National Insurance Company Vs. Sunita Bansal and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1171955
CourtDelhi High Court
Decided OnOct-29-2014
JudgeJAYANT NATH
AppellantNational Insurance Company
RespondentSunita Bansal and ors.
Excerpt:
$~ a-3 & 4 * in the high court of delhi at new delhi date of decision:29th october, 2014 + mac.app. 339/2007 national insurance company ..... appellant through mr.kamaldeep gaur, advocate. versus sunita bansal & ors. through + ..... respondents mr.o.p.mannie, advocate for r-1 to 6. mac.app. 508/2007 sunita bansal & ors. through ..... appellants mr.o.p.mannie, advocate versus national insurance co. & ors. ..... respondents through mr.kamaldeep gaur, advocate for ins.co. coram: hon'ble mr. justice jayant nath jayant nath, j.(oral) 1. mac. app. 339/07 is filed by the appellant insurance company seeking to impugn the award dated 13.04.2007. mac. app. 508/2007 is filed by the claimants seeking enhancement of compensation.2. the brief facts giving rise to the claim petition is that on 16.04.2005. the deceased dilip kumar bansal was standing beside the morena sobalgarh road, opposite kela devi lodge waiting for the bus to birpur, the place of his residence. he was hit by a truck said to be driven at a high speed rashly and negligently and he died. he was said to be 28 years of age.3. based on the evidence of the parties, the tribunal gave the following compensation:i loss of financial dependency of the petitioners ii compensation towards loss of consortium iii compensation towards love and affection iv compensation towards funeral rites total rs.17,22,000/rs.20,000/rs.20,000/rs.10,000/rs.17,72,000/- 4. i will first deal with mac.app.339/2007.5. learned counsel appearing for the appellant insurance company has strenuously urged that the tribunal has wrongly computed the income of the deceased at rs.90,000/-. he submits that having rejected the balance sheet and the solitary income tax return filed after the death of the deceased the tribunal has wrongly assessed the income at rs.90,000/- per month based on the fact that above rs.90,000/- there would be a liability to pay income tax. he submits that the income should have been based on minimum wages as applicable for the deceased which in the state of m.p. would be around rs.30,000/- per annum. accordingly, he submits that loss of dependency would have to be accordingly reduced.6. learned counsel relies upon the judgment of the supreme court in the case of v. subbulakshmi & ors. vs. s.lakshmi & anr., 2008 (4) scc224which was a case in which the accident took place on 07.05.1997 and the income tax return was filed on 23.06.1997. the supreme court upheld the order of the high court which had not relied upon the said income tax return filed after the accident.7. a perusal of the award shows that the tribunal noted the evidence of the father of the deceased pw-1 and the widow of the deceased pw-4 who has said that the deceased was engaged in the business as a trader in grain and also worked as a commission agent. he was said to be working under the name and style of sakchi trading co. as its sole proprietor with its principal office at sheopur, m.p. and branch offices at vijaipur and birpur earning rs.12,000/- per month. pw-1 had proved the photocopy of the income tax return of the deceased as pw-1/1. this income tax return was filed after the death of the deceased by his widow. the tribunal noted that the original return ex.pw-1/1a had cuttings and fluid mark on it. the tribunal also noted that as per pw-1 the income tax return was prepared by the c.a., namely, n.k. gupta but the said chartered accountant was never produced as witness. on the other hand, pw-3 was a chartered accountant who deposed that the income tax return was filed by a tax advocate. the tribunal did not hence believe the income as stated in the said income tax return though it noted that pw-1 produced various other documents like sales tax, the assessment orders and bahikhatas. the tribunal did not believe these documents considering that neither the sales tax assessment orders nor the bahikhatas show that they relate to the firm. hence, the tribunal concluded that during the financial year 2005-06 the non-taxable income was rs.1 lac. accordingly, the tribunal assessed the income of the deceased at rs.90,000/- per month. to this tribunal added 50% for future prospects. keeping in view the fact that the deceased has left behind one widow and three minor children apart from parents 1/4th was deducted towards personal expenses thereby the loss of financial dependency was assessed at rs.17,22,000/-.8. in my opinion pw-1, pw-3 and pw-4 have together been able to show that the deceased was engaged in the business of grain trading. it appears from the nature of business that the deceased was not keeping proper accounts and was not maintaining proper records. the balance sheet for sakchi trading co. for the year ending 31.03.2005 has been placed on record which shows fixed assets nil and net profit of rs.1,47,599/-. the balance sheet is however dated 20.06.2005 i.e. after the accident. the balance sheet is not obviously signed by the proprietor, the deceased. the income tax return ex.pw1/1a also shows the net income of rs.1,47,599/for the assessment year 2005-06. this return also filed on 24.06.2005 after the death of the deceased. pw-1 has also placed on record certain bank statements of