE
PANITOLA
P.S. and DIST. TINSUKIA
ASSAM OWNER OF THE VEHICL
Advocate for the Petitioner : MR. A K GUPTA
Advocate for the Respondent : MR. I ALAM
BEFORE
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HONOURABLE MR. JUSTICE NELSON SAILO
JUDGMENT
Date : 09-04-2019 Heard Mr. A.K. Gupta, the learned counsel for the appellants. Also heard Mr. R. Goswami, the learned counsel for the respondent No. 1. None appears for the respondent No. 3 and the name of the respondent No. 2 (Driver) was struck off vide order dated 04.02.2019.
2. This is an appeal filed by the appellants seeking enhancement of the amount of compensation awarded by the Member, Motor Accident Claims Tribunal (the Tribunal), Tinsukia in MACT Case No. 64/2007. The Tribunal vide judgment dated 05.01.2009, awarded the appellants a sum of Rs. 25,29,500/- as compensation and directed the opposite party No. 2/respondent No. 3 to deposit the amount of compensation within 60 days from the date of the Award failing which, the opposite party No. 2/respondent No. 3 would be liable to pay interest @ 9% per annum from the date of the Award till final realization.
3. Pursuant to the judgment, the appellants being aggrieved filed a review before the Tribunal seeking for a direction to the opposite party No. 3/respondent No. 1 to pay the awarded amount and also for enhancement of the Award by the taking the monthly salary of the deceased as Rs. 33,000/-. The review petition was registered and numbered as Misc.MAC Case No. 4/2009. The learned Tribunal vide order dated 09.12.2009 reviewed its judgment to the extent of directing the opposite party No. 3/respondent No. 1 to pay the awarded amount but however the Tribunal did not enhance the awarded amount. Liberty was also given to the opposite party No. 3/respondent No. 1 to recover the amount of compensation from the opposite party No. 2/respondent No. 3. Being aggrieved, the appellants are before this Court. The appellant No. 1 is the wife of the deceased Sh. Swapan Chakraborty, while the appellant Page No.# 3/7 No. 2 is her minor son. The appellant No. 3 is the mother of the deceased.
4. Brief facts of the case according to the appellants is that the deceased on 07.04.2007 at about 10 p.m. was returning home on a bicycle. When he arrived at the Hijuguri Flour Mill, one vehicle bearing registration No. AS-23A - 5542 coming from Panitola knocked him down. The deceased sustained severe injuries and succumbed to his injuries in the Civil Hospital. The deceased was a commission agent of Vijaya Bank and earning Rs. 33,000/- per month and was aged about 45 years. He was also the sole bread earner of the family. Accordingly, the appellants filed a claim application before the Tribunal, claiming compensation from the opposite parties arrayed in the claim, a sum of Rs. 46,97,600/- as compensation.
5. Mr. A.K. Gupta, the learned counsel for the appellants submit that the appellants in order to establish the monthly income of the deceased exhibited the Income Tax returns of the deceased for the assessment years 2004-2005, 2005-2006, 2006-2007 and 2007-2008. The learned counsel submits that for the purpose of the present appeal, he would like to rely upon the assessment year of 2006-2007, which was exhibited as Exhibit-8 before the Tribunal. As per Exhibit-8, the Income Tax paid by the deceased for the assessment year 2006-2007 was Rs. 40,427/- and his income from his profession was Rs. 3,63,083/- per annum. His income therefore, after deducting tax was Rs. 3,22,656/- per annum and his monthly income was Rs. 26,888/-. The learned counsel submits that 25% of the income again has to be added towards future prospects of the deceased in terms of the decision of the Apex Court in National Insurance Company Limited v. Pranay Sethi & Others , reported in (2017) 16 SCC 680. Likewise, the appellants will also be entitled to compensation under the conventional heads such as, funeral expenses, loss of estate and loss of consortium as per Page No.# 4/7 Pranay Sethi & Others (Supra). The learned counsel further submits that in so far as the multiplier is concerned, the deceased being aged 45 years at the time of the accident, the multiplier of 14 will be the relevant multiplier in terms of the Apex Court decision in Sarla Verma & Others v. Delhi Transport Corporation & Another , reported in (2009) 6 SCC
121. He also submits that the appellants will be entitled to interest @ 9% per annum from the date of filing the claim application i.e., 15.10.2007 till final realization. In support of this submission, the learned counsel relies upon the case of Dr. K.R. Tandon (Mrs) v. Om Prakash, reported in (1998) 8 SCC 421. With the above calculation, the learned counsel submits that the principal amount without the interest would come to about Rs. 38,34,376/-. Accordingly, this Court may enhance the amount of compensation, as prayed for.
