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Judgment
Mauna M. Bhatt, J
First Appeal No.579 of 2019 is filed by the appellants – original claimants and First Appeal No.1333 of 2019 is filed by Insurance Company – original opponent No.3.
These cross appeals are arising out of common judgment and award dated 31.3.2018, passed in MACP No.430 of 2011 and with the consent of the respective parties, they are heard and decided together.
First Appeal No.579 of 2019 is filed by the original claimants seeking enhancement of compensation. Appellant No.1 is widow, Appellant Nos. 2, 3 and 4 are children and Appellant Nos. 5 and 6 are parents of deceased Kalpeshbhai Pranlal Shah who expired on 9.4.2011 in the motor accident.
First Appeal No.1333 of 2019 is filed by Insurance Company challenging the quantum awarded. Respondent Nos. 1 to 5 are original claimants, Respondent No. 6 is driver of the truck (Ori. opponent No.1), Respondent No. 7 is owner of the truck (original opponent No.2).
The following facts emerge from the record of this appeal:
5.1. On 9.4.2011 at 4:00 a.m., deceased was coming from Kachchha in his Mahindra Logan Car bearing registration No.GJ-18-U-1185 with two persons and when they reached at Akhiyana Dhrumath Bridge, Malvan High Way, one Truck bearing registration No.GJ-12-Y-5148 came from the wrong side, being driver in a rash and negligent manner with high speed and dashed with Mahindra Logan Car on the front side, due to which, grievous injuries were sustained by Kalpeshbhai Pranlal Shah and died on the spot. Other two claimants also sustained injuries. For the said accident, the appellants herein (original claimants) filed claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.1 crore with interest @ 12% from the opponents.
It was the case of the claimants that the accident occurred on account of sole negligence of truck driver which resulted into untimely death of Kalpeshbhai Pranlal Shah. That, Deceased Kalpeshbhai Pranlal Shah was 38 years old, and was owner of Arihant Travels and was earning Rs.7,65,684 p.a. (Rs.63,807/- p.m.). The deceased was owner of Arihant Travels since 7 years and was gradually earning more profit from the said business. The Tribunal upon appreciation of oral and documentary evidence decided the issues as under:
6.1. For negligence, considering the copy of panchnama at Exh.37, the Tribunal observed that the truck was standing on the wrong side. The Mahindra Logan Car was badly damaged and blood stains were also found on the seats of the said car. The Tribunal also took note of the fact that the opponent Nos. 1 and 2 being driver and owner of the car were not examined and considering the overall evidence on record, the driver of the truck bearing registration No. GJ-12-Y-5148 was held solely negligent.
6.2. For quantum, the Tribunal considered the income tax returns filed by the claimants at Exh.59, 60 and 61, for A.Y. 2003-2004, A.Y.2004-2005 and A.Y.2007-2008 and assessed the income at Rs.2,00,000/- p.a. and Rs.16,667/- p.m. The deceased was 38 years at the time of accident, therefore 40% was added as prospective income which came to Rs. 6,667/-. The monthly income was thus assessed as Rs. 23,334/-. As there were 6 dependents, 1/4th was deducted as personal expenses which came to Rs.5,834/-. Thus, the Tribunal determined income of Rs. 17,500/- per month. Rs.17,500 x 12 = Rs.2,10,000/- p.a.. Considering the age of 38 years, multiplier of 15 was applied which came to Rs. 31,50,000/-. The Tribunal awarded Rs. 70,000/- towards loss of estate, loss of consortium, transportation and funeral expenses and thus awarded a total compensation of Rs. 32,20,000/-.
Against the said judgment and award dated 31.3.2018, the original claimants filed review/recall application which was also rejected. Present cross appeals are filed challenging the award dated 31.3.2018 by original claimants as well as by the Insurance Company.
We have heard Mr. Yatin Soni, learned advocate for Appellant No. 1 to 4, Mr. Jeet Bhatt, learned advocate for Appellant No. 5 and 6 and Mr. Rathin Raval, learned advocate for Opponent No.3 – Insurance Company (Appellant in First Appeal No.1333 of 2019). As the liability has not been denied, presence of other respondents is not necessary for adjudication of these appeals.
