Khushbu Kumari v. Nunumani Singh

Patna High Court MA No.256 of 2011 (6) dt.23-10-2013 2 reproduced in extenso. Suffice it to say that the husband of the claimant-appellant no. 1 and the father of the claimant-appellant no. 2, deceased in a road accident. It is the case of the claimants that the deceased was running a medical shop and having an income of Rs. 99,000/- per annum. Setting up a claim of payment of compensation at Rs. 11,31,500/-, the claim case was filed and which has since been allowed alongwith interest. The claimants being aggrieved by the computation of the compensation amount, are in appeal before this Court. I have heard Mr. Vivekanand Vivek, learned counsel appearing for the claimants-appellants, Mr. Dhirendara Nath Jha, learned counsel appearing for the owner and the driver i.e. respondent nos. 1 and 2 respectively and Mr. Ashok Priyadarshi for the respondent nos. 3 and 4 i.e. the Insurance Company. Mr. Vivek has raised the following issues for enhancement of compensation amount, namely: (a) Even when the claimants had filed the income tax return of the deceased demonstrating an annual income of Rs. 99,000/- led as Exhibit-6, the tribunal relying upon the evidence of the applicant that the medical hall was being run by both the brothers, has proceeded to reduce the income by 50 per cent even in absence of any evidence warranting such deductions. Patna High Court MA No.256 of 2011 (6) dt.23-10-2013 3 (b) The interest payable on the compensation amount should be from the date of filing of the claim case if not earlier and not from the date of order as held by the tribunal. Learned counsel does not contest the award on any either ground to seek enhancement. The arguments have been contested by learned counsel appearing on behalf of the owner and the driver of the offending vehicle as well as the Insurance Company to submit that the conclusion drawn by the tribunal does not suffer from any infirmity and is in the backdrop of the evidence adduced by the parties. Mr. Ashok Priyadarshi, learned counsel appearing on behalf of the Insurance Company has submitted that since it was the own evidence of the claimants that the medical hall was being run by the deceased alongwith his brother, there is no apparent infirmity in the judgment reducing the income of the deceased by 50 per cent. He further submits that in absence of any evidence that the medical hall stands closed, again there is no infirmity in the deductions since the claimants continue to draw their income from the medical hall. It is submitted that a computation of a compensation is on the basis of a pecuniary loss suffered by the claimants and the pecuniary advantage received by them and Patna High Court MA No.256 of 2011 (6) dt.23-10-2013 4 cannot be treated as a bonanza. It is stated that since there is no evidence that the medical hall stands closed, it would be presumed that the claimants are deriving income from the medical hall and thus the said advantage derived by the claimants has to be balanced against the pecuniary loss. Learned counsel relying upon the judgment of the Supreme Court reported in AIR 1962 SC 1 (Gobald Motor Service Ltd. and Anr. vs. R.M.K. Veluswami and others) submits that the deductions of 50 per cent from the income assessed of the deceased suffers from no infirmity. I have heard learned counsel for the parties and I have perused the materials on record. Lower Court records are before this Court for perusal. Exhibit-6 is the income tax return of the deceased and returns an income of Rs. 99,000/- for the assessment year 2007-08 i.e. prior to his death. In fact the tribunal has practically accepted the said income tax return while holding the monthly income at Rs. 8250/- per month but by reducing it marginally the tribunal has rounded it to Rs. 8000/- per month. The tribunal thereafter has committed an error while misinterpreting the evidence of the claimants regarding the medical hall being run by the brothers to mean that the income from the medical hall was being shared by the brothers. The tribunal despite absence of any evidence, has simply reduced the Patna High Court MA No.256 of 2011 (6) dt.23-10-2013 5 monthly income by 50 per cent to Rs. 4000/- per month on this presumption. Despite repetition this Court would put on record that there is absolutely no evidence to show that the income returned by the deceased was being shared with his brother. At least there is no such reflection in the income tax return and it also does not stand to reason why the deceased would be returning an income even in respect of his brother. In the circumstances, there was no occasion for the tribunal to have reduced the income of the deceased by 50 per cent to bring it from Rs. 8000/- to Rs. 4000/- per month. The argument of Mr. Priyadarshi relying upon the judgment of the Supreme Court rendered in the case of Gobald Motor Service Ltd. (supra) also does not put any impediment to the claim set up by the claimants before this Court. The judgment rendered in the case of Gobald Motor Service Ltd. does require the tribunal concerned to keep in mind the pecuniary loss and the pecuniary advantage received by the claimants following the death of the deceased so as not to result in a bonanza but the continuation of the Medical Hall business, by no stretch of interpretation, can be termed as a pecuniary advantage received by the claimants consequent upon the accidental death. This issue was considered at length in the judgment of Helen C. Rebello & Ors. Vs. Patna High Court MA No.256 of 2011 (6) dt.23-10-2013 6 Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90 and paragraph 32, 33 and 34 of the said judgment does answer the issue raised by Mr. Priyadarshi and is being reproduced hereinbelow: “32 .……………..In our considered opinion, general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states: “………….for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to,………..”

33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which would have come Patna High Court MA No.256 of 2011 (6) dt.23-10-2013 7 to the claimant even otherwise, could not be construed to be the “pecuniary advantage”, liable for deduction………”

34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources………..” The law on this issue is well settled. True it is that a claimant cannot be allowed to derive the same advantage from two sources but an advantage gained by a claimant which is unconnected with the accidental death cannot be a source for deduction. In view of the settled legal position, the argument advanced by Mr. Priyadarshi has to be rejected. Further it is apparent that the deduction made by the tribunal is apparently illegal and unsustainable. Even the award of interest from the date of order is contrary to the legal position emanating from Section 171 of the Act and the judicial pronouncement on the issue. Although a feeble attempt was made by Mr. Vivekanand Vivek to question the rate of interest but considering that the rate of interest is a discretion vested in the court concerned, this Court would find no such infirmity so as to require any modification therein. In consequence of the conclusion drawn by me Patna High Court MA No.256 of 2011 (6) dt.23-10-2013 8 hereinabove, the computation of compensation would be as follows: Monthly income of the deceased as assessed by the tribunal is rupees 8000/-. The annual income would thus be Rs. 8000/- x 12= 96,000/-. Deducting 1/3 therefrom by way of personal living expenses of the deceased, the amount would be Rs. 96,000- 32000= 64000/- which would be the contribution to the family. Applying the multiplier of 16 as determined by the tribunal the loss of dependency would be Rs. 64000/- x 16= 10,24,000/-. A sum of Rs. 2000/- towards funeral expenses, Rs. 2500/- towards loss of estate and Rs. 5000/- towards loss of consortium has been awarded, making it Rs. 9500/-. Adding the said components to the compensation amount determined, would be Rs. 10,24,000/- + 9500= 10,33,500/-. A sum of Rs. 50,000/- has also been paid by way of interim compensation reducing the said amount compensation amount would be Rs.10,33,500-50,000=9,83,500/-. The claimants thus upon enhancement of the compensation amount and after adjusting the amount paid towards interim compensation, are found entitled to payment of Rs. 9,83,500/- together with interest of 6 per cent payable from the date of filing Patna High Court MA No.256 of 2011 (6) dt.23-10-2013 9 of the claim case i.e. 16.12.2008 until the date of its realization. The judgment and award impugned stands modified to the aforementioned extent. This appeal is allowed. Let the lower court records received in connection with Claim Case No. 154 of 2008 / 46 of 2010 be returned to the learned Additional District Judge, F.T.C.-III-cum-Motor Accident Claim Tribunal, Bhagalpur forthwith. S.Sb/- (Jyoti Saran, J)