The Commissioner of Income Tax III vs. M/s. Vishwas Investments Pvt. Ltd.,

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 90/2013 1.Smt Rukamani Devi W/o Late Shri Rambabu, aged 43 years, 2. Ramsharan S/o Late Shri Rambabu, aged 26 years, 3. Satyanarayan S/o Late Shri Rambabu, aged 19 years, All resident of House No.84, Prahlad Colony Opposite Airport Sanganer, Jaipur ---Claimants-Appellants Versus 1. Mukesh Choudhary S/o Shri Ramnarayan Jat, resident of village Chakwada, Tehsil, Phagi, District Jaipur (Driver of Mahindra Jeep No. RJ-14-TA-5146) 2. Chhogaram S/o Shri Ram Kumar Meena, Resident of House No. 45 Khatwara, Mahapura, Sanganer, Jaipur (Owner of Mahindra Jeep No. RJ-14-TA-5146) 3. Ramesh Chandra Sharma S/o Shri Laxmi Narayan, Resident of village Yalakhana, Sanganer, Jaipur. (Owner through agreement and sale deed Mahindra Jeep No.RJ-14-TA-5146) 4. The Oriental Insurance Company Limited, through Branch Manager, Anand Bhawan, Sansarchandra Road, Jaipur. (Insurance valid up to 30.07.2008 to 29.07.2009) ---Non-Claimants-Respondents For Appellant(s) : Mr. Bhanu Prakash Verma, Adv. For Respondent(s) : Smt. Rajni Vyas, Adv. HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment 18/08/2022 Instant appeal has been preferred by the claimants- appellants against the judgment and award dated 22.09.2012 passed by the Court- Motor Accident Claims Tribunal & Additional District Judge (Fast Track) No.6, Jaipur Metropolitan (hereinafter referred to as 'the Tribunal') in Motor Claim Case No.191/2012

(2 of 7) [CMA-90/2013] (1054/2009) by which the claim petition filed by the claimants- respondents was allowed and the Insurance Company was directed to pay compensation of Rs.2,21,200/- to the claimants- appellants. Learned Tribunal after framing the issues, evaluating the evidence on record and after hearing counsel for the parties, decided the claim petition of the claimants-appellants and awarded compensation to the tune of Rs.2,21,200/- under various heads in favour of the claimants-appellants. Counsel for the claimants-appellants submits that the Tribunal has committed an error by recording a finding that there was 60% contributory negligence of the vehicle in which the deceased was travelling. Counsel further submits that it is an admitted fact that the deceased was not plying the vehicle, so in any case, this cannot be a case of contributory negligence and at the most, it can be a case of composite negligence. Counsel submits that the deceased was a regular income tax payer and he was submitting his income tax returns regularly and his income tax returns (Exs.10, 11, 12 & 13) were produced by the claimants-appellants, but the same were not relied upon by the Tribunal for determining his income. Counsel submits that no amount towards future prospects has been awarded in the light of the judgment of Hon'ble Supreme Court delivered in the case of National Insurance Company Ltd. Vs. Pranay Sethi reported in AIR 2017 SC 5157. In support of his contention, learned counsel has placed reliance on a judgment of Hon’ble Supreme Court in the case of Khenyei Vs. New India Assurance Co. Ltd., & Ors., reported in 2015 (2) R.A.R. 193 (SC). Counsel submits that even under the

(3 of 7) [CMA-90/2013] conventional head, a petty amount of Rs. 25,000/- has only been awarded. He, therefore, prays that re-computation of the award in the present case may be done in the light of the judgments of Pranay Sethi (supra) & Khenyei (supra). Per contra, learned counsel for the Insurance Company submits that the Tribunal while deciding the claim petition of the claimants-appellants has rightly taken into consideration all the factors while calculating the award in this case on the anvil of the evidence produced before it. Thus, the judgment dated 22.09.2012 does not call for any interference by this Court. Learned counsel, however, is not in a position to controvert the submissions made by learned counsel for the appellants- claimants with respect to re-computation of the award in the present case in the light of judgments of Hon'ble Supreme Court in the cases of Pranay Sethi (supra) & Khenyei (supra). I have considered the submissions made at Bar and gone through the judgment and award dated 22.09.2012 as well as the other relevant documents available on record. Admittedly, the accident occurred on 10.03.2009 when the deceased-Rambabu was going on with his son in a Jeep bearing No.RJ-06-C-7704 from Sanganer to Diggi. At about 7:00 PM to 7:30 PM, just before Jhadla Mod when they reached at Diggi Raod, Mahindra Jeep vehicle i.e RJ-14-TA-5146 came from the wrong side. The driver of the aforementioned jeep was driving the vehicle rashly and negligently which hit the jeep of the claimants. In the aforesaid accident, Rambabu died and after his death, the claim petition was filed by the claimants-appellants. The Tribunal, while deciding issue Nos. 1 & 2, came to the conclusion that there was 60% contributory negligence of the driver of the offending vehicle

