JUDGMENT :

1. Heard Sri Hitesh Pachori, learned counsel for the appellants, Sri Anuj Srivastava, learned counsel for the respondent and perused the record.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 17.7.2010 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.11, Agra (hereinafter referred to as 'Tribunal') in Claim Petition No. 260 of 2007 awarding a sum of Rs.4,52,000/- to the claimants as compensation for the death of their sole bread winner with interest at the rate of 6%.

3. The accident is not in dispute. The Insurance Company has not challenged the liability imposed on them. The only issue to be decided is the quantum of compensation awarded.

4. It is submitted by learned counsel for the appellant that the deceased was 29 years of age at the time of accident and was having his own business namely he was the owner of M/s Sheetal Drugs Distribution. The Tribunal has considered the income of deceased to be Rs.36,000/-per annum, deducted 1/3 towards personal expenses, considered the dependency as Rs.24,000/-per annum, granted multiplier of 17 and added Rs.44,500/- towards non pecuniary damages.

5. Learned counsel for the appellant has taken us through the record and we are satisfied that the documentary evidence has been brushed aside by the learned Tribunal without assigning proper reasons. Income Tax Return in the name of the deceased for the Assessment Year 2006-07 which was on record demonstrates that the income of the deceased was Rs.1,62,500/-per year. The earlier Income Tax Return for the Assessment Year 2005-06 shows that the income of the deceased was Rs.1,10,150/-. There are documentary evidence namely Form 20 etc. This fact has been disbelieved by the Tribunal though the drug license and its photo copy has been filed. The name of the firm was Sheetal Medical Stores. The Tribunal has disbelieved the Income Tax Return as it came to the conclusion that chalan of paying the tax was not filed. The Tribunal came to the conclusion that the income was Rs.1,06,665/-, out of which, LIP was of 44,341/- and, therefore, the Tribunal has felt that income of the deceased was Rs.62,324/-. It was further concluded by the Tribunal that tax of Rs.19150/-was being paid but it was not clear as to how much amount he had invested and, therefore, the Tribunal disbelieved this fact. The Tribunal disbelieved investments made by the deceased in Bajaj Allianz and, therefore, held that in view of the judgment of Laxmi Devi & Others vs Mohammad Tabbar & Another, 2008 ACJ 01844 only Rs.3,000/- should be considered as his income. This is an error apparent on record as P.W.1 has categorically mentioned that her husband was in the business of medicine. The license even according to Tribunal was dated 1.12.2002. This fact should have been considered by the Tribunal. The deceased was a young man of 29 years. The approach of the Tribunal is against the beneficial piece of legislation and cannot be accepted. This is an error apparent on the face of record which will have to be answered by this Court.

6. The Apex Court has time and again held that if documentary evidence to show income is not produced but if the Income Tax Returns are there, they are the proof of the income of the deceased/injured. The Tribunal has committed a grave error in relying on the judgment in Laxmi Devi & Others vs. Mohammad Tabbar & Another, 2008 ACJ 01844 despite the fact that there are documentary evidence proved, the Tribunal erroneously considered his income to be Rs.100/- per day.

7. Hence, we are unable to accept the submission of Sri Anuj Srivastava, learned counsel for the respondent that the income which has been considered by the Tribunal is just and proper. The finding is absolutely perverse as Tribunal is not supposed to go by the investment of the person for starting a business but the income ge