: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1171 OF 2003 Smt. Surajabai Motilal Binayakya Jain R/o. H. No.561, Sangameshwar, Mahatma Phule Road, Malegaon, Dist. Nashik .. Appellant V/s. 1. The General Manager, Maharashtra State Road Transport Corporation, Maharashtra Vahatuk Bhavan, Dr. A.N. Road, Mumbai-8. 2. Gangadhar Punjaba Lanbale R/o. Khaki Baug, Jagtap Mala, Manmad, Tal- Nandgaon, Dist.Nashik. 3. Jayawant Abinegar salvi R/o. Naik High School, Behind Post office, Manmad, Nandgaon, Dist. Nashik. 4. Mangala Mangilal Binayakya Jain R/o. H.No.561, Sangameshwar, Mahatma Phule Road, Malegaon, Dist. Nashik. Presently named as Smt. Mangala Dagadulal Surana presently residing at Jeevanchhaya, Mokasha Ganga, Colony, Satana Naka, Malegaon, Dist. Nashik. : 2 : 5. Miss. Kalyani Mangilal Binayakya Jain. 6. Master Ankit Mangilal Binayakya Jain. Thru natural guardian, Opponent No.1, Oponent No.4 to R/o. H.No.561, Sangameshwar, Mahatma Phle Road, Malegaon, Dist. Nashik. .. Respondents ( Resp. Nos.1 to 3 are Orig. opponents and Resp. No.4 to 6 are Orig. claimant Nos.1 to 3 ). ..... Mr. N.R. Bubna for the appellant Mr. G.S. Hegde a/w. Mr. C.M. Lokesh for the respondent No.1. None for other respondents ..... CORAM : R.Y. GANOO, J. DATE : 29TH JUNE, 2009. ORAL JUDGMENT : 1. The Respondent Nos.4, 5, 6 and the present appellant filed an application for compensation being Motor Accident Claims Petition No.7 of 1993 in the District Court at Nashik against the Respondent No.1 namely Maharashtra State Road Transport Corporation. Respondent No.2 was the driver of the bus, respondent No.3 was the conductor. Learned Member of the Motor : 3 : Accident Claims Tribunal at Nashik by his judgment and order dated 20 th October, 1999 decided the said application and granted compensation to the original applicants i.e. present appellant and Respondent Nos.4 to 6 to the tune of Rs.1,85,000/-. The learned Member granted a sum of Rs.20,000/- to the present appellant from and out of the total amount which was granted. Being aggrieved by the said award, dated 20 th October, 1999, the appellant herein has filed the present appeal. 2. Respondent No.4 in this appeal is Mangala who was married to Mangilal Binayakya Jain and out of the said wedlock between said Mangilal and Mangala, the Respondent No.5 and Respondent No.6 were born. The present appellant happens to be the mother of said Mangilal. Accident in question took place on 23 rd July, 1992 and the Bus of the Respondent No.1 bearing No.MH-12/F-3932 was involved in the said accident. Said Mangilal was dashed by the said bus and said Mangilal died in the course of the accident. It is to be noted that since the Respondent No.1 MSRTC, Respondent No.2, the driver and Respondent No.3 the conductor have not filed any appeal against the : 4 : aforesaid award. In view of this it, is not necessary for this Court to go into the question as regards the negligence on the part of the driver who was driving the said Bus and the question which is required to be considered is as regards grant of compensation and in particular to the present appellant. 3. In the course of trial on behalf of the applicants, Mangala, wife of Mangilal stepped into the witness box as PW-1. No other witness was examined on behalf of the applicants namely Mangala and others. One witness was examined on behalf of the Respondent No.1. However, his evidence has no bearing on the questions which are involved in the present appeal. 4. Learned Member after considering the evidence given by Mangala PW-1 came to the conclusion that the applicants have not been able to prove the income of the deceased at Rs.3,000/- per month as claimed. Similarly, the case of the appellants that the deceased was contributing a sum of Rs.2,000/- was held as not proved. For reasons mentioned in the award, learned Member came to the conclusion that the income of the deceased should be fixed on notional basis. As : 5 : a result of this, he came to the conclusion that the income of the deceased per year should be fixed at the rate of Rs.15,000/-. Thereafter, he proceeded to arrive at the final amount of compensation payable by giving further reasons. 5. I have heard learned advocate Mr. Bubna on behalf of the appellant i.e. mother of Mangilal and learned advocate Mr. Hegde on behalf of Respondent No.1 MSRTC. 