National Insurance Company Ltd. vs Smt. Sushma Yadav and Others

Indermeet Kaur, J.—This appeal has impugned the Award dated 16.10.2008 vide which the Tribunal had awarded compensation in the sum of Rs. 13,85,494/- to the claimants.

The facts as emanated are that on 04.5.2003 at about 9.00 PM the deceased along with his friends were going from his residence Madhu Vihar to Naraina to attend a marriage function in a car being driven by the deceased when a truck driven by Respondent Nos. 6 in a rash and negligent manner hit the car of the deceased. Deceased fell down; he was taken to the hospital where he was declared dead. The claimants were his wife, minor children and old parents. Claim petition had been filed u/s 166 of the Motor Vehicle Act (hereinafter referred to as "the M.V. Act").

This appeal has been filed by the insurance company. The contention before this Court is that the only evidence before the Tribunal was about the salary of the victim which was Rs. 4200/- per month as is evident from the testimony of PW-2 who had proved the salary certificate of the victim as Ex.PW-2/2. This establishes that the victim was drawing a salary of Rs. 4200/- per month. The Tribunal has wrongly relied upon his income tax returns which reflect business income; contention being that even after the death of the deceased his family did not suffer any loss as the taxi service was still continuing. It is pointed out that the Tribunal had appreciated the evidence led before it; after considering the testimony of PW-1 who was the widow of the victim and had admitted that the work of the taxi was still going on and the taxi is still plying; it had rightly recorded a fact finding that the survivors are thus getting income from the plying of the taxi and there is No. loss of income on this count. Yet it had thereafter chosen to rely on the Income Tax Return which had rejected business income. Record shows that the Petitioners/ claimants had placed on record three income tax return of the victim for the year 2000-01, 2001-02, 2002-03 and 2003-04. Out of these income tax returns only one had been proved through the version of R3W1 who had brought the income tax for the year 2003-04 which had been filed on 11.7.2003 (which was admittedly after the date of the death of the victim). Victim had died in the accident on 04.5.2003. The tax returns for the other previous year has also been considered by the Tribunal and after taking the average of three income tax returns the Tribunal had recorded a finding that the income of the deceased was Rs. 75,583/- per annum which was approximately Rs. 6298/- per month.

Learned Counsel for the Appellant has pointed out that this finding is an illegality as the two income tax returns show that there is No. income from salary whereas the income tax return for the year 2003-04 shows that the salary income was Rs. 21,301/-; this is contrary to the documentary evidence i.e. the salary certificate which reflects the salary of the victim as Rs. 4200/- per month. These tax returns also show that there is income from the business. There is No. evidence of any other business being carried out by the Petitioner except that of plying of a taxi; Tribunal had already recorded a fact finding that the taxi was still being plying and there has been No. loss on this count. In these circumstances the Tribunal relying upon this income tax return which was contrary to the salary certificate adduced by the claimant has committed an illegality. These tax returns appear to be false and fabricated documents and do not support the initial stand of the claimant that the victim was getting salary of Rs. 4200/- per month.

This finding is accordingly liable to be set aside. The salary of the victim is accordingly assessed at Rs. 4200/- per month.

Future prospects have, however, not been considered. There was No. reason to ignore it. The price index rise and cost of inflation have to be taken into account. Keeping in view the fact that the victim has a salaried job which salary was definitely likely to increase in future. This has been noted by a catena of judgments of Apex Court reported in Kanwar Devi and Others Vs. Bansal Roadways and Others, and Ors Lekh Raj and Another Vs. Suram Singh and Others, and Dwijendra Nath Roy Vs. Union of India (UOI) and Others, . Total dependency calculated at the sum of Rs. 13,85,494/- is thus liable to be modified; the Tribunal had awarded excess amount by taking into consideration the income tax returns which were apparently forged documents being contrary to the salary certificate of the Petitioner.

The amount awarded under the head of loss of dependency by taking future prospects would now be read as follows:

Rs. 4200+Rs. 2100=Rs. 6300 x 12=Rs. 75600 - Rs. 25200 (1/3rd of Rs. 75600) = Rs. 50400 x 17= Rs. 8,56,800/-.

Thus amount under the head of loss of dependency would thus be Rs. 8,56,800/-.

The amount of Rs. 25,000/- awarded under the combined heads of ''love and affection'', ''funeral expenses'' and ''loss of estate'' does not require any modification. The modified awarded amount would accordingly read as Rs. 8,81,800/-; interest quotient also calls for No. interference. Appeal is disposed of accordingly.