vyavasayik evam audhyogik sahkari bank limited which also pertains to the firm sakchi trading co. these bank accounts at a random show bank balance starting from rs. 6 lacs-8 lacs to rs.10,000/over a period of time.9. in the light of these documents though it may not be possible to conclusively conclude the exact income of the deceased, in my opinion there is enough material on record for the tribunal to assess the income at rs.90,000/- per month. it would neither be correct nor proper to assess the income on minimum wages as argued by the appellant insurance company.10. accordingly, there are no merits in the present appeal i.e. mac. app3392007. the same is dismissed.11. now, i will deal with mac. app.508/2007.12. learned counsel appearing for the appellant/claimants has strenuously urged that the tribunal has wrongly taken the income for the purposes of computation of loss of dependency at rs.90,000/-. he submits relying upon the balance sheet and the last income tax return filed that the income of the deceased at the time of his death should be taken as rs.1,47,599/- for the said purpose. he relies upon the balance sheet of sakchi trading co. and the income tax return ex.pw-1/1a which also shows net income of rs.1,47,599/-. he also points out that this court permitted him the appellant/claimant to record additional evidence by way of statement of aw-1-sh.vijay kataria, assistant commissioner (commercial tax) who has brought the record pertaining to sakchi trading co. sheopur, m.p. including original assessment order dated 29.09.2007 for the assessment year 01.04.2004 to 31.03.2005 which was marked as ex.aw-1/1. he also relies upon the judgment of this high court in the case of dalvinder kaur & ors. vs. united india insurance co. ltd., 2011 acj2133where the income tax return filed on 30.09.1999 after the accident which took place on 07.06.1999 in which the deceased died was accepted. this court had noted that the income tax return filed within the prescribed period of limitation for filing income tax return in the absence of any rebuttal evidence which shows that the income tax returns were not correct in the said last return, should have been taken into account for assessing income of the deceased. merely because the return was filed after the death cannot be a ground for disregarding the same. he lastly submits that the compensation under the non-pecuniary heads is on the lower side.13. i have already discussed that the balance sheet of sakchi trading co. and income tax return both have been filed after the death of the deceased. as far as the commercial tax return is concerned, namely, ex.aw-1/1 the figures are not very clear. the entries seem to have been made randomly in the right column. the first entry is for rs. 185457/- and the second one is for rs.1,85,28,993/-. this entry is made in front of, what seems to indicate at page 75 of the original record as follows:“(a) the declared goods as per section 12 of sales tax act were purchased.” 14. this document is said to co-relate to the income of rs.1,47,599/- of the deceased.15. in my opinion, the documents filed by the claimants do no inspire any confidence. as per the commercial tax return file, the turnover of the deceased was in crores. yet a solitary income tax return was sought to be filed after his death in june 2005. this is also pursuant to a hastily prepared balance sheet which is also prepared after the death of the deceased and is merely signed by the chartered accountant. same is the fate regarding the sales tax assessment order. the said order shows one entry of rs.1,85,457/-. the second entry which as stated above seems to be added at the column which reads “the declared goods as per section 12 of the sales tax act were purchased” shows one entry of rs.1,85,28,993/-. how these entries co-relate to an income of rs.1,47,599/- is not clear and nor is it known. these documents cannot be believed for purposes of assessing the income of the deceased. i see no reason to accept the enhanced income as sought for by the appellant.16. coming to the compensation awarded under the head of non- pecuniary compensation, the tribunal granted rs.20,000/- for loss of consortium and rs.20,000/- for love and affection. i increase compensation towards loss of consortium from rs.20,000/- to rs.1 lac. as the deceased is survived by three minor children, i increase compensation on account of love and affection from rs.20,000/- to rs.1,50,000/-. i also increase the compensation towards funeral rites from rs.10,000/- to rs.25,000/-. hence, the total compensation would now come to rs.19,97,000/- as follows:i loss of financial dependency of the petitioners ii compensation towards loss of consortium iii compensation towards love and affection iv compensation towards funeral rites total 17. rs.17,22,000/rs.1,00,000/rs.1,50,000/rs.25,000/rs.19,97,000 /- the insurance company may deposit the above additional compensation with accumulated interest @8% per annum from the date of filing of the claim petition till deposit in court. on receipt of the said compensation, the same may be released to appellant no.1 18. all interim orders in both the appeals stand vacated.19. the appeal i.e. mac app. 508/2007 stands disposed of.20. the statutory amount, if any, paid by the insurance company at the time of filing of their appeal i.e. mac.app. 339/2007 may be refunded. jayant nath, j october29 2014 rb
Judgment:

