Calcutta High Court (Appellete Side)
Urmila Bhowmik & Ors vs Gouri Sankar Dey & Ors on 4 February, 2020
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
04.02.2020
(PP)
FMA 570 of 2006
Urmila Bhowmik & Ors.
Vs.
Gouri Sankar Dey & Ors.
Mr. Amit Ranjan Roy
.....for the appellants.
Mr. Rajesh Singh,
Mrs. Sucharita Paul
....for New India Assurance Company.
This is an appeal preferred against the award dated January
25, 2006 by the learned Motor Accident Claim Tribunal, Tamluk,
Purba Medinipur, in MACC No.23/05/414/05.
By the said award, the learned Tribunal has been pleased to
award the following to the claimants:
"that the M.A.C. case be and the same is allowed on contest
against the O.P. New India Assurance Company Ltd. and ex parte against
the O.P., owner of the vehicle but without any order as to the costs. The
petitioners do get a sum of Rs.3,22,000/- (Rupees three lakh twenty two
thousand only). However, the amount of compensation awarded under
Section 140 of the M.V.Act, if any, should be adjusted before issuing
cheques in favour of the petitioners' concerned for the accidental death of
Krishna Pada Bhowmik. The O.P. New India Assurance Company is
hereby directed to issue three (3) separate A/C payee cheques in favour
of the petitioners' concerned within 2(two) months from the date of
receipt of the order, failing which the entire amount of compensation
shall carry a simple interest @ 6% per annum from the date of filing of
this case till the realisation of the entire amount of compensation."
2
I have heard Mr. Roy, learned advocate appearing on behalf
of the claimants/appellants and Mr. Singh for the respondent
no.3/Insurance Company.
Prima Facie I am of the opinion that the claim petition itself was not maintainable against the Insurance Company and/or for any order of compensation being awarded against it because the Insurance Company itself (New India Assurance Company) was never made a party and the present appeal is against the respondent who is described as the Divisional Manager, New India Assurance Company Limited and this is the same as in Item no.7 of the claim petition. However, since the award has already been passed in favour of the claimants without this question being raised, this question has become academic, and I do not wish to be hyper-technical and dismiss the appeal for non-joinder of a necessary party.
So far as the merits are concerned, the appellants are aggrieved with the failure of the learned Tribunal to rely upon the income tax documents which were deposited by the claimant, being the widow of the deceased after the death of the deceased on June 26, 2003.
In this connection, the deposition of the P.W.1, claimant in cross examination is required to be noted:
"My husband had expired on 26.6.03. After the demise of my husband I produced all the relevant papers relating to income tax to my 3 Advocate. I cannot say who deposited the amount of Rs.10,787/- as income tax in the State Bank of India, Tamluk Branch. However, the money was paid by me. I paid the money to my Ld. Advocate for the purpose of depositing the same.
After the death of my husband I get the aforesaid sum for the purpose of depositing the same in the State Bank of India. I shall get the documents relating to income tax proved by examining the Income Tax Officer. All the documents relating to income tax which are produced before this court today were deposited after the death of my husband."
In the examination-in-chief, the P.W.1-claimant had disclosed and tendered as item nos. 6, 7 and 8, the documents relating to income tax and its deposits in respect whereof, she was thus cross-examined..
However, it is an admitted position that the said documents were not proved in accordance with law and the Evidence Act by calling the appropriate Income Tax Officer to prove the same as being an authentic document actually filed before the Income Tax Authorities.
Mr. Roy further turns the table around and submits that once the insurer disputed the assertion of the said claim about the monthly income of the deceased on the basis of the said income tax documents as being Rs.8,000/- to Rs.9,000/-, it was the duty of the insurer to call the Income Tax Officer to disprove the allegations of the claimants. At any rate, Mr. Roy submits the documents having been produced before the learned Tribunal since the Tribunal exercised an inquisitorial jurisdiction as held by this Court it was the duty of the Tribunal to ascertain whether the 4 documents produced were authentic or not, before choosing not to rely it. In this connection, Mr. Roy cites a judgment of this Court in the case of Shrikrishna Kanta Singh--v--Parameswar Achutanan Nair and Others, reported in (2018) 3 WBLR (Cal) 322 in support of his contentions about the inquisitorial jurisdiction of the learned tribunal and the effect of the same.
On the basis of the aforesaid, Mr. Roy has impeached the following findings of the Learned Tribunal:-
"On going through the aforesaid portion of the evidence of the P.W.1 it is found that the P.W.1 stated that her husband had expired on 26.6.03 and after the demise of her husband she produced all the relevant papers relating to income tax to her Advocate. It is specifically admitted by the P.W.1 that she paid the money of Rs.10,787/- to her Ld. Advocate for the purpose of depositing the same in the State Bank of India and get the documents relating to income tax, after the same was examined by the Income Tax Officer and she was further constrained to admit that which are produced before this court on the date of her examination, were deposited after the death of her husband.
