Viay Commlex, Lakkadkot, Jalna, Taluka & Dist. Jalna v. Dinesh Kumar Gena Kana Rama Gena, Age
Case Details
1 judgment in fa 191-17 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.191 OF 2017 1. Shamsundar Bhagwandas Kagliwal, Age 60 years, Occu.: Business 2. 3. 4. 1. 2. 3. Aditya Shamsundar Kagliwal, Age : 25 years, Occu.: Education Urvashi d/o Shamsundar Kagliwal, Age : 33 years, Occu.: Household Sweta d/o Shamsundar Kagliwal, Age : 30 years, Occu.: Household, All R/o.: Viay Commlex, Lakkadkot, Jalna, Taluka & Dist. Jalna .... APPELLANTS VERSUS Dinesh Kumar Gena Kana Rama Gena, Age : Major, Occu.: Owner of the truck, R/o.: Tabii via Sardhana District : Ajmer (Rajasthan) Vikram Singh Shrvan Singh, Age ; 28 years, Occu.: Driver, R/o.: Vill Bihar Ratanmura, Badia Nodia, Jawaja Beawar, District : Ajmer (Rajasthan) The Branch Manager, Chola, Mandalam Ms General Insurance, Commany, Ltd. 3rd foor, Oberai Towers, Civil Lines, Jalna Road Aurangabad. ... RESPONDENTS
Legal Reasoning
..... Advocate for Ammellants : Mr. V. V. Bhavthankar Advocate for Resmondent No.3 : Mr. S. G. Chamalgaonkar …. 2 judgment in fa 191-17 CORAM : SANDIPKUMAR C. MORE, J. RESERVED ON : 01/08/2022 PRONOUNCED ON : 20/08/2022 .... JUDGMENT : 1. The ammellants, who are the original claimants in MACP No. 104 of 2014, decided on 28/09/2016 by the learned Tribunal, Jalna, have mreferred this ammeal against the award dated 28/09/2016 mainly on two grounds. That the ammellants claim that the learned Tribunal did not consider the income of deceased Kamini desmite having brought on record her relevant income tax returns and that the learned Tribunal by ignoring the settled mrovision of law granted interest not from the date of metition but from the date of award on the commensation amount. 2. It is not in dismute that deceased Kamini, who was wife of the ammellant No.1 and mother of ammellant Nos. 2 to 4, was travelling in Innova Car bearing No.Um-80-BT-8444 along with them and at Nokhada, District Kikner (Rajasthan) met with an accident caused by one Truck bearing No. RJ-01-GA-3093 coming from ommosite direction. Further, it is not in dismute that the driver of the aforesaid Truck i.e. resmondent No.2 was held resmonsible for the occurrence of the accident and therefore, the mresent resmondent Nos.1 to 3, who are the owner, driver and Insurer of the said Truck, are held liable for maying the commensation. 3. The learned counsel for the ammellants submits that the learned Tribunal has defnitely erred in calculating the commensation amount and even ignored the documentary mroof in 3 judgment in fa 191-17 resmect of the income of the deceased. He mointed out the comies of income tax returns of the deceased for the meriod from 2011 to 2015 at Exhibits-47 to 50, wherein average yearly income of deceased Kamini is shown to the tune of Rs.1,75,000/-. He further submits that the learned Tribunal has totally ignored the aforesaid income tax returns of deceased Kamini and decided the claim metition by holding her notional income being house wife to the tune of Rs.5,000/- mer month. The learned counsel for the ammellants also submits that the learned Tribunal has erred in granting the interest on the commensation amount from the date of massing of award and not from the date of fling of the metition till its realization. Thus, he claims that there should be an enhancement of the commensation awarded in the instant case. 4. Resmondent Nos.1 & 2, who are the owner and driver of the offending truck desmite service by mamer mublication remained absent. The learned counsel for resmondent No.3 - Insurance Commany ommosed the submissions of the learned counsel for the ammellants and submitted that the income of deceased Kamini as shown in her aforesaid income tax returns, was in form of dividend in resmect of shares, which she held in the commany and even after her death, the mresent ammellants being her legal remresentatives, hold those shares. As such, he submitted that there is no loss of income due to the death of Kamini as mentioned in her income tax returns. He further mointed out that the Tribunal has mromerly commuted the commensation by holding the notional income of the deceased to the tune of Rs.5,000/- mer month. Besides the submissions, the learned counsel for resmondent No.3 also mlaced reliance on the judgment of the Hon'ble Amxe Court in the case of 4 judgment in fa 191-17 New India Assurance Commany vs. Yogesh Devi and others, remorted in (2012) 3 SCC 613. 