Case: Syed Basheer Ahamed &amp; Others Vs. Mohd. Jameel &amp; Another

dependents at the time of his death and the amount, which he was accustomed to spend upon himself. This exercise has to be on the basis of the data, brought on record by the claimant, which again cannot be accurately ascertained and necessarily involves an element of estimate or it may partly be even a conjecture. The figure arrived at by deducting from the net income of the deceased such part of income as he was spending upon himself, provides a datum, to convert it into a lump sum, by capitalising it by an appropriate multiplier (when multiplier method is adopted). An appropriate multiplier is again determined by taking into consideration several imponderable factors. Since in the present case there is no dispute in regard to the multiplier, we deem it unnecessary to dilate on the issue. 14. In the instant case, the main grievance of the appellant is that the High Court erred in reducing the monthly income of the deceased from Rs.7,000/- to Rs.4,000/-. More so, when the claim of the appellants was that the deceased was earning about Rs.20,000/- per month. It needs little emphasis that insofar as the question of earnings of the deceased is concerned, the onus lies on the claimants to prove this fact by leading reliable and cogent evidence before the Tribunal. A bare assertion in the claim petition in that behalf is not sufficient to discharge that onus. In the present case, as noticed earlier, the deceased was carrying on a business. The Return of Income filed by him for the assessment year 1998-1999 (Ex.P-34) was brought on record along with his monthly turnover and tax paid statements submitted to the Commercial Tax Officer (Ex.P-27). Copies of the current account (Ex.P-38) showing the money deposited in the bank maintained by the deceased have also been brought on record. The Return of Income filed on 15th April, 1998 and the accompanying document, namely, trading and profit and loss account for the period ending 31st March, 1998 show a net profit of Rs.42,996/-. Taking into consideration the said documents, the Tribunal took the monthly income of the deceased at Rs.7,000/- per month. However, the High Court felt that in the light of the Income Tax Return, declaring income from the business carried on by the deceased, the yearly income of the deceased was not more than Rs.40,000/- and, therefore, the Tribunal was not justified in adopting the monthly income of the deceased at Rs.7,000/- per month to work out the loss of dependency. According to the High Court, the monthly income of the deceased should have been taken at Rs.4,000/- per month. 15. In our view, though the entries in the current account (Ex.P-38) of the deceased and his transactions with his client, namely, Vasu Agarbathi (Ex.P-23) may not per se be cogent evidence to determine the yearly or monthly income of the deceased from the business(s) he was carrying on, yet we feel that these are some indicators in support of the appellants plea that the business income of the deceased in the succeeding years could be more than what was declared for the year ended 31st March, 1998. But it is again in the realm of speculation, particularly when, unlike income from salaries, earnings in a business may increase with the buoyancy in business and at the same time may diminish with a recession in trade. 16. As regards the future prospects of the deceased, as noted above, except for copies of account of the deceased in the books of account of his client, after the death, no other reliable evidence has been brought on record to show the future plans of the deceased regarding expansion or diversification of his business. In our view, a bare argument by learned counsel for the appellants that the deceased had a potential of expanding his business, cannot be accepted as sufficient material to determine the future prospects of the deceased. The decisions of this Court relied upon by learned counsel for the appellants do not lay down any abstract proposition of law in this regard, which are otherwise distinguishable on facts. 17. In the circumstances, having regard to the material on record, in our opinion, ends of justice would be met if the income of the deceased is taken at Rs.5,500/- per month or Rs.66,000/- per annum. 18. On the question of deduction on account of personal expenses by the deceased, there is no set formula which could be applied in every case to determine as to what should be the deduction on this account. The contention that deduction on that count cannot exceed one-third on the ground that there is some statutory recognition in the Second Schedule to the Act for such deduction, is untenable. The said deduction would depend upon the facts and circumstances of each case. In the present case, no evidence was led on this point as well. In the absence of any evidence to the contrary, the practice is to deduct towards personal and living expenses of the deceased, one-third of the income in case he was married and one-half (50%) if he was a bachelor. Thus, there is no material on record warranting interference with the consistent view of both the courts below on the point. 19. In view of the above discussion, the loss of dependency is determined as Rs.33,000/- per annum and by applying a multiplier of 14, the total loss of dependency is arrived at Rs.4,62,000/-. Adding Rs.20,000/- awarded under other heads, the quantum of compensation is determined at Rs.4,82,000/-. The amount shall also carry an interest at the rate of 6% per annum, as awarded by the Tribunal, from the date of the filing of the claim petition till the date of actual payment. If any amount has already been paid or deposited in terms of order passed by the Tribunal, the same shall be adjusted from the amount now being awarded. The interest element shall also be worked out after the said adjustment. 20.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]arriving at just compensation, it is necessaryn the net income of the deceased available for the support of himself and his dependents at the time of his death and the amount, which he was accustomed to spend upon himself. This exercise has to be on the basis of the data, brought on record by the claimant, which again cannot be accurately ascertained and necessarily involves an element of estimate or it may partly be even a conjecture. The figure arrived at by deducting from the net income of the deceased such part of income as he was spending upon himself, provides a datum, to convert itmp sum, by capitalising it by an appropriate multiplier (when multiplier method is adopted). An appropriate multiplier is again determined by taking into consideration several imponderable factors. Since in the present case there is no dispute in regard to the multiplier, we deem it unnecessary to dilate on the issue.