Delhi High Court
Om Wati & Ors. vs Ram Magan & Ors. on 29 April, 2013
Author: Suresh Kait
Bench: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 854-57/2005
% Judgment reserved on: 1st April, 2013
Judgment delivered on: 29th April, 2013
OM WATI & ORS. ..... Appellants
Through: Mr. Rajinder Gulati, Adv.
Versus
RAM MAGAN & ORS. ..... Respondents
Through: Mr. Neeraj Sharma, Adv. for R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Instant appeal has been preferred against the impugned order dated 08.07.2005, whereby ld. Tribunal has granted total compensation for an amount of Rs.10 Lac with interest thereon @ 8% per annum in favour of the appellants.
2. This appeal has been filed mainly on the ground that the ld. Tribunal has erred in brushing aside the testimony of PW2 and PW3 and the documentary evidence regarding professional and agricultural income of the deceased which has been duly substantiated with various documentary evidence, which proves the expenses / lifestyle of the deceased.
3. Mr. Rajinder Gulati, ld. Counsel appearing on behalf of the appellants has submitted that ld. Tribunal has wrongly interpreted the revenue records, MAC.APP. 854-57/2005 Page 1 of 14 i.e., certified copies of the Khatoni, which have been filed only to prove the ownership of the agricultural land in the name of the deceased. Ld. Tribunal has completely ignored the loss on account of agricultural income i.e. Rs.1,20,000/- per annum and has not awarded anything due to the loss of this amount.
4. Ld. Counsel submitted that on this issue ld. Tribunal has framed issue no. 3, which is as under:
"Whether the petitioners are entitled to compensation? If so, to what amount and from whom?"
5. Ld. Counsel has drawn the attention of this court to the evidence of PW1 (Appellant no. 1 herein), wife of the deceased, who by way of affidavit Ex.PW1/1 deposed that deceased Dr. Sansar Singh, her husband was a practising Doctor in the village for the last more than a decade and had a flourishing practice with good reputation. He had been earning approximately Rs.15,000/- per month. She also deposed that her husband had done a medical course for doing the practice. The original certificate of the same is Ex.PW1/A.
6. Also deposed, besides the said practice as a Doctor, her husband owned an agricultural land measuring 41 Bighas and 4 Biswas at village Mungeshpur and Qutabgarh, Delhi. Certified copies of the revenue record are Ex.PW1/B and PW1/C respectively. She further deposed that her husband was tilting the said agricultural land and earning Rs.1,20,000/- per annum approximately from the same. After the death of her husband, since there was no one in the family to look after the agricultural land, therefore, MAC.APP. 854-57/2005 Page 2 of 14 they have to give the land on contract (Batai) basis year to year and has to share 50% of the proceed as both of her children were of the minor age i.e. 10 and 17 years and were school going at the time of accident.
7. Apart from that she deposed that her husband owned two residential houses in Village Laldora, measuring 128 Sq. Yds. and 94 Sq. Yds. and the certificate issued by the Village Pradhan to this effect is Ex.PW1/D. Her husband was living a luxurious life and owned a Maruti Car, Scooter, besides all household amenities including Colour TV, Refrigerator, Washing Machine including other items. Certified copy Ex.PW1/E has proved the ownership of the deceased to the Maruti Car and Ex.PW1/F of the registration of Scooter.
8. Further deposed that her husband had approximately Rs.2,21,000/- in his Saving Bank Account. To this effect, original passbook is Ex.PW1/G. The said amount was later transferred to her bank account after the death of her husband. She has proved a Fixed Deposit of Rs.1,50,000/-,Ex.PW11/H which was also transferred and credited to her saving bank account. She had withdrawn Rs.1,00,000/- from her saving bank account and purchased two plots measuring 500 Sq. Yds. each in the name of her two sons. Copies of the Sale Deeds are Ex.PW1/I and Ex.PW1/J respectively. He had a bright prospect in his profession and was planning for a bigger clinic with all latest scientific gadgets.