Appearing for the appellants – original claimants, Mr. Yatin Soni, learned counsel made following submissions:
(i) That the deceased was proprietor of Arihant Travels and had nine vehicles to ply on hire. Due to sudden death, the running business was shut down and the family suffered great economic loss.
(ii) That the deceased had earned income of Rs.7,65,685/- for assessment year 2010-2011 and, therefore, the net income of the deceased for financial year 1.4.2009 to 31.3.2010 was Rs.6,19,373/- i.e Rs.51,614/- p.m. Therefore, the Tribunal has committed an error in taking income of the deceased at Rs. 16,667/- p.m.
(iii) That the Tribunal is in error in not considering the last return filed by the deceased for assessment year 2011-2012 (Financial year 2010-2011) at Exh.60 where net income after tax is Rs.6,19,373/-. He further submitted that filing of I.T. Return is a statutory requirement under law, and the same ought not to have been ignored by the Tribunal.
(iv) That the Tribunal has erred in not considering the last two income tax returns of the deceased for the assessment year 2010-2011 and 2011-2012 on the ground that both were filed after death of Kalpeshbhai Pranlal Shah.
(v) The Tribunal has erred in not considering the deposition of Shri Rinkalbhai Rameshbhai Patel at Exhibit-61, who are in the same business have stated on oath that deceased could have earned income of Rs.2,10,000/- p.m. if the business would have continued.
(vi) Learned counsel Mr. Soni, in support of his submissions relied upon following decisions to contend that the returns filed even after death of the deceased are required to be considered to assess the income:
(1) New India Assurance Company Limited v. Meenaben Pankajkumar Joshi, reported in 2007 (0) GLHEL-HC 217449
(2) Meenaben Pankajkumar Joshi & Ors. v. New India Assurance Company Limited ,reported in (2009) 9 SCC 363
(3) United India Insurance Co. Ltd. Transpondent v. Geetaben Pravinbhai Patel ,reported 2019(0) AIJEL-HC 241544
(4) National Insurance Company Limited v. Nishaben Pankajbhai, M/o Deed. Pankaj Shah ,reported in 2012 (0) GLHEL-HC 227573
(5) Oriental Insurance Company Limited v. Pallaviben Harsukhbhai Sorathia W/o Harsukhbhai ,reported in 2015(0) AIJEL-HC 233168
(6) Malarvizhi & Ors. v. United India Insurance Co. Ltd. & Anr., reported in (2020) 4 SCC 228
(7) Shashikala & Ors. v. Gangalakshmamma & Ors. ,reported in (2015) 9 SCC 150
Mr. Jeet Bhatt, learned advocate appearing for Appellant No. 4 and 5 supported the submissions canvassed by learned advocate Mr. Soni.
Per contra, Mr. Rathin Raval, learned advocate for respondent No.3 – Insurance Company and counsel for the appellant in First Appeal No.1333 of 2019 (Cross Appeal) has made following submissions.
(i) That the deceased was equally negligent for occurrence of the accident in question. From the panchnama it can be easily inferred that Logan car was driven with a high speed and therefore driver of Logan car was also equally negligent.
(ii) That the Tribunal had considered the income tax return for A.Y. 2003-2004, 2004-2005 and 2007-2008 which was filed before the death of the deceased. If the average of the above three returns were taken, it would come to Rs. 1,28,894/- and, therefore, the Tribunal has erred in taking annual income of the deceased at Rs. 2,00,000/-.
(iii) That the Tribunal has erred in awarding higher compensation to the claimants and, therefore, the same cannot be stated to be “just compensation”.
(iv) That the Tribunal has erred in granting 9% interest, which according to him is on a higher side and further requested to award interest @6%, which is the prevalent rate, in the event interest is to be awarded.
