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2021 Supreme(All) 670
IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, SUBHASH CHAND, JJ.
Smt. Asha Juneja and Others - Appellants
Versus
M/S Delhi Transport Corp. and Others - Respondents
First Appeal From Order No. 837 of 1998 With First Appeal From Order No. 846 of 1998 With First Appeal From Order No. 1785 of 2018
Decided On : 12-08-2021
For the Appellant : R.B. Singhal, Abu Bakht.
For the Respondent: B.D. Mandhyan, Sudhir Shanker, Vishesh Kumar Gupta.
Point of Law: Main anxiety of the Tribunal in such case should be to see that the heirs and legal representatives of the deceased are placed, as far as possible, in the same financial position, as they would have been, had there been no accident. It is therefore, an action based on the doctrine of compensation.
Headnote:
Motor Vehicles Act, 1988 - Section,110A and Section,110B - Accident claim - FIR - Amount of compensation - Appeals which are pending adjudication since long - Court started hearing matter but has absented himself we waited and adjourned matter who represents claimants absented himself today also- Claimants in said claim to be heirs and legal representative of deceased as according to them Master legitimate who according to him is legally wedded wife of said appeal is dismissed for default –
Finding of the Court:
Court can safely now go by income tax return widow in her oral testimony has withstood cross-examination which would negative submission that it was joint property income which has continued- She has categorically mentioned that rent been taken Respondent by her brother-in-law and father-in-law amount of insurance which has been received by her cannot be deducted and that aspect is also answered against - She has categorically denied in her oral testimony that her income was more than that of her husband even if that is so it is loss of income which her deceased husband was contributing to family has to be considered and not what wife was earning court go that income of deceased has to be considered per annum as reflected in income tax returns and supported by oral testimony on record which deceased was earning from business to which will have to be added even as per earlier decisions will have to be deducted as court are convinced that there is an illegitimate son of deceased who has filed appeal in this Court as marriage of deceased with has not been believed byTribunal multiplier would be deceased was in age bracket Schedule could not have been applied by Tribunal –
Result: Appeal allowed
JUDGMENT :
1. Heard Sri Arun Kumar Shukla, learned Advocate on behalf of Sri Vishesh Kumar Gupta, learned counsel for Delhi Transport Corporation and Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned Advocate.
2. These are those appeals which are pending adjudication since long. We started hearing the matter but as Sri B.D. Madhyan has absented himself, we waited and adjourned the matter. Sri B.D. Mandhayan who represents the claimants in F.A.F.O. No. 1785 of 2018 absented himself today also. Claimants in the said claim to be heirs and legal representative of deceased as according to them, Master Sikhar Juneja is the legitimate son of Late Chandra Sekhar Juneja and Anuradha Juneja who according to him is legally wedded wife of Late Chandra Sekhar Juneja. The said appeal is dismissed for default.
3. As per the judgment of the apex court in U.P.S.R.T.C. Vs. Km Mamta and Others, AIR 2016 SCC 948, all the grounds raised in the appeal are required to be adjudicated and that is how we would decide issue of negligence of driver and quantum and would go ahead with the discussion. All these appeals stem out of the same proceedings.
4. The Delhi Transport Corporation (for short 'DTC') has felt aggrieved as according to them (DTC), the accident occurred because of act of God namely bursting of tyre which was never visioned by the driver or the owner of the vehicle and, therefore, the driver could not have been saddled with the liability or attributed negligence.
5. The next aspect for which the DTC is before us is the quantum of compensation awarded by the Tribunal which according to DTC is on higher side and is not decided as per law applicable in the year of decision or accident.
6. As against this, Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned counsel for the claimants-Asha Juneja, Master Udit Juneja and Km. Resham Juneja, has contended that the Tribunal has fallen in error in not considering the income of the deceased as reflected in the Income Tax Returns of the years prior to his death. The learned Tribunal has held that till 1991, the Income Tax Returns have been filed but, thereafter, returns have not been filed. It is stated by Sri Jain that in those days it was not compulsory to file the income tax return within six months of the financial year and, therefore, combined returns were to be filed but, the unfortunate event occurred in the year 1993 namely on 30.7.1993.
7. It is further submitted by Sri Jain that the Tribunal has discussed the oral testimony of witness Asha Juneja widow of the deceased that her husband used to earn Rs. 1 Lakh per month. On what basis the Tribunal assessed the income of the deceased to be Rs.2 Lakh per year is not spelled out, no finding to that effect is recorded by the Tribunal. According the learned counsel for the claimants, there were income tax returns which could have been made the basis for consideration of income of the deceased, may be for period after 1991 that is later part,the income tax returns were not there that cannot be the basis to discard the Income tax returns which were produced. In support of his arguments, Sri Jain has relied on the decisions titled Malarvizhi & Ors. Vs. United India Insurance Company Limited and Another, 2020 (4) SCC 228 and United India Insurance Co. Ltd. Vs. Indiro Devi & Ors., 2018 (7) SCC 715. It is submitted by the learned advocate for DTC that the multiplier given by the Tribunal is not in dispute as the learned Tribunal has considered the second column in Second Schedule of the Motor Vehicles Act, 1988 which is lower than the one suggested by Apex Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Another, (2009) 6 SCC 121.
8. Learned counsel for the claimants has contended that the deduction towards personal expenses of the deceased should have been 1/4th when there were more than five depen