9. Ld. Counsel appearing on behalf of appellants has drawn the attention of this Court to the statement of PW2 Braham Prakash, who deposed that after the death of deceased he has been ploughing the said agricultural land MAC.APP. 854-57/2005 Page 3 of 14 on Batai basis i.e. 50% sharing. He also deposed that he sowed two times in a year i.e one for wheat and other for Arhaar Dal, Jawar and Bajra. He produced 35/40 Man (40 Kgs.=1 Man) per Acre. He either gave 50% of the produce i.e. 120 Man wheat + Bhusa or the market value of the same. He has also deposed that cost of 50% wheat, though it fluctuates, however presently comes to Rs.75,000 to Rs.80,000/-. As far as other produce, i.e., Arhaar Dal, 50% of the same comes to Rs.35,000 to 40,000/-.
10. Ld. Counsel for the appellants has also drawn the attention of this Court to the statement of PW3 Krishan, S/o, Late Sh. Dharam Singh, who deposed that deceased was his class fellow and used to live near his house. He knew him from childhood and used to do the agricultural work in his agricultural land. He was having a clinic at his house and was taking care of the entire village, as there was no other doctor, nor any medical facilities in their village, therefore, about 25/30 persons used to visit him every day. He used to give medicines and had also kept a male attendant for helping in preparation of the medicines. He used to earn Rs.400 to Rs.500 per day from his medical profession. He was also doing agricultural work and used to tilt his land himself. Deceased was having 41 Bighas in village Mungesh Pur and Qutabgarh, Delhi as both the villages are adjoining.
11. Ld. Counsel argued that his earning from his medical profession, agricultural land and lifestyle of the deceased, ld. Tribunal ignored all the factum and has assessed income of the deceased just Rs.5,000/- per month, which is very less and not practicable.
12. Ld. Counsel for the appellants on this issue has relied upon a case of MAC.APP. 854-57/2005 Page 4 of 14 Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors. 1997 (7) SCC 7 wherein it is held as under:
"The Husband has filed this counter affidavit in the appeal before us and on our direction both the parties have filed additional affidavits. On one date when this appeal came up for hearing we were told that the husband had left that morning itself for Canada for further treatment after his bypass surgery in India and that his expenses visiting the Canada and as well as the expenses for the treatment there were being met by his friend. In his affidavit husband has stated that his friend Sontokh Singh for his treatment in Canada paid his fare. He is, however, silent about the expense if any met by Sontokh Singh for his treatment in Canada. A copy of the statutory declaration of Sontokh Singh which is dated March 21, 1997 has also been filed. In this Sontokh Singh does say that he has undertaken to bear the cost of passage and maintenance of respondent during his stay in Canada and North America. It is a matter of common knowledge that medical treatment in Canada is high and an ordinary person cannot afford the expenses which are met by taking medical insurance. As to what expenses husband incurred for his bypass surgery in India has not been disclosed. On our query as to how much foreign exchange husband obtained while going to Canada, it was stated that. 1,350 U.S Dollar were obtained at a cost of about Rs. 50,000/-. From where all these monies came from we are left in dark. Husband had not filed any certificate of his salary from his present employer though the wife has contended that both the firms Mukul Overseas Pvt. Ltd and Mukul International Pvt. Ltd. are owned by the husband himself which fact husband had denied. Though we are not concerned with the income of his son which is stated to be Rs. 7,500/- per month, it would have been better if the husband had given complete details as to the perquisites enjoyed by his son, the rent he is paying for his rented accommodation at Safdarjung Enclave and the like. Claim of the husband that though his house in NOIDA fell vacant in January, 1996, it has neither been further let nor the husband himself living there because of certain repairs and on that MAC.APP. 854-57/2005 Page 5 of 14 account he is residing with his son does not appeal to us. It does appear to us from the affidavit of the husband that it conceals more than what it tells of his income and other assets. Attempt has been made to conceal his true income and that leads us to draw an adverse inference against the husband about his income that it is much more than what is being disclosed to us. The claim of the husband that from an income of Rs. 4,750/- per month which is getting from Mukul International Pvt. Ltd. he has to maintain himself, his two sons and daughter is absorb particularly when the eldest son is earning more than the husband and it is the husband who is living with him. Husband has also not disclosed retrial benefits if any from the ONGC and the amount of provident fund he obtained from there. Husband has interest income from Unit Trust of India and also from the fixed deposit receipt but again he has not disclosed the number of units he is holding and the amount of the fixed deposits in his name, from all these we have to hold that the annual income of the respondent-husband is even on modest estimate to be Rs. 2,40,000/- annually which would come to Rs. 20,000/- per month. Considering the diverse claims made by the parties, one inflating the income and the other suppressing, an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision."