(v) He thus submitted to reduce the quantum as prayed for and to allow the appeal on the ground of negligence. In support of his submissions, he relied upon the following decisions:
(1) ICICI Lombard General Insurance Company Limited v. Ajay Kumar Mohanty & Anr. ,reported in (2018) 3 SCC 686
(2) United India Insurance Co. Ltd. v. Hasanaben Isakbhai Dhukka (Momin) in First Appeal No.2631 of 2019 with CA (For Stay) No.1 of 2019 decided on 21.1.2021
(3) Bharti Axa General Insurance Co. Ltd. v. Gafurbhai Kalabhai Desai & 4 Ors. in First Appeal Nos. 1445 of 2014 with Cross Objection No.22 of 2015 decided on 1.7.2019
(4) Vimadaben Navinchandra Varsani & Ors. vs. Mamad Ismail Kumbhar & Ors., reported in 2016 ACJ 59
We have considered the rival submissions; the decisions relied upon by the parties and also perused the evidence on record.
Upon re-appreciation of evidence, particularly panchnama at Exh.37 it is clear that the truck was coming from the wrong side. The description in panchnama is indicative of speed of the truck which dashed with Mahindra Logan Car. Record reveals that driver of the truck was not examined by the insurance company. Therefore, upon re-appreciation of evidence, we are of the opinion that the Tribunal has correctly held that driver of truck was solely negligent for occurrence of the said accident and no interference is called for. We thus, uphold the findings of the Tribunal on negligence.
For the issue of quantum, it would be apposite to reproduce certain portions of the relevant judgments relied upon by the parties.
14.1 This Court in the case of United India Insurance Co. Ltd. Transpondent v. Geetaben Pravindbhai Patel reported in 2019 (0) AIJEL-HC-241544 held as under:
“7. Upon considering the submissions made and on perusal of the original Record and Proceedings, it deserves to be noted that accident occurred on 23.7.2000 and the income tax returns for the AY 1999-2000 and 2000-2001 are admittedly filed after the accident. It is no doubt true that in earlier years i.e. for AY 1994-95 and 1995-96, the income was between Rs.36,000/- to Rs.38,000/-per year. Upon re-appreciation of evidence on record, more particularly, deposition of Gitaben wife of deceased at Exh.36 even in her cross examination as rightly observed by the Tribunal the original claimant has clearly stated that the deceased used to give her Rs.5,000/-to Rs.7,000/- per month. It further deserves to be noted that Rajubhai Mohanbhai Patel brother of the deceased has been examined at Exh.51. Apart from that, the original claimants have relied upon the bills at Exh.47. Upon re-appreciation of evidence of the bills at Exh.47, it transpires that in the year 1992, 1993 and 1994 deceased Pravindbhai has done business of Diamond wherein he has made payment ranging from Rs.48,860/- to Rs.5,999/-towards labour charges. The original claimants have also further produced the extract of account of parties with whom the deceased had business at Exh.47, which also reveals and indicates that the business conducted by the deceased till the year 1996-
Upon re-appreciation of the evidence of such bills at Exh.47, in our opinion, the Tribunal has rightly assessed the income of the deceased at Rs.7000/- per month. Even if the ratio laid down by the Hon’ble Supreme Court in the case of V. Subbulakshimi & Ors. (supra) relied upon by Mr. Shelat is taken into consideration, the claimants have independently apart from the returns filed after the date of accident are not considered as reliable piece of evidence, the Tribunal has correctly assessed the income of the deceased at Rs.7000/- per month. Hence, contentions raised by Mr. Shelat deserve to be negatived.
