Vinay Sohal vs Gurvinder Singh

FAO No. 25 of 2001

Surinder Gupta, J. - This is appeal filed by claimant-Vinay Sohal and others seeking enhancement of compensation awarded by Motor Accident Claims Tribunal, Karnal (later referred to as ''the Tribunal'') for death of Subhash Sohal (later referred to as ''the deceased'') in motor vehicle accident on 04.07.1997 with TATA Sumo bearing registration no. PB-08-BT-8394 (later referred to as ''the offending vehicle'').

The Tribunal allowed compensation of Rs. 10,37,245/- to claimants, which was computed as follows:-

Sr.No.

Heads

Calculation

(i)

Name of the deceased

Subhash Sohal

(ii)

Age of the deceased at the time of accident

50 years

(iii)

Income of the deceased

Rs. 118298

(iv)

⅓rd of (iv) above deducted towards personal expenses

Rs. 118298- Rs. 39433)= Rs. 78865 per annum (wrongly taken as Rs. 77865)

(v)

Amount of dependency after applying multiplier of 13

(Rs. 77865 x 13)= Rs. 1012245

(vi)

Compensation towards transportation and last rites

Rs. 15000

(vii)

Agricultural income

Rs. 20000

Total

Rs. 1047245 (wrongly mentioned as Rs. 1037245)

</&thorn;FAO No. 27 of 2001

This is appeal by claimant-Vinay Sohal seeking enhancement of compensation awarded by the Tribunal for death of her son, namely, Amit Sohal (later referred to as ''the deceased'') in motor vehicle accident with the offending vehicle. The Tribunal awarded a lump sum amount of Rs. 1,50,000/- for death of Amit Sohal in the motor vehicle accident.

FAO No. 28 of 2001

This is appeal by claimant-Sivek Sohal, who was aged 16 years at the time of accident, for the injuries suffered by him in motor vehicle accident with the offending vehicle. The Tribunal awarded compensation of Rs. 30,000/- to claimant, which was computed as follows:-

Sr.No.

Heads

Calculation

(i)

Expenses of medicines and future treatment

Rs. 20000

(ii)

Pain and suffering, special diet and transportation etc.

Rs. 10000

Total

Rs. 30000

</&thorn;5. The above three appeals have been taken up together for disposal as these relate to deaths/injuries in same accident with the offending vehicle.

Case of claimants, in brief, is that on 04.07.1997, deceased Subhash Sohal alongwith his wife Vinay Sohal and two sons, namely, Amit Sohal and Sivek Sohal was going from Chandigarh to Delhi in Maruti car bearing registration no. DL-8-CP-8737 for catching flight for Philippines. The car was being driven by Subhash Sohal at a moderate speed on left side of the road. When he reached near Police Station Gharaunda, the offending vehicle, which was being driven by Surjeet Singh in a rash and negligent manner, hit the Maruti car as a result of which Subhash Sohal and Amit Sohal died at the spot while Vinay Sohal and Sivek Sohal sustained injuries. The matter was reported to the police by Sivek Sohal on whose statement FIR for offence under Sections 279/337/304-A IPC was registered against driver of the offending vehicle.

The deceased Subhash Sohal, aged 45 years, was a successful businessman having business in India as well as Philippines. He was running business of raw rubber under the name and style of M/s Sohal and Associates at Jalandhar besides the business of Financer at Pasay City, Philippines. He was also owning about 60 acres of land and used to earn Rs. 2 lacs per month from the said business. He was income tax payee. A sum of Rs. 50,000/- was spent on transportation of the dead body of the deceased and on performing of last rites. A sum of Rs. 4 crores was claimed as compensation for his death in the motor vehicle accident.

Second deceased in the accident Amit Sohal was a student of B.Com, IInd year. Claimants alleged that he was cultivating about 50 acres of land and used to earn Rs. 8000/- per month. Compensation of Rs. 25 lacs was claimed for his death in the motor vehicle accident.

In the third claim petition filed by Sivek Sohal, it was alleged that he was aged 16 years and was student at the time of accident. He suffered multiple grievous and serious injuries on various parts of body and was operated upon for fractures sustained by him. A sum of Rs. 50,000/- was spent on his treatment. He had to miss one precious year of his studies and had to take medicines regularly. A sum of Rs. 2 lacs was claimed as compensation for the injuries suffered by him.

FAO No. 25 of 2001

Learned counsel for claimants-appellants has argued that the deceased was doing business in India as well as in Philippines. From his 60 acres of land he was having income of Rs. 2 lacs per month. While calculating amount of compensation, the Tribunal has considered income of the Subhash Sohal as reflected in income tax return filed in India but no notice was taken of income tax returns filed in Philippines on the ground that these returns were not duly attested by Embassy. He has argued that on the date of accident, the deceased alongwith his wife and two sons was going from Chandigarh to Delhi to catch flight for Philippines and the accident took place on the way, when he was near Gharaunda on G.T. road. This shows that the deceased was having capacity to travel by air and there is substance in statement of claimant about his business at Philippines. There was no reason for the Tribunal to ignore the income tax return filed at Philippines placed on record by claimants.

