The Commissioner of Income TAx-IV, Hyderabad vs. C.Mohan Rao

IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction)

M.A. No. 134 of 2013 ….....

National Insurance Company Limited …. ..... Appellant Versus 1. Rakhi Jain 2. Ayush Jain 3. Aiesha Jain 4. Sushila Jain 5. Ashok Yadav

…. ..... Respondents CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing)

…......... For the Appellant : Mr. Manish Kumar, Advocate, For the Respondent Nos. 1to 4 : Ms. Swati Shalini, Advocate. For the Respondent No. 5 : Mr. Samir Kumar Lall, Advocate. ........ 16/01.12.2020.

Vide order dated 05.01.2015, Coordinate Bench of this Court has granted time to the opposite party no. 1 to file income tax return for the financial 2008-09. On the joint prayer of the parties, this Court waives to file the document so as to adjudicate the Miscellaneous Appeal, which is pending before this Court since 2013. With the consent of the parties, the matter is taken up. Heard, learned counsel for the appellant, Mr. Manish Kumar. Learned counsel for the appellant has assailed the impugned award dated 07.09.2012 passed by learned District Judge-I-cum-Motor Vehicle Accident Claims Tribunal, East Singhbhum, Jamshedpur in Compensation Case No.61/2010, whereby the claimants namely Rakhi Jain, Ayush Jain, Sushila Jain and Aiesha Jain have been awarded a compensation to the tune of Rs. 26,76,028/- along with simple interest @7% per annum from the date of institution of the claim application within two months of the order, failing which, the claimants will be entitled to recover this amount through the process of the court. Learned counsel for the appellant, Mr. Manish Kumar has assailed the impugned award on the ground that learned Tribunal has wrongly considered Exhibit-4, which is copy of assessment order issued by the Income Tax Department, which shows that the income of the deceased for the Financial Year 2009-2010 to be Rs. 2,07,908/- from the business and

-2- Rs. 44,088/- from the other sources. The gross total income of the deceased was Rs. 2,51,936/-, which has been considered to be Rs. 21,000/- per month without deducting the tax amount in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680, where the income has been considered at paragraph-59. The income has been considered as actual salary less tax. Learned counsel for the appellant has submitted that this income tax return of the financial year 2009-2010 has been filed subsequently after death of the deceased on 30.03.2010, though within time, but no corresponding material has been adduced by the claimants to substantiate the same, rather the assessment order for the year 2008-2009, which has been brought on record by way of supplementary affidavit by the claimants shows the gross income of Rs. 1,50,638/-, as such, the award may be reduced and accordingly the computation may be done on the new income. Learned counsel for the respondent nos. 1 to 4, Mrs. Swati Shalini has opposed the prayer and has submitted that learned Tribunal has considered every aspect of the matter and referred paragraph-13 of the impugned judgment, where the learned Tribunal has categorically stated that during cross-examination, learned counsel for the Insurance Company has not put any question regarding business done by the deceased, the assessment order of the income tax department is a valid piece of evidence regarding income of any person even if the return has been filed after death of the deceased, there was nothing wrong in it. Learned counsel for the respondent nos. 1 to 4 has further submitted that though the claimants have not preferred any appeal for enhancement, but in the judgment passed by Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639, quantum of compensation has been discussed at para-8 of the said judgment, which is profitably quoted hereunder:- “8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the

-3- Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.” Learned counsel for the respondent nos. 1 to 4 has further submitted that this Court may compute the compensation as just and fair compensation, as the learned Tribunal has not considered the future prospect of the deceased, who was a self-employed person died at the age of 36 years & 09 months and as per paragraph-59.4 of the aforesaid judgment, the claimants are entitled for 40% of the future prospect, as such, this Court may consider the same. Learned counsel for the respondents has thus submitted that multiplier has been wrongly considered by the learned Tribunal and under the conventional head, instead of Rs.70,000/- in view of the judgment passed by the Apex Court in the case of Pranay Sethi (Supra) (Para- 59.8), only Rs.8,000/- has been paid and interest has been awarded @ 7% per annum from the date of the filing of the claim application, which ought to have been @ 7.5% per annum in view of the judgment passed by Apex Court in the case of Dharmpal and Sons Vs. UP State Road Transport Corporation reported in 2008 (4) JCR 79 SC, as such, this Court may consider the same. Learned counsel, Mr. Samir Kumar Lall appears for the owner of the offending vehicle and has submitted that vehicle was duly insured. Since the income of the deceased has been questioned by the learned counsel for the appellant though learned Tribunal has considered the evidence particularly during cross-examination of the Claimant no.1 Rakhi Jain. Learned counsel for the appellant has placed evidence of Claimant no.1 Rakhi Jain, during her cross-examination. This Court is also satisfied that nothing has been asked from the Claimant No. 1 with regard to the source of income of the deceased and as such, after death of the deceased such question has not been raised at the time of adjudication of the claim application before the learned Tribunal. It would not be proper

-4- for this Court to enlarge this scope of the appeal as the Tribunal has rightly recorded that learned counsel for the appellant has also not put any question regarding business done by the deceased and the income tax return, which has been filed even after death of the deceased, there is nothing wrong in it and income tax return is the best piece of evidence regarding his income. This Court concur with the finding recorded by the learned Tribunal and is not interfering with the finding recorded by the Tribunal so far income of the deceased is concerned. This Court has also considered the judgment of Ranjana Prakash (Supra), it is true that future prospect has not been given. The amount under conventional head has been less paid. If these amounts are calculated then certainly the amount will be enhanced, but in absence of the any appeal by the claimants for enhancement, this Court is not allowing the same and accordingly, considering the amount to be just, proper and fair compensation, this Court is not inclined to interfere with the impugned award. Accordingly, the instant miscellaneous appeal is dismissed. The statutory amount deposited by the appellant shall be remitted to the learned Tribunal for indemnifying the part of the compensation amount. Rest amount of the award with interest shall be paid by the appellant-Insurance Company within a reasonable time as the deceased Bijay Kumar Jain died in a motor accident on 30.03.2010.

(Kailash Prasad Deo, J.) Sunil-Jay/-