:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 143 OF 2002 Shri Ramdas Verlekar, of about 63 years of age, goldsmith, r/o H.No.M-65, Duplex, housing board, Gogol, Margao Goa. ... Appellant. V e r s u s 1. a) Mrs. Motibai Ganpat Nagvenkar, b) Mr. Satish G. Nagvenkar, and his wife, c) Mrs. Chandrakala S. Nagvekar, d) Sitaram G. Nagvekar, and his wife, e) Mrs. Rupa S. Nagvekar, f) Mr. Uday G. Nagvekar, and his wife, g) Mrs. Sunita U. Nagvekar, All of major age, r/o H.No.137, Opp. G. B. Stores, Fontainhas, Mala, Panaji Goa. h) Mrs. Milan S. Lotlikar, and her husband, i) Shri Suresh Lotlikar, Both of major age, r/o H. No. Not known, Saket, Azad Bhavan Marg, Alto Porvorim Goa. j) Mrs. Nandan S. Lotlikar, and her husband, k) Mr. Shyam Lotlikar, Advocate, l) Smt. Vidya A. Nerulkar, and her husband, m) Shri Ajit Nerulkar, All of major age, r/o H. No. Not known, Taribhat, Siolim, Bardez Goa. n) Mrs. Swarupa R. Madkaikar, and her husband. o) Shri Rajnikant Madkaikar, Both of major age, r/o 1st Floor, near Meenaxi Hotel, Opp. City Hospital, Margao Goa. 2. M/S. National Insurance Co. Ltd., 3rd Floor, Vaman S. Bldg. Near Laximi Narayan temple, Mapusa, Bardez Goa. ... Respondents :2: Mr. V. G.P. Dukle, Advocate for the Appellant. Mr. M. S. Joshi, Advocate for the Respondent No.2. CORAM : D. G. KARNIK, J. DATED : 26 th AUGUST, 2010. ORAL JUDGMENT : 1. This Appeal is directed against the judgment and order dated 23rd October, 2001 passed by the Motor Accident Claims Tribunal, South Goa, Margao, ( for short “the Tribunal”), awarding compensation of Rs.1,75,478/-. By this Appeal the Appellant ( who is the original claimant ) prays for enhancement of the amount of compensation. 2. Respondent No.1, who was owner of the vehicle involved in the accident, is represented by his heirs. They are absent though served. Only the Respondent No.2 – Insurance Company appeared and contested the Appeal. 3. On 30th April, 1997 the Appellant, was travelling in a maruti van belonging to him. A maruti car belonging to the respondent No.1 gave a dash to the appellants vehicle at about 2.45 p.m. at Nuvem on the National highway. The Appellant suffered injuries, a fracture in the leg as well as dislocation of the right hip. After the discharge from hospital, he filed a Claim Petition for claiming compensation against the :3: respondent No.1 by joining the Insurance Company as a party Respondent. After consideration of the evidence adduced by the parties, the Tribunal held that the accident was caused on account of negligence of the driver of the maruti car belonging to the Respondent No.1. The Tribunal also held that the Appellant sustained fracture and dislocation of right hip in the accident and, therefore, the Appellant was entitled to a compensation. The Tribunal awarded compensation of Rs. 1,75,478/- as against the claim of Rs.6,91,213.32 made by the claimant. The owner and the Insurance Company have not filed any Appeal against the judgment of the Tribunal nor they have filed any cross objections. The finding of negligence is not challenged before me. Hence, the only question that remains for consideration in this Appeal is : “Whether the amount of the compensation awarded by the Tribunal is inadequate or requires any enhancement”. 4. According to the Appellant, he was carrying on business as a goldsmith and was owner of a shop of goldsmith. Prior to the accident his income from the business of goldsmith was about Rs.82,000/- per year. However, in view of Section 5A of the Income Tax Act, it was apportioned equally between himself and his wife at Rs.41,000/-each. On account of accident, the Appellant was unable to look after his business for several months and, therefore, in the next year his income dropped to :4: about Rs.41,000/- which was again apportioned equally between him and his wife at Rs.20,500/- each. The injuries suffered resulted in 15% permanent disability to the appellant who was unable to squat on the floor and do his business of preparation of gold ornaments by squatting on the floor. His business therefore continued to suffer and he continued to suffer loss of income in the future years also. According to him, the Tribunal erred in not appropriately awarding compensation towards the loss of business. 