6. Learned advocate Mr. Bubna submitted that the learned Judge was in error in arriving at conclusion that the original applicants were not in a position to prove the income of the deceased at the rate of Rs. 3,000/- per month. According to him, the evidence of Mangala PW-1 was sufficient to arrive at the said conclusion keeping in view the three important documents namely the self-assessment challans at Exh. 21,22 and 23 which showed that a sum of Rs.1,350/-, Rs. 1,550/- and Rs.3,500/- have been paid as Income Tax on behalf of Mangilal for the assessment year 1990-91, 1991-92 and 1992-93. According to the learned advocate Mr. Bubna, learned Judge ought to have given weightage to these documents and should have : 6 : considered that the deceased was a tax payer and that is how the income of the deceased was rightly stated as Rs.3,000/- per month. Learned advocate Mr. Bubna therefore submitted that the learned Judge arrived at wrong figure as regards income of the deceased. Learned advocate Mr. Bubna had further submitted that learned Judge has given a petty amount to the appellant namely Rs.20,000/- when a sum of Rs. 1,85,000/- was ordered to be paid by the impugned award. He had therefore submitted that the appeal should be allowed and that the quantum of the income of the Mangilal should be fixed at Rs.3,000/- per month and based on that figure, further calculations should be arrived and substantial amount should be paid to the appellants. 7. Learned advocate Mr. Hegde appearing on behalf of Respondent No.1 submitted that though it was stated in the application that the income of the deceased was Rs.3,000/-, no cogent evidence was placed before the Court except stating the said fact in the examination in chief. He submitted that if one considers the cross-examination of Mangala PW-1, it would clearly go to show that said deceased was running the shop : 7 : alongwith his brother who used to look after the business with the deceased and there was a joint account of the business. Learned advocate Mr. Hegde further pointed out that in the cross-examination, it is admitted by Mangala that after the death of the deceased, the business is still continued in the same manner as it was in the past when her husband was alive. According to Mr. Hegde, this evidence would clearly go to show that there is no loss in terms of business and in any case, said Mangala has not placed before the Court cogent evidence to show that the income of the deceased was to the tune of Rs.3,000/- per month. Learned advocate Mr. Hegde had further submitted that the self-assessment challans for three years at Exh.21, 22 and 23 though relied upon by the original applicants, there is no reference to it in the evidence and no efforts were made by the applicants to throw light as to what is the effect of payment of tax. He also pointed out that income tax returns have not been produced before the Court and he has also pointed out that all these amount are paid in November, 1992 i.e. after the death of Mangilal. According to him, the income tax challans by itself will not make out case that deceased had income of Rs. : 8 : 3,000/-. He submitted that the exercise made out by the learned Member was proper in so far as fixing the yearly income of the deceased at the rate of Rs. 10,000/- after deducting 1/3 rd of Rs.15,000/- as the amount used for personal expenses. 8. He had also submitted that the present appellant could have led evidence after the evidence of Mangala was over in order to throw light on the income of the deceased as also to throw light as what were the needs of appellant and to what extent and how she was dependent on the income of the deceased. Mr. Hegde submitted that no evidence is placed by the appellant before the Court to show that as to what was the income of the present appellant, in what way and to what extent she was dependent upon the income of the deceased. According to Mr. Hegde, if no such evidence is placed before the Court, learned member was right in ordering that a sum of Rs.20,000/- should be paid to the appellant and no interference in the said amount is required. He also submitted that apportionment of the total amount done by the learned Member was right keeping in view the fact that Mangala had lost her husband and that Mangala had two children : 9 : aged about 4 years and 2 years respectively at the time of filing of the application. Mr. Hegde had further submitted that the present appellant did not produce cogent evidence and therefore the learned Member was right in passing the impugned award. He therefore pressed for dismissal of the appeal. 9. I have considered the rival submissions. In the application filed by the original applicants it is stated that the deceased had an income of Rs.3,000/-. In the examination in chief, it is stated by Mangala PW-1 that her husband was getting an income of Rs. 3,000/- per month. However, there is no other material to show that her husband was getting a sum of Rs.3,000/-. In fact, the cross-examination conducted by learned advocate for Respondent No.1 dilutes the effect of evidence given for examination in chief in as much as said Mangala had admitted that brother of the deceased was looking after the shop. She has further admitted that during the lifetime of her husband i.e. deceased, the deceased and the brother were looking after the business and there was a joint account of the business. She further admitted that the business is run in the same manner as it was done : 10 : in the past i.e. when the deceased was alive. She has further stated that her husband had a bank account. All these evidence in the cross-examination will clearly go to show that it is not that the deceased was the only owner of the shop. The said shop was run by the deceased and his brother. The original applicants and in particular Mangala had failed to place before the court proper evidence to show that the deceased had an income of Rs.3,000/- per month. 