In the recent ruling cited in 2005 (3) T.A.C. 533 (M.P.) the Hon'ble High Court, Madhya Pradesh observed that a return of income which has been filed on behalf of the deceased after his death and such return showing conveniently higher income after the death resulting in any assessment cannot be a relevant piece of evidence and cannot be entertained. In this view of the matter, we feel that the application deserves to be rejected and the same is accordingly rejected. Thus lacking reliance upon the principles of the decision referred above, I am of the opinion that the documents relating to income tax which are produced on behalf of the petitioners' in the instant case cannot be taken into consideration at the time of final assessment of the compensation, to be awarded in favour of the petitioners."
In answer thereto, Mr. Singh submits that when a claimant relies upon a document it is his duty to prove it, especially when it has been disputed by the other side. He submits that in the cross examination this assertion had been put to test and the admission 5 of the claimant/PW 1 is very material and relevant and negates her case. He says that so much of the insurer's case was put to the said claimant/PW 1 as was sufficient to ensure that she would not be surprised by this point when taken in argument, and she could have asked the learned tribunal to exercise its inquisitorial jurisdiction, to obtain the deposition of the appropriate income tax officer in this regard. He relies upon the first principles of the law of evidence and also the judgment in the case reported in AIR 1961 Cal 359 [A.E.G. CARAPIET--v--A.Y. DERDERIAN] more particularly paragraph 10 of the said judgment.
Mr. Singh lastly submits that since those documents were admittedly submitted to the learned advocate for the claimants for being deposited before the Income Tax Authorities after the death of the deceased, the returns do not have the sanctity of a document submitted before the death of the deceased. He submits that the findings of the learned tribunal as I have extracted above on this point, was rightly arrived at and ought not to be disturbed.
After considering the above submissions and the law on the point, I am inclined to agree with Mr. Singh. Even if the learned tribunal had exercised its inquisitorial jurisdiction, and the said documents were proved to be authentic, they would only have proved what was submitted after the death of the victim and not something which had been filed with the statutory authorities in 6 his lifetime, when there was no inkling of the tragic accident about to occur. Therefore, I believe that there is no sanctity of the said income tax returns nor that the said deposit made with the income tax authorities post mortem at all binds the insurer. Thus I cannot fault the learned tribunal for reaching the above findings and disregarding the contents of the said documents as for as the income of the deceased was concerned, and taking Rs.3000/- per month as the amount earned by the deceased at the time of death.
That apart, Mr. Singh has volunteered that his client would have no objection if the matter is sent back on remand for the learned Tribunal to exercise its inquisitorial jurisdiction by calling the Income Tax Officer and ascertain the genuineness of the documents.
The question of remand becomes academic since Mr. Roy has shown his reluctance in respect of an order of remand, particularly in the light of my above finding, and he has prayed for enhancement of compensation.
In this regard, I find as quoted above that the learned Tribunal has only given Rs.2,000/- for the loss of estate and Rs.2,500/- for funeral expenses, Rs.5,000/- for loss of consortium and nothing on the count of future prospects. I find if we would take Rs.3,000/- per month as found by the learned Tribunal when the future prospect @ 10% x 12 = Rs.39,600/- p. a. less 1/3rd for 7 personal expenses, then it would come to Rs.26,400/-; applying the multiplier of 13 as the learned Tribunal has done then we arrive at the sum of Rs.3,43,200/- and if also we factor in the collective heads of general damages quantified as Rs.70,000/- when the total principal Rs.4,13,200/-. Out of this, Mr. Singh's client has paid Rs.3,22,000/- and Rs.91,000/- still remains unpaid. Apart from that, I find that the amount of interest awarded is 6% p.a and that too. only on default.
I do not think making the payment of interest conditional on default, is a proper exercise of jurisdiction to award interest. There is no finding that the hearing of the claim petition was delayed due to any fault of the claimants. Therefore, the amount of interest @ 6% as given by the learned Tribunal shall be paid from the date when the claim petition was filed, being 26th August, 2003.
Hence, I dispose of the appeal by modifying the award passed to the above effect, by enhancing the compensation under Section 166 of the Motor Vehicles Act, 1988 to Rs.4,13,200/- along with simple interest at the rate of 6% per annum from the date that the claim petition was filed before the Learned Tribunal, as just compensation and by directing the insurer to pay the unpaid principal of Rs.91,000/- along with interest @ 6% thereon on August 26, 2003, being the date of filing of the claim petition., if 8 not already paid. The said amount shall be paid in three equal shares to each of the claimants, for which purpose the claimants shall furnish the details of their bank account and IFSC Code to the respondent in writing within a fortnight from the date of the server copy of this order being uploaded. The amount must be paid within two months from the date of communication of this order directly to the banks account as disclosed.
(Protik Prakash Banerjee, J.)