5. The Tribunal has awarded the compensation of Rs.73,000/- towards reimbursement of the medical expenses incurred and Rs.25,000/- towards reimbursement of travelling expenses. The Tribunal has also awarded compensation of Rs.22,500/- towards 15% permanent disability and an amount of Rs.4,500/- as compensation for the salary of an attendant for three months and compensation of Rs.30,000/- towards the pain and suffering. These amounts of compensation are not challenged before me by the Appellant. The learned Counsel appearing for the Appellant however, submitted that the compensation of Rs.20,478/- awarded towards the loss of business was inadequate and was required to be enhanced. 6. The Appellant had produced before the Tribunal the income tax return filed by him for the financial years 1996-1997, 1997-1998 and :5: 1998-1999 corresponding to the assessment years 1997-1998, 1998-1999 and 1999-2000. In the financial year 1996-1997 ending on 31st March, 1997 which ended just one month prior to the accident, the income of the Appellant was shown to be Rs.40,950/-. The Tribunal, therefore, held that the income of the Appellant immediately prior to the accident was Rs.40,950/-( rounded to Rs.41,000/- ) per year and took this amount as the base amount for computing the loss of income. The learned Counsel appearing for the Appellant submitted that the Tribunal overlooked the provisions of Section 5A of the Income Tax Act and if the said provisions were taken into account, the income of the Appellant should have been computed twice that of the amount i.e. Rs.82,000/- per year. Section 5A of the Income Tax Act which was inserted by the Finance Act, 1994 w.e.f. 1st April, 1963 reads thus : “5A.(1) Where the husband and wife are governed by the system of community of property ( known under the Portuguese Civil Code of 1860 as “COMMUNIAO DOS BENS”) in force in the State of Goa and in the Union territories of Dadra and Nagar Haveli and Daman and Diu, the income of the husband and of the wife under any head of income shall not be assessed as that of such community of property (whether treated as an association of persons or a body of individuals), :6: but such income of the husband and of the wife under each head of income (other than under the head “Salaries”) shall be apportioned equally between the husband and the wife and the income so apportioned shall be included separately in the total income of the husband and of the wife respectively, and the remaining provisions of this Act shall apply accordingly. (2) Where the husband or, as the case may be, the wife governed by the aforesaid system of community of property has any income under the head “Salaries”, such income shall be included in the total income of the spouse who has actually earned it.” 7. In respect of the persons who are governed by the system of community of property under the Portuguese Civil Code of 1860 as Communiao Dos Bens, the income of the husband and of the wife under any head of income is not to be assessed as that of such community of property but such income of the husband and of the wife under each head of income ( other than under the head 'Salaries' ) is to be apportioned equally between the husband and the wife and the income so apportioned is to be included separately in the total income of the husband and of the :7: wife respectively. There is no dispute that the Appellant is governed by the system of community of property under the Portuguese Civil Code of 1860. As such, in view of Section 5A of the Income Tax Act, the income under the head of business which accrued to the Appellant was divided equally between him and his wife. The income of the Appellant which was about Rs.82,000/- was thus apportioned equally between him and his wife and the income of the appellant assessable to tax was held to be Rs.41,000/-. The reduction in calculation of income to the extent of 50% is created by a provision of law contained under Section 5A and is only for the purpose of computation of taxable income. The real income of the Appellant was Rs.82,000/- and not Rs.41,000/- was divided equally between him and his wife for computing the income tax. In my view, therefore, the Tribunal ought to have taken the income of the Appellant to be Rs.82,000/- per year for computing the amount of compensation and the Tribunal erred in ignoring the provisions of Section 5A of the Income Tax Act which notionally reduced the income of the Appellant to the extent of 50% for the purpose of computation of income tax payable by the appellant and his wife. 8. The Tribunal has held that on account of the accident the Appellant was incapacitated to look after his business for some time and thereafter he was not able to give full attention to his business for some more time. The Tribunal has, therefore, assessed the loss