10. The argument advanced by learned advocate Mr. Bubna that the learned Member should have considered the income tax challans at Exh.21,22 and 23 to hold that the income of the deceased was Rs.3,000/- per month. It is true that self-assessment challans are admitted by Respondent No.1. However, that by itself will not go to show that the income of the deceased was Rs.3,000/- per month. It was necessary for the applicants to produce the income tax returns so as to show the amount of income which was earned by the deceased. That has not been done. It would be a matter of guess work as to what was the income of the deceased if one simply looks to self-assessment challans. It is also required to be mentioned that in : 11 : the evidence of Mangala, there is no reference to these self-assessment challans and no light is thrown as regards the income of the deceased based on self assessment challans and the total amount of tax payable. In my view, these income tax challans by themselves will not make out the case that the income of the deceased was Rs.3,000/- per month. Even reading those documents alongwith evidence of Mangala, it cannot be said that income of the deceased was Rs. 3,000/- per month. 11. It is to be noted that the present appellant was a party applicant. She had all the right to enter into the witness box in order to prove the case of the applicants. If the present appellant was of the view that Mangala has not given proper evidence in support of the case, it was open for the appellant to step into the witness box and give evidence. The present appellant has not stepped into the witness box and has not given evidence. I have already observed that evidence of Mangala alone by itself is not sufficient to hold that the deceased was earning a sum of Rs. 3,000/- per month. : 12 : 12. I have considered the reasons given in the impugned judgment and I am inclined to observe that the learned Member has considered the income aspects in appropriate manner and he has given reasons to arrive at conclusion that the income of the deceased will have to be considered on notional basis. The learned Member has rightly fixed the income of the deceased. The deceased was about 27 years of age at the time of accident and by multiplier of 15 has been applied. The learned Member has applied a proper multiplier. He has also granted sum of Rs.25,000/- towards the loss of love and affection. This will mean that the learned Member has considered the matter in proper perspective and has arrived at final conclusion so as to grant a sum of Rs.1,85,000/-. In my view, the learned Member has considered the entire matter in the proper perspective and no fault can be found in the award of Rs.1,25,000/- and to that extent, argument advanced by learned advocate Mr. Bubna will have to be rejected. 13. The next point is as regards grant of Rs.20,000/- to the present appellant. The present appellant happens to be the mother of deceased. Her age : 13 : mentioned in the application is 55 years in the year 1993. Evidence of Mangala does not throw light on the question as regards the need of present appellant. There is no evidence as regards the income of the appellant and to what extent the appellant was dependent upon the income of the deceased. It was open for the present appellant to give evidence as to what was her income when the deceased expired and to what extent she was dependent upon the deceased. In the absence of the said evidence, grant of Rs.20,000/- will have to be treated as proper. The learned Member kept before him the future of two minor children i.e. present Respondent Nos.5 and 6 who had lost their father as also the future of Respondent No.4 Mangala, widow of the deceased who was not employed and was attending to household duties. 14. In the absence of appropriate evidence so as to show dependency of the present applicant on the deceased in terms of money, I am of the view that the learned Member has arrived at correct amount concerning the appellant and to that extent, I am of the view that no interference is required. : 14 : 15. The appellant had filed Civil Application No.2177 of 2007 for taking on record copies of Income Tax Returns regarding the business of the deceased. By separate order the said application is rejected. 16. For the reasons mentioned aforesaid, I am inclined to observe that the appellant has not been able to make out a case so as to interfere in the impugned order with reference to the grant of compensation as a whole as also with reference to grant of amount of Rs. 20,000/- from the total amount of compensation awarded in the accident claim. In view of the above, the appeal is dismissed. In the facts and circumstances, there shall be no order as to costs. (R.Y. Ganoo, J.)