Jayanti Ashutosh Mishra And Ors. vs Sanjay Santosh Jadhav & Anr.

This appeal filed by the claimants for enhancement of the compensation granted by the Tribunal vide Judgment and Award dated 02.09.2021 passed in M.A.C.P. No. 120 of 2017.

Certain facts which are not in dispute indicate that on 05.01.2016 when accident occurred involved motor vehicle bearing No. MH-02/AL-8072 in which the deceased sustained injuries and scummed thereto. The Tribunal has accepted the case of the claimants with regard to the negligence on the part of the driver of the offending vehicle in occurrence of the accident and allowed the claim petition. There is no challenge raised by the insurer to the Judgment and Award passed by the Tribunal.

The present appeal has been filed on the ground that the Tribunal has failed to take into consideration income of the deceased in spite of the same being proved by the producing on record the bank account of the firm showing amount being credited to account of deceased and which document is duly exhibited through the witness from the bank. Learned counsel for the appellant submits that the deceased had entered into a partnership deed with two other partners for conducting the business of making digital films and advertisement etc. It is his submission that the factum of the partnership deed has been proved by examining one of the partner i.e. witness Mandar Sawant. It is his submission that the claimant by examining the employee of the bank has proved the bank account of the partnership firm indicating the payment of the certain amounts made to deceased for a period of 9 months. It is his submission that the entire sum comes to Rs.1,98,000/- and considering the said fact, the Tribunal instead of accepting the notional income of @Rs.10,000/- per month should have accepted the income of the deceased @Rs.35,000/-. He, however does not dispute about the fact that the claimant in the Petition have claimed the income of the deceased to be Rs. 23,111/- per month. It is his submission that the compensation ought to have been calculated on the basis of the said income with future prospects. It is his further submission that the consortium has not been granted to the claimants and hence impugned Judgment and Order deserves modification with enhancement of the compensation.

Learned counsel for the insurer opposed the appeal firstly on the ground that the claimant No.1 in her evidence has accepted the fact that the claimants have not placed on record any evidence indicating income of the deceased. Furthermore, testimony of witness Sawant is relied upon to show that the profit and loss account of the firm so also income tax filed by the firm are not placed on record. It is his submission that initial burden to prove the income has not been discharged by the claimant. He drew attention of the Court to the findings recorded by the Tribunal in paragraph Nos. 26 to 28 to argue that the Tribunal has likely rejected the claim of the claimant with regard to the income of the deceased on the basis of the evidence placed on record. It is his submission that the said findings cannot be termed as perverse in order to cause any interference therein.

No doubt the burden will be on the claimants to prove the income of the deceased. However, the said burden would be on probability. The claimant No.1 stepped into the witness box and claimed about the deceased being in the business of the digital films and advertising, etc. Though she accepts that no documentary evidence is placed on record however as a matter of fact there is evidence indicating the income earned by the deceased in the form of bank account maintained with the Bank of Baroda. There is further evidence of the partner of the firm indicating that the partnership between the deceased and two other partners was formed and after the death of the deceased, the said partnership firm is continued by the surviving partners. He though accepts that there is no evidence to indicate the registration of the partnership firm or maintenance of the profit and loss account of the income tax return, non production of the same cannot lead to the conclusion that there was no income earned by the said partnership firm. Even if it is accepted for sake of arguments that partnership is not registered or income tax returns are not filed, the same may amount to contradiction of partnership Act or Income Tax Act, but by no stretch of imagination could become a reason to deny claim of claimants in respect of income of deceased, if it is proved by leading evidence.

This become more relevant when the claimant examined Ramesh Jadhav, working in Bank of Baroda who specifically states about M/s. S.L.I.T.C. a partnership Firm having account with the bank and the deceased and other two persons being partners thereof. Furthermore, as per the bank statement, amounts are shown to have been transferred to the account of the deceased. Thus, there is more than sufficient evidence on record to indicate that the deceased was earning from the business of partnership firm. Unfortunately, within a short period of time that within nine months of the partnership firm came into existence, he died and therefore average income of deceased could be considered for computation of compensation for loss of dependency. From the said evidence, suffice it to say that the there was consistent income earned by the deceased during said period and in such circumstances, this Court finds no hesitation to accept the case of the claimant with regard to deceased earning atleast Rs.23,000/- per month.

Apart from this, the Tribunal has failed to grant consortium to two claimants. Hence they are entitled to receive the same. As far as the calculation of the compensation is concerned, no fault can be found with the exercises by the Tribunal to arrive at the calculation. However, in view of the enhancement of the monthly income of the deceased, the calculations are required to be redone as follows :

The claimants are entitled for enhanced compensation of Rs. 22,93,910/-

In view of above, I pass following order:

The appeal is disposed of. In view of disposal of appeal, pending applications, if any also disposed of.