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Judgment
Bhaskar Bhattacharya, C.J.—This First Appeal is at the instance of an Insurance Company and is directed against an award dated 15th May 1999 passed by the Motor Accident Claims Tribunal [Special], Vadodara in MACP No. 1469 of 1994 thereby allowing the claim-petition u/s 166 of the M.V. Act [the Act] by awarding a sum of Rs. 32,50,000/- as compensation with interest at the rate of 12% per annum from the date of application till realisation and proportionate costs thereon. The learned Tribunal further held that all the opponents are jointly and severally liable. Being dissatisfied, the Insurance Company has preferred this appeal by challenging the quantum, restricting the claim in appeal to Rs. 19,00,000/- only. In other words, the Insurance Company is prepared to accept the award to the extent of Rs. 13,50,000/-.
It may not be out of place to mention here that in the past, a Division Bench of this Court, by order dated 4th September 2001, dismissed the appeal by holding that the Insurance Company, in the absence of specific order u/s 170 of the Act, could not challenge the quantum of the award.
2.1 Being dissatisfied, the Insurance Company preferred an appeal before the Supreme Court of India being Civil Appeal No. 6295 of 2003 arising out of SLP (C) No. 13002 of 2002 and the Supreme Court, by judgment dated 11th August 2003, set aside the judgment of the Division Bench and remanded the matter by holding that the Insurance Company was entitled to contest the proceedings on the grounds other than those enumerated under sub-section (2) of Section 149 of the Act.
2.2 Consequently, the appeal has now been placed before us for hearing.
Mr. Nanavati, the learned advocate appearing on behalf of the appellant, at the very outset, submitted that his client does not dispute the findings of the Tribunal below on other questions, viz. the negligence of the errant driver, the validity of the insurance, and, the involvement of the vehicle but he proposed to restrict his submissions only on the question of quantum of compensation by challenging the annual income of the victim at the time of the accident.
There is no dispute that the victim wag aged 44 plus at the time of the accident which occurred on 27th August 1994. It appears from the records that the victim was a partner in the partnership firm known as Raj Builders & Developers wherein he had 10% share and the accounts thereof are produced at Mark 41/43 [NOT EXHIBITED]. The deceased was also a partner in Samchem Pharma Distributors wherein he had 7% share and the partnership deed is produced at Mark 41/44 [NOT EXHIBITED]. The deceased also had 10% share in the partnership firm known as Ankur Oil Traders and the partnership deed thereof was produced at Mark 41/45 [NOT EXHIBITED].
It has also come on record through the evidence of the widow of the victim that the victim was a partner in Patel Engineering & Consultants wherein he had 30% share and the partnership deed thereof and certificate of Registrar of Firms were produced at Mark 43/1 to 43/2 and given Exh. No. 44 and 45 respectively. The victim was also a Director in Saurjanya Finance and Trading Private Limited and the Memorandum of Association and Articles of Association of the said firm was produced at Exh. 46. The wife of the victim had also deposed that her husband was doing part-time job in Ankur Oil Industries and the salary certificate for the period from 1st April 1994 to 31st August 1994 was produced at Exh. 47. She had also produced the Income statement showing total income derived by her husband at for the period from 1st April 1994 to 27th August 1994 at Mark 41/28 which was given Exh. 48 and in connection with the said income, Income Tax Return was produced at Exh. 49 and copy of challan showing payment of tax was produced at Exh. 50. The Assessment Order of the Income Tax Department based on the said Return was produced at Exh. 51 and it appears therefrom that the income of her husband was Rs. 1,24,700/- and the Income Tax payable thereon was Rs. 23,224/-.
According to the widow of the victim, in the Assessment Year 1993-94, her husband was working as a working partner in Ankur Oil Traders and Raj Builders and as such a working partner, he used to get remuneration and for the total income of her husband in the Assessment Year 1994-95, Income Tax Return was filed, and the relevant Assessment Order was produced at Exh. 52. It appears from Exh. 52 that the Income Tax Department had assessed income of the deceased as Rs. 2,11,760/- for the Assessment Year 1994-95.
