Point of Law: In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers

JUDGMENT :

Subhash Chand, J.

1. Heard Sri A.T. Pandey, learned counsel for the appellant, Sri N.K. Srivastava, learned counsel appearing for National Insurance Company Limited and perused the judgment and order impugned.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 17.01.2020 passed by Motor Accident Claims Tribunal, Court No.4, Aligarh (hereinafter referred to as 'Tribunal') in M.A.C.P. No.318 of 2016 awarding a sum of Rs.3,20,256/-.

3. The claimants are the widow, mother, daughter and son of the deceased. The Tribunal has considered the annual income of the deceased as Rs.65,412/-. The income of the deceased was claimed as Rs.1,30,824/-per year but the Tribunal has decided that the income of the deceased would be Rs.87,216 for six months and Rs.43,608/- for another six months when the sugar mill was closed and hence has held that income would be Rs.65,412/- per year.

4. It is further submitted that the incident is of the year 2015 and at that time the deceased was in the employment of Sugar Mill, therefore, the Tribunal has erred in assessing the annual income of the deceased and has awarded less compensation to the claimant-appellants.

5. The counsel for respondent has contended that this figure cannot be clubbed together with the income of the deceased as Rs.87,216/-(for a period of six months when the mill was functional) plus Rs.43,608/- for another six months when the mill remain closed. The average income will have to be considered, which would be Rs.87,216/-.

6. The income of the deceased was Rs.87,216/- for the first six months and for the later six months when Sugar Mill was closed was Rs.43,608/- but the Tribunal has clubbed Rs.87,216/- with Rs.43,608/- and has divided the same by two, which could not have been done, the reason, even the income of the deceased cannot be said to be Rs.65,412/-per year. His income has to be added. We are adding the amount, namely, Rs.87216/- plus Rs.43,608/- as income as was paid to the deceased. The deceased was having employment and therefore as per judgment of Pranay Sethi and the judgment cited by the counsel for the appellant i.e. National Insurance Co. Ltd. Vs. Indira Srivastava, 2008 (2) SCC 763 wherein the term income has been defined in paras 18, 19 and 20, which are reproduced as under :

“18. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.) has been defined as under :

"The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture."

It has also been stated :

'INCOME' signifies 'what comes in' (per Selborne, C., Jones v. Ogle, 42 LJ Ch.336). 'It is as large a word as can be used' to denote a person's receipts '(per Jessel, M.R. Re Huggins, 51 LJ Ch.938.) income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC 511 : 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337."

19. If the dictionary meaning of the word 'income' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute.

20. In N. Sivammal & Ors. v. Managing Director, Pandian Roadways Corporation & Ors. [(1985) 1 SCC 18], this Court took into consideration the pay packet of the deceas