Commissioner of Income Tax-VI, Hyderabad. vs. Sri K.Lakshmi Narasimha

Page No.# 1/17 GAHC010066872008

THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI

MAC Appeal No. 76 of 2008

Srimati Rubee Das, W/o Late Mrinal Kanti Das, Rupnagar, P.O.- Indrapur, Guwahati-32, P.S.- Paltan Bazar, District – Kamrup, Assam. ………………Appellant

-Versus-

Sri Nirmalendu Roy, S/o Sri Mahitosh Roy, Kahilipara Colony, Guwahati – 18, Kamrup, Assam, (Owner of vehicle No. AS-01/K-5282)

S/o Late Sukhram Das, Kachariparia,

AT Road, P.S. & District-Jorhat, Assam,

Page No.# 2/17

(Owner of vehicle No. AS-03/C-0459)

S/o Late Sumeswar Das,

Pakamuragaon, P.S. & Dist.- Jorhat,

Assam.

(Owner of vehicle No. AS-03/C-0459)

S/o Late B Bandal, Kalapahar,

Lutuma, Guwahati – 18, Kamrup,

Assam.

(Driver of vehicle No. AS-01/K-5282) 5. Md. Imran Ali,

S/o Md. Muslim Ali, Titabor Chariali,

P.S.-Titabor, District.- Jorhat, Assam.

(Driver of Vehicle No. AS-03/C-0459)

Page No.# 3/17

(Name of Respondent No. 9 has been struck off, vide Hon’ble Court’s order dated 13.06.2016, in I.A. No. 2384/2015, in MAC Appeal No. 92/2008. ………………..Respondents.

Advocates for the appellant : Mr K K Dutta Advocate for the respondent : Mr S Dutta, R-6 Mr R Goswami, R-7

MAC Appeal No. 92/2008

The United Insurance Co. Ltd.,

Division Office-II, Arun Prakash Building,

G. S. Road, Bhangagarh, Guwahati-5, Kamrup,

Assam, to be represented by its Divisional Manager,

(Insurer of Vehicle No. AS-01/K-5282)

………………Appellant

-Versus-

Page No.# 4/17 P.S.-Paltan Bazar, Guwahati – 32, Kamrup, Assam.

……..Respondents/Claimants

Page No.# 5/17

…………..Respondents.

Advocates for the appellant : Mr S Dutta, Advocate for the respondent : Mr K K Dutta, Mr R Goswami, R-8 Ms M Saikia. BEFORE HON’BLE MRS. JUSTICE MALASRI NANDI

Date of hearing : 16.08.2022.

Date of Judgment : 26.08.2022

JUDGEMENT AND ORDER (CAV)

Heard Mr K K Dutta, learned counsel appearing for the appellant/claimant. Also heard Mr S Dutta, Mr A Dutta, and Mr R Goswami, learned counsel for the Insurance Companies and other respondents. 3. The claimant, Smt Rubee Das, as appellant in MAC Appeal No. 76 of 2008, has challenged the Judgment and Award dated 05.06.2008, passed by the learned Additional

Page No.# 6/17 District and Sessions Judge No. 2, Kamrup in MAC Case No. 198 of 2005 (old MAC Case No. 223 of 2005). 4. Another appeal has been preferred by the Insurer of the Tata Sumo vehicle, bearing Registration AS-01K-5282, i.e., United India Insurance Company Limited against the same Judgment and award, vide MAC Appeal No. 92/2008. 5. Both the appeals, i.e., MAC Appeal No. 76/2008 and MAC Appeal No. 92/2008 are taken up together as both the appeals have been instituted in one and same set of accident, relating to Jorhat PS Case No. 264/2004, under Sections 279/337/304A/427 IPC, causing death of Mrinal Kanti Das, husband of the claimant/appellant, Smt Rubee Das. 6. The brief facts of the case is that on 03.09.2004, at about 08:20 pm, the husband of the claimant, while travelling in a vehicle bearing Registration No. AS-01K-5282 (Tata Sumo) from Guwahati to Moran, met with an accident near Patiagaon, Jorhat, while the said vehicle dashed against another vehicle bearing Registration No. AS-03C-0459 (Mahindra Champion). It is alleged that the accident occurred due to rash and negligent driving by the driver of the Tata Sumo vehicle, as he drove the vehicle in a rash and negligent manner, as a result, he lost control over the vehicle and dashed against another vehicle, Mahindra Champion. Due to the alleged accident, the husband of the claimant, who was traveling in the Tata Sumo sustained grievous injuries on his head. Immediately, he was taken to the hospital, but he succumbed to his injuries, on the way to hospital. After the accident, one case was registered vide Jorhat PS Case No. 264/2004, under Sections 279/337/304A/427 IPC. At the relevant time of accident, both the vehicles were duly insured under the respective Insurance Companies.

