1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT (Smt. Vimla Devi and ors. Vs. Managing Director and ors.) S.B.CIVIL MISC. APPEAL NO.43/2000 S.B. Civil Misc. appeal under Section 173 of Motor Vehicles Act against the award dated 09.02.1999 passed by M.A.C.T. Baran, in claim Case No.54/97. DATE OF JUDGMENT ::: 22nd OCTOBER, 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sandeep Mathur for the appellants. Mr. Vinod Tyagi for the respondents. REPORTABLE BY THE COURT: Appellants have impugned the award dated 9th February, 1999 passed by the Motor Accident Claims Tribunal Baran, whereby the learned Tribunal decreed an amount of Rs.6,86,521/- as compensation in favour of the claimants-appellants and against the non-claimants-respondents. Appellants have prayed to enhance the quantum of compensation from Rs.6,86,521/- to Rs.61,36,216/- as claimed in the claim petition and modify the award under challenge accordingly. 2. The nub of the appellants' story is that on 14th December, 1996, deceased Satyanarayan, who was on a trip from Atru to Bombay-Goa along with his family members and relatives, was going from Bombay to Goa by 2 Bus No.GA-1/T-0138. On 17th December, 1996 when they reached near old post office, Colgaon near Sawantbadi on Goa-Bombay road at about 3.15 AM, their bus collided with other bus No.GA-2/T-4197, which was coming from behind. This accident occurred on account of the rash and negligent driving of the driver of both the buses. The accident resulted into the death of Satyanarayan. 3. Heard the learned counsel for the appellants as also the learned counsel for the respondents and carefully perused the relevant material on record. 4. The learned counsel for the appellants took me through the finding of issue No.3 recorded on Page Nos.8, 9 and 10 of the impugned award and contended that there being ample evidence with regard to the income of the deceased on record as Rs.8,800/- per month, the learned Tribunal has taken into consideration only RS.5,000/- per month stating that though there was evidence on record to accept Rs.8,800/- per month income of the deceased, but since the income above Rs.60,000/-p.a. was taxable and the deceased was not paying income tax, hence, only Rs.60,000/- annual income shall be considered for computing the quantum of compensation. Learned counsel while concentrating his argument only on this issue submitted that any default under the provisions of the 3 Income Tax Act that would have entailed in the penal consequences but could not nullify the effect of the statement of his wife and other documentary evidence with regard to the income of the deceased. He has relied upon one judgment of Oriental Insurance Co. Ltd. VS. Bhupender Kaur & Ors. delivered by Allahabad High Court reported in II (2003) ACC, 34 (DB). Hence, Rs.8,800/- per month income of the deceased should be considered and the award should be accordingly modified. 5. Learned counsel for the respondents, in contra, has defended the impugned award stating the same to be perfectly just and proper. The learned counsel has contended that the appellants had not produced any documentary evidence which could reveal that the income of the deceased was Rs.8,800/- and he was paying any income tax thereon. In the absence of the income tax returns, the income of Rs.8,800/- per month could not be taken into consideration and thus, the appeal deserves to be dismissed. 6. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record including the impugned award, it is noticed that the deceased Satyanarayan before his death was working as a Munim in Firm Chandrasen Satyanarayan and 4 earning Rs.2,000/- per month out of his job. It is also found that he was working as a Teacher in a Private Educational Institution and was earning Rs,2,856/- per month, which is proved from salary certificate Ex.26. Similarly, he was discharging the job of selling Rajasthan Patrika & Navjyoti daily Newspapers and was earning Rs.4,000/- per month as commission permissible on sale. This income stands proved by documentary evidence Ex.30 and Ex.31. Thus, as per these details, the deceased was earning Rs.8,800/- per month. A perusal of the evidence led by the claimants-appellants reveal that the appellants adduced documentary evidence Ex.26, Ex.30 and 31 to prove the income of Rs.2,856/- and Rs.4,000/- per month, but no documentary evidence in the form of salary certificate or whatsoever has been filed to prove that he was working as a Munim in the Firm of Chandrasen Satyanarayan and earning Rs.2,000/- per month. Thus, it can safely be said that in the absence of documentary evidence with regard to the income of Rs.2,000/- per month receiving from Firm Chandrasen Satyanarayan, the deceased Satyanarayan was earning only Rs,6,800/- per month. It is true that the deceased was not paying any income tax on his income but it is also proved that the deceased was earning Rs.6,800/- per month as indicated 5 hereinabove. 7. In any view of the matter the non- payment of the income tax cannot rule out the possibility of the income of the deceased as claimed by the appellants. Any default under the provisions of the Income Tax Act that would have entailed in the penal consequences but could not nullify altogether the effect of the statement of the deceased's wife AW/1 Vimla Devi, AW/2 Narendra Kumar Vishnav and documentary evidence Ex.26, Ex.30 and Ex.31. Albeit, the learned Tribunal has also observed that the deceased was earning Rs.8,800/- per month out of his different sources but since he was not paying any income tax, so for computation of compensation, he considered only Rs.60,000/- to be his annual income. The finding of the learned Tribunal does not seem to be just and proper. Though, the learned counsel for the respondents has submitted that the finding of the tribunal in this regard is cogent but I find substance in the arguments of the learned counsel for the appellants and his argument in this regard is found to be tenable. 8. In view of above, it seems to be advisable to consider Rs.6,800/- to be monthly income of the deceased. Taking this income of the deceased into consideration, the quantum of 6 compensation can be computed thus:- Rs.6800X12X16= Rs.13,05,600/- 9. The amount of compensation so arrived at shall be reduced by 1/3rd in consideration of the expenses which the deceased would have incurred towards maintaining himself had he been alive. 1/3rd of the above computation income comes to Rs.4,35,200/-. If we reduce 1/3rd amount from the quantum of compensation so arrived at above, the appellants shall be entitled to claim Rs.8,75,400/- as compensation from the non-claimants- respondents. Rest of the amount awarded under different heads shall remain unchanged. 10. No other argument has been advanced by the learned counsel for the appellants. 11. For the reasons stated above, the appeal succeeds. The quantum of compensation is ordered to be raised from Rs.6,86,521/- to Rs.8,75,400/- and the award accordingly stands modified. Rest of the terms under the award shall remain unchanged. 12. Non-claimants respondents are directed to deposit the enhanced amount under the award within a period of 30 days with the learned Tribunal, who shall disburse the amount so awarded in 7 accordance with the terms already settled under the award proportionately. No order as to costs. (MAHESH BHAGWATI),J. pcg 8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT (Smt. Vimla Devi and ors. Vs. Managing Director and ors.) S.B.CIVIL MISC. APPEAL NO.43/2000 DATE OF JUDGMENT ::: 22nd OCTOBER, 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sandeep Mathur) for the appellants. Mr. Vinod Tyagi for the respondents. For the reasons stated above, the appeal succeeds. The quantum of compensation is ordered to be raised from Rs.6,14, to Rs.8,70,400/- and the award accordingly stands modified. Rest of the terms under the award shall remain unchanged. Non-claimants respondents are directed to deposit the enhanced amount under the award within a period of 30 days with the learned Tribunal who shall disburse the amount so awarded in accordance with the terms already settled under the award proportionately. No order as to costs. (See separate judgment). (MAHESH BHAGWATI),J. pcg