13. Ld. Counsel has further relied upon a case of Sudhir Diwan Vs. Tripti Diwan & Anr. 147 (2008) Delhi Law Times 756 decided by this Court wherein it is held as under:
"It is obviously a case where the petitioner is resorting to jugglery of figures. The only clue of the true income of the petitioner which this court has is of the investments being made by the petitioner and amount retained by way of cash in hand."
14. Ld. Counsel has also relied upon a case of Vinod Dulerai Mehta v. Kanak Vinod Mehta, AIR 1990 Bombay 120, wherein it is held as under:
MAC.APP. 854-57/2005 Page 6 of 14"The impugned judgment shows that the learned Judge has taken into consideration several factors as follows : The parties enjoy a lavish style of living. They are occupying a large flat admeasuring 3000 sq. ft. in a posh locality of Bombay, that they have three servants and both the husband and wife have the use of chauffer-driven cars provided from the car pool of Jyoti Wire Industries Private Limited, of which the husband is a Managing Director. The husband and his family members have substantial share-holdings in the company which has a large property at Andheri and also a factory plot at Aurangabad. The husband along with his father also has a shop and office premises at Kika Street at Tardeo Air-Conditioned Market and the husband's family is in control of other industrial concerns as well. The apartment of the parties further has various electrical household appliances and gadgets. The learned Judge has further taken into consideration the household expenses for some earlier months, the maintenance charges of the flat occupied by the wife and the tuition fees of the son. The learned Judge therefore has come to the conclusion that the income-tax returns filed by the husband are not conclusive of the true income of the husband and his income has to be assessed in the light of the said other consideration as well. We do not see anything wrong in this approach. As is common knowledge, income-tax returns do not reflect the true position of the income of a party for several reasons, and cannot be taken as the sole guide for determining it in proceedings such as the present one."
15. Ld. Counsel further submitted that though the ld. Tribunal has not relied upon the certificate produced by the appellants for the reasons that deceased was not registered with any of the authority as a Doctor, however, he was practising Electropathy which has been recognised and has been discussed by the High Court of Kerala in case of Kavita T. v. State of Kerala decided on 04.02.2010, wherein it is held as under:
MAC.APP. 854-57/2005 Page 7 of 14"Petitioner has approached this court seeking the following reliefs:- (a) to declare that the petitioners are entitled to practice Electropathy / Electro Homeopathy and that the respondents 2 to 5 have no manner of right to interfere with the petitioners practicing the aforesaid system of medicinal therapy
(b) To issue a writ in the nature of mandamus or any other appropriate writ order or direction commanding the respondents 2 to 5 not to interfere with.
Electropathy / Electro-Homeopathy practice of the petitioners.
2. Briefly put, the case of the petitioners is as follows:-
Petitioners are practising Electropathy / Electro Homeopathy system of medical therapy. It is stated that Electropathy / Electro-Homeopathy is an integral part of the Alternative System of Medicine. It is stated that petitioners have got requisite qualifications. 3. Petitioners have produced Ext.P12 judgment, which, we think should govern this case also. Accordingly we follow Ext.P12 judgment and allow the writ petition and direct that the State or its agents shall not interfere with the practice of Electropathy."
16. Moreover, ld. Counsel for the appellants has further drawn the attention of this Court to the order dated 05.05.2010 issued by the Ministry of Health and Family Welfare, Govt. of India vide its Order no.
V.25011/276/2009-HR, wherein it is stated as under:-
"This order is passed in pursuance of High Court of Allahabad order dated 03.08.2009 in Civil Miscellaneous Writ Petition No. 31904 of 1991, in which the Court has directed that, "the petitioner may file a fresh representation before the Ministry of Health and Family Welfare, New Delhi, brining on record various orders passed by various high Courts and that of the Supreme Court. If such a representation is made with regard to recognition of the course, the authority will consider and decide that matter by a reasoned and speaking order within six months from the date of the production of a certified copy of this order with the representation. If necessary, the petitioner would be accorded personal opportunity of hearing by the MAC.APP. 854-57/2005 Page 8 of 14 respondents.