Page No.# 7/17 7. On appreciating oral and documentary evidence, the learned Tribunal had awarded compensation amounting to Rs. 10,33,500/- (Rupees Ten Lacs Thirty Three Thousand Five Hundred) Only, in favour of the claimants, fixing liability on respondent No. 6, United India Insurance Company Limited, to pay the entire amount of compensation, Insurer of the Tata Sumo Vehicle, in which the deceased was travelling. 8. On the appeal filed by the United India Insurance Co. Ltd, vide MAC Appeal No. 92/2008, the learned counsel for the Insurer of the Mahindra Champion, had submitted that Mahindra Champion was stationery vehicle at the time of accident, when the Tata Sumo hit the said vehicle, according to the witnesses of the accident, examined before the Tribunal. Therefore, there was no negligence of the Mahindra Champion. As such, the Insurer of the Mahindra Champion, does not incur any responsibility to pay the compensation. 9. Per contra, the counsel for the appellant argued that the Police submitted charge sheet, disclosing that both the vehicles were in motion and it was the case of head-on-collision. Therefore, both the vehicles have the same liability and to pay the compensation on equal share. 10. On the submission made by the learned counsel for both the parties, this Court passed an order dated 21.03.2004, by stating that the police investigation said that it was a head-on- collision and both the vehicles were in movement and therefore, fixed the liability of compensation @ 50% and insurers of both the vehicles were directed to pay the compensation awarded to the claimants/appellant. 11. Subsequently, the claimants/applicants have preferred an interlocutory application, vide IA No. 2384/2015, under Order XLI Rule 21 of the CPC to rehear the MAC Appeal NO.

Page No.# 8/17 92/2008, which was disposed of, vide ex parte judgment and order dated 21.03.2014, passed in MAC appeal No. 92/2008. After hearing both the parties, this Court passed an order on 07.02.2020, and the order dated 21.03.2014, passed in MAC Appeal No. 92/2008, was recalled and directed to hear the MAC Appeal No. 92/2008, along with the MAC Appeal No. 76/2008. Under the aforesaid background, both the appeals are taken up together for disposal. 12. Learned counsel for the appellant/claimant has argued that the learned trial Court did not consider the Income-Tax return of the deceased, vide Exhibit- 9 and 10 as the Income Tax Return Form was submitted by some other person, after the death of the deceased. As per Section 159 of the Income Tax Act, 1961, the legal representative of the deceased can file income-tax return. As such, Exhibits- 9 and 10 should be taken into consideration in assessing the income of the deceased. 13. It is also the submission of the learned counsel for the appellant, that, the evidence adduced by PW-2, showing negligence on the part of Tata Sumo Vehicle and no rebuttal evidence was adduced. The driver of the Tata Sumo Vehicle was not examined by the insurer nor any other evidence in rebuttal. As such, as to the negligence of the driver of Tata Sumo Vehicle was unassailable and the same was confirmed. In support of his submission, the learned counsel for the appellant has placed reliance on the following case-laws- 1) III (2009) ACC 23 (DB) Madhya Pradesh High Court; (National Insurance Company Limited –Vs- Mamta Kulshreshtha & Others); 2) 2008 ACJ 374 (Kamlesh Yadav & Others. –Vs- Prabhudayal and Others)

