The New India Assurance Co. Ltd. v. Jyotsna Gope And ORS

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION APPELLATE SIDE

Present:

The Hon'ble Justice Ananya Bandyopadhyay R.V.W 203 OF 2024 The New India Assurance Co. Ltd.

-VsJyotsna Gope & Ors.

For the Appellants/Claimants : Mr. Amit Ranjan Roy For the Respondents/ Insurance Company : Mr. Parimal Kumar Pahari Heard on : 11.07.2024 Judgment on : 30.09.2024 Ananya Bandyopadhyay, J.:-

1. This is an application bearing case no. RVW 203 of 2024 filed on 09.07.2024 for the review of the judgment and order dated 2nd July, 2024 passed by this court.

2. Four legal heirs of deceased Santosh Gope filed an application under Section 166 of the M.V. Act in the Court of Motor Accident Claims Tribunal, Additional District and Sessions Judge, 2nd Court, Asansol being MAC Case No.40/2016, claiming an award of Rs.5 lakhs along with interest whereby the aforesaid deceased expired due to a road traffic accident on 11.01.2013.

3. The offending vehicle, a truck bearing Registration No. WB-37C-6511 hit the aforesaid deceased approaching in a rash and negligent manner near Majia High School in front of Sanchit Gope's tea stall on NH-60.

4. Consequently, the victim was declared to have expired at Bankura Medical College and Hospital.

5. Subsequently, based on a written complaint, Mejia P.S. Case No. 20/2014 dated 14.03.2014 under Sections 279/304A of the Indian Penal Code was instituted against the driver of the offending truck as aforesaid.

6. The owner of the offending vehicle did not appear before the Court to contest the MAC case No.40/2016 in the Court of Motor Accident Claims Tribunal, Additional District and Sessions Judge, 2nd Court, Asansol.

7. The respondent, the New Indian Assurance Company Ltd. contested the aforesaid MAC case.

8. The Learned Tribunal as aforesaid disposed of the issues framed considering the oral as well as documentary evidences and awarded a sum of Rs.7,73,800/- as compensation to be paid equally to each of the four claimants along with an interest at a rate of 6 per cent per annum from the date of filing of the application till the realization of the compensation amount to be paid by the respondent - the New India Assurance Company Ltd.

9. It was submitted by the Learned Advocate for the appellant that the Learned Tribunal erred in considering the future prospect at the rate of 10% instead of 40%. Moreover, the multiplier of 17 was applied instead of 18. Furthermore, the Tribunal as aforesaid ought to have added 10% with the monthly income of the deceased after an interval of 3 years respectively. 10.

The Learned Advocate for the respondent - Insurance Company refuted the claim of the appellant and submitted that the Learned Tribunal was justified in computing the awarded compensation.

11. The claim application before the Learned Tribunal was filed by the wife and 3 minor children being represented by the wife of the deceased.

12. PW-2, the Inspector of Income Tax Office, Asansol, Ward- 2(1), was authorized to adduce evidence on behalf of the Income Tax Office vide a document marked Exhibit-13. Income Tax Return for the year 2012-13 and 2013-14 filed by the deceased were marked as Exhibit-14 series. The document marked as Exhibit-14 series depicted the income of the deceased to be Rs.2,04,620/- for the year 2013-14.

13. The accident occurred on 20.02.2014. The Income Tax Return was filed by the deceased Santosh Gope prior to his accidental death. The document produced before the Court was computer-generated to have been in existence prior to the death of the deceased which obliterated the possibility of any kind of suspicion of being fabricated. The Income Tax Department possessed the document and produced the same independently and the authenticity of the said document was sacrosanct.

14. The Learned Tribunal should not have disregarded the Income Tax Return for the year 2013-14 for computing the annual income of the victim. The Income Tax Return document itself conspicuously stated the source of the assessee's income. Any variation or discrepancy to that effect should have been challenged before an appropriate authority in case of manipulation or fraudulent information to be dealt with by the Income Tax Department and not by the MAC Tribunal to judge or to ascertain the veracity of the said document or the nature of his profession or source of his income.

15. The Hon'ble Supreme Court in Kalpanaraj v. T.N. State Transport Corpn.1held the following:- "8. It is pertinent to note that the only available documentary evidence on record of the monthly income of the deceased is the income tax return filed by him with the Income Tax Department. The High Court was correct therefore, to determine the monthly income on the basis of the income tax return. However, the High Court erred in ascertaining the net income of the deceased as the amount to be taken into consideration for calculating compensation, in the light of the principle laid down by this Court in National Insurance Co. Ltd. v. Indira Srivastava [National Insurance Co.

Ltd. v. Indira Srivastava, (2008) 2 SCC 763 : (2008) 1 SCC (Civ) 744 : (2008) 1 SCC (Cri) 550] . The relevant paragraphs of the case read as under: (SCC pp. 768-70, paras 14-15)

9. In the light of the principle of law laid down by this Court in the Indira Srivastava case [National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 SCC 763 : (2008) 1 SCC (Civ) 744 : (2008) 1 SCC (Cri) 550] mentioned supra, we are of the opinion that the High Court erred in making deductions under various heads to arrive at the net income instead of ascertaining the gross income of the deceased out of the annual income earned from his occupation mentioned in the income tax return submitted for the relevant Financial Year 1994-1995."

