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New India Assurance Company Ltd v/s Salma Begum

    First Appeal From Order No. 532 of 2009

    Decided On, 21 February 2014

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE DEVI PRASAD SINGH & THE HONOURABLE MR. JUSTICE ASHOK PAL SINGH

    For the Appellant: M.S. Kotwal, Ved Prakash, Advocates. For the Respondent: Amit Uadhyaya, Advocate.



Judgment Text

1. Heard Mr. Ved Prakash, learned counsel for the appellant and learned counsel appearing on behalf of the respondent. This is an appeal u/s 173 of the Motor Vehicles Act against the impugned award dated 20.2.2009, passed by the Motor Accident Claims Tribunal/District Judge, Sultanpur in Motor Accident Claims Petition No. 191 of 2008.

The deceased Mohammad Waseem, aged about 38 years was working in Saudi Arabia in shoe business. On 30.1.2008 at about 5.15 p.m., he had gone to Jagdishpur for certain work. Adjacent to liquor shop, a truck No. UP 25T/6571 driven rashly and negligently hit the motorcycle of the deceased bearing No. 44M/0541. Mohd. Waseem succumbed to the injuries at the spot and driver of the truck has ran away without taking care of the injured.

The claimant respondents preferred the claim petition for payment of compensation asserting that the monthly income of the deceased was almost Rs. 45,000/- per month and she is entitled for compensation to the tune of Rs. 8,30,000/-. It has been pleaded before the tribunal that the deceased used to send an amount of Rs. 30,000/- per month to the family from Saudi Arabia.

After considering evidence

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on record, the tribunal assessed the income of the deceased at the rate of Rs. 15,000/- per month and applied the multiplier of 11 providing compensation to the tune of Rs. 13,20,000/-.

2. Learned counsel for the appellant has assailed the impugned award, broadly on two grounds, viz the income assessed by the tribunal is based on unfounded fact and secondly it is a case of head on collusion, hence the compensation should be apportioned accordingly.

Coming to first limb of argument advanced by the learned counsel for the appellant. It appears that no documentary evidence was produced before the tribunal by the claimant respondents with regard to income of the deceased Mohd. Waseem. In her statement, the claimant stated that almost after six months, the deceased used to send an amount of Rs. 80,000/-. She further stated that the income of the deceased was Rs. 45,000/- per month. Though, there appears to be contradiction in the statement made with regard to the income of the deceased but it appears that keeping in view the statement given by the wife of the deceased that Mohd. Waseem used to send an amount of Rs. 80,000/- at the interval of six months, the income has been assessed at the rate of Rs. 15,000/- per month.

3. The appellant's counsel submits that neither any income tax return was filed to establish that the income of the deceased was Rs. 45,000/- per month or he used to send an amount of Rs. 30,000/- per month to his native place in India nor any independent witness has been produced to certify the income of the deceased who was living abroad since long. From the evidence noticed by the tribunal, it appears that it has been claimed that the deceased was having an industry for manufacturing of shoes but only one person was engaged in the said industry. However, neither any documentary evidence nor any oral eye-witness has been produced before the tribunal to establish that the deceased was possessing industry in India or Saudi Arabia for manufacturing of shoes.

4. Obviously, in case the deceased was possessing an industry, there could not have been only one person engaged by him for making of shoes. From the factual matrix on record, it does not appear that the deceased was having an industry for manufacturing of shoes, more so when no documentary evidence has been produced by the claimant respondents during the course of trial before the tribunal.

5. So far as the income of the deceased is concerned, the statement given before the tribunal seems to be conflicting. The tribunal noted that in the oral statement, the widow of the deceased has stated that he used to send an amount of Rs. 80,000/- at the interval of almost six months. Mere statement given by the dependent of the deceased does not seem to be sufficient to establish the income of the deceased. Much emphasis has been given by the learned counsel for the respondents that since the deceased was in Saudi Arabia, his income must have been more than Rs. 30,000/- per month being an industrialist of shoe manufacturing. In case the income of the deceased was Rs. 30,000/- per month or alike amount received by the dependent of the deceased in India, then in normal course, the deceased and his family members should have been income tax payee or must have filed return. Attention of this Court has not been invited to any pleading on record that the deceased or his family was income tax payee keeping in view his income, asserted before the tribunal or income was disclosed before the revenue as non-taxable.