Page No.# 9/17 14. Per contra, learned counsel for the Insurance Company/appellant in MAC Appeal No. 92/2008, has submitted that the learned Tribunal ought not to have held the United India Insurance Company liable to satisfy the entire awarded amount only on the evidence of PW- 2, without taking into consideration, Exhibit-B, i.e., the charge sheet exhibited in the case, which clearly showed the involvement of another vehicle, i.e., Mahindra Champion, bearing Registration No. AS-01C-0459, which was insured with National Insurance Company Limited. Learned counsel further contended that the impugned Judgment and award dated 05.06.2008 is bad in law and liable to be set aside. 15. Another contention raised by the learned counsel for the Insurance Company that so far as the question in regard to the quantum of compensation awarded in favour of the appellant is concerned, as it appears that the death of the deceased took place on 03.09.2004, whereas the Income-Tax Return was filed on 11.10.2004. As such, the learned Tribunal had rightly not relied upon the Income-Tax return. Hence, there is no question of enhancement of the amount of compensation. In support of his submission, the learned counsel for the Insurance Company has submitted the following case-laws:- 1) (2008) 2 TAC 976; (National Insurance Company Limited –Vs- Pushpa Rana and Others; 2) (2008) 4 SCC 224; (V Subbulakshmi & Others –Vs- S Lakshmi & Others) 16. The principle of negligence and contributory negligence has been explained by the Apex Court in the case of Municipal Corporation of Greater Bombay –Vs- Laxman Iyer & Another reported 2003 Vol 8SCC 731, which reads as follows:-

Page No.# 10/17 “Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obliged to, or by doing something, which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is negligent act. Negligence is categorized either as contributory or composite. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and

Page No.# 11/17 both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning." 17. Now the question is whether there is any evidence to prove the negligence of the vehicle involved in this accident. “Negligence” means a failure to observe the duty cast upon a person either by an omission to do something which a reasonable man guided upon these considerations, who ordinarily by reason of conduct of human affairs would do or be obliged or by doing something, which a prudent or reasonable man would not do. If such care is not taken, an accident occurred, the person who is bound to take care commits an negligent act. In the instant case, the claimant, Smt Rubee Das (appellant in MAC Appeal No. 76/2008), deposed in her evidence that her husband, Mrinal Kanti Das met with an accident while travelling in a vehicle, bearing Registration No. AS-01/K-5282, and had sustained injuries on his person and subsequently he died, due to the alleged accident. In her cross-examination, PW-2 admitted that she was not present when the accident occurred.

Page No.# 12/17 18. PW-2 claimed to be the eye-witness to the accident. From his deposition, it reveals that on 03.09.2004, he was travelling in a Tata Sumo Vehicle, bearing Registration No. AS-01/K- 5282, from Guwahati to Sivasagar. The said vehicle met with an accident at Jorhat by-pass Chariali, near Patiagaon. It is alleged that the driver drove the vehicle in a rash and negligent manner and dashed against a stationery Tempo. About Seven persons were travelling in the Tata Sumo Vehicle. In the said vehicle, Mrinal Kanti Das was also travelling and he died due to the alleged accident. In his cross-examination, PW-2 replied that he was sitting in the middle seat of the vehicle. He did not lodge the FIR. It was suggested that accident took place due to the fault of both the vehicles. 19. Regarding contributory negligence on the part of both the vehicles, according to PW-2, the Tempo (Mahindra Champion) was parked on the road and the Tata Sumo Vehicle was driven by its driver in a rash and negligent manner and dashed against a stationery Tempo (Mahindra Champion), as a result of which, accident occurred. As per statement of PW-2, the Mahindra Champion was not moving at the relevant time of alleged accident. 20. To prove the negligence of the vehicles involved in the accident, one witness was examined by the Insurance Company. 21. DW-1, A M Choudhury, who was the then Administrative Officer of the United India Insurance Company, Guwahati Division, deposed in his evidence that the Company appointed one Gagan Chandra Talukdar, to investigate the matter of the accident, and he after due investigation submitted a certified copy of chargesheet obtained by him from the office of Chief Judicial Magistrate, Jorhat and on going through the said charge sheet, it disclosed that the accident occurred due to collision between two vehicles, i.e., AS-01-K-5282 and AS-03-C-