6. Mr. R. Goswami, the learned counsel for the respondent No. 1 on the other hand submits that the claim for enhancement by the appellants is only farfetched inasmuch as, the reliance upon the Income Tax returns of 2006-2007 which was filed after the deceased expired cannot be accepted. He submits that the deceased expired on 07.04.2007 whereas, the income tax for the assessment year 2006-2007 was filed by the appellant No. 1 on 04.10.2007. Therefore, there is no question of relying upon the said documents for determining the monthly income of the deceased for the purpose of assessing the compensation payable to the appellants. Mr. R. Goswami, the learned counsel in support of his submission relies upon the decision of the Apex Court rendered in V. Subbulakshmi & Others v. S. Lakshmi & Another, reported in (2008) 4 SCC 224. The learned counsel also submits that the learned Tribunal in fact has been more than generous in awarding the compensation in favor of the appellants but since the respondent No. 1 has not filed an appeal against the Judgment & Award, he is not in a position to question the quantum of Page No.# 5/7 compensation that was awarded. He therefore submits that whatever amount of compensation that was awarded by the Tribunal to the appellants be maintained and it requires no enhancement. However, the learned counsel further submits that the appellants will be entitled to compensation towards the future prospects of the deceased and also compensation under the conventional heads as quantified by the Apex Court in Pranay Sethi & Others (Supra).
7. Rebutting the submissions made by Mr. R. Goswami, Mr. A.K. Gupta, the learned counsel for the appellants submits that Section 159 of the Income Tax Act, 1961 provides that where a person dies, his legal representatives shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. Therefore, the appellant No. 1 being the wife and legal representative of the deceased had filed the income tax returns and no presumption can be drawn that the income tax returns was filed by the appellant No. 1 to acquire undue gains.
8. Mr. R. Goswami in reply to the submissions made by Mr. A.K. Gupta, the learned counsel for the appellants by referring to the exhibited documents, more particularly income tax documents submit that while the income of the deceased increased on every successive assessment year, his expenditure surprisingly declined instead and therefore, it will not be safe to rely upon the monthly income based on the income tax returns.
9. I have heard the submissions advanced by the learned counsels for the rival parties and I have also perused the materials available on record including the records of the Tribunal.
10. The issue to be decided is as to whether a sum of Rs. 20,000/- taken as the monthly income of the deceased would be just and proper or whether the same should be enhanced Page No.# 6/7 as claimed by the appellants and on the basis of the Income Tax Returns filed after his death. From the Income Tax documents/returns exhibited by the appellants before the Tribunal, it is noticed that the deceased had a number of employees, who assisted him in the collection and entering of data's in the process of collecting commission from the subscribers. It is therefore only clear that the income earned by the deceased from the commission was not entirely his profit. There were other expenses particularly towards the salaries of the employees and towards miscellaneous expenses. Therefore, having regard to the decision of the Apex Court in V. Subbulakshmi & Others (Supra), I am of the considered view that the monthly income of the deceased as accepted by the Tribunal should be maintained. However, the appellants will be entitled to the addition of 25% of the income towards Future Prospects considering the aged of the deceased. Likewise, a sum of Rs. 15,000/- will have to be computed towards Funeral Expenses and Loss of Estate while a sum of Rs. 40,000/- will also have to be added towards Loss of Consortium, all as per the quantification made by the Apex Court in Pranay Sethi & Others (Supra) . The multiplier of 15 adopted by the Tribunal will also have to be modified to 14 as per Sarla Verma (Supra).
11. In the result, the amount of compensation entitled to the appellants will be as follows:-
Monthly Income = Rs. 20,000/-
Addition of 25% towards Future Prospects = Rs. 5,000/-
Total = Rs. 25,000/-
Less 1/3 towards living and personal expenses = Rs. 16,667/-
Loss of Dependency = Rs. 16,667 X 12 X 14 = Rs. 28,00,056/-.
In addition to above:-
1) Funeral Expense = Rs. 15,000/-
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2) Loss of estate = Rs. 15,000/-
3) Loss of consortium = Rs. 40,000/-
Total = Rs. 28,70,056/-
12. The appellants are thus entitled to a sum of Rs. 28,70,056/- (Rupees Twenty Eight Lakhs Seventy Thousand and fifty six) only as compensation along with interest @ 9% per annum from the date of filing the claim application i.e., 15.10.2007 till final realization.
13. The respondent No. 1 is directed to deposit the awarded amount before the Tribunal concerned within a period of 6 (six) weeks from today. The respondent No. 1 will be at liberty to deduct the amount that was already paid to the appellants in the meantime, if any. The respondent No. 1 is also permitted to withdraw the statutory deposit of Rs. 25,000/- that was deposited before the Registry of this Court at the time of filing the appeal.
14. With the above observations and directions, the appeal stands disposed of.
15. Registry shall send back the LCR to the Tribunal concerned.
JUDGE Comparing Assistant