The Tribunal has rightly assessed the income of the deceased and has granted just compensation. Following the judgment of the Hon’ble Apex Court in the case of Smt. Sarla Verma and Ors. v. Delhi Road Transport Corporation and Anr. Reported In (2009) 6 SCC 121 as the deceased was 35 years old on the date of accident, the respondents claimants would be entitled to multiplier of 17 and as per the judgment of the Hon’ble Apex Court in the case of Pranay Sethi (supra) the respondents – original claimants would be entitled to 40% prospective income instead of 50%. Upon re-appreciation of evidence on record, it cannot be said that the learned Tribunal has only relied upon the deposition of Geetaben at Exh.36. Even if Income Tax Return at Exh.50 are not considered, upon re-appreciating the bills at Exh.47, in our opinion, the Tribunal has committed no error in assessing income of the deceased who was dealing in diamond business at Rs.7000/- p.m. Having come to the aforesaid conclusion, therefore, the respondents – original claimants would be entitled to compensation under the loss of dependency as under: Rs.7000x12= 84,000/- p.a. (income) + Rs.33,600/- (40% prospective income) = 1,17,600/- - 39,200/- (1/3 towards personal income) = Rs.78,400 x 17 (Multiplier as the age of the deceased was 35 years) = Rs.13,32,800/-.”
14.2 In the case of National Insurance Company Ltd. v. Nishaben Pankajbhai, M/o Decd. Pankaj Shah reported in 2012 (0) GLHEL-HC 227573, this Court has held as under:
“12. We have considered the contents of the income tax return and also the advance tax paid by the deceased during his lifetime for the respective year. The IT return for the accounting year of 1986-1987 (assessment year of 1987-1988) was filed much prior to the accident and as per the said IT return, Rs.41000 was paid towards income tax as against income of approximately Rs.1,51,000. Therefore, if the tax payment is excluded, it could be about Rs.1,10,000 for the year 1986-1987.
However, for the subsequent period, the accounting year of 1988-1989 (assessment year of 1989-1990), the advance tax paid by the deceased during his lifetime was Rs.30000, comparatively less than the earlier accounting year of 1986-87. In the same manner for the accounting year of 1989-1990 (the assessment year 1990-1991), the deceased during his lifetime paid the advance tax of Rs.25000 which was also less in comparison to the income tax paid during the accounting year 1986-1987. It is true that when the income tax return is filed after the accident, the same is required to be considered with more scrutiny and the reliability of such return may also be required to be tested. But at the same time, merely because return is filed at the later stage, such cannot be per se ground for discarding the evidence in toto. It further appears that the income is considered as per the income tax return filed in the year 1992, i.e. after the accident, for the accounting year 1988-1989, income shown is of Rs.1,99,000 against which the income tax paid is of Rs.67,000 and therefore, it can be said that the net income was Rs.1,32,000. Similarly, for the accounting year 1989- 1990, the returned income is Rs.1,10,000 and the tax paid is of Rs.37,000 and therefore, the net income would come to Rs.73,000. If the average income is considered of last three years, i.e., for 1986-1987 of Rs.1,10,000/-, for 1988-1989 of Rs.1,32,000 and for 1989-1990 at Rs.73,000, it would come to about Rs.1,04,000 per year. Since the returns have been filed at the later stage, for two accounting years of 1988-1989 and 1989-1990 and keeping in view the aspects of less advance tax paid by the deceased than the year 1986-1987 which was during the lifetime of the deceased, the income tax return was showing the income of Rs.1,10,000 as net income, we find that the assessment of the income of the deceased could be averaged out at Rs.1,00,000 per year and accordingly, it would be Rs.8,333 per month. Since the calculation is based on the yearly income, it can be treated as Rs.1,00,000 per year for the sake of convenience. Thereafter further prospective income is required to be considered. Accordingly, the prospective income would be taken at Rs.1,50,000 per year of the deceased out of which 1/3rd deduction is required to be made towards personal expenses and the net income for economic loss or dependency benefit would come to Rs.1,00,000 per year.”
Since the other decisions relied upon by learned counsel Mr. Yatin Soni, for the appellants, are on the aforesaid principles, we are not reproducing the same for the sake of brevity. However, suffice it to state that the same have been considered by us.
Whereas, Mr. Rathin Raval, learned advocate for the Insurance Company relied on the decision in the case of ICICI Lombard General Insurance Company Limited v. Ajay Kumar Mohanty and Anr. Reported in (2018) 3 SCC 686.