(4 of 7) [CMA-90/2013] of Jeep No.RJ-06-C-7704 where the accident occurred. The site plan is marked as ‘X-1’ which indicates that the driver of the Jeep No.RJ-06-C-7704 has driven the vehicle in wrong side. The Tribunal has further recorded a finding that the driver-owner and Insurance Company of Jeep No.RJ-06-C-7704 have not been impleaded as a party, hence there was 60% contributory negligence on the part of the driver of the offending vehicle. Recording such finding, the Tribunal has determined the Compensation and has granted only 40% compensation to the dependants of the deceased. Perusal of the site plan (Ex.-6) indicates that the accident occurred at the place marked as (‘X-1’) which indicates that there was contributory negligence on the part of drivers of both the vehicles. Since the deceased-Rambabu was not driving the vehicle, he was sitting in the vehicle, so it cannot be said that there was a contributory negligence on the part of the deceased- Rambabu. The Hon’ble Apex Court in the case of Khenyei (supra) has held that if there is no negligence on the part of the victim and the accident occurred between two or more vehicles, the owner of both vehicles can be held liable for composite negligence and the claimants are free to sue against all, if advised one of them. The Hon’ble Apex Court has held that compensation cannot be refused on the ground of non-impleadment of one of the tort feasors. The observations have been recorded by the Hon’ble Apex Court in para No.11, which reads thus:- “A Full Bench in KSRTC vs. Arun @ Arvind (supra) while answering aforesaid questions has observed that it was a case of composite negligence and the liability of tort feasors was joint and several. Hence, even if there is non-impleadment of one of tort feasors, the claimant was entitled to full compensation quantified by the Tribunal. The Full Bench referred to the decision of a Division

(5 of 7) [CMA-90/2013] Bench of the Gujarat High Court in Hiraben Bhaga & Ors. Vs. Gujarat State Road Transport Corporation, [1982 ACJ (Supp.) 414 (Guj.)] in which it has been laid down that it is entirely the choice of the claimant whether to implead both the joint tort feasors or either of them. On failure of the claimant to implead one of the joint tort feasors, contributory liability cannot be fastened upon the claimant to the extent of the negligence of non- iimpleaded joint tort feasors. It is for the joint tort feasors made liable to pay compensation to take proceedings to settle the equities as against other joint tort feasors who had not been impleaded. It is open to the impleaded joint tort feasor to sue the other wrong doer after the decree or award is given to realize to the extent of others’ liability. It has been laid down that the law in Ganesh’s case (supra) has been rightly laid down and it is not necessary to implead all joint tort feasors and due to failure of impleadment of all joint tort feasors, compensation cannot be reduced to the extent of negligence of non-impleaded tort feasors. Non- impleadment of one of the joint tort feasors is not a defence to reduce the compensation payable to the claimant. In our opinion, the law appears to have been correctly stated in KSRTC vs. Arun @ Aravind (supra).” In view of the judgment passed in the case of Khenyei (supra), the finding recorded by the Tribunal that is 60% contributory negligence of the driver of vehicle RJ-06-C-7704 is not tenable as the deceased was not driving the said vehicle. The claim petition filed by the claimants cannot be made weaken only because the driver-owner and Insurance Company of the vehicle No.RJ-06-C-7704 were not impleaded as parties. In view of the aforesaid ratio decided by the Hon’ble Apex Court, the finding so recorded by the Tribunal is modified and it is held that the claimants are entitled to get 100% compensation so awarded by the Tribunal. The Claimants have submitted the income tax returns of the deceased on the record of the Tribunal and the same were marked as Exs. 10, 11, 12 & 13. The Tribunal while determining the income of the deceased has taken into consideration the income tax returns (Exs. 10, 11, 12 & 13) and disbelieved the same on the ground that these returns were the

(6 of 7) [CMA-90/2013] photocopies and original of the same were not produced on record, but the Tribunal has not taken into consideration the income tax returns pertaining to assessment year 2006-07. Perusal of the Ex.10 indicates that this is the original copy of the returns submitted by the deceased on 31.03.2007 pertaining to assessment years 2006-07. It appears that the Tribunal has not taken into consideration the income tax returns submitted by the deceased for determining his income and without any basis, his income has been determined as Rs.6,000/- per month. Admittedly, the deceased-Rambabu was 52 years of age at the time of accident but no amount under the head of future prospects has been awarded to the claimants-appellants and under the conventional head also, a petty amount of Rs.25,000/- has been awarded. The amount to the extent of 10% is required to be added towards future prospects in the present case in the light of the judgment of Pranay Sethi (supra). Thus, the award is re-computed as under:- Annual Income Rs.86,825/- Add 10 % towards future prospects Rs.86,825/- + 8,682.5/- = 95,507.5/- Multiplier to be applied 11 Rs.95,507.5/-x 11 = 10,50,582.5/- Less 1/3rd towards personal expenses Rs.10,50,582.5/- - Rs.3,50,194/- = Rs. 7,00,388/- Towards conventional head Rs.70,000/- Total

compensation awardable Rs. 7,70,388/- Less amount awarded by the Tribunal Rs. 7,70,388/- - Rs.2,21,200/- Rs. 5,49,188/- Enhanced amount of compensation Rs. 5,49,188/- In view of the above, the appellants-claimants would be entitled to get a further sum of 5,49,188/-. Insurance company is

(7 of 7) [CMA-90/2013] directed to pay additional amount of 5,49,188/- within a period of two months from the date of receipt of certified copy of this order. The enhanced amount shall carry 6% interest from the date of filing of claim petition till the actual payment is made. The learned Tribunal shall disburse Rs.50,000/- in the Saving Bank Account of the claimants and the balance amount of the enhanced compensation be invested in any Nationalised Bank for a period of three years and interest accrued on the deposit shall be paid to the appellants-claimants on monthly basis. Consequently, the appeal is disposed of. All pending application(s), if any, also stand(s) disposed of. Record of the Tribunal be sent back forthwith. (ANOOP KUMAR DHAND),J PRAVESH/56