of income of the Appellant to the extent of six months' earnings. The learned Counsel :8: for the Appellant submitted that the Tribunal erred in restricting loss to the extent of loss of income of six months and it ought to have awarded the compensation by assuming the loss of income at least for a period of five years. He submitted that the Appellant was aged 60 years at the time of the accident and he could have easily carried out his business up to 70 years and for a period of 10 years during which he continued to suffer loss of income at least partially. He submitted that the Appellant was unable to squat on the floor and for the purpose of preparing gold ornaments he was required to squat on the floor which he was unable to do on account of hip injury. He invited my attention to the evidence of the doctor who has stated that on account of hip injury the Appellant was unable to squat on the floor. The learned Counsel for the Appellant submitted that the loss of income should have been assessed at the rate of 50% of the income for a period of 10 years. I am unable to agree for the reasons indicated below : 9. Though the Appellant is carrying on business of gold smith, there is nothing on record to show that the Appellant was actually involved in the preparation of gold ornaments. He was a shopkeeper and owner of a shop. The income tax return shows that he had employed artisans/employees and their wages were shown as expenses in the income tax return. The Appellant appears to be principally involved in showing the ornaments to the customers, selling them and collecting the cash. The preparation of gold ornaments appears to have been done by :9: his employees. Further more, if one peruses the income tax return, it shows that in the financial year 1996-1997 ( year immediately prior to the accident ) the gross income was Rs.1,42,984/- and the net income was about Rs.82,000/-. For the financial year 1997 - 1998 in which year the Appellant suffered accident ( on 30th April, 1997 ), the gross income was reduced to Rs.1,10,210/- and the net income was reduced to Rs.41,117/-. There was a loss of income to the extent of Rs.41,000/- for the whole of the year. This loss of income was distributed equally between husband and wife. In the following financial year 1998-1999, the gross income again increased to Rs.1,31,410/-. The net income, however, did not keep up the same pace of the increase in the gross income. Net income was Rs.43,000/-. However, perusal of the receipts and expenses statement filed on record shows that this was on account of increase in the bank charges from Rs.14,000/- to Rs.24,500/-. In my view, this circumstance shows that the Appellant suffered real loss of income in the year of the accident and the year thereafter his business tendend to return to normal. The reduction in the net income in the following year was not on account of really diminution of business or on account of substantial increase in the wages but was on account of substantial increase in the bank interest and charges. The Tribunal has computed the loss to the extent of six months' loss of income. The view taken by the Tribunal of loss of six months income is a possible view. Some amount of guess work is necessary for assessing the loss on the facts and circumstances of each :10: case. The actual loss of income due to loss of business arising out of in capacity of the owner of the business to look after the business can only be estimated and the estimate cannot be based on a mathematical formula. The guess work made by the Tribunal of six months' loss of income appears to be an appropriate estimate in the facts and circumstances of the case. The Tribunal has awarded the compensation of Rs.20,478/- as six months' loss of income however, that amount would be required to be doubled in view of the fact that the Tribunal has considered the loss of income of the Appellant without referring to Section 5A of the Income Tax Act. 10. For these reasons, the Appeal is allowed in part. The amount of compensation of Rs. 1,75,478/- is required to be enhanced by further a sum of Rs.20,478/- which comes to Rs. 1,96,000/- after rounding to the nearest Rs.100/-. The award of the Tribunal is modified to the extent that the amount of compensation is enhanced from Rs.1,75,478/- to Rs.1,96,000/- together with interest thereon at the rate of 9% per annum from the date of the Claim Petition till payment. In view of partial success in the appeal, the parties shall bear their own costs of the appeal. D. G. KARNIK, J. at*