Chandana Mandal & Ors. V. New United India Assurance Co. Ltd. & Anr.

FMAT (MV)/797/2023

AI Insights

The case involves an appeal by the claimants, Chandana Mandal & Ors., against the Motor Accident Claims Tribunal's decision, which awarded them Rs. 9,61,000 for the death of Atanu Mondal due to a motor vehicle accident. The accident occurred when an ambassador car, allegedly driven in a rash and negligent manner, collided with Mondal's motorcycle. The claimants argued that the Tribunal erred in assessing the compensation based on a notional income of Rs. 6,000, despite evidence of higher income from tax returns. The Insurance Company also filed a cross-appeal, claiming the ambassador car was not involved in the accident. The High Court found that the Tribunal had not properly considered the income evidence and dismissed the Insurance Company's cross-appeal based on procedural grounds.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 687074 (HC-CALCUTTA)
• Appeal Type: Others
• Pronouncement Date: 29-04-2024
• Assessment Year: misc
• Other Referred Cases: Malarvizhi Vs. United India Insurance Co. Ltd., Sutapa Pari @ Sutapa Parya & Ors. Vs. The New India Assurance Co. Ltd. & Anr., Manoj Chatterjee Vs. Kailash Agarwal & Ors., Smt. Chandrika Bisws @ Selin Biswas & ors. Vs. The New India Assurance Co. Ltd. & Anr., Bherusing & ors. Vs. Mahesh & Ors., Labhoo Vs. Yakub & Ors.
• Laws Referred To: M.V. Act, Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SANJAY PAUL; JAITA GHOSH
• Assessee Lawyers: ASHIQUE MONDAL; SUBHANKAR MONDAL
• Keywords: Compensation; Income Tax Return; Motor Accident; Negligent driving; Verification
• Section: 143; 166

