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Judgment
Bhaskar Bhattacharya, C.J.—This First Appeal is at the instance of the claimants in a proceeding u/s 166 of the Motor Vehicles Act and is directed against an award dated 22nd October, 2007 passed by the Motor Accident Claims Tribunal [Aux.], Fast Track Court No. 11 at Vadodara in MACP No. 479 of 1995 thereby partly allowing the claim petition and awarding a sum of Rs. 3,85,000 to the claimants by way of compensation with interest at 9% per annum from the date of filing of application till realization. Being dissatisfied, the claimants have come up with this appeal for enhancement.
Neither the owner of the offending vehicle nor the Insurance Company has preferred any appeal or Cross-objection.
Therefore, the only question that arises for consideration in this appeal is whether the Tribunal below was justified in awarding only Rs. 3,85,000 as against the claim of compensation of Rs. 20,00,000 for the death of the predecessor-in-interest of the claimants.
Short facts leading to the filing of the claim-petition are that on 19th December, 1994 at about 6-15 p.m., the deceased, viz. Ramanbhai Nathabhai Patel, was going on his Hero Honda motor-cycle bearing registration No. GB 3515 on the correct side of the road and when he reached near Vishrampura Bus Stand on Padra-Jambusar Road, a tempo bearing registration No. GJ.16.T.6814 driven by the opponent No. 1 in a rash and negligent manner and in excessive speed came and collided with the motor-cycle; as a result, Ramanbhai sustained fatal injuries and died on the spot. The claimants, therefore, filed the aforesaid claim petition claiming compensation for the death of Ramanbhai.
Mr. Hakim, the learned Advocate appearing for the claimants, submitted that there was evidence on record to indicate that the deceased was a partner with 1/3rd share in the partnership business of M/s. Nathabhai Mathurbhai Patel and 1/4th share in Baroda Hardware Mart. He further submitted that according to the Income Tax Returns, the income of the deceased was Rs. 51,140 for Assessment Year 1990-91, Rs. 1,09,343 for A.Y. 1991-92, Rs. 1,14,435 for A.Y. 1992-93, and Rs. 1,29,521 for A.Y. 1993-94, and the Tribunal committed substantial error in not considering the income of the deceased accordingly. He further submitted that for 8 month of the A.Y. 1994-95, the deceased paid advance tax of Rs. 7,000 assuming that his income would reach the expected slab of tax but unfortunately, he died on 19th December, 1994. He further submitted that the Tribunal further erred in not considering future prospective income though there is evidence in the form of income tax returns showing continuous and substantial rise in the income of the deceased regularly each year. Mr. Hakim also submitted that the mode and manner in which agricultural income is calculated is also not proper and the Tribunal has not considered the real income from the agricultural activities. Mr. Hakim further submitted that the Tribunal was not justified in applying multiplier of only 8 and ought to have applied multiplier of 13 considering the fact that the age of the victim was 50 years in accordance with the 2nd Schedule to the M.V. Act. Mr. Hakim, therefore, prays for enhancement of the compensation.
Mr. Nair, the learned Advocate appearing on behalf of the Insurance Company, has, on the other hand, supported the judgment of the learned Tribunal.
It appears from the records that the Tribunal found that the accident took place due to rash and negligent driving of the opponent No. 1, the driver of the tempo involved in the accident. There is no dispute that the said tempo was insured by the Oriental Insurance Co. Limited, the opponent No. 3 in the claim petition. I have already pointed out that neither the Insurance Company nor the driver nor owner of the offending tempo filed any appeal disputing the aforesaid findings recorded by the Tribunal against them.
I, therefore, propose to consider whether in the facts of the present case, the Tribunal was justified in allowing only a sum of Rs. 3,85,000 as compensation although the amount claimed was Rs. 20,00,000.
It appears from the award that the Tribunal has considered both the business income as well as the agricultural income of the deceased for arriving at the figure of dependency loss.
As regards the business income, the Tribunal considered Income Tax Returns for 4 years and held that as per the Income Tax Returns, an income of Rs. 26,150.00 was shown for the A.Y. 1991-92, Rs. 39,920 for the A.Y. 1992-93, Rs. 45,333 for the A.Y. 1993-94 and Rs. 6903 for A.Y. 1994-95. The Tribunal, after aggregating the income of the above four years and by dividing the same by 4, came to the conclusion that average income per year would be Rs. 29,576, rounded off to Rs. 30,000. The Tribunal, after observing that the claimants have not produced any evidence to prove prospective income, decided not to consider the prospective future income of the victim. The Tribunal, thus, considered Rs. 30,000 per annum as business income and after deducting 1/3rd towards the personal expenses of the deceased and applying multiplier of 8, awarded a sum of Rs. 1,60,000 as dependency loss insofar as business income was concerned.
As regards the agricultural income, the Tribunal observed that the land has remained intact even after the death of the deceased and has not lost its potentials and fertility and that there is no evidence at all to prove that the income of Rs. 1.5 lakh to Rs. 2 lakh was derived from agricultural activities. The Tribunal then observed that from the revenue records produced before the Court, it is proved that the entire agricultural land has come in the hands of the applicants by way of succession. Therefore, the Tribunal held that considering the loss of managerial capacity to the tune of Rs. 3000 a month, i.e. Rs. 36,000 per annum, and deducting Rs. 12,000 towards personal expenses of the deceased therefrom, the loss should be treated to be Rs. 24,000 per annum and applying thereto a multiplier of 8, arrived at the figure of Rs. 1,92,000 as dependency loss insofar as agricultural income was concerned.