“7. On perusing the order of the Tribunal, we find merit in the contention of the insurer that while calculating the income in para 10 of its order, the Tribunal has committed an error of computation. The Tribunal has on the basis of the income tax returns for 2007, 2008 and 2009 arrived at an average income of Rs.1,45,231. However, the Tribunal has thereafter noted that the average income comes to Rs.2,62,372. Ultimately, the Tribunal proceeds on the annual income of Rs.2,22,000 on the basis of the testimony of the claimant that he was earning Rs.18,500 per month. This is contradictory. In our view, on the basis of the finding of the Tribunal that the average income of the claimant for the previous three years was Rs.1,45,231, it would be necessary to take into account the evidence of PW 2 that the disability is to the extent of 55%. In other words, the loss of earning as a result of the aforesaid disability would work out to Rs.79,877 per year.”
15.1 In First Appeal No.2631 of 2019, decided on 21.1.2021, this court has observed as under:
“(7) The narrow issue which falls for consideration before this Court is with regard to the consideration of average income of the deceased. The Tribunal has considered the income tax return of the deceased for the year 2010-2011 and assessed the yearly income of deceased as Rs.1,80,000/-. It is not in dispute that the claimants had produced income tax return for three years and they are proved. The same are as below:
Income:
Year 2007-2008– Rs.1,19,456 – 2040 (tax) = Rs.1,17,416/-
Year 2009-2010– Rs.1,54,990 – 514 (tax) = Rs.1,54,476/-
Year 2010-2011– Rs.1,80,000 – 2060 (tax) = Rs.1,77,940/-
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Total = Rs.4,49,832/-
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It is settled proposition of law that if the income tax return are produced and proved in evidence, then the income of the claimant has been assessed by calculating the average of three years. In the present case, the average of three years of the income of the deceased will be Rs.1,49,944/-. The Tribunal has misdirected in assessing the yearly income of the deceased as Rs.1,80,000/- on the basis of income tax return of the year 2010-2011. Thus, the compensation is required to be re-assessed as per the following table.
Amount in Rs.
Year 2007-2008
income Rs.1,19,456- 240 (Tax)
1,17,416=00
Year 2009-2010
income Rs.1,54,990- 514 (Tax)
1,54,476=00
Year 2010-2011
income Rs.1,80,000- 2060 (Tax)
1,77,940=00
Total
4,49,832=00
Average of 3 years
1,49,944=00
Prospective income (25%)
37,486=00
Total income
1,87,430=00
-1/4 deduction
46,858=00
Final income Rs.1,40,572 x 14
19,68,008=00
Under other heads
70,000=00
Total
20,38,008=00
15.2 In First Appeal No.1146 of 2014 decided on 8.6.2016, this Court has observed as under:
“5.01. At the outset, it is required to be noted that on appreciation of evidence, more particularly considering the documentary evidence produced at Exh.31 and 32, i.e. Income Tax Returns for the years 2004-05 and 2005-06 which were filed much before the death of the deceased and taking the mean of the same, the learned Tribunal has rightly assessed the income of the deceased at Rs.75,000/- per annum. It is required to be noted that the Income Tax Returns which were filed prior to the death of the deceased, no agricultural income was shown. Considering the fact that in the Income Tax Returns filed for the year 2006-07 and 2007-08 wherein exaggerated income is shown, were filed after the death of the deceased, and therefore, the learned Tribunal has rightly not considered the income mentioned in Income Tax Returns produced at Exhi. 33 and 34”
The following issues arise for our consideration in relation to quantum: (i) Whether the income tax returns for AY 2010-2011 and 2011-2012 can be considered and/or relied upon even though the same have been filed after the death of the deceased?; (ii) Whether the income tax returns for AY 2010-2011 and 2011-2012 have only to be considered, as contended by Mr. Soni, considering the income disclosed in these years is the highest or whether the average of income tax returns for the preceding years have to be considered?