Page No.# 13/17 0459. 22. DW-1 had exhibited the chargesheet vide Exhibit-B, from which it reveals that the Tata Sumo vehicle was moving towards Sivasagar, in a rash and negligent manner and when reached Barigaon Bypass Chariali suddenly one Minidoor, bearing Registration AS-03/C-0459, came out from Patiagaon side and tried to cross the bypass, as a result of which, the Tata Sumo though applied brake, but lost control over the vehicle and dashed against the Minidoor (Mahindra Champion) and turned turtled over the road. Due to the alleged accident, the passengers of both the vehicles, namely, Mrinal Kanti Das, Rajib Borthakur, Mriganka Saikia, Arup Hazarika, Bipul Das and Latu Gogoi of the Tata Sumo Vehicle and, Amal Das, Dileswar Das and the driver of the Minidoor also received injuries on their person. During treatment, Mrinal Kanti Das succumbed to his injuries. Both the vehicles were damaged. On the basis of the ejahar, a case was registered vide Jorhat PS Case No. 264/2004, under Section 279/337/304-A/447 IPC. 23. As per Exhibit-B, the Investigating Officer inspected the place of occurrence, examined the witnesses and collected injury report of the injured persons, PM Report of the deceased and MVI Report of both the vehicles. After completion of the investigation Charge sheet was submitted against the driver of Tata Sumo, bearing Registration No. AS-01/K-5282 Bolai Mondal, and Imran Hussain, the driver of Minidoor (Mahindra Champion) bearing Registration No. AS-03/C-0459. 24. If we believe the evidence of PW-2, there was no negligence on the part of Mahindra Champion vehicle Registration No. AS-03/C-0459. The copy of FIR is not available in the record. Chargesheet has indicated the negligence of the both the vehicles, i.e., Tata Sumo AS-

Page No.# 14/17 01K5212 and Minidoor Registration No. AS-03/C-0459. The IO used to come to the scene after happening of the incident/accident and to submit chargesheet on the basis of evidence of witnesses and other anciliary documents. In the case in hand, the name of PW-2 has been shown as witness in the charge sheet. The evidence of PW-2 has not been challenged in this case. There is no cross-examination even by denying the presence of PW-2, in the Tata Sumo Vehicle or he was not telling the truth that the Tata Sumo Vehicles dashed against a stationery vehicle. 25. The learned MACT, on appreciation of oral and documentary evidence and the issue relating to actionable negligence came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the Tata Sumo Vehicle and awarded compensation accordingly, by fixing liability on the Insurer of the said vehicle. 26. To advert to the contention of the learned counsel for the appellant/Insurance Company, with regard to the issue on contributory negligence, as already pointed out, although the owner was served with notice, he did not turn up before the Tribunal and contest the claim. Though the Insurance Company chose to file written statement, it did not examine the owner or the driver of the Tata Sumo or the Mahindra Champion or adduced any other rebuttal evidence before the MACT. The question now is whether the evidence led before the MACT would warrant drawing of such inference against the negligence of both the vehicles. 27. Having perused the evidence and the materials placed before this Court, I am not persuaded to draw any such inference to attribute contributory negligence on the part of the other vehicle, on such contradictory statement of PW-2 and DW-1. Mere exhibiting