Thus, the business dependency loss Rs. 1,60,000 and Rs. 1,92,000 the agricultural dependency loss put together, the Tribunal awarded a total amount of Rs. 3,52,000 under the head of dependency loss.
Over and above it, the Tribunal also awarded a sum of Rs. 10,000 towards loss of consortium, Rs. 10,000 towards loss of estate. Rs. 10,000 towards love and affection and Rs. 3,000 towards transportation and funeral expenses, and, thus, awarded Rs. 3,85,000 as compensation.
So far as the age of the deceased is concerned, the copy of the passport of the deceased has been exhibited and according to the same, the deceased was born on 19th April, 1944. The deceased died on 19th December, 1994. Therefore, on the date of the accident, the deceased was 50 years and 8 months. The learned Tribunal below took the age of the deceased as 50 years for the purpose of computing the compensation. The learned Tribunal applied multiplier of 8.
Mr. Nair, the learned Advocate appealing on behalf of the Insurance Company, has tried to convince me that on the death of the victim, the land being still owned by the heirs, the agricultural income should not be taken into consideration. I am afraid, such contention is not tenable in view of the fact that on the death of the victim, the land may devolve upon the claimants but it is the definite case of the claimants that after the death of the deceased, they have engaged a Supervisor for doing cultivation by paying him Rs. 48,000 per annum whereas previously, cultivation was made under the direct supervision of the deceased. Therefore, the profit from agricultural income is reduced to the extent of Rs. 48,000 per annum paid as salary of the Supervisor in spite of the fact the ownership of the land devolved upon the claimants. The submission of Mr. Nair, therefore, cannot be accepted.
Since the deceased was 50 years and 8 months at the time of death and his income was based on business and agriculture, in my opinion, the appropriate multiplier should be 11.
Along with the list of documents, Exh. 20, the claimant has produced an intimation u/s 143(1)(a) of the Income Tax Act, 1961 issued by the Income Tax Department for A.Y. 1992-93 [vide Annexure 13 to the list of documents] and they have also produced the Statement of Income of the deceased for the A.Y. 1992-93 [vide Annexure 13(1) to the list of documents] based upon which the Income Tax Department has issued the aforesaid intimation whereby the Income Tax Department has accepted the Statement of Income of the deceased for A.Y. 1992-93. As per the said statement of income, Rs. 16,398 has been received from Baroda Hardware Mart Cement and Rs. 31,456 from Nathabhai Mathurbhai Patel and the total income from business thus comes to Rs. 47,854.00.
The claimants have also produced the statement of income for the A.Y. 1993-94 [vide Annexure 15 to the list of documents], according to which Rs. 20,845 was remuneration from Nathabhai M. Patel, Rs. 24,488 was remuneration from Baroda Cement, Rs. 27,286 was interest from Nathabhai M. Patel and Rs. 7,858 was interest from Baroda Cement. Thus, the aggregate income received from the aforesaid two firms is indicated at Rs. 80,477.
Similarly, according to the statement of income for the A.Y. 1994-95 income from remuneration and interest from the aforesaid two firms was indicated at Rs. 62,980 and after adding interest from other sources of the partnership firm, it comes to Rs. 72,896. It may be mentioned here that the victim died 19th December, 1994--before completion of the A.Y. 94-95.
In such situation, in my opinion, it will be appropriate to take Rs. 80,477 as income from business based on the last Income Tax Return filed by the deceased during his lifetime for the A.Y. 1993-94, and I propose to round it off to Rs. 80,000.
It may not be out of place to mention here that the income from business was regularly increasing as it appears from the Income Tax Returns filed by the deceased for the last three Assessment Years and such Returns were filed during the lifetime of the deceased. In such circumstances, for the purpose of assessing the prospective income, the annual income of Rs. 80,000 reflected in the Return should be treated to be the income at the time of death.
Thus, the income from business of Rs. 80,000 and 30% of the same amounting to Rs. 24,000 put together, it would work out to Rs. 1,04,000 as the annual loss of prospective business income. On the basis of the age of the victim, I propose to apply multiplier of 11, and accordingly, the figure works out to Rs. 1,04,000 x 11= Rs. 11,44,000. After deducting Rs. 3,81,333 being 1/3rd towards personal expenses of the deceased, the figure works out to Rs. 7,62,667 which I award as dependency loss from business income.
As indicated earlier, since the income from agriculture will be reduced by Rs. 48,000 per annum being salary paid to the Supervisor, I propose to assess Rs. 48,000 under the head of annual prospective loss of income from agriculture, and applying thereto a multiplier of 11, I award Rs. 5,28,000 under the head of prospective loss of income from agriculture.
Against the conventional amounts awarded by the Tribunal, the Insurance Company has not preferred any appeal. I, therefore, do not propose to disturb the other conventional amounts awarded by the Tribunal. The total award, thus, comes as under:
I also do not approve the award of 9% interest per annum as the accident occurred in the year 1994. I, therefore, hold that the claimants are entitled to 12% interest from the date of filing of the application till December 31, 1999 and at the rate of 9% per annum from 1st January, 2000 till the date of realization.
The award of the Tribunal stands modified accordingly. The Insurance Company is directed to deposit before the Tribunal the additional amount awarded by this Court with interest at the rate of 12% interest from the date of filing of the application till December 31, 1999 and at the rate of 9% per annum from 1st January, 2000 till the date of realization within three months from today. Upon deposit of the amount, the Tribunal shall pass appropriate orders for disbursement and investment of the additional amount as it deems fit and proper.
The appeal is allowed accordingly. No order as to costs. Registry is directed to forthwith return the Record and Proceedings to the Tribunal below.