The NEHM through Dr. N.K. Awasthy filed a representation dated 28.10.2009 before the Secretary, which was received on 31.11.2009. The major issues raised in this representation are as follows:-
1. Electropathy is a medical system based on herbal and its medicines are prepared from medicinal plants with the help of distilled water. Its medicines are therefore 100% safe and curative.
2. Not a single complaint / case has been reported / registered with the Government regarding death of any patient.
3. There have been various court judgments supporting electropathy. In support of this contention, the representation has annexed copies of orders relating to these cases.
4. Apart from the Court cases, the representation has also submitted affiliation with World Council, Reports of GB Pant University of Agriculture & Technology, letters from Deputy Minister of Health & Family Welfare dated 14.06.1991 and 17.06.1991, letter from Government Medical Councils, answers to Parliament questions, notification of directorate of health services, Government of NCT of Delhi, private member bill, letter from former Minister of Health and Family Welfare, article published in the Indian Journal of Veterinary Medicine, Punjab Agricultural Magazine, Ludhiana, Notification of J & K Government and letter of SSP Agra (UP), letter of Government of MP, as well as some publications (books & magazines) on electropathy.
5. Dr. Awasthy has represented that the Health Ministry should honour the judgment and give shelter to Electropathy Medical System by permitting NEHM for promotion, development & Research (Education & Practice) in Electropathy Medical system at least initially for 15 years so that the necessary criteria for the recognition of a new medical system may be achieved without any hindrances.MAC.APP. 854-57/2005 Page 9 of 14
In accordance with Orders of the High Court & Supreme Court quoted here, there is no proposal to stop the petitioners from practicing in electropathy or imparting education as long as this is done within the provision of the order No. R14015/25/96- U & H (R) (Pt) dated 25th November, 2003. Once the legislation to recognize new systems of medicine is enacted, any practice or education would be regulation in accordance with the said Act. The representation of the petitioner dated 28.10.2009 is disposed off accordingly.
This issues with the approval of Secretary, Department of Health and Research in this Ministry."
17. Ld. Counsel submits that in view of the above, the appeallants/claimants are entitled for grant of enhanced amount by considering the income of the deceased on professional as well as the agricultural.
18. On the other hand, ld. Counsel appearing on behalf of respondent no. 3/ Insurance Company submits that deceased was not registered with any of the Authorities which could prove that he was a practising Doctor. Even no certificate has been issued by any of the authorities to practice in Electropathy. There was no proof from where he was running the Clinic and no such address has been proved before the ld. Tribunal.
19. Ld. Counsel further submitted that the deceased was not filing income tax return, therefore ld. Tribunal has rightly considered his income as Rs.5,000/- and that is in the year 1996 at the time of accident.
20. Ld. Counsel further submits that the judgments relied upon by the counsel for the appellants are not relevant in the facts and circumstances of the present case, moreover, all the judgments are regarding the quantum of MAC.APP. 854-57/2005 Page 10 of 14 maintenance under the Hindu Marriage Act. Importantly, the mandate of law in the Motor Accident Claim cases is different from the claims of maintenance under Hindu Marriage Act.
21. Ld. Counsel further submitted that land of the deceased is on the Batai basis by which the appellants are getting 50% of the share from the agricultural income. He further submitted that deceased had two sons, one of 17 years of age and near to majority, therefore, he cannot be considered as the dependant.
22. I heard ld. Counsels for the parties.
23. After hearing ld. Counsel for the parties, it is emerged that the deceased, apart from a Medical Practitioner in Electropathy (certificate of the same is Ex.PW1/A issued by N.Electro Homeopathy Medico's of India), was having agricultural land of 41 Bighas and 4 Biswas at Village- Mungeshpur and Qutabgarh, Delhi. Certified copies of Revenue Records are Ex.PW1/B and PW1/C respectively. He was having two residential houses in Village-Laldora, measuring 128 Sq. Yds. and 94 Sq. Yds. Certificate to this effect was issued by Village Pradhan as Ex.PW1/D.
24. Apart from that, he was having Maruti Car, Scooter besides all household amenities including Colour TV, Refrigerator, Washing Machine etc. Certified copy of ownership of the Maruti Car is exhibited as Ex.PW1/E and Registration of Scooter is Ex.PW1/F. The deceased had approximately Rs.2,21,000/- in his saving bank account. Original passbook to this effect is Ex.PW1/G. The said amount was later on transferred to the bank account of wife of the deceased.
