The court established that in Motor Vehicle Act cases, the claimants must prove the income of the deceased by preponderance of probabilities, and Income Tax returns filed prior to the accident should be presumed correct unless there is evidence to doubt them.

JUDGMENT :

S. Sounthar, J.

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to allow the present appeal award enhanced compensation in judgment and decree dated 21.04.2015 in M.C.O.P.No.244 of 2012 passed by the Motor Accident Claims Tribunal (Special District Judge), Erode, as prayed for in this Civil Miscellaneous Appeal with cost.)

1. Aggrieved by the quantum of compensation awarded by the Motor Accident Claims Tribunal, (The Special District Judge), Erode, in M.C.O.P.No.244 of 2012, the appellants herein, being the wife and minor daughter of the victim, filed this appeal.

2. According to the appellants the husband of the first appellant and father of the second appellant, namely David was 39 years old at the time of accident and he was engaged in the business of Air conditioner sales and services under the name and style of Blue Bell Engineering Service at Chennai as the proprietor thereof and earning a monthly income of Rs.60,000/- per month. According to them on 11.02.2012, when the deceased was riding a two wheeler bearing registration No.TN 18.Z.6710 at extreme left side of the Pattaravakkam to E.B.Road, a mobile crane vehicle, bearing the registration No.TN.20.AK.9534, which was driven by the 1st respondent owned by the 2nd respondent and insured with the 3rd respondent, hit the vehicle of the deceased from behind. The appellants claimed that the first respondent had driven the vehicle in a rash and negligent manner and hence it resulted in fatal accident.

3. Before the Tribunal, the 1st respondent remained ex-parte, the 2nd and 3rd respondent filed their separate counter and opposed the claim petition. The respondents 2 and 3 denied the manner of accident as claimed by the appellants and they also denied the age and income of the deceased.

4. The Tribunal on the basis of evidence of eye witness P.W.2, came to the conclusion that the accident took place due to rash and negligent driving of 1st respondent. However, the Tribunal held that the 1st respondent did not possess heavy vehicle license at the time of accident, though he possessed licence to drive light motor vehicles. Treating the same as violation of the policy condition, the Tribunal applied the doctrine of pay and recovery and thereby, directed the 3rd respondent-Insurance Company to pay the compensation at the first instance to the appellants and recover the same from the owner/second respondent.

5. As against the claim of Rs.1 crore made by the appellants, the Tribunal awarded a compensation of Rs.11,15,000/- and aggrieved by the quantum of compensation, the appellants/claimants have come up with this appeal.

6. The insurance company and the contesting respondents have not questioned the award by way of appeal or cross objection and therefore the other findings of the Tribunal had become final. We are only concerned with the quantum of compensation in this Appeal.

7. As stated earlier, the deceased was engaged in a business of Air conditioner sales and services in the name and style of Blue Bell Engineering Service at Chennai as a proprietor thereof. In order to prove his income, the appellants marked Ex.P14-Income Tax return for assessment year 2009-10, relevant to the financial year 2008-09 and Ex.P15-Income Tax return for the assessment year 2010-11, relevant to the financial year 2009-10 and Ex.P16- Income Tax return for the assessment year 2011-12, relevant to the financial year 2010-11. These documents are only office copies retained by the deceased assessee. In order to prove the authenticity of the documents, the appellants examined official of Income Tax Department as P.W.3, through him they marked the copy of Ex.P14 as Ex.P22 and copy of Ex.P15 as Ex.P23. However, the copy of Ex.P16 has not been marked through the Income tax officials. So it is not clear, whether Ex.P16 was really filed or not therefore,