6. Courts should not be a party to encourage flow of black money in this country. In case persons working abroad are sending money to the family members in this country, then that must be on record and they should file income tax return so that in the event of necessity, their income may be proved before the Courts to award compensation. While dealing with such matter, the Courts are not supposed to assess the income more than taxable limit. In case no return is filed before the tribunal, assessment of income more than taxable limit for tortuous liability or payment of compensation under Motor Vehicles Act shall encourage flow of black money in the country. Accordingly, in view of our considered opinion, while assessing income with regard to person residing abroad, the Courts or the tribunals must look into the income tax return filed in this country by the persons whose source of income co-relate to some business or employment abroad. In absence of any material evidence with regard to filing of return etc for legitimate income, the Court has to assess the income notionally, less than taxable limit keeping in view facts and circumstances of each case.

7. In the present case, since no cogent and trustworthy evidence was produced before the tribunal with regard to income of the deceased and the finding is based on mere oral evidence having contradictions or entry made in the pass book, on account of uncertainty, we are of the view that the income should be assessed notionally, may be on higher side keeping in view factual matrix on record. We are of the view that the income of the deceased should be assessed at the rate of Rs. 5,000/- per month, i.e. Rs. 60,000/- per year in view of recent judgment of Apex Court in Laxmi Devi and Others Vs. Mohammad Tabbar and Another, .

8. Coming to second limb of argument, advanced by the learned counsel for the appellant with regard to contributory negligence. Submission of the appellant's counsel is that it is a case of head-on-collusion, hence the compensation assessed should be apportioned between the insurer of the vehicle as well as the motorcycle.

However, learned counsel for the respondent defended the impugned award on the ground that in Naksha Nazri, the place of accident is towards the left side of the road where the deceased was on his motorcycle. It was the truck which had gone on wrong side of the road.

9. However, it is admitted by the appellant's counsel that no evidence was led by the appellant before the tribunal to establish the negligence on the part of the motorcycle which was plied by the deceased Mohammad Waseem. In absence of any evidence led by the appellant to establish the case of contributory negligence, no inference may be drawn for the purpose.

10. The observation made and finding recorded by the Tribunal seems to be correct in view of recent judgment of Hon'ble Supreme Court in Jiju Kuruvila and Others Vs. Kunjujamma Mohan and Others, . Their lordships of Hon'ble Supreme Court held that merely on the basis of post-mortem report or scene mahazar (Naksha nazari) inference may not be drawn with regard to the contributory negligence. Relevant paras 20.5 and 20.6 of the said judgment are reproduced as under:

20.5 The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. Depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

20.6 Post-Mortem report, Ext.-A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.-A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.-B2, 'Scene Mahazar' and the Ext.-A5, post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eye-witness, Ext.-A1 (FIR), Ext.-A4(charge-sheet) and Ext.-B1(F.I. Statement) are on record.

11. In view of above, argument advanced by the learned counsel for the appellant with regard to apportionment of compensation in view of alleged contributory negligence is not sustainable and rejected.

No other ground has been raised or pressed by the learned counsel for the appellant.

12. For the reasons discussed hereinabove, we assess the income of the deceased at the rate of Rs. 5,000/- per month which comes to Rs. 60,000/- per year. 1/3rd is deducted in lieu of personal expenses. The total compensation comes to Rs. 4,40,000/- (multiplier of 11). We assess the compensation for loss of consortium to the tune of Rs. 1 lac keeping in view the Apex Court's judgment in the case in Rajesh and Others Vs. Rajbir Singh and Others, . Another amount of Rs. 10,000/- is added for loss of estate and further Rs. 10000/- for funeral expenses. Adding this amount, total compensation comes to Rs. 5,60,000/-. Accordingly, the appeal is allowed. The impugned award dated 20.2.2009 is modified to the extent that the claimant respondents shall be entitled for compensation to the tune of Rs. 5,60,000/- alongwith interest at the rate of 7% from the date of presentation of the petition before the tribunal. Out of the amount of compensation, an amount of Rs. 1 lac shall be deposited in interest bearing account in a nationalised bank in favour of Salma Begum for the period of two years. Further an amount of Rs. 1 lac each in the name of Nadeem Ahmad, Afzal, Mohamdun and Rizwan Husain (claimants 2 to 5) shall be deposited in interest bearing account in a nationalised bank for the period till they attain majority. Rest of the amount shall be paid to the claimant respondent Salma Begum, widow who shall also be entitled to withdraw the amount deposited in her name after expiry of the period of two years.

The appellant shall deposit the entire compensation, in case already not deposited, before the tribunal within a period of two months in terms of the present modified award. The amount deposited in this Court shall be remitted to the tribunal by the Registry within two weeks. The tribunal shall release the amount and pass appropriate order in terms of present modified award within a period of next two months.

The appeal is allowed accordingly. No order as to costs.

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