$~ A-3 & 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:29th October, 2014 + MAC.APP. 339/2007 NATIONAL INSURANCE COMPANY ..... Appellant Through Mr.Kamaldeep Gaur, Advocate. versus SUNITA BANSAL & ORS. Through + ..... Respondents Mr.O.P.Mannie, Advocate for R-1 to 6. MAC.APP. 508/2007 SUNITA BANSAL & ORS. Through ..... Appellants Mr.O.P.Mannie, Advocate versus NATIONAL INSURANCE CO. & ORS. ..... Respondents Through Mr.Kamaldeep Gaur, Advocate for Ins.Co. CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.

(ORAL) 1. MAC. APP. 339/07 is filed by the appellant Insurance Company seeking to impugn the Award dated 13.04.2007. MAC. APP. 508/2007 is filed by the claimants seeking enhancement of compensation.

2. The brief facts giving rise to the claim petition is that on 16.04.2005. the deceased Dilip Kumar Bansal was standing beside the Morena Sobalgarh Road, opposite Kela Devi Lodge waiting for the bus to Birpur, the place of his residence. He was hit by a truck said to be driven at a high speed rashly and negligently and he died. He was said to be 28 years of age.

3. Based on the evidence of the parties, the Tribunal gave the following compensation:I Loss of financial dependency of the petitioners II Compensation towards loss of consortium III Compensation towards love and affection IV Compensation towards funeral rites Total Rs.17,22,000/Rs.20,000/Rs.20,000/Rs.10,000/Rs.17,72,000/- 4. I will first deal with MAC.APP.339/2007.

5. Learned counsel appearing for the appellant Insurance Company has strenuously urged that the Tribunal has wrongly computed the income of the deceased at Rs.90,000/-. He submits that having rejected the balance sheet and the solitary income tax return filed after the death of the deceased the Tribunal has wrongly assessed the income at Rs.90,000/- per month based on the fact that above Rs.90,000/- there would be a liability to pay income tax. He submits that the income should have been based on minimum wages as applicable for the deceased which in the State of M.P. would be around Rs.30,000/- per annum. Accordingly, he submits that loss of dependency would have to be accordingly reduced.

6. Learned counsel relies upon the judgment of the Supreme Court in the case of V. Subbulakshmi & Ors. vs. S.Lakshmi & Anr., 2008 (4) SCC224which was a case in which the accident took place on 07.05.1997 and the income tax return was filed on 23.06.1997. The Supreme Court upheld the order of the High Court which had not relied upon the said income tax return filed after the accident.

7. A perusal of the Award shows that the Tribunal noted the evidence of the father of the deceased PW-1 and the widow of the deceased PW-4 who has said that the deceased was engaged in the business as a trader in grain and also worked as a commission agent. He was said to be working under the name and style of Sakchi Trading Co. as its sole proprietor with its principal office at Sheopur, M.P. and branch offices at Vijaipur and Birpur earning Rs.12,000/- per month. PW-1 had proved the photocopy of the income tax return of the deceased as PW-1/1. This income tax return was filed after the death of the deceased by his widow. The Tribunal noted that the original return Ex.PW-1/1A had cuttings and fluid mark on it. The Tribunal also noted that as per PW-1 the income tax return was prepared by the C.A., namely, N.K. Gupta but the said chartered accountant was never produced as witness. On the other hand, PW-3 was a chartered accountant who deposed that the income tax return was filed by a tax advocate. The Tribunal did not hence believe the income as stated in the said income tax return though it noted that PW-1 produced various other documents like sales tax, the assessment orders and bahikhatas. The Tribunal did not believe these documents considering that neither the sales tax assessment orders nor the bahikhatas show that they relate to the firm. Hence, the Tribunal concluded that during the financial year 2005-06 the non-taxable income was Rs.1 lac. Accordingly, the Tribunal assessed the income of the deceased at Rs.90,000/- per month. To this Tribunal added 50% for future prospects. Keeping in view the fact that the deceased has left behind one widow and three minor children apart from parents 1/4th was deducted towards personal expenses thereby the loss of financial dependency was assessed at Rs.17,22,000/-.

8. In my opinion PW-1, PW-3 and PW-4 have together been able to show that the deceased was engaged in the business of grain trading. It appears from the nature of business that the deceased was not keeping proper accounts and was not maintaining proper records. The balance sheet for Sakchi Trading Co. for the year ending 31.03.2005 has been placed on record which shows fixed assets NIL and net profit of Rs.1,47,599/-. The balance sheet is however dated 20.06.2005 i.e. after the accident. The balance sheet is not obviously signed by the proprietor, the deceased. The income tax return Ex.PW1/1A also shows the net income of Rs.1,47,599/for the assessment year 2005-06. This return also filed on 24.06.2005 after the death of the deceased. PW-1 has also placed on record certain bank statements of Vyavasayik Evam Audhyogik Sahkari Bank Limited which also pertains to the firm Sakchi Trading Co. These bank accounts at a random show bank balance starting from Rs. 6 lacs-8 lacs to Rs.10,000/over a period of time.