16. In Anjali v. Lokendra Rathod2, the Hon'ble Supreme Court held the following:- "9. The Tribunal and the High Court both committed grave error while estimating the deceased's income by disregarding the Income Tax Return of the Deceased. The appellants had filed the Income Tax Return (2009-2010) of the deceased, which reflects the deceased's 1(2015) 2 SCC 764 22022 SCC OnLine SC 1683

annual income to be Rs. 1,18,261/-, approx. Rs. 9,855/- per month. This Court in Malarvizhi (Supra) has reaffirmed that the Income Tax Return is a statutory document on which reliance be placed, where available, for computation of annual income. In Malarvizhi (Supra), this Court has laid as under:

"10. ...We are in agreement with the High Court that the determination must proceed on the basis of the income tax return, where available. The income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased."

10. Hence, this Court is of the opinion that the deceased's annual income be fixed at Rs. 1,18,261/-, approx. Rs. 9,855/- per month keeping in mind the deceased's Income Tax Return for the year 2009-2010."

17. The following was held in K. Ramya v. National Insurance Co. Ltd.3 by the Hon'ble Supreme Court:- "14. In contrast, the High Court set aside the same on the ground that the income earned was out of capital assets and cannot be said to have been earned out of personal skills of the deceased. It consequently went on to determine the income of the Deceased on a notional basis as per his educational qualification. Unfortunately, such an approach, in our opinion, is erroneous in view of the decisions of this court in Amrit Bhanu Shali v. National Insurance Co.

Ltd.10 and Kalpanaraj v. Tamil Nadu State Transport Corpn.11 wherein this court has held that documents such as income tax returns and audit reports are reliable evidence to determine the income of the deceased. Hence, we are obliged to modify the compensation, especially when neither any additional evidence has been produced to showcase that the income of the Deceased was contrary to the amount mentioned in the audit reports nor it is the 32022 SCC OnLine SC 1338

stand taken by the Insurance Company that the said reports inflated the income."

18. The annual income of the victim in view of the aforesaid decision is to be considered to be Rs.2,04,158/- after deducting the amount of Rs.462/- paid towards income tax (10% of Rs.4,620/-) as for the year 2012-13, income tax exemption was granted to the income amount of Rs.2,00,000/-. The claim application mentioned the age of the deceased to be 26 on the date of the accident and, therefore, in view of the judgment cited in Sarla Verma Vs. Delhi Transport Corporation and Anr. 2009 (6) SCC 121, the multiplier has been rightly considered by the Trial Court to be 17.

19. In view of the decision cited in National Insurance Co. Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680 in an application under Section 166 of the M.V. Act if the deceased was self-employed and below the age of 40 years, the future prospect was to be determined at the rate of 40 per cent of the annual income contrary to 10 per cent as observed by the Learned Tribunal.

20. In Pranay Sethi (supra), the Hon'ble Supreme Court observed the following:

"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [Santosh Devi v. National

Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect.

Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric.

We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."

21. In view of the aforesaid decision, the claimants are entitled to an enhanced rate of 20% with regard to loss of estate, loss of consortium and funeral expenses for the period of 2017-2020 and 2020-2023.

22. The compensation is computed as follows:- Annual Income Rs.2,04,620/- Income Tax Rs.462/- Deduction Annual Income Rs.2,04,158/-

Future Prospect Rs.81,663/- (40% of Annual Income) Annual Income Rs.2,85,821/- + Future Prospect Rs.71,455/- (1/4th of Total Income) Deduction towards Personal Expenses Total Annual Rs.2,14,366/- Income Multiplier Rs.36,44,222/- Multiplier as Rs.2,14,366/- X 17 Loss of Estate Rs.18,000/- Loss of Spousal Rs.48,000/- Consortium Funeral Expenses Rs.18,000/- Total Rs.37,28,222/-

23. The Insurance Company has deposited the compensation awarded by the Learned Tribunal along with the interest at the rate of 6% per annum at the Office of the Registrar General, High Court, Calcutta.

24. Respondent - Insurance Company is to deposit the residual amount along with an interest of 6% per annum from the date of filing of the claim application at the Office of the Registrar General, High Court at Calcutta as expeditiously as possible whereby the Learned Registrar General, High Court at Calcutta is to issue account payee cheques in 4 (four) equal amounts to 4 (four) of the claimants. The cheques to be issued in the name of the 3 (three) minor children being appellant no.2, 3 and 4 are to be deposited in a nationalized bank in a Fixed Deposit Scheme till the minors attained their age of majority.

25. The instant review application is accordingly disposed of along with connected applications if any.

26. Interim orders, if any, are vacated.

27. Parties to act upon the server copy of this judgment.

28. The urgent certified copy of this order be provided complying terms and conditions.

(Ananya Bandyopadhyay, J.)