Learned counsel for respondents have argued that the Tribunal while assessing amount of compensation has considered income tax return filed by the deceased for the assessment year 1995-96 (Ex. P-12). Other returns claimed to have been submitted at Philippines were not corroborated by any other evidence on record, as such, the Tribunal has rightly ignored the same. Even passport of deceased was not produced to prove his stay at Philippines while engaged in business there. The amount of compensation awarded by the Tribunal was just and reasonable keeping in view the price index in the year 1997.

Tribunal has held age of the deceased as 50 years. As per observations of Apex Court in case of <&iuml;>Rajesh and others v. Rajbir Singh and others, 2013 (9) SCC 54</&iuml; and <&iuml;>Munna Lal Jain and others v. Vipin Kumar Sharma and others, 2015 (3) RCR (Civil) 447</&iuml;, claimants are entitled to 30% addition in income of the deceased towards future prospects. The deceased left behind his wife and two children. They are entitled to compensation for loss of consortium for the wife and loss of love and affection care and guidance for minor children, which was not awarded by the Tribunal. Keeping in view the fact that the accident had taken place in the year 1997, wife of the deceased is allowed compensation of Rs. 40,000/- for loss of consortium and children are also allowed an equal sum for loss of love and affection, care and guidance.

The Tribunal took income of the deceased on the basis of income tax return for the assessment year 1995-96 (Ex. P-12). The income tax return mark ''A'' stated to have been filed by the deceased at Philippines, were discarded as not duly proved. It was also observed that the deceased was owner of land measuring 60 acres. For the loss of supervision of this land by the deceased, the Tribunal allowed compensation of Rs. 20,000/-.

On the date of accident, the deceased in his self-driven car was going to Delhi with family to catch flight for Philippines. Claimant-Vinay Sohal while appearing as PW-1 has stated that her husband, who was Non-Resident Indian (N.R.I.), was having business at Jalandhar as well as Philippines. He had employed two managers out of whom one was looking after the business at Jalandhar and another at Philippines. At Philippines, the deceased was running finance business while at Jalandhar he was doing a business of raw-rubber. He used to live for two months at Philippines and then for two months at Jalandhar. However, she was not aware as to what had happened to business of her husband at Philippines after his death as she did not visit Philippines thereafter. Besides above business, the deceased was owning 60 acres of agricultural land, which was joint in the name of claimant-Vinay Sohal and deceased. As per income tax return filed by the deceased for the assessment year 1995-96, he was having income of Rs. 1,18,298/- plus Rs. 14575/- as interest income. Claimant has also placed on file a wealth tax return filed by her husband on 26.05.1995 (Ex. P-9) and various assessment orders and receipts of payment of advance tax. She has also filed copy of income tax return filed by her husband at Philippines as mark ''A''. The Tribunal in the absence of any evidence to prove these income tax returns did not rely on the same. Claimant certainly had documentary evidence regarding business of her husband at Philippines but has not come with any explanation or reason for not producing the same. She could examine the Manager, who was looking after the business of the deceased at Philippines and produce account books maintained by him or could produce any other evidence to prove income of her husband at Philippines. However, it is proved on file that deceased was N.R.I. Tribunal ignored a vital piece of evidence on file, which confirms status of deceased as N.R.I. Claimants placed on file Ex. P-27 and Ex. P-30, copies of two assessment orders issued by Income Tax Department, which reads as follows:-

"income Tax Department

Ward 1(2), Jalandhar

1

Year of assessment

:

1991-92

2

Name of the assessee

:

Sh. Subhash Sohal c/o Sohal & Associates, Sodal Road, Jalandhar.

3

Status

:

Individual

4

Whether resident/resident

:

R & OR. but not ordinarily resident

5

Valuation date

:

31.3.

6

Section and sub-section

:

16 (3) under which the assessment is made

</&thorn;

Assessment Order

Return declaring net wealth of Rs. 18,66,100/- was filed by the assessee on 31.10.1991, which was processed u/s 16 (1) (a) on 16.11.1991. Later on the case was picked-up for selective scrutiny. Notice u/s 16(2) was issued and served upon the assessee in response to which Sh. D.S. Walia, counsel of the assessee attended the proceedings and the case was discussed.

Vide letter dated 08.1.1993, Sh. Walia claimed exemption of wealth u/s 5 (1) (xxxiii). The assessee has filed copy of passport as well as copy of NRI/account in support of his claim. In view of the information filed the wealth return is exempted u/s 5(1) (xxxiii).

Issue documents.

