In absence of documentary proof of income, a deceased income shall be determined by notional income: Allahabad High Court

 on 09 11 2021 on 09 11 1fa647.09.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPURFIRST APPEAL NO.647 20091.Smt. Sahana Khatoon wd oMohd. Israel Ansari aged 30 years Occ. Household.2.Master Saddam s o Mohd. Israel Ansariaged 11 years Occ. Education. 3.Master Imamul s o Mohd. Israel Ansariaged 9 years Occ. Education. 4.Shama Parveen s o Mohd. Israel Ansariaged 8 years Occ. Education. 5.Rajina Khatoon d o Mohd. Israel Ansariaged 7 years Occ. Education. 6.Master Gulam Mustafa s oMohd. Israel Ansari aged 6 years Occ. Education. 7.Reshma d o Mohd. Israel Ansari aged 5 years Occ. Education. All r o Chinchala P.O.M.I.D.C.Chandrapur.Appellant nos. 2 to 7 being minors are represented by their mother andnatural guardian appellant no.1.All r o Chandni Nagar Ghuggus Tahsil and District Chandrapur. .....APPELLANT S ...V E R S U S...1.The New India Assurance Co. Ltd.Through its Branch Manager on R.A. on 09 11 2021 on 09 11 2fa647.09.odtThe New India Assurance Co. Ltd. Gupta Building Kasturba Road Chandrapur.2.Chetan s o Suresh Chunarkar aged major Occ. Service r o WCL Ghuggus B Type Tahsil and District Chandrapur.3.Chandrakant s o Manohar Khandekar aged 23 y ears Occ. Driver r o Indira Nagar Colliery No.2 Ghuggus Tq. Dist. Chandrapur....RESPONDENT S Ms Mitisha Kotecha Advocate for appellants.Mr. M. B. Joshi Advocate for respondent no.1.None for respondent nos. 2 and 3 though served. CORAM: V. M. DESHPANDE J. DATED : 28.10.2021. ORAL JUDGMENT1.This appeal is filed by claimants for enhancement ofcompensation. Heard Ms. Mitisha Kotecha learned counsel forappellants and Mr. M. B. Joshi learned counsel for respondentno.1. Respondent nos. 2 and 3 though served way back in theyear 2009 chose not to remain appear in this appeal and thusnobody is appearing on their behalf.2.Facts giving rise to the present appeal are in shortcompass which are as under: on 09 11 2021 on 09 11 3fa647.09.odtAppellant nos. 1 to 7 are widow sons and daughters ofMohd. Israel Ansari15 Multiplier1 3rd deduction90000=007.Amount after deduction180000=008.Loss of Consortium:(+) Loss of estate(+) Funeral expenses9500=0010Total compensation granted by theTribunal 189500 + 7.5%interest11No fault liability in Rs. 1 89 000 50000=00The claimants were dissatisfied with the amount ofcompensation that was awarded to them. Therefore they filed thepresent appeal. 3.According to the learned counsel for the appellant theTribunal committed error in determining monthly income of thedeceased as Rs.1500 . She submitted that in any case income ofthe deceased was not less than Rs.10 000 per month. She alsosubmitted that the judgment of tribunal cannot stand to thescrutiny of law inasmuch as nothing is granted in favour of the on 09 11 2021 on 09 11 6fa647.09.odtclaimants under the head of future prospects. Also Tribunal haswrongly deducted 1 3rd amount towards personal expenses. She therefore submitted that the appeal be allowed.4.Per contra Mr. Joshi learned counsel for the insurancecompany has supported the judgment of the tribunal and prays fordismissal of the appeal.5.Worth to mention here that the tribunal found that theaccident occurred due to rash and negligent driving of motorvehicle i.e. Tata Sumo having registration no. MH 17 E 206 by itsdriver. The insurance company’s claim that there was acontributory negligence on the part of deceased and also thedriver was not having license was not accepted. Rather it wasrejected by the tribunal. Leave apart separate