Page No.# 15/17 chargesheet is not sufficient to hold that Mahindra Champion vehicle had any contribution in causing the accident. In the light of the oral testimony of PW-2, the correctness of which is not seriously contested by the Insurance Company in cross examination, it is clearly established that the accident took place solely on account of rash and negligent driving by the driver of the Tata Sumo vehicle. 28. In conclusion, I am of the view that the Trial Court has rightly fixed the liability on the Insurer of the Tata Sumo Vehicle to pay the entire compensation. Hence, the United India Insurance Company Limited is liable to pay the entire compensation to the claimant. 29. Now, coming to the income of the deceased, the Tribunal had considered his income at Rs. 8,000/- per month. As per decision of the Hon’ble Supreme Court, vide V Subbulakshmi (supra), late filing of income tax return after the death of the deceased should not be considered. Therefore, the Income Tax Returns (Exhibits-9 and 10), have rightly not been relied upon by the Tribunal. Under such backdrop, I am of the opinion that Rs. 8,000/- is a reasonable amount to consider the monthly income of the deceased. 30. In the case of National Insurance Company Limited –Vs- Pranay Sethi & Ors., Reported in SLP (Civil) No. 25590/2014, it was observed that while determining the income of the deceased in case of self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant, where the deceased was below the age of 40 years; an addition of 25%, where the deceased was between the age of 40-50 years and 10%, where the deceased was between the age of 50-60 years, should be regarded as the necessary method of computation. 31. In the instant case, admittedly, the deceased was 39 years of age at the time of

Page No.# 16/17 accident, as per his school certificate. As per the Judgment of Sarala Verma –Vs- DTC; reported in (2009) Vol.-6 SCC 121, the multiplier would be 15. As the deceased was 39 years of age at the time of accident, so 40% should be added along with his established income of Rs. 8,000/- Hence, monthly income of the deceased is considered as Rs. 8,000/- + Rs. 3,200/- (40%)= Rs. 11,200/-. 32. In the case in hand, the deceased was a married person and he left behind his wife and one minor daughter. As such, the standard deduction towards personal and living expenses is applicable as stated in the case of Sarala Verma (supra) and 1/3rd income of the deceased is required to be deducted with the presumption that had the deceased been alive, he could have spent 2/3rd for his personal and living expenses. 33. As per the case of Pranay Sethi(supra), the Honble Supreme Court has fixed compensation in case of death, reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. As per the impugned Judgment, the aforesaid amount shall be enhanced @ 10% in every 3 years. Hence, amount of loss of estate and funeral expenses comes to Rs. 16,500/- on each count and Rs. 44,000/- as loss of consortium. 34. In view of the above discussion, the computation of compensation is awarded as follows:- A. Annual income of the deceased = Rs. 11,200/- X 12 = Rs. 1, 34, 400/- B. After deducting 1/3rd from the income of the deceased, the amount comes to = Rs. 89, 600/-

Page No.# 17/17 C. After multiplied with multiplier, the amount comes to Rs. 89,600/- x 15= Rs. 13,44,000/- D. Loss of estate = Rs. 16,500/- E. Loss of consortium = Rs. 44,000/- F. Funeral expenses – Rs. 16,500/- Total - Rs. 14,21,000/- /-(Rupees Fourteen Lacs Twenty One Thousand) Only 35. In the result, MAC Appeal No. 76 of 2008 is partly allowed with the aforesaid modification. The United India Insurance Company is directed to deposit the amount of compensation, i.e., Rs. 14,21,000/-(Rupees Fourteen Lacs Twenty One Thousand) Only, in the savings account of the claimant Rubee Das in any nationalized bank through NEFT. She is directed to furnish her bank details of any nationalized bank to the Insurance Company for necessary payment. The compensation so awarded shall carry an interest @ 6% per annum from the date of filing of the case till full and final realization. Any amount if paid earlier be adjusted accordingly. 36. In so far as regards the MAC Appeal No. 92 of 2008 is concerned, the appeal is dismissed. The Statutory amount in deposit be refunded to the appellant/United India Insurance Company Ltd. 37. LCR be returned back. JUDGE Comparing Assistant