The income extracts of Raj Builders & Developers was produced at Mark 41/29, which was given Exh. No. 54. The remuneration certificate of the victim from the said concern is produced at Mark 41/30 which was given Exh. No. 55. The income payable to the victim by Samchem Pharma Distributors in the accounting year 1994-95 was produced at mark 41/31 [Exh. No. 56]. The extract regarding the income shared by the victim from Ankur Oil Traders was produced at Mark 41/32 [Exh. 57].
Salary certificate of Ankur Oil Traders for the period from 1st April 1994 to 31st August 1994 was produced at Exh. 58. The extract of account of salary and profit share obtained by the victim for the period from 1st April 1994 to 27th August 1994 from Patel Engineering Consultants was produced at Exh. 59. A separate certificate of Patel Engineering Company regarding salary paid to the victim for the period from 1st April 1994 to 27th August 1994 was produced at Exh. 60. The extracts of accounts of Ankur Oil Industries for the Accounting Year 1994-95 was produced at Exh. 61. The extract of resolution dated 12th April 1994 of Saurjanya Finance & Trading Private Limited to pay monthly remuneration of Rs. 6000/- to the victim as Director of the said firm was produced at Exh. 62 and the abstract of account for the period from 1st April 1994 to 31st March 1995 was produced at Exh. 63. The certificate regarding the interest amount obtained by the victim for the Accounting Year 1994-95 from Rajesh Oil Industries was produced at Exh. 64. The statement of account of Kalvir Pharma Pvt. Ltd. for the period from 1st April 1994 to 31st March 1995 showing interest obtained by the victim was produced at Exh. 65. The extract of the statement of account for the period from 1st April 1994 to 27th August 1994 regarding the income obtained by her husband from Max-well Industries was produced at Exh. 66.
The widow of the victim has further deposed that in the year 1993-94, from Raj Builders & Developers, the victim used to get profit as well as salary and certified copy of the extract of accounts was also produced at Exh. 67. She has further deposed that as a working partner her late husband was getting salary from Raj Builders and Developers and the salary certificate issued by the said concern for the period from 1st April 1993 to 31st March 1993 was produced at Exh. 68. The abstract regarding income shared by her late husband from Samchem Pharma Distributors for the period from 1st April 1993 to 31st March 1994 was produced at Exh. 69. The abstract of account of her husband with Ankur Oil Traders for the period from 1st April 1993 to 31st March 1994 was produced at Exh. 70 and the certificate from Ankur Oil Traders regarding payment of salary as a working partner was produced at Exh. 71. The abstract regarding the account of her husband in Ankur Oil Industries for the period from 1st April 1993 to 31st March 1993 is produced at Exh. 72 and the abstract of account of interest payable from Rajesh Oil Industries for the accounting year 1993-94 was produced at Exh. 73. She has further stated that her husband obtained salary from Ankur Oil Industries during the period from 1st April 1993 to 31st March 1994 and the certificate regarding the same was produced at Exh. 77.
According to the widow of the victim, in the Assessment Year 1994-95, the yearly income of her late husband was Rs. 2,11,000/- [Exh. 52] and from 1st April 1994 to 27th August 1994 [Assessment Year 1995-96, Exh. 51], his income was Rs. 1,24,700/-. According to this witness, bearing in mind the abovesaid income, the prospective yearly income of her husband would be Rs. 3,00,000/-.
On consideration of the materials placed before the Tribunal, the Tribunal was of the view that the prospective future income of the victim should be treated to be Rs. 3,00,000/- per annum.