appeal challengingthe finding recorded against the insurance company was neitherfiled nor the insurance company filed even cross appeal in thisappeal filed by the claimants. Resultantly the finding recorded bythe Tribunal that the deceased was not at all responsible foraccident has attained finality. on 09 11 2021 on 09 11 7fa647.09.odt6.In view of rival submissions on the point of quantum ofcompensation following is the points fall for consideration of thisCourt. Sr.NoPointsAnswer1Whether the learned Member of theMACT has granted just andadequate compensation to theclaimants In the negative.2What order As per final order. 7.Though the claimants in their claim petition averredthat at the time of death the deceased was 40 years old. Nodocumentary evidence was produced on record to prove that theage was 40 years. In my view learned Member of the Tribunalhas rightly reached to the conclusion that at the time of death theage of the deceased was 45 years. The learned Judge has arrivedto that conclsuion in view of the age mentioned in the postmortem note16 SCC 680. Looking tothe age they are entitled to 25% towards future prospects. 12.The learned Judge in my view committed an error indeducting 1 3rd income. Seven persons were dependent on thedeceased. Therefore in my view proper deduction will be 1 5th.The learned Member has applied multiplier of 15. The claimantsare satisfied with the same. on 09 11 2021 on 09 11 10fa647.09.odt13.Perusal of the impugned judgment would show thatinadequate amount was granted in favour of the claimants onaccount of loss of consortium for which they are entitled at therate of Rs.44 000 per dependent in view of the law laid down inMagma General Insurance Co. Ltd vs Nanu Ram Alias ChuhruRam reported in18 SCC 130. Similarly less compensationwas granted to the claimants in respect of the loss of estate andfuture expenses which appellants will be entitled. Therefore inmy view the claimants are surely entitled to enhancement asunder:Quantum of CompensationSr.No.ParticularsAmount25% addition towards future prospects15000=00 4Total yearly notional income75000=005( ) 1 5th deduction15000=006Salary for multiplier60000=007(x) “15” multiplier900000=008Loss of consortium:(+) Rs.44 000 for each claimant(Rs.44000 x 7)308000=009(+) Loss of estate16500=00 on 09 11 2021 on 09 11 11fa647.09.odt10(+) Funeral expenses16500=0011Total Compensation1241000=0012( )Total compensation granted by Tribunal 189500=00Total compensation payable1051500=0014.The conspectus of the aforesaid discussion allows me torecord a finding that the learned Member of the MACT has notproperly determined just and proper compensation.ORDER(i)The appeal is partly allowed.(ii)Judgment and award dated 02.12.2008 passedby Motor Accident Claims Tribunal Chandrapur in MotorAccident Claim Petition No.25 2004 awardingcompensation at only Rs.1 89 500 is hereby set aside.Instead it is held and declared that theclaimants appellants are entitled to total compensation ofRs.12 41 000 Rs.1 89 500 already granted by theTribunal along with interest at the rate of 7.5% p.a. ontotal amount of Rs.12 41 000 from the date of filing ofthe petition i.e. from 09.02.2004 till its actual realization.(iii)Statement of learned counsel of the insurancecompany is accepted that the insurance company will on 09 11 2021 on 09 11 12fa647.09.odtdeposit the amount as granted in this judgment before thetribunal within a period of 2 ½ months from today.After the amount is deposited the claimantswould be entitled to withdraw the same.(iv)Decree be drawn up accordingly. JUDGEkahale 

