Prema Devi v. The Divisional Manager, Oriental Insurance Co. Ltd., Near Kachahari

first. The deceased, Nisha Kumari alias Kumari Nishu, , aged about 18 years, at the relevant time, was said to have running one 4 beauty parlor earns Rs.60,000/- per annum and her mother is the only claimant. Admittedly, there is no documentary evidence to support she having such beauty parlor or earns, as claimed.

6. Attention of this Court was drawn towards statement of mother of the deceased, the claimant, Gayan Mala Devi, as A.W.2 who, in paragraph no.3 of her examination in- chief, has said about running of beauty parlor by the deceased earning Rs.6,000/- per month in an average annual income of Rs.60,000/- but in cross-examination he was not in a position to say about any paper or details of income etc. Similar was the position of A.W.5 Vijay Mishra, father of the deceased, who further has said in cross examination that she had passed 9th Class examination and had running the beauty parlor for five years earning Rs.200 per day but is silent about even her being trained for that or having any license or authority to get such parlor running. A.W.6, Jawahar Mishra, though has said that of running beauty parlor speaks about the income of the deceased Rs.200/- to 500/- per day and even family members of the witness were the regular visitors but for no reasons not even a single came in. A.W.8, Rajesh Kumar Mishra, also unable to furnish details though speaks about running of the beauty parlor and earning Rs.500/- per day or on some occasions no income. And, lastly 5 A.W. 9, Poonam Devi, coming forward as a co-worker with the deceased but said to have left the business for a month and she also failed to furnish any details. While being confronted with such materials, learned counsel for the appellant had nothing but to concede that there is absolutely no evidence to hold that the deceased had such business or income in the manner as claimed.

7. There is another aspect relevant for consideration as regard to income of the deceased based on Section 139(1) and 139(1)(i) of the Income Tax Act, which reads as such: “139. Return of Income- (1) Every person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed: Provided that a person, not furnish under this sub-section and residing in such area as may be specified by the Board in this behalf by notification in the Official Gazette, and who at any time during the previous year fulfils any one of the following conditions, namely:- ………………………………………… 139A. Permanent account number:- Every person,- 6 (i) if his total income or the total income of any other person in respect of which he is assessable under this Act during any previous exceeded the maximum amount which is not chargeable to income tax; or …………………………………..”

8. Thus in the cases where there is claim of personal employment producing sufficient income it can also be proved by producing Permanent Account Number or the return submitted under Income Tax Act. The persons having permanent account number may prima facie be presumed to have reasonably high income where on income tax may be charged, but in absence of any such pleading and proof it is again difficult to accept that deceased having any such income or at least more than notional income.

9. Now the appeal centers round a limited question about the amount of deduction for personal expenditure, selection of multiplier and income of the deceased since it is contended by learned counsel for the appellant that undisputedly the deceased was earning Rs.200/- to Rs.500/- per day such amount has been awarded without any provision of law and even deduction as personal expenditure was made as 1/3rd instead of 1/2nd. On the other hand, it is contended by the learned counsel for the 7 respondents that court below has rightly arrived at the conclusion of income of the deceased which cannot be equated with income of skilled or unskilled labourer and instead of applying multiplier 17 it has been applied as 11.

10. It is undisputed that deceased was a bachelor, claimant is none else than her mother, so the mother of the deceased under law is the only person depending upon the deceased and 50% of the income of the deceased whatever it may be is to be deducted as her personal expenditure instead of 1/3rd deducted by the Tribunal. To support this finding, apart from others, there is decision of the Apex Court in the case of Sarla Verma (Smt) and Others Vrs. Delhi Transport Corporation and Another; reported in (2009) 6 SCC 121.

11. As regards to selection of multiplier, Claim Tribunal has chosen age of the mother but on this point also now there is clear verdict of the Apex Court in a case of Amrit Bhanu Shali @ Ors. Vrs. National Insurance Co. Ltd & Ors : (2012) 11 SCC 738 and in paragraph 17 of the judgment it is clear held “the selection of the multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependants of the deceased whose age may be different and, therefore, the age of dependents has no 8 nexus with the computation of compensation.”