9. In the light of these documents though it may not be possible to conclusively conclude the exact income of the deceased, in my opinion there is enough material on record for the Tribunal to assess the income at Rs.90,000/- per month. It would neither be correct nor proper to assess the income on minimum wages as argued by the appellant Insurance Company.

10. Accordingly, there are no merits in the present appeal i.e. MAC. APP3392007. The same is dismissed.

11. Now, I will deal with MAC. APP.508/2007.

12. Learned counsel appearing for the appellant/claimants has strenuously urged that the Tribunal has wrongly taken the income for the purposes of computation of loss of dependency at Rs.90,000/-. He submits relying upon the balance sheet and the last income tax return filed that the income of the deceased at the time of his death should be taken as Rs.1,47,599/- for the said purpose. He relies upon the balance sheet of Sakchi Trading Co. and the income tax return Ex.PW-1/1A which also shows net income of Rs.1,47,599/-. He also points out that this court permitted him the appellant/claimant to record additional evidence by way of statement of AW-1-Sh.Vijay Kataria, Assistant Commissioner (Commercial Tax) who has brought the record pertaining to Sakchi Trading Co. Sheopur, M.P. including original assessment order dated 29.09.2007 for the assessment year 01.04.2004 to 31.03.2005 which was marked as Ex.AW-1/1. He also relies upon the Judgment of this High Court in the case of Dalvinder Kaur & Ors. vs. United India Insurance Co. Ltd., 2011 ACJ2133where the income tax return filed on 30.09.1999 after the accident which took place on 07.06.1999 in which the deceased died was accepted. This court had noted that the income tax return filed within the prescribed period of limitation for filing income tax return in the absence of any rebuttal evidence which shows that the income tax returns were not correct in the said last return, should have been taken into account for assessing income of the deceased. Merely because the return was filed after the death cannot be a ground for disregarding the same. He lastly submits that the compensation under the non-pecuniary heads is on the lower side.

13. I have already discussed that the balance sheet of Sakchi Trading Co. and income tax return both have been filed after the death of the deceased. As far as the commercial tax return is concerned, namely, Ex.AW-1/1 the figures are not very clear. The entries seem to have been made randomly in the right column. The first entry is for Rs. 185457/- and the second one is for Rs.1,85,28,993/-. This entry is made in front of, what seems to indicate at page 75 of the original record as follows:

“(a) The declared goods as per section 12 of Sales Tax Act were purchased.”

14. This document is said to co-relate to the income of Rs.1,47,599/- of the deceased.

15. In my opinion, the documents filed by the claimants do no inspire any confidence. As per the commercial tax return file, the turnover of the deceased was in crores. Yet a solitary income tax return was sought to be filed after his death in June 2005. This is also pursuant to a hastily prepared balance sheet which is also prepared after the death of the deceased and is merely signed by the chartered accountant. Same is the fate regarding the sales tax assessment order. The said order shows one entry of Rs.1,85,457/-. The second entry which as stated above seems to be added at the column which reads “the declared goods as per Section 12 of the Sales Tax Act were purchased” shows one entry of Rs.1,85,28,993/-. How these entries co-relate to an income of Rs.1,47,599/- is not clear and nor is it known. These documents cannot be believed for purposes of assessing the income of the deceased. I see no reason to accept the enhanced income as sought for by the appellant.

16. Coming to the compensation awarded under the head of non- pecuniary compensation, the Tribunal granted Rs.20,000/- for loss of consortium and Rs.20,000/- for love and affection. I increase compensation towards loss of consortium from Rs.20,000/- to Rs.1 lac. As the deceased is survived by three minor children, I increase compensation on account of love and affection from Rs.20,000/- to Rs.1,50,000/-. I also increase the compensation towards funeral rites from Rs.10,000/- to Rs.25,000/-. Hence, the total compensation would now come to Rs.19,97,000/- as follows:I Loss of financial dependency of the petitioners II Compensation towards loss of consortium III Compensation towards love and affection IV Compensation towards funeral rites Total 17. Rs.17,22,000/Rs.1,00,000/Rs.1,50,000/Rs.25,000/Rs.19,97,000 /- The Insurance Company may deposit the above additional compensation with accumulated interest @8% per annum from the date of filing of the claim petition till deposit in court. On receipt of the said compensation, the same may be released to appellant No.1 18. All interim orders in both the appeals stand vacated.

19. The appeal i.e. MAC APP. 508/2007 stands disposed of.

20. The statutory amount, if any, paid by the Insurance Company at the time of filing of their appeal i.e. MAC.APP. 339/2007 may be refunded. JAYANT NATH, J OCTOBER29 2014 rb