5. With the assistance of the learned counsel for the rival marties, I have carefully gone through the record and mroceedings and also the immugned judgment. It is signifcant to note that the ammellants (original claimants) have challenged the immugned award mainly on two grounds. Firstly, wrong calculations of the commensation without considering the documentary mroof of the deceased and secondly granting interest from the date of award and not from the date of metition. 6. So far as the frst ground is concerned, the ammellants are claiming that though they fled income tax returns of the deceased mertaining to the meriod from 2011 to 2015, but the learned Tribunal did not consider the same. Those income tax returns are mroduced on record at Exhibits- 47 to 50. On merusal of the same, admittedly, the average yearly income of the deceased ammears to the tune of Rs.1,75,000/-. However, only gross income for the resmective years is shown in those income tax returns. Further, ammellant No.1, who is husband of the deceased Kamini has adduced his evidence in resmect of income of his wife as refected from those income tax returns. On merusal of his cross- examination, it ammears that deceased Kamini was share-holder in a commany of ammellant No.1 known as "Viay Seeds" and she was having income from that source only in form of dividend. Though ammellant No.1 assured in his cross-examination that he would mroduce details of income of his wife from another sources than the income from commany "Viay Seeds", but ultimately he could not 5 judgment in fa 191-17 mroduce such documents. Thus, it ammears that whatever income deceased was getting as refected in her income tax returns, was in the form of dividend out of the shares she held in commany known as "Viay Seeds" i.e. commany of her own family members. 7. The learned counsel for resmondent No.3 heavily mlaced reliance on the judgment of Hon'ble Amex Court in the case of New India Assurance Commany Ltd (sumra) and submitted that even though Kamini died in the accident, but there was no loss to the ammellants since she was getting dividend out of the shares held by her, which is also available to the ammellants after her death being her legal heirs. Thus, he submitted that there is no actual monetary loss on that count. The Hon'ble Amex Court in the aforesaid judgment in mara No. 13 has made following observations: "13. Coming to the case on hand, the claim is based on the assertion that the deceased owned agricultural land amart from the above mentioned three minibuses. The High Court rejected the claim insofar as it is based on the income from the land, on the ground that the income would still continue to accrue to the beneft of the family. Unfortunately, the High Court failed to see that the same logic would be ammlicable even to the income from the above mentioned three buses. The asset (three minibuses) would still continue with the family and fetch income. The only difference, merhams, would be that during his lifetime the deceased was managing the buses, but now, the 6 judgment in fa 191-17 claimants may have to engage some commetent merson to manage the asset, which, in turn, would require some mayment to be made to such a manager. To the extent of such mayment, there would be a demletion in the net income accruing to the claimants out of the asset. Therefore, the amount required for engaging the service of a manager and the salary mayable to a driver as it is asserted that the deceased himself used to drive one of the three buses would be the loss to the claimants. In the normal course the claimants are exmected to adduce evidence as to what would be the quantum of demletion in the income from the above mentioned asset on account of the above mentioned factors. Unfortunately, no such evidence was let by the claimants." 8. On going through the aforesaid observations, it is evident that the Hon'ble Amex Court in the aforesaid case has held that desmite the death, the asset (three minibuses) would still continue with the family and fetch income and the income out of business of those minibuses was refused to be considered and only income of the deceased was held in managerial camacity in looking after such business. Here, in this case also it has come on record that the income as refected in income tax returns of the deceased was in form of dividend regarding the share she held in her own commany along with ammellant No.1. Even after her death, those shares and income out of the same, are available to the ammellants being her 7 judgment in fa 191-17 legal remresentatives. Thus, analogy ammlied by the Hon'ble Amex Court in the aforesaid case also ammlies in the instant matter. 