JUDGMENT :

GITA GOPI, J.

1. The challenge is to the judgment dated 6.4.2018 passed in MACP No. 206/06 by the MACT (Aux), Bhavnagar.

2. The facts of the case as have been noted by the Tribunal suggest that on 1.2.2006, the deceased was driving his Honda Activa near Nilambaug and was going for his catering work at about 8.30 to 8.45 a.m. and one kilometer away from Nilambaug circle, near Swimming pool of Mahanagar Palika, the deceased met with an accident as truck driver of truck bearing registration no. GJ-1-TT-7372 came in a rash and negligent manner in full speed and dashed with Honda Activa. As a result, the deceased sustained serious injuries and succumbed to death. The Tribunal on assessment of the evidence has considered the driver of the truck solely negligent for the accident.

3. Advocate Mr. Premal Rachh for the claimants submitted that during the course of trial, evidence was given to the effect that the deceased was in catering work and he was proprietor of Tripura catering. His earnings were proved by way of income-tax returns for the year 2004-05 at Exh.35 and for the year 2003-04 at Exh.36 and thus, stated that the income tax returns were required to be considered by the Tribunal and merely on assumption, randomly Rs. 2,500/- per month has been considered by the Tribunal which is not in accordance to the evidence produced and proved during the trial.

3.1 Advocate Mr. Rachh further submitted that the consortium loss was required to be granted as per the decision in the case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and Others, (2018) 18 SCC 130 to the dependents.

4. Per contra, Advocate Mr. Maulik Shelat submitted that the income tax returns being statutory documents are to be relied upon, but at the same time, necessary relevant reliable documents were required to be produced to prove his income and further submitted that the Tribunal has committed an error in assessing the prospective rise as 30% where the age of the deceased has been considered as 44 and hence, only 25% prospective rise is required to be added as was in a private work.

5. In the case of Smt. Anjali and Others vs. Lokendra Rathod and Others, 2022 Live Law SC 1012 relying upon the judgment in the case of Malarvizhi and Others vs. United India Insurance Company Ltd. and Another, (2020) 4 SCC 228, the Hon'ble Supreme Court concurred with the High Court to observe that the determination must provide on the basis of the income tax returns “where available.” The income tax returns as statutory documents on which reliance may be placed to determine the annual income of the deceased.

6. In the present matter, income tax returns for the years 2004-05 was produced at Exh.35 and income tax returns for the year 2003-04 was produced at Exh.36. The accident had occurred on 1.2.2006. Since the income tax returns being statutory documents and in view of the observation of the Hon'ble Apex Court in the referred judgment to assess the income, reliance can be placed on the income tax returns produced. At Exh.35, the income has been shown for the year 2004-05 as Rs. 81,170/- while income tax returns at Exh.36 for the year 2003-04 shows income of Rs. 60,785/-. No evidence was produced to show the cause of depletion of the income. However, considering the fact that the accident had taken place in the month of February, 2006 and the return has been filed of accounting year ending. Hence, an average income is considered of both the years which could be rounded off at Rs. 71,000/-.

7. The deceased was aged 44 years at the time of the accident and hence, as per the ratio laid down in the case of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680, 25% prospective rise in income has been considered which comes to Rs. 17,750/- on the income as considered of Rs. 71,000/-. Deducting one-third for the personal expenses, considering the dependency of three, deducting Rs. 29,583/- from the total income of Rs. 88,750/- (Rs. 71,0