In respect of the first question, we are in agreement with Mr. Soni that in the decisions relied upon by him; the Courts have held that merely because the income tax returns have been filed after the death of the deceased would not ipso facto constitute a ground to ignore the same, particularly when the returns filed refer to the accounting period, when the deceased was alive and in business. Reference can be made to the decision rendered in the case of National Insurance Company Ltd. v. Nishaben Pankajbhai, M/o Decd. Pankaj Shah (supra). We are also guided by the decision rendered by the Hon’ble Apex Court in the case of Malarvizhi & Ors. (supra), in which the Hon’ble Court has held that the income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased. In view of the same, we hold that the Tribunal was not justified in not considering the income tax returns for AY 2010-2011 and 2011-2012 merely because they have been filed subsequent to the death of the deceased, particularly when it covers the accounting period prior to the death.
However, in respect of the second question, as to whether only these two returns (AY 2010-11 and AY 2011-12) are to be relied upon, we are not in agreement with the submissions of Mr. Soni. As held in the case of National Insurance Company Ltd. v. Nishaben Pankajbhai, M/o Decd. Pankaj Shah (supra), when the income tax return is filed after the accident, the same is required to be considered with more scrutiny and the reliability of such return may also be required to be tested. In the case of Oriental Insurance Co. Ltd. V. Pallaviben Harsukhbhai Sorathiya (supra) this Court in Paragraph 5.5 noted the disparity in the income tax return filed subsequent to the date of the accident. Thus, in a case where a return is filed after the date of the accident, the same is required to be considered with closer examination. In the instant case, returns for AY 2010-11 and 2011-12 were filed on the same day i.e. 11.08.2011, i.e. after the date of accident. Further, there is a huge disparity between the income shown for AY 2003-04 to 2007-2008 as compared to that shown in the returns filed subsequent to the date of death (AY 2010-11 and 2011-12). The assertion of Rinkalbhai Rameshbhai Patel at Exhibit-61 that the deceased would have earned Rs. 2,10,000/-per month is not supported by any evidence and it refers to probability. We are conscious of the fact that there are ups and downs in the business which may lead to rise or fall in the income derived from business. Moreover, no straight jacket formula can be adopted to arrive at “just compensation”. The Motor Vehicle Act, 1988 is a benevolent legislation and its aim and object is to support claimants for the loss caused. However, at the same time, compensation awarded should not come as bounty to the claimants. There is also nothing on record that in the line of business of the deceased, a sudden spurt would have occurred leading to an astronomical rise in income. In such a fact situation, more specifically when there is no other cogent evidence led by the Claimants to justify the rise apart from the statement of Mr. Patel at Exhibit-61, we deem it fit to though answer the first question in favour of the Claimants, but not accept their contention that the last IT return only is to be considered for arriving at just compensation.
We draw reference by a recent decision of the Co-ordinate Bench of this Court in the case of Bhavnaben Shaileshbhai Rank v. Mahmadmkhan Mahmadjallaudinkhan Pathak in First Appeal No.3508 of 2021 decided on 6.12.2021, to answer the second question against the Appellants, since the Court has observed as under:
“9. Tribunal while computing the compensation payable towards loss of income to the dependents has taken into consideration the Income Tax Returns filed by the claimants of the deceased for the Assessment Years 2001-02 to 2005-06 as per Exhs.69 to 73. Learned counsel appearing for the claimants has made a valiant attempt to contend that in view of the law laid down by the Hon’ble Apex Court in the case of Shashikala and others Vs. Gangalakshmamma and another reported in 2015 ACJ page 1239, income of the deceased has to be taken based on the last Income Tax Return and not the average income of past three (3) years, which exercise had been undertaken by the Tribunal, though looks attractive, it is not so, inasmuch as the judgment of the Hon’ble Apex Court in (2018)3 SCC page 686 would indicate that it is always apt, appropriate and safe to take average income, inasmuch as in a given case there may be a situation where due to unforeseen circumstances, income for the last year could be either less or abysmally on the lower side. In such circumstances, the insurer cannot be heard to contend that last Income Tax Return which was filed by the deceased would be required to be taken as his/her actual income. The safe and proper course in such circumstances is to take into consideration the average income of the last three years preceding the death which would indicate the average income the deceased was earning for the last three years prior to his death. It is this precise exercise which was undertaken by the Tribunal in the instant case, namely, the income for last five years as indicated in the Income Tax Returns which were filed as per Exhs.69 to 73 and has arrived at the average annual income and thereafter has proceeded to determine the loss of dependency or loss of income to which the claimants would be entitled to. There is no error committed by the Tribunal in that regard and we are not inclined to disturb the findings recorded by the Tribunal in that regard.”