Summary: Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his income will be determined as notional income. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice V.M. DESHPANDE in the matter of Smt. Sahana Khatoon &amp; Ors vs The New India Assurance Co. Ltd &amp; Anr[FIRST APPEAL NO.647/2009] on 28.10.2021. 
The facts of the case involved a motor vehicle accident which happened on the night of 20.07.2003 which the deceased was returning home after closing his shop. The appellant approached the Motor Accident Claims Tribunal by filing a petition under Section 166 of the Motor Vehicles Act claiming the monthly income of the deceased between Rs. 10,000/- to Rs. 15,000/- and thus an aggregate compensation of Rs. 5,00,000/- along with interest @ 12% per annum from the date of accident i.e. 20.07.2003 till its realization. The Motor Accident Claims Tribunal in view of the facts of the income of the deceased granted a compensation of Rs. .1,89,500/- inclusive of no fault liability amount of Rs.50,000/- along with interest at the rate of 7.5% per annum from the date of filing of petition i.e. 09.02.2004 till its realization with proportionate costs. Aggrieved by the present compensation the appellant preferred this appeal.

The Hon’ble High Court observed that the Motor Accident Claims Tribunal errored in calculating the monthly income of the deceased @Rs. 50/- per day and has determined it on the very lower side. The Hon’ble High Court further stated that “Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his monthly income will have to be determined as notional income.”  Thus, in view of the Hon’ble High Court, it is safe to assume the monthly income of the deceased @ Rs. 5000/-

Additionally, the Hon’ble High Court observed that the Tribunal did not award any amount on account of future prospects to which the claimants are entitled in the light of the Apex Court decision in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Therefore, taking into consideration the age of the deceased, they are entitled to 25% toward future prospects.

Finally, the Hon’ble High Court allowed the appeal granting compensation of Rs. 10,51,500/- plus the amount already granted by the Tribunal an interest @ 7.5% from the date of filing of the petition i.e. from 09.02.2004 till its actual realization.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The facts of the case involved a motor vehicle accident which happened on the night of 20.07.2003 which the deceased was returning home after closing his shop. The appellant approached the Motor Accident Claims Tribunal by filing a petition under Section 166 of the Motor Vehicles Act claiming the monthly income of the deceased between Rs. 10,000/- to Rs. 15,000/- and thus an aggregate compensation of Rs. 5,00,000/- along with interest @ 12% per annum from the date of accident i.e. 20.07.2003 till its realization. The Motor Accident Claims Tribunal in view of the facts of the income of the deceased granted a compensation of Rs. .1,89,500/- inclusive of no fault liability amount of Rs.50,000/- along with interest at the rate of 7.5% per annum from the date of filing of petition i.e. 09.02.2004 till its realization with proportionate costs. Aggrieved by the present compensation the appellant preferred this appeal. 
The Hon’ble High Court observed that the Motor Accident Claims Tribunal errored in calculating the monthly income of the deceased @Rs. 50/- per day and has determined it on the very lower side. The Hon’ble High Court further stated that “Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his monthly income will have to be determined as notional income.”  Thus, in view of the Hon’ble High Court, it is safe to assume the monthly income of the deceased @ Rs. 5000/-

Additionally, the Hon’ble High Court observed that the Tribunal did not award any amount on account of future prospects to which the claimants are entitled in the light of the Apex Court decision in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Therefore, taking into consideration the age of the deceased, they are entitled to 25% toward future prospects.

Finally, the Hon’ble High Court allowed the appeal granting compensation of Rs. 10,51,500/- plus the amount already granted by the Tribunal an interest @ 7.5% from the date of filing of the petition i.e. from 09.02.2004 till its actual realization.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The Hon’ble High Court observed that the Motor Accident Claims Tribunal errored in calculating the monthly income of the deceased @Rs. 50/- per day and has determined it on the very lower side. The Hon’ble High Court further stated that “Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his monthly income will have to be determined as notional income.”  Thus, in view of the Hon’ble High Court, it is safe to assume the monthly income of the deceased @ Rs. 5000/- 
Additionally, the Hon’ble High Court observed that the Tribunal did not award any amount on account of future prospects to which the claimants are entitled in the light of the Apex Court decision in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Therefore, taking into consideration the age of the deceased, they are entitled to 25% toward future prospects.

Finally, the Hon’ble High Court allowed the appeal granting compensation of Rs. 10,51,500/- plus the amount already granted by the Tribunal an interest @ 7.5% from the date of filing of the petition i.e. from 09.02.2004 till its actual realization.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 Additionally, the Hon’ble High Court observed that the Tribunal did not award any amount on account of future prospects to which the claimants are entitled in the light of the Apex Court decision in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Therefore, taking into consideration the age of the deceased, they are entitled to 25% toward future prospects. 
Finally, the Hon’ble High Court allowed the appeal granting compensation of Rs. 10,51,500/- plus the amount already granted by the Tribunal an interest @ 7.5% from the date of filing of the petition i.e. from 09.02.2004 till its actual realization.