Dated :- 1.03.93

(V.K. NAGPAL)

Wealth-Tax Officer,

Ward. 1(2), Jalandhar."

"income Tax Department

Ward 1(2), Jalandhar

1

Year of assessment

:

1990-91

2

Name of the assessee

:

Sh. Subhash Sohal c/o Sohal & Associates, Sodal Road, Jalandhar.

3

Status

:

Individual

4

Whether resident/resident

:

R & OR. but not ordinarily resident

5

Valuation date

:

31.3.

6

Section and sub-section

:

16 (3) under which the assessment is made

</&thorn;

Assessment Order

Return declaring net wealth of Rs. 18,53,400/- was filed by the assessee on 28.11.1991, which was processed u/s 16 (1) (a) on 16.1.1992. Later on the case was picked-up for selective scrutiny. Notice u/s 16(2) was issued and served upon the assessee in response to which Sh. D.S. Walia, counsel of the assessee attended the proceedings and the case was discussed.

Vide letter dated 08.1.1993, Sh. Walia claimed exemption of wealth u/s 5 (1) (xxxiii). The assessee has filed copy of passport as well as copy of NRI/account in support of his claim. In view of the information filed the wealth returned is exempted u/s 5(1) (xxxiii).

Issue documents.

Dated :- 1.03.97

(V.K. NAGPAL)

Wealth-Tax Officer,

Ward 1(2), Jalandhar."

These assessment orders prove that deceased was ''Non Resident Indian'' who got exemption of wealth tax return from Income Tax Department. Even if return mark ''A'' and certificate of auditor with regard to income of deceased are ignored still it can be presumed that deceased was N.R.I. and having some income abroad while living in Philippines, which in the absence of cogent and convincing evidence is assessed as Rs. 1 lac per annum.

This is also not disputed that the deceased was owning 60 acres of agricultural land with his wife. The Tribunal after accepting this fact had added a sum of Rs. 20,000/- in the compensation amount towards loss of supervision of the land by the deceased. This amount has been added in total amount of compensation instead of adding the same towards annual loss of income to claimants. I am of the opinion that this income should have been added in annual income of the deceased before applying the multiplier.

In view of my above discussion, the compensation to which claimants are entitled, is reassessed as follows:-

Sr. No.

Heads

Calculation

(i)

Income of the deceased (as assessed by the Tribunal) and income in Philippines

(Rs. 118298+100000)= Rs. 218298 per annum

(ii)

30% of (i) above to be added as future prospects

(Rs. 218298+ Rs. 65490)= Rs. 283788 per annum

(iii)

Loss of supervision of agricultural land

Rs. 20000 per annum

(iv)

Total annual income

(Rs. 283788+ Rs. 20000) Rs. 303788 per annum

(v)

⅓rd of (iv) deducted as personal expenses of the deceased

Rs. 303788- Rs. 101262)= Rs. 202526 per annum

(vi)

Annual amount of dependency after multiplier of 13 is applied

(Rs. 202526 X 13) = Rs. 2632838

(vii)

Loss of consortium for the wife

Rs. 40000

(viii)

Loss of love and affection care and guidance for the children

Rs. 40000

(ix)

Transportation and last rites as assessed by the Tribunal

Rs. 15000

Total

Rs. 2727838 (rounded off to Rs. 2728000)

</&thorn;FAO No. 27 of 2001

The deceased was a young boy of 20 years of age and was a student of B.Com. IInd year. The Tribunal allowed a lump sum amount of compensation of Rs. 1,50,000/- to claimant-Vinay Sohal.

Learned counsel for the appellant has argued that the Tribunal has not assessed income of the deceased, who was a well educated boy. Relying on the observations of Apex Court in <&iuml;>Kishan Gopal and another v. Lala and others, 2014 (1) SCC 244</&iuml;, he has argued that in that case the deceased was 10 years of age and Apex Court assessed his notional income as Rs. 30,000/- per annum and awarded compensation of Rs. 5 lacs. Applying the ratio of judgment in Kishan Gopal''s case (supra), compensation for death of Amit Sohal can be assessed.

Learned counsel for respondents have argued that the deceased was a young boy of the age of 20 years. The Tribunal has rightly assessed lump sum amount of Rs. 1,50,000/- as compensation as neither of the claimants was dependant on his income.

In Kishan Gopal''s case (supra), deceased was 10 years of age and the Apex Court has assessed his notional income as Rs. 30,000/- per annum. In this case deceased was a young boy of the age of 20 years and was a student of B.Com. IInd year. His parents were well established in life and financially sound and would have provided him all type of assistance in studies, so as to give him avenues to settle in life. Applying the ratio of judgment in case of Kishan Gopal''s (supra), I assess notional income of the deceased (Amit Sohal) in the year of accident i.e. 1997 as Rs. 30000/- per annum after deduction towards personal expenses. As per norms settled in case of <&iuml;>Sarla Verma and ors. v. Delhi Transport Corporation and another, (2009) 6 SCC 121</&iuml;, multiplier applicable in this case is 18. Claimant-Vinay Sohal, who is mother of the deceased (Amit Sohal), is awarded compensation of Rs. 40,000/- for loss of estate, love and affection besides a sum of Rs. 15,000/- towards transportation and funeral expenses.