Judgement Text

" IN THE HIGH COURT AT CALUTTA Civil Appellate Jurisdiction 29.04.2024 SL No.6-7. Court No. 551 s.g. F.M.A.T. (M.V.) 797 of 2023 With COT/49/2024 Chandana Mandal & Ors. Vs. New United India Assurance Co. Ltd. & Anr. Mr. Ashique Mondal, Mr. Subhankar Mondal, ………..for the appellants/claimants. Mr. Sanjay Paul, Ms. Jaita Ghosh, ……for the Respondent Insurance Company. The instant appeal has been preferred against the judgment and award dated 21th August, 2023, passed by the learned Judge, Motor Accident Claims Tribunal, Fast Track 3rd Court, Paschim Medinipur, in MAC Case no. 273 of 2020. The brief fact of the case is that, the victim of this case namely one Atanu Mondal on 6.2.2020 at about 11.00 A.M. to 11.30 P.M. was proceeding from Medinipur town to Dhrma side through his motor cycle, at time one ambassador car being registration no. WB- 34J/7293 was going from Dharma side towards Medinipur town with a high speed in rash and negligent manner, the driver of the truck lost control over the vehicle and thereby dashed the said motor cycle near Chiro sathi club, as result the victim fell down from his motor cycle 2 and sustained grievous injuries including his head. Thereafter he was shifted to Medinpur Medical College and Hospital wherein the he died on next day. The widow, and minor daughter, and the mother of the victim preferred an application under Section 166 of M.V. Act before the learned Tribunal for getting compensation on the ground that the victim died due to rash and negligent negligent driving of the driver of the offending vehicle (ambassador) duly insured under the policy of the Insurance Company. The claimant’s case was contested by the Insurance Company by filing written statement. After hearing the parties and after receiving the evidence, the learned Tribunal has awarded a sum of Rs. 9,61,000/- together with 6% per annum in favour of the claimants and directed the Insurance Company to the pay the compensation equally. The Insurance Company has satisfied the award through the office of the learned Tribunal. Being aggrieved by and dissatisfied with the said award the claimants have preferred the instant appeal for enhancement of the compensation. The Insurance Company also preferred a cross- appeal on the ground that so-called offending 3 vehicle (ambassador) was not involved in the alleged accident. Both the appeal and the cross-appeal be taken together for uniformity of the judgement. Learned Counsel for the claimant/appellants submits that the award passed by the learned Tribunal is erroneous to the effect that the learned Tribunal has only assessed the compensation by fixing the notional income of deceased of Rs. 6,000/- . The deceased was a contractor and he used to file the income tax return with the authority. Mr. Mandal further submits that the income tax return were exhibited through the employee of the income tax Department before the Tribunal, but the learned Tribunal has erroneously not considered the income tax return on filmsy ground. He submits that this Court has several occasion has followed the decision of the Hon’ble Apex Court in Malarvizhi Vs. United India Insurance Co. Ltd. to assess the compensation on the basis of ITR. Mr. Mandal cited a decision of this Court passed Sutapa Pari @ Sutapa Parya & Ors. Vs. The New India Assurance Co. Ltd. & Anr. ( FMA 1589 of 2018). During argument Mr. Mandal referred the relevant pages of paper book. He further submits that the income tax return though were not verified but the verification under Section 143 of Income Tax is required to be 4 done by the Income Tax Department. He further submits that the self-assessed income tax return submitted by the claimant before the learned Tribunal has justifiably not considered by the learned Tribunal. Heard the learned Counsel perused the observation learned tribunal. It appears that learned Tribunal has held that the deceased was carrying the business as contractor in the name and style of M/s. Shampa Construction since the year 2015. The learned Tribunal has opined in the impugment judgement that for the only ITRs of the assessment year 2018-19 and 2019-20 were filed. Learned Tribunal is of further opinion that the income tax return submitted by the victim prior to his death was not verified so he denied to place any reliance upon those ITRs. It appears to me that the deceased has submitted the ITR for the assessment year 2019-20 on 15.11.2019. It appears that both the ITR were filed prior to the accident of the deceased. It further appears that DW-2 has appeared before the learned Tribunal who is the Income Tax Officer and the place the letter of authorization issued by the Income Tax Officer along with the certified copy of ITR of the deceased for the assessment year 2018- 19 and 2019-20. During cross-examination he stated that the contents of the ITR have not verified 5 by their Officer. The authorization letter issued by the Income Tax officer was marked at Exhibit -10. Nothing has been written in the authorization letter (Exhibit -10) that the ITR were not verified under Section 143 of the Income Tax Act. However, it appears to me that authority for verification of the ITR is with the income tax Office, if they do not perform such verification within time, for that reason, the concerned person cannot be held liable. It further appears to me that the deceased was engaged in active business of contractor, sufficient materials and documents were placed regarding the business of the deceased. Deceased has submitted the ITR prior to the accident when he had no expectation of use of those ITRs. The general notion of a person to show the income in lower side to avoid the tax liability; so considering the same I find no justification to disbelieve the ITR filed by the claimants before the learned Tribunal. Moreover, according to the observation of the Apex Court in Malarvizhi & Ors. (supra) :- “The tax return indicates an annual income of Rs. 2,11,131/- in the relevant assessment year. Mr. Jyat Muth Raj, learned Senior Counsel appearing on behalf of the appellant cotended that other documents were marked which reflected the income of the deceased. 