Mamta Devi And Others vs Rajesh Choudhary And Others

Vinit Kumar Mathur, J

With the consent of the learned counsel for the parties, the matter is being heard and disposed of finally.

The present appeal has been preferred by the appellants- claimants against the judgment and award dated 07.12.2011 passed by the Motor Accident Claims Tribunal, Balotara in Motor Accident Claim Case No. 116/2008, whereby, the Tribunal awarded a sum of Rs. 14,99,342/- in favour of apppellants-claimants on account of the death of Anand Kumar Bhansali in the accident which occurred on 14.02.2008.

The learned Tribunal, after framing the issues, evaluating the evidence on record and hearing learned counsel for the parties decided the claim petition of the appellants-claimants.

Learned counsel for the appellants submits that the finding recorded by the Tribunal on Issue No. 2 is not correct. He further submits that deceased Anand Kumar was a business man and Proprietor of the firm Manuhar Cotton Mills and he was also a regular income tax payee. Learned counsel submits that the Tribunal fell in error while taking the average amount of three assessment years of income tax for the purpose of calculation of the annual income of the deceased whereas, the projection of income tax returns for the assessment year 2005-2006 to 2007-2008 shows that the income of the deceased was rising on account of the business being flourishing. Thus, at the time of death, the Income Tax Return of the deceased was showing his annual income to the tune of Rs. 1,90,223/-. He further submits that since, the business of the deceased was growing, the annual income of the deceased would have certainly grown. There was no reason for the Tribunal to consider the average amount of three years, instead, the Tribunal should have taken the latest income earned by the deceased, as per the Income Tax Return of 2006-2007.

Learned counsel further submits that the deceased was survived by his wife, two minor daughters and his mother and father who were dependent on him, therefore, total five persons were dependent on the deceased but 1/3rd amount was ordered to be deducted as spent on the deceased himself. Since there are five dependents, the amount of deduction should have been 1/4th of the total income.

Learned counsel further argued that the Tribunal, while computing the award of compensation, has not taken into consideration the amount towards loss of future prospects in light of the judgment of Hon'ble the Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in (2017) SC 5157.

He further submits that the Tribunal has also not taken into consideration the amount towards loss of consortium which was required to be paid to the family members of the deceased while computing the award in the present case in light of the judgment of the Hon'ble Supreme Court in the case of New India Assurance Company Ltd. vs. Somwati and ors. reported in 2020 (9) SCC 644.

Per contra, learned counsel for the respondent - Insurance Company submits that the Tribunal has taken into consideration the entire relevant evidence brought on record and after evaluating the same, calculated the amount of award in the present case. He further submits that since the deceased was a business man, therefore, it cannot be said with certainty that he would have only earned profit in the business. Thus, the Tribunal was right in taking the average amount of three assessment years as annual income of the deceased.

As far as the deduction of the income and not considering the addition of loss of future prospects is concerned, learned counsel for the respondent-Insurance Company is not in a position to dispute the submissions made by the counsel for the appellants.

I have considered the submissions made at the Bar and have gone through the judgment and award dated 07.12.2011 as well as other relevant record of the case.

So far as the finding of the Tribunal on Issue No. 2 with respect to the calculation of the income of the deceased is concerned, it has come on record that the deceased was a business man and was an income tax payee. The income tax returns of the deceased show that from the year 2004 to 2007, there was a continuous increase in the income of the deceased and therefore, there is no reason for this Court to believe that the business would not have flourished. Therefore, this Court is of the view that while computing the amount of the income of the deceased, the last Income Tax Return of the deceased i.e. of the year 2006 and 2007 should have been taken into consideration by the Tribunal. Thus, the average income of Rs. 1,30,089/- taken into consideration by the Tribunal for computation of the award in the present case is set aside and instead an amount of Rs. 1,90,223 - Rs. 4,480 (Income Tax) = Rs.1,85,743/- should be taken into consideration for the computation of the award.

The admitted position is that there were five family members who were dependent on the deceased, therefore, the deduction of 1/3rd is erroneous and the amount of deduction should only be 1/4th amount of the income as spent on deceased himself.

Since, the loss of future prospects has not been taken into consideration by the Tribunal, it is also required to be added while computing the award in the light of the judgment of Hon'ble the Supreme Court in the case of            National Insurance Company Ltd. vs. Pranay Sethi (supra).

The claimants are also entitled for an amount towards the loss of consortium in the light of the judgment of the Hon'ble Supreme Court in the case of New India Assurance Company Ltd. vs. Somwati (supra).

In view of the discussions made above, the award of compensation in the present case is re-computed as under:-

For future prospects :-

40% of Rs.1,85,743/- (Income of deceased)

Rs. 74,297/- (Rounded Off)

Rs. 1,85,743/-+ Rs. 74,297/-

Rs. 2,60,040/-

Amount to be deducted as spent on himself.

Rs. 2,60,040/- / 1/4= Rs. 65,010/-

Dependence Amount

Rs.2,60,040- Rs. 65,010= Rs. 1,95,030/-

The age of deceased was 24 years, therefore, a multiplier of 17 will be applied.

(I)

Compensation due to death

1,95,030x 17

Rs. 33,15,510/-

(II)

Consortium to wife

Rs. 44,000/-

(III)

Loss of Estate

Rs. 16,500/-

(IV)

Funeral Expenses

Rs. 16,500/-

(V)

Loss of consortium to other appellantsclaimants (44,000 x 4)

Rs. 1,76,000/-

Total

Rs. 35,68,510/-

Amount already awarded by the Tribunal

Rs. 14,99,342/-

Enhanced amount

Rs. 20,69,168/-

Thus, the appeal preferred by the appellants-claimants is partly allowed. The respondent-Insurance Company is directed to pay the enhanced amount of Rs.20,69,168/- (Rs.Twenty Lac Sixty Nine Thousand One Hundred Sixty Eight Only) in favour of the appellants-claimants in addition to the amount already awarded by the Tribunal vide its judgment dated 07.12.2011 within a period of six weeks from today. The enhanced amount shall carry interest @ 6% p.a. from the date of filing of the claim petition, till the same is paid.