MAC.APP. 854-57/2005 Page 11 of 1425. Fixed deposit of Rs.1,50,000/- Ex.PW1/H has also been proved, which was later on transferred and credited to the Savings Bank Account of widow of the deceased (appellant no. 1 herein).
26. PW2 Brahm Praksh has deposed that after the death of deceased, he has been ploughing the agricultural land of the deceased on Batai basis, i.e., 50% sharing. He further deposed that cost of 50% of the agricultural produce comes to Rs.1,00,000 to Rs.1,20,000/- annually.
27. Considering the diverse claims made by the appellants, one inflicting the income and other suppressing, an element of conjecture and guess-work does not enter for assessing the income of the deceased. It cannot be done by any mathematical precision.
28. The settled law is that where the claimant is resorting to jugglery of figures, then, only clue of the true income of the deceased, which this court has, are the investments being made by the deceased and amount retained by way of cash in hand.
29. It is also important to note that the income tax returns filed by the assessee are not conclusive of the true income; and the income has to be assessed on the basis of other considerations as it has been held in Vinod Dulerai Mehta (Supra). Significantly, the non-filing of Income Tax Return cannot be a sole guide for determining the income of the deceased.
30. Keeping in view the income of the deceased as a medical practitioner, his lifestyle, and agricultural income, the ld. Tribunal has assessed Rs.5,000/- on the lower side. It is pertinent to mention here that the MAC.APP. 854-57/2005 Page 12 of 14 deceased died in an accident which took place on 15.04.1996. Therefore, the income of the deceased in the year 1996 has also to be taken into consideration.
31. The case of the appellants herein is that deceased was earning Rs.1,00,000/- to Rs.1,20,000/- annually from his agricultural produce and after his death, the said agricultural land has been given on 50% sharing basis. However, no proof of income from agriculture is on record. Therefore, if I presume that the income from the aforesaid land is Rs.1,00,000/- per annum and appellants are getting Rs.50,000/- on the basis of 50% sharing, then the loss is only of Rs.50,000/- per annum. Had he been ploughing the agricultural land himself, certainly he would have spent some amount on that. Therefore, I presume 50% of the expenses and hence the net loss on the agricultural income is just Rs.20,000/- to Rs.25,000/- per annum. Therefore, I consider the total loss as Rs.24,000/- per annum.
32. I note, ld. Tribunal has not granted any amount for loss of love and affection. The deceased has left behind his wife, two sons and his mother. Therefore, considering the totality into view, I grant Rs.50,000/- for loss of love and affection.
33. In view of the above, the compensation can be computed in the following manner:
(i) Monthly income of the deceased = Rs.7,000/-
(ii) Future prospects
(Rs.7,000 + Rs.14,000) / 2 = Rs.10,500/-
(iii) 1/3rd deduction on account of personal
expenses (Rs.10,500 - Rs.3,500) = Rs. 7,000/-
MAC.APP. 854-57/2005 Page 13 of 14
(iv) Compensation towards dependency
(Rs.7,000x12x16) = Rs.13,44,000
(v). Loss of consortium = Rs.15,000/-
(vi). Loss of Estate = Rs.15,000/-
(vii). Compensation on account of funeral
rights = Rs.10,000/-
(viii). Compensation on account of love and
affection. = Rs.50,000/-
Total Rs.14,34,000/-
34. Accordingly, I have enhanced Rs.4,34,000/-.
35. Therefore, the appellants / claimants are entitled to get Rs.4,34,000/- with interest @ 8% from the date of filing of the petition till the date of payment.
36. Hence, respondent no. 3 / insurance company is directed to deposit the enhanced amount within four weeks from the date of receipt of this order, with Registrar General of this Court, who shall disburse the same to the appellants/claimants proportionately in terms of the award dated 08.07.2005 passed by the ld. Tribunal, failing which appellants / claimants shall be entitled for interest @ 12% per annum on delayed payment.
37. Instant appeal is allowed in the above terms with no order as to costs.
SURESH KAIT, J APRIL 29, 2013 Jg MAC.APP. 854-57/2005 Page 14 of 14