Commissioner of Income Tax-III, vs. Shri T.C. Reddy,

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

MA No. 582/2011(O&M) c/w MA No. 212/2011(O&M)

…..Appellant(s)/Petitioner(s)

Through: Mr. M. P. Sharma, Adv. in MA No. 212/2011 Ms. Aruna Thakur, Adv. in MA No. 582/2011

Through: Mr. M. P. Sharma, Adv. in MA No. 582/2011 Ms. Aruna Thakur, Adv. in MA No. 212/2011

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

ORDER

(ORAL)

MA Nos. 212/2011 & 582/2011

the ground that the just compensation has not been awarded to them, as they had pleaded and proved that the deceased was earning Rs. 50,000/- per month. 3. Mr. M. P. Sharma, learned counsel for the appellant-owner submits that the learned Tribunal has not correctly applied the multiplier and also wrongly determined the income of the deceased as well. 4. Per contra, Ms. Aruna Thakur, learned counsel appearing for the respondents-claimants submits that no compensation on account of loss of estate has been granted and further that the future prospects of the deceased have also not been taken into consideration while passing the award impugned. The learned Tribunal has also not rightly determined the income of the deceased as well. 5. Heard and perused the record. 6. The respondent No. 1 in MA No. 212/2011, who happened to be the wife of late Janak Singh and the respondent Nos. 2 to 4 i.e. the sons of the deceased, filed a claim petition before the learned Tribunal for grant of compensation on account of death of Janak Singh in a motor vehicle accident on 08.08.2006 at main road Janipur, Jammu due to rash and negligent driving of the offending vehicle bearing No. JK02W-9458 by the appellant. 7. The offending vehicle admittedly was not insured at the time of accident. The appellant-owner was put to notice, who after causing the appearance, filed the objections thereby stating that respondent Nos. 2 to 4 were major and not dependent upon the deceased, as such, they could not have maintained any claim petition. The appellant further pleaded that he has

MA Nos. 212/2011 & 582/2011

been falsely involved by the claimants through police agency in respect of the alleged accident. On the basis of the pleadings of the parties, the learned Tribunal framed the following issues: a. Whether an accident occurred on 08.08.2006 at Janipur main road by rash and negligent driving of the offending vehicle No. JK02W-9458in the hands of erring driver in which deceased Janak Singh sustained fatal injuries? OPP

b. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation, if so to what amount and from whom?

c. Relief.”

MA Nos. 212/2011 & 582/2011

Contractor and was earning Rs.10,000/- per month from various contracts obtained from the Forest Corporation. The claimants, as such, claimed that the deceased was earning a sum of Rs. 50,000/- per month. 10. A perusal of the award reveals that the learned Tribunal has determined monthly income of the deceased as Rs. 6,000/- after taking note of the fact that no documentary evidence, including the income tax returns or payment receipt for execution of the contracts, have been placed on record. 11. In absence of any documentary evidence in respect of the income of the deceased, this Court does not find any error on the part of the learned Tribunal to have determined the monthly income of the deceased as Rs. 6000/-. The deceased was 58 years of age, as claimed by the claimants in the claim petition. The learned Tribunal has rightly applied the multiplier of 9 in terms of judgment of the Apex Court in Sarla Verma and others v Delhi Transport Corporation and anr, 2009(6) SCC 121, though has wrongly considered the age of deceased as 55 years. Also the learned Tribunal while determining the dependency has not considered the future prospects of the earnings of the deceased and has also wrongly deducted the 1/3rd income of the deceased, which was required to be deducted @ 1/4th, as there were four dependents on the earnings of the deceased. From the statement of the respondent Nos. 1 and 3, it is evident that the respondents were largely dependent upon the income of the deceased. As the deceased was self-employed and was of 58 years of the age, so his income was required to be enhanced at the rate of 10% (See National Insurance Co. Ltd v Praney Sethi, (2017) 16 SCC 680) . Thus, the loss

MA Nos. 212/2011 & 582/2011

of dependency would be Rs. 5,34,600/-. Further a sum of Rs. 40,000/ was required to paid on account of “Loss of consortium” to the respondent No.1, instead of Rs. 10,000/ as directed by the Tribunal and Rs. 40,000/ each was required to be paid to the claimants No. 2 to 4 on account of “Loss of parental consortium”. Further, from the perusal of the award, it is revealed that the funeral expenses have been granted for an amount of Rs. 5,000/- instead of Rs. 15,000/. The funeral expenses are required to be enhanced to Rs. 15,000/-. Likewise, a sum of Rs. 15,000/- is also required to be awarded on account of “loss of estate”. 12. The contention of the appellant that the major sons were not entitled to any compensation as they were not dependent upon the deceased, is also mis-conceived in view of the statements of claimant Nos.1 and 3. The Apex Court in case, titled “National Insurance Company Limited vs Birender & Ors” (2020) 11 SCC 356 has held as under: “15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs. 1,00,000/- and Rs. 1,50,000/- per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.”

MA Nos. 212/2011 & 582/2011

allowed and the award passed by the learned Tribunal is modified in the following manner: For loss of dependency:

Rs. 5,34,600/- For funeral expenses:

Rs. 15,000/- Loss of consortium: (wife of the deceased)

Rs. 40,000/-

Loss of parental consortium:

Rs. 1,20,000/

Loss of Estate Rs. 15,000/ Total Rs. 7,24,600/

(RAJNESH OSWAL)

JUDGE

Jammu 25.07.2023 Rakesh

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No