The main legal point established in the judgment is the accurate assessment of income for determining compensation in cases of fatal accidents, considering the deceased's employment status and the inclusion of future prospects in income assessment.

R.K. GAUBA, J.

1. Surinder Sharma, 42 years old, working for gain as partner in firm styled as M/s Surinder Kumar and Bros. (Engineer & Govt. Contractor), suffered injuries in a motor vehicular accident that occurred on 10.12.2004, involving negligent driving of Indica car bearing registration no. DL-3CW-2846, which was admittedly insured against third party risk with M/s Royal Sundaram Alliance Insurance Co. Ltd. (appellant in MAC Appeal No. 417/2008) and died in the consequence. His wife and other family members dependent on him, they being appellants in MAC Appeal No. 481/2008, instituted accident claim case (suit no. 217/2005) on 15.04.2005 seeking compensation, impleading, besides the insurance company (insurer), Manish Kumar Jain (respondent in these appeals) as first respondent, he being the driver and owner of the offending vehicle.

2. The tribunal held inquiry and, by judgment dated 17.05.2008, upheld the claim for compensation on the principle of fault liability holding the said Manish Kumar Jain to be responsible for the accident. The said finding has attained finality as it was not challenged.

3. The tribunal awarded compensation in the total sum of Rs. 15,70,000/- it being inclusive of Rs. 12,85,680/- towards loss of dependency, besides Rs. 2,34,019/- towards expenditure on treatment for the period Surinder Sharma had survived and Rs. 50,000/- as composite compensation on account of loss of love and affection and consortium. The insurance company was burdened with the liability to pay with interest @ 7.5%.

4. Both the insurer and the claimants have filed these appeals questioning the computation, the former taking exception to the inclusion of element of future prospects of increase and the latter seeking enhancement of compensation.

5. At the hearing, the claimants through counsel press their appeal on the sole ground that the tribunal fell in error by misconstruing the proof of income of the deceased as adduced through income-tax returns (ITRs). This submission, on perusal of the tribunal’s record is found to be correct and, thus, calls for suitable correction.

6. The evidence adduced before the tribunal included ITRs of the firm on one hand and of the deceased as individual taxpayer on the other, they pertaining to the assessment years 2003-2004, 2004-2005 and 2005-06. Since the accident and death had occurred in 2006, the last return submitted in July, 2006 would be beyond the event and, therefore, must be kept out for consideration. Conceding this, the claimants submitted that the ITRs of the firm, and of the individual (the deceased), upon being looked into would show that the income of the deceased was much more than what was assumed.

7. It is noted that the deceased and his father (one of the claimants) were partners in the business of the firm. They would draw, from the firm, not only salary but also interest on the capital invested and, what is crucial to the appeal of the claimants, share in the profits. The disbursal of such salary, interest and share in the profits were duly reflected in the ITRs of the firm. Having declared such profits as part of the income from the firm, the deceased in his individual ITRs would claim exemption. Be that as it may, the ITRs filed in his individual capacity also reflected the income derived out of share in the profits. The tribunal while making assessment of the income has not included the said component, which in the facts and circumstances, was erroneous.

8. In the above facts and circumstances, upon including the income on account of share in the profits, the total income that had accrued to the deceased during 2003-2004 was (1,05,162 + 2,27,846) Rs. 3,33,008. Similarly the income for assessment year 2004-2005, per his return, was (1,16,098 + 1,57,243) Rs. 2,73, 341/-.

9. Since the evidence would show that the deceased had been in business for quite some time prior to the accident, it will be proper to draw average income of the deceased for two assessment years