12. In Schedule-II of Motor Vehicles Act there is a chart appended for calculation or no income and on considering such findings of discrepancies the Apex Court has prepared another chart but for the purposes of selection of multiplier in the case of Sarla Verma (Supra). Prior to that in the case of Laxmi Devi and Others Vrs. Md. Tabbar & Ors; reported in (2008) 12 SCC 165, notional income was approved at the rate of Rs.36,000/- per annum instead of finding the sum as Rs.15,000/- per annum.

13. The Claim Tribunal has applied the principle of notional income fixed per annum income of Rs. 36,000/- but deducted 1/3rd of the amount used multiplier 16 and awarded a sum of Rs.3,84,000/- + Rs.2,000/- as funeral expenses etc. and Rs.25,000/- loss of estate totaling of Rs.3,88,500/- whereas the correct multiplier is 18 since deceased was aged 18 years and in face of the claimant is none else than the mother and deceased was bachelor 50% is to be deducted as personal expenditure. In view of the above, Rs. 36,000/- divided by 2 comes to Rs.18,000/- and by multiplying the same with 18 it comes to Rs.3,24,000/- added with Rs.10,000/- towards funeral expenses and consortium etc. makes it Rs.3,34,000/-. But award has been prepared worth 9 Rs.3,88,500/- and paid that is in excess of the due amount but, under the facts and circumstances, the claimant is not to refund.

14. Similarly, M.A. no. 340 of 2011 is preferred by mother of the deceased and Jitendra Kumar Mishra, aged about 21 years at the time of death. This arises out of Claim Case no. 100 of 2008 filed by mother of the deceased with assertion that the deceased had annual income of Rs.1,50,000/- from stone chips supplied and this claimant is also opposite party respondent in Claim Case no.98 of 2008 giving rise to M.A. no. 341 of 2011 as mother of the deceased Mukesh Kumar Mishra who died at the age of 32 years and the claimants are his widow and minor children besides the mother as opposite party respondents with assertions that deceased had also a business of stone supplied and earned Rs.1,50,000/- per annum.

15. The witnesses examined to prove the income of both the deceased who were none else than full brothers are common and attention of this Court was drawn towards statement of A.W.1, mother of both the deceased, who in paragraph 6 has said about the monthly income of Rs.15,000/- and annual Rs.1,50,000/- but in cross examination no detail. A.W.7, Sanjee Kumar Mishra, is owner of a truck bearing no.WB 15A 0091 comes to say that in the financial year 2007-08 for the deceased 10 he had carried 220 times stone chips through his only truck and speaks about in cross examination running of the truck ten trips a month since one trip consumes minimum two days and A.W.11, Mukut Bihari Sharma, is a contractor since the year 1962 speaks about supply of boulders by the two deceased, 20 trucks each in a month and earning Rs.15,000/- per month each but in cross examination failed to furnish any detail or statement of accounts etc. inspite of he being a registered contractor. On such basis, it is difficult to accept the statement of the witnesses on the point of earning etc. and Claim Tribunal has rightly applied principle of notional income.

16. The Tribunal has awarded a sum of Rs.3,16,500/- to compensate death of Jitendra Kumar Mishra, aged about 21 years whereas likewise the claim of the deceased Nisha Kumari, mother of the deceased Jitendra Kumar Mishra is also entitled to Rs.3,34,000/-, that is, she is further entitled for a sum of Rs.3,34,000/- minus Rs.3,16,500/- = Rs.17,500/- and since number of dependents of deceased Mukesh Mishra is four. From his income of Rs.36,000/- per annum, 1/4th is to be reduced, bringing the sum Rs.27,000/- and taking into consideration his age being 32 years the multiplier 16 is to be applied with bringing the amount to Rs.4,32,000/- added with Rs.25,000/- as the cost of 11 funeral, consortium and loss of estate since claimant is widow also remaining the amount Rs.4,57,000/- that is Rs.44,500/- more than what the claimant had been awarded by the court below. Insurer is directed to pay the difference to the appellants of both these appeals with the interest already awarded.

17. In view of the above, Miscellaneous Appeals no. 340 and 341, both of 2011, are disposed of with the above modification and Miscellaneous Appeal no. 342 of 2011 stands dismissed. However, the party shall bear their own costs. Patna High Court. 05 .04. 2013 AFR A.Ahmad/- (Akhilesh Chandra, J)