The Tribunal also came to the conclusion that as the victim was aged 44 years and 3 months at the time of his death, it was a fit case where multiplier of 16 should be applied to the annual income of Rs. 3,00,000/-, and, thus, arrived at the figure of Rs. 48,00,000/-. The Tribunal thereafter deducted Rs. 16,00,000/- being 1/3rd from the aforesaid towards personal expenses and awarded a sum of Rs. 32,00,000/- under the head of dependency loss. Over and above this, the Tribunal also awarded Rs. 15,000/- towards loss of expectation of life, Rs. 15,000/- towards funeral expenses and Rs. 20,000/- towards consortium, and thus, held that the total compensation payable would be Rs. 32,50,000/-.
According to Mr. Nanavati, the learned advocate appearing on behalf of the appellant-Insurance Company, while arriving at such figure, the Tribunal below committed substantial error of law in taking into consideration the Income Tax Returns and the Assessment Order based on a Return which was filed after the death of the victim because the victim died on 27th August 1994, four days prior to the last date for filing Returns. Mr. Nanavati submits that in the Return of the last year, it would appear that two additional income of salary from two different firms were indicated which were absent in the Returns for the earlier years. Mr. Nanavati tried to impress upon us that the last Return was, thus, a concocted one and we should not accept that and we should base our findings on the income on the basis of the Returns filed for the earlier year.
Mr. Shah, the learned advocate appearing on behalf of the claimants, on the other hand, has, opposed the aforesaid contentions of Mr. Nanavati and has contended that the partnership deed in respect of the said two new concerns were produced showing that those partnerships were entered into during the last Assessment Year and, therefore, there was no occasion for getting remuneration from those two concerned prior thereto. Mr. Shah has also relied upon the extracts showing payment of remuneration to the deceased in the said year and points out that while the widow of the victim was being examined, no suggestions were given to her that the same were concocted ones.
After going through the relevant records, we find that those deeds were executed during the last Assessment Year and, therefore, remuneration received from those two concerns could not have been reflected in the Returns of the previous Assessment Year and, thus, there is no merit in the submission of Mr. Nanavati in this regard.
In view of the fact that partnership deeds have been produced showing existence of those two firms for the first time during the last Assessment Year during the lifetime of the victim, and further fact that the resolution of the firm of conferring remuneration to the victim having also been proved, we do not find any reasons to disbelieve the said Income Tax Returns as well as the Assessment Order made thereon.
We are not at all impressed by the submission of Mr. Nanavati that it was the duty of the claimants to produce witnesses from those concerns to prove that he received remuneration from those concerns. We have also pointed out that genuineness of those documents not having been disputed before the Tribunal and, thus, those certificates having been marked as exhibits, there was no necessity to bring any witness to corroborate such fact.
From the voluminous documentary evidence produced by the claimants regarding the income of the victim from all the business concerns to which the victim was attached with, we find no reason to disbelieve the income of the victim as reflected in the last Income Tax Return submitted after the death of the victim.
It appears that the victim was aged 44 plus, and therefore, having regard to the fact that in the previous year the annual income was Rs. 2,11,000/-, the Tribunal has not committed any error or illegality in arriving at a conclusion that the future prospective income of the deceased should be treated to be Rs. 3,00,000/- per annum.
We, however, find substance in the contention of Mr. Nanavati that the victim being aged 44 plus, as pointed out by the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , it is a fit case wherein multiplier of 15 should have been applied instead of the multiplier of 16 awarded by the Tribunal.
We, however, do not disturb the other conventional amounts awarded by the Tribunal under the heads of loss of expectation of life, funeral expenses and consortium.
The award, thus, stands modified as under:
The award is thus modified by reducing it from Rs. 32,50,000/- to Rs. 30,50,000/- with interest at the rate of 12% per annum from the date of application till the date of realization and proportionate costs and interest.
The Tribunal below is directed to refund the excess amount in favour of the Insurance Company and release the balance amount in favour of the claimants.
The appeal is, thus, allowed to the extent indicated above. In the facts of the case, however, there shall be no order as to costs. Registry is directed to forthwith return the Record and Proceedings to the Tribunal below.