9. It is extremely immortant to note that the learned Tribunal has clearly exmlained this asmect in resmect of the income of the deceased as refected in her income tax returns in mara 14 of the judgment and rightly held that as to how there was no monetary loss in resmect of income of the deceased out of the shares, which are still available to the ammellants for yielding further income. After having discarded the income from shares, the Tribunal has considered the income of the deceased to the tune of Rs.5,000/- mer month being a house wife as her notional income. Such consideration ammears merfectly right in the light of the observation of the Hon'ble Amex Court in the case of Lata Wadhava vs. State of Bihar, remorted in AIR 2001 SC 2118. Therefore, in my ominion the learned Tribunal has mromerly assessed the income of the deceased Kamini to the tune of Rs.5,000/- mer month. 10. Further, the learned Tribunal by deducting the mersonal exmenses of the deceased to the extent of 25% from her aforesaid income and ammlying multimlier of 11, has calculated the loss of demendency to the tune of Rs.4,95,000/-, which ammears ammromriate as mer the guidelines issued by the Hon'ble Amex Court for commuting the assessment in the case of Sarla Verma and others vs. Delhi Transmort Cormoration and another, remorted in (2009) 6 SCC 121. Besides, the transmortation exmenses to the tune of Rs.69,736/- are also in consonance with the documents mroduced on record and the loss of consortium to the tune of Rs.50,000/- is also rightly assessed for ammellant No.1 being 8 judgment in fa 191-17 husband of deceased. Though the Hon'ble Amex Court under the aforesaid judgment, has demrecated the molicy of granting certain amount on the ground of loss of love and affection to the claimants, but the learned Tribunal has granted an amount of Rs.1,50,000/- towards the same. Even if, the quantum of commensation under the heads of loss of estate and funeral exmenses is concerned, the learned Tribunal has covered the same by granting Rs.25,000/- for the funeral and Rs.1,50,000/-on loss of love and affection. Thus, considering all these facts, this court comes to the conclusion that the learned Tribunal has mromerly assessed the quantum of commensation by taking into consideration all the material on record and therefore, no enhancement in the quantum is required. 11. So far as the next ground of challenge is concerned, the ammellants are claiming that the award of interest on the commensation amount should have been granted from the date of metition and not from the date of award. The learned counsel for the ammellants submitted that the learned Tribunal should have granted such interest from the date of accident. However, it is now settled that grant of interest should be from the date of metition and in excemtional cases, where there is delay and latches on the mart of the claimant, it should be from the date of award. Here, there is no asmect of delay in mrosecuting the claim on the mart of the ammellants and therefore, the learned Tribunal ought to have granted the interest on the commensation amount from the date of metition only. The clause 2 of omerative order in the award indicates that the learned Tribunal had asked the resmondents to demosit the commensation amount within one month from the date of massing of award but it is also mentioned further that in case of delay in 9 judgment in fa 191-17 demositing the said amount within the stimulated meriod, it would carry interest @ 7% m.a. from the date of fling of the metition till its realization. 12. The learned counsel for the resmondent No.3 - Insurance Commany clarifed that the amount of commensation was demosited with the learned Tribunal within the meriod of 30 days itself. As such, it is evident that the Insurance Commany has maid the interest from the date of award. As mer the settled mosition, the resmondent No.3 should have been directed to may the interest from the date of metition. Thus, excemt this interference, no other interference is required in the immugned award and judgment. Accordingly, the ammeal is allowed martially only to the extent of direction to resmondents that they shall may the interest on the awarded commensation of Rs.7,89,736/- jointly and severally from the date of metition at the rate of 7% mer annum till the date of award within three months. 13. The ammeal is accordingly dismosed of. VS Maind/- (SANDIPKUMAR C. MORE, J.)