Therefore, we hold that the last IT returns filed cannot only be considered for arriving at just compensation as contended by Mr. Soni. In the case at hand, returns of deceased for the assessment year 2003-2004 to 2007-2008 are available on record. Further, apart from the above, returns for AY 2010-11 and 2011-12 are also available on record, which were filed on the same day, after the death and disclosing immediate spurt in the income as compared to the earlier years. Upon re-appreciation of evidence, we noticed that in the returns filed for AY 2003-2004 to AY 2007-2008, income returned ranges between Rs. 1.05 lacs to Rs. 1.81 lacs approximately. From the record it appears that the Tribunal has taken into consideration the income tax returns for AY 2003-2004, 2004-2005 and 2007-2008 (Exhibit-61 and 62). It appears that the Tribunal may also have given some weightage to the deposition of Mr. Rinkalbhai Patel so as to arrive at the figure of Rs. 2,00,000/- p.a. (Rs.16,667 /- p.m.) and such a determination in our opinion is based on the evidence the available record and is therefore just and proper. We have also noticed that for A.Y. 2008-2009 and 2009-2010, there is only TDS Form 26AS on record and therefore deem it fit not to consider the same.
Thus, we are of the opinion that there is no infirmity or error in the judgment and award dated 31.03.2018, in arriving at the finding that the income of the deceased would come to Rs. 2,00,000/- p.a. i.e. Rs. 16,667/- p.m. The deceased was 38 years old (as per birth certificate at Exh.39), therefore 40% prospective income is to be considered as per the decision of the Apex Court in the case of Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121. The deceased was survived by 6 dependents therefore, 1/4th amount is to be deducted as personal expenses and multiplier of 15 would apply. Thus, the loss of dependency is as under:
“Rs. 16,667/- + Rs. 6,667/- (40% prospective income) = Rs. 23,334/- – Rs.5,834/- (¼th personal expenses) = Rs. 17,500/- x 12 p.a. = Rs.2,10,000 x 15 (multiplier) = Rs. 31,50,000/-”.
As the deceased is survived by widow, three minor children and parents, Rs. 40,000/- each would be appropriate as spousal, parental and filial consortium in view of decision in the case of Satinder Kaur alias Satwinder Kaur v. United India Insurance Co. Ltd. AIR 2020 SC 3076 and Magma General Insurance Company Ltd. v. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130. For Funeral expenses and loss of estate Rs.15,000/- each would be appropriate.
Loss of Dependency
Rs. 31,50,000/-
Loss of Estate
Rs.15,000/-
Funeral Expenses
Rs.15,000/-
Loss of love and affection and consortium
Rs.2,40,000/-
Total
Rs. 34,20,000/-
Thus, the appellants - claimants would be entitled to total compensation of Rs. 34,20,000/-. As the Tribunal has awarded an amount of Rs. 32,20,000/- with 9% interest from the date of petition till its realization, the claimants shall therefore, be entitled to additional amount of Rs.2,00,000/-(Rs. 34,20,000-Rs. 32,20,000/-) with 6% interest and costs thereon. The Insurance Company is directed to deposit the additional amount with interest thereon within a period of eight (8) weeks from the date of receipt of this order.
The Appeal filed by the claimants is thus partly allowed and the appeal filed by the insurance company stands dismissed. The judgment and award is modified to the above extent. The rest of the judgment and award passed by the learned Tribunal remains unaltered. Civil Application(s) if any stands disposed of accordingly.
Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.