In view of my discussion above, the compensation to which claimant is entitled, is reassessed as follows:-

Sr. No.

Heads

Calculation

(i)

Income of the deceased

Rs. 30000 per annum

(ii)

Amount of dependency after multiplier of 18 is applied

(Rs. 30000 X 18) = Rs. 540000

(iii)

Loss of estate, love and affection

Rs. 40000

(iv)

Transportation and last rites as assessed by the Tribunal

Rs. 15000

Total

Rs. 595000

</&thorn;FAO NO. 28 of 2001

Learned counsel for the appellant has argued that claimant-Sivek Sohal had sustained serious injuries in the accident. He was shifted to Arpana Hospital and then to Civil Hospital, Karnal. He was operated for fracture of left shoulder/arm and a plate was inserted. He remained admitted in hospital for 1� month. The Tribunal took medical expenses of claimant as Rs. 11,187/- and allowed a lump sum of Rs. 20,000/- for medicines and future treatment ignoring the fact that Dr. M.S. Gupta, who had treated the claimant, has stated that claimant would be required to undergo another operation for removal of implants, which will cost around Rs. 9000/- to Rs. 10,000/-. No compensation was allowed for loss of studies to claimant, attendant charges and a lump sum amount of Rs. 10,000/- was awarded towards pain and suffering, special diet and transportation expenses etc., which is also on lower side.

Claimant-Sivek Sohal appeared as PW-2 and has stated that after the accident he was taken to Arpana Hospital from where he was brought to Civil Hospital, Karnal and then to a private hospital at Panchkula. He remained admitted in the hospital for about 1� month. At that time he was student of 10th class and could not continue his studies due to the injuries suffered by him. Even after the treatment he has not fully recovered and cannot lift weight with his arms. In cross-examination he has stated that he appeared in matriculation examination in the year 1998 but failed. He remained at his house as he was advised another operation for removing the plate. Dr. M.S. Gupta, who treated the claimant, appeared as PW-3 and has stated as follows:-

"On 06.07.1997, Shivek 18 years male came to me. I examined him and found that he was having fracture shaft of humerus left. I advised for his admission in Verma Maternity Centre and Nursing Home, 270, Sector 6, Panchkula. I have brought treatment record of this patient. I operated him on 06.07.1997 and fixed the fracture with the plate. He was discharged from the hospital on the next day i.e. on 07.07.1997. The patient remained under treatment for about two months. I charged Rs. 3000/- as my operation fee vide receipt Ex. P-1. Rs. 2200/- were charged as hospitalization charges by Verma Maternity Centre and Nursing Home vide receipt Ex. P-2. Medicines and implant was purchased by the patient from outside. Medicines mentioned in bill Ex. P-3 and Ex. P-4 were prescribed by me. Implant mentioned in bill Ex. P-5 was also used by me in operation. Another operation would be required to remove the implants. The same may cost another Rs. 9000/- to Rs. 10,000/-."

Claimant has placed on file medical bills. While allowing compensation towards medical expenses of claimant, the Tribunal has taken into account the fact that he required another operation costing him around Rs. 9000/- to Rs. 10,000/-. However, the Tribunal has not allowed any compensation for loss of studies to claimant and charges of attendant and future medical care, physiotherapy required by the claimant. Keeping in view above facts, compensation awarded towards medical expense and future medical treatment is enhanced to Rs. 25,000/-. Claimant is also allowed compensation of Rs. 10,000/- towards loss of studies and Rs. 5000/- towards attendant charges. However, I maintain the compensation of Rs. 10,000/- allowed by the Tribunal towards pain and suffering, special diet, transportation etc.

As a sequel of my discussion above, all the appeals have merit and are accepted. Award of the Tribunal is modified and compensation allowed to claimants in FAO No. 25 of 2001, for death of Subhash Sohal, is enhanced from Rs. 10,37,245/- to Rs. 27,28,000/-; for death of Amit Sohal in FAO No. 27 of 2001 from Rs. 1,50,000/- to Rs. 5,95,000/- and for the injuries suffered by claimant-Sivek Sohal in FAO No. 28 of 2001, from Rs. 30,000/- to Rs. 50,000/-. The enhanced amount of compensation will carry interest @ 7% per annum from the date of filing of claim petition till actual realization. Respondent no. 3-Insurance Company being insurer of the offending vehicle will deposit the share of claimants-appellants in their bank accounts or pay the same through demand drafts.