6 We are in agreement with the High Court that the determination must proceed on the basis of the income tax return, where available. The income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased. To the benefit of the appellants, the High Court has proceeded on the basis of the income tax return for Assessment year 1997-1998 and not 1999- 2000 and 2000-2001 which reflected a reduction in the annual income of the deceased.” Considering the entire scenario of this case and observation of the Hon’ble Apex Court in Malarvizhi & Ors. (supra) it appears to me that the ITR is a statutory document and reliance can be placed upon the ITR to assess the income of the deceased. In this case learned Tribunal has failed to appreciate law laid down by the Hon’ble Apex Court. Thus the observation of learned Tribunal regarding fixing the notional income of the deceased of Rs. 6,000/- is erroneous. It appears that the deceased has filed ITR for the assessment year 2019-20 on 25.11.2019 that is just before his accident. The ITR for the assessment year 2019-20 is hereby considered to assess the 7 monthly income of the deceased. In the said ITR the gross total income was mentioned as Rs. 19,17,843/- after deduction the tax component. The annual income of the deceased comes to Rs. 15,46,126/-. In considering the cross-appeal filed by the Insurance Company, Mr. Paul argued that the alleged ambassador car being no. WB-34J/7293 was not at all involved in the alleged accident. He submits that the Insurance Company has submitted additional written statement with positive plea that ambassador car was not involved in the alleged accident but the victim dashed with a stationary car. He also submitted that the inquest report reflected that the one unknown vehicle dashed the victim and fled away. He further argued, during course of trial the Insurance Company has produced three witness to disprove the case of the claimants among them OPW-1 is one of the inquest witness, OPW-2 in the I.O. of Police case initiated on the basis of the accident, OPW-3 is one of charge sheeted witness. He submits that from the said evidence it would be revealed that ambassador car was not at all involved in the alleged accident. He further submits that the learned Tribunal has not considered the evidence of OPW-1 and OPW -3 and placed reliance upon evidence of I.O., who has not placed the C.D. during 8 the trial. He again argued that instant FIR was lodged after the 7/8 days of the alleged accident. There is no proper explanation of the claimants as to why the said FIR was not lodged in time. Mr. Mandal appearing on behalf of the claimants submits that the cross-appeal of the Insurance Company is not at all maintainable. He submits that Insurance Company after satisfying the award through the office of the learned Tribunal after compliance, the Insurance Company cannot file any cross-appeal on the merits already raised and considered and rejected by the learned Tribunal. He also pointed that this Court has also considered the view to the effect that the Insurance Company cannot file the cross-appeal or separate appeal after satisfying the award through office of the learned Tribunal. In support of his contention he cited a decision of the Division Bench of this Court reported in Manoj Chatterjee Vs. Kailash Agarwal & Ors. (FMAT 602 of 2019). He also cited that decision of this Court in passed in Smt. Chandrika Bisws @ Selin Biswas & ors. Vs. The New India Assurance Co. Ltd. & Anr. (FMAT 668 of 2022). Heard the learned Counsels. I have carefully perused the pleading and evidence led by the Insurance Company before the learned Tribunal. The positive pleading of the Insurance Company 9 before the learned Tribunal was that the offending vehicle was not at all involved in the alleged accident but the deceased along with his motor cycle dashed with a stationary vehicle. To substantiate the plea, the Insurance Company has produced OPW -1 who is one of the witness in the inquest of a UD case initially after accident. PW-1 said he cannot remember whether he stated to the police that one unknown vehicle was dashed, but he admitted his signature. The inquest report was not placed before the learned Tribunal to consider and justify the version of PW-1. On the basis of the evidence of PW-1 learned Tribunal is of the opinion that as the inquest report was not placed so evidence of PW-1 was not considered. I find no infirmity in the finding of the learned Tribunal regarding evidenciary value of OPW-1. OPW-2 is I.O of the police case, which was initiated just after filing of the FIR, who stated that during course of investigation he find out that the offending vehicle was involved in the alleged accident. Surprisingly, the I.O. (PW-1) did not place the CD moreover the Insurance Company also not initiated any steps to produce the C.D. before the learned Tribunal to justify the statement of OPW-2. Morever the OPW-2 was not declared hostile by the Insurance Company as he is not supporting the case of the Insurance Company. OPW-3 is one of 10 the charge sheeted witness who stated he did not see the accident but he has heard from others that the offending vehicle after accident have fleded away. No statement of PW-3 recorded under Section 161, Cr.P.C. was confronted neither he was declared hostile to the effect he is not supporting the case of the Insurance Company. I have also perused the observation of the learned Tribunal who only place reliance of the OPW-2, as the OPW-3 was not confronted with the under Section 161, Cr.P.C. statement recorded by the police during the course of investigation I find no evidenciary value of P.W-3. Mr. Paul submits that for the better appreciation of the case of the Insurance Company, the C.D. may be called for ; I find no merit and substance of the argument placed by the Insurance Company. Moreover, by virtue of decision of the Hon’ble Apex Court in Bherusing & ors. Vs. Mahesh & Ors. reported in 2014 ACJ 642, Labhoo Vs. Yakub & Ors. reported in 2013 ACJ 2636, it is settled law that after filing the appeal of the claimants for enhancement the award, the Insurance Company after satisfying the award through learned Tribunal cannot prefer any appeal or cross-appeal against the awarded. The instant cross-appeal preferred by the Insurance Company appears to me not meritorious and the same is hereby dismissed. 11 Considering the above aspects, just and proper compensation of this case is assessed as follows :- Annual income Less Tax Rs. 19,17,843/- Rs. 3,71,717/- Future Prospect 25% Rs. 15,46,126/- Rs. 3,86,531/- Rs. 19,32,657/- Less personal expenses (1/3) Rs. 6,44,219/- Rs. 12,88,438/- (Multiplier 14) Rs. 12,88,438/- X 14 Rs. 1,80,38,132/- Add. Non-pecuniary damages Rs. 77,000/- Rs.1,81,15,132/- Less: amount received Rs. 9,61,000/- Rs. 1,71,54,132/- After calculation the award comes to Rs. 1crore 81 lakh 15 thousand only. The claimants has already received the award amounting to Rs. 9,61,000/- thorough the Office of the learned Tribunal so the balance award comes to Rs. 1crore 71 lakh 54 thousand 134 only. The Insurance Company is directed to pay balance award together 6% interest per annum from 12 the date of filing of the claim application, that is, from 13.7.2017 till payment. The Insurance Company is further directed to satisfy the award through the Office of the learned Registrar General, High Court, Calcutta within 8 weeks; on such deposit the claimants are at liberty to receive the award equally. Payment of compensation is subject to ascertainment of payment of deficit Court fees, if any. Office of the learned Tribunal shall act upon the certified copy of the order to receive the deficit Court fees, if any. LCR be sent down at once, if already received. The instant FMAT (MV) 797 of 2023 along with cross- appeal and all connected applications, if any, are disposed of. Interim order, if any, stands vacated. Parties to act upon the server copy and urgent certified copy of this order be provided on usual terms and conditions. (Subhendu Samanta, J.) "