[2009] 12 S.C.R. 596

MEENABEN PANKAJKUMAR JOSHI & ORS. ' •

NEW INDIA ASSURANCi;: CO. LTD.

(Civil Appei=il No.5194 of 2009)

AUGUST 7, 2009

[S.B. SINHA AND DEEPAK VERMA, JJ.)

Motor Vehicles Act, 1988 - s. 168 - Compensation -

~ ....

Award of - Claimant's husband, director of a company and c also running proprietorship concern - Death in motor vehicle accident -- Claim of compensation - Filing of income tax returns for assessment year disclosing income - Compensation awarded by tribunal with proportionate costs

- High Court modifying the compensation amount as also D rate of interest - On appeal held : In terms of s. 168, it is necessary for the tribunal to award fair compensation ,... • •

Additional documents have been produced before this Court

- In the interest of justice, matter remitted back to tribunal to consider the additional documents as aqditional evidence for

E awarding compensation.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nq. !?194 of ; mo~.

From the Judgment & Order dated 27.2.2007 of the High F Court of Gujarat at Ahmedabad in First Appeal No. 2140 of

2006.

K.V. Vishwanathan, Abhisehk Kaushik, Janak Shah, Rauf Rahim Yadunandan Bansal for the Appellants.

G Salil Paul, Manjeet Chawla for the Respondents. ...

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

H 596

ME;~NABEN PANKAJKUMAR JOSHI & ORS. v. NEW 597

INDIA ASSURANCE CO. LTD. [S.B. SINHA, J.] • "'

2. The claimants in a rnotor accidnt claims are before us A aggrieved by and qissatisfied with the j4cjgment and a, wa.rd passed by a Division Bench of the Hih Court of Guja.ra.t whereby and whereunder a judgment ard award dated

13.122005 passed by the Motor Accidents Claims Tribunal, Fast Track Court-4, Gandhidham - Kutch in MAC Petition B No.297 of 2005 (original No.2 of 1998) wa~ modified.

3. The deceased Raj Kumar Joshi was a Director of a

~ Company commonly known as Kandla Clearing Agency Private Limited. He was drawing a salary of Rs.7,500/- per month. He c was, however, also running a proprietorship concern carrying on business in 'Clearing and Forwarding' in the name of Ultra Clearing and Forwarding Company.

Appellants filed a claim petition before the Tribunal claiming ...,, a sum of Rs.90 lakhs as compensation in respect of the death D , • of the said Raj Kumar Joshi who died in a motor vehicle accident and with a view to prove their case, appellants, inter i'llia, filed income tax returns for the assessment years 1996- 97 and 1 !397-98 disclosing the income from salary from the Directorship in Ki'!ndla Clearing Agency Private Limited at E Rs.66,000/- and Rs.90,000/- respectively. The sciid returns were accompanied by a certificate issued by the Manager/

~· r Accountant of the C0.rnp<;1ny. In the said incgm~ tax return§, a sum of Rs.12.73 lakhs was also shown as turnover of the business for eight months in respect of the said proprietorship concern. ihe Tribun(:ll passec;! an award for a sum of F

Rs.49,25,000/- with proportionate costs 1'!nQ interest at the rate of 12% per annum from the dte of claim petition till December 2000 and thereafter at the rate of 9% per annum. Respondent No.1 herein preferred an appeal thereagainst before the High G ""'i Court questioning the correctness of the said judgment and award.

4. The High Court by reason of the impugned judgment, so far as the income of the deceased from the aforementioned proprietorship concern is concerned, opined as under : H

A "Even proceeding on the basis that the deceased had set

1 • up another business in the name of Ultra Clearing and Forwarding Company in May 1997 and even proceeding on the basis that there were deposit:? in the bank accounts of the deceased with State Bank of Bikaner and Jaipur,

B we cannot at all approve of the approach of the Tribunal in proceeding on the basis that the margin of profit or margin of commission of the deceased in the said business was to the extent of 20%. The very nature of the business of the deceased being that of clearing and

~ c forwarding agent would mean that the deceased would be acting as an agent of the consignors or consignees and, therefore, such receipts would to a substantial extent be the price of the goods being consigned. The very fact that after the accident the widow of the deceased filed income

D tax returns for the salary Income of the deceased for the fc previous years 1995-96 and 1996-97 but did not file and . ' income-tax return for the subsequent year i.e. 1997-98 for the alleged business income allegedly earned between May and October 1997 belies the claimants' case that the

E deceased was getting substanial income from the business being carried on by him in the name of Ultra Clearing and Forwarding Company. We are, therefore, shocked to find that the Claims Tribunal accepted the - claimants' case about the alleged income of the deceased from the business in the name of Ultra Clearing and F Forwarding company without making any probe into such tall claim and without testing the claimants' case even on the touchstone of commonsense."

(Empnasis supplied)

G So far as the question with regard to the applicability of

the Indian Evidence Act is concerned, the High Court while opining that the strict rules of evidence would not apply to the claim proceedings before the Tribunal, held as under ;

H "The foregoing discussion would show that there was no

MEENABEN PANKAJKl:lMAR JOSHI & ORS. v. NEW 599

INDIA ASSURANCE CO: L TG:l: [S.B. SINHA, J.)

• E:lvidence oh record before the Tribunal to arrive at the A conclusion that on the credit amount of Rs.12.73 lakhs: the deceased was getting commission of 20% as held by the Tribunal. The finding of the Tribunal on this score is, therefore, not only incorrect and unwarranted, but to say the least, perverse. No reasonable person instructed in this B branch of law would ever arrive at such conclusion that the deceased was getting commission of 20% of the gross deposits made in his bank accounts. The finding can never

~ be said to be based on judicial considerations.''

The High Court also interfered with the rate of int0rest c

opining that the rate of interest should be fixed at 9% per annum from the date of the claim till the date of deposit.

5. Mr. K.V. Vishwanathan, learned senior counsel appearing on behalf of the appellant, would contend that the D ; r High Court committed a serious error insofar as it held that a forwarding and clearing agent dealt with goods. It was urged that the expenditures required to be incurred by a clearing and forwarding agency will depend upon the expenditures required to be incurred in terms of the agreement as clearing and E forwarding agent does not deal with sale of goods and as such the question of payment of any price of the goods being > consigned would not arise.

6. Before us, an application has been filed seeking F permission to reply upon additional documents containing various bills, debit notes, etc. to show the nature of expenditure incurred by the said proprietorship concern.

7. Having heard the learned counsel for the parties, we are of the opinion that keeping in view the provisions of Section G .,.

168 of the Motor Vehicles Act, 1988 in terms whereof the Tribunal is required to award a fair compensation, the additional documents sought to be produced before us should be taken into evidence. We say so because the appellants have contended that those documents were not available at the H

A relevant time. Evdently, they have not been brought on records

before the Tribunal also.

b. We, herefore, are of the opinion that the interest of justice would be subserved if the matter relating to award of

8 compensation is considered afresh by the Tribunal upon taking

additional documents placed before us as additional evidence.

The claimants unless admit or formal proof thereof is dispensed with, may prove the said documents by examining witnesses.

The respondents, it goes without saying, would be entitled to cross-examine the said witnesses produced on behalf of the C appellants and would furthermore be entitled to examine their witnesses in this behalf. We make it clear that all other findings arrived at by the Tribunal and as modiified by the High Court shall remain undisturbed.

9. The appeal is allowed to the aforementioned extent and

• •

the matte~ is remanded to the Tribunal with the aforementioned • ' directions and observations. However, in the facts and circumstances of this case, there shall be no order as to costs.

N.J.

Appeal partly allowed.