Vijay Kumar Rastogi v. Uttar Pradesh State Roadways Transport Corporation

A. M. KHANWILKAR, J. 1. The present appeals take exception to the judgment of the High Court of Delhi in MAC Appeal No.393/2009 dated 6 th December, 2016, whereby the High Court declined to enhance the compensation amount awarded to the appellant by the Motor Accident Claims Tribunal and to the order dated 18 th January, 2017 dismissing the Review Petition No.20 of 2017. 2. The Motor Accident Claims Tribunal (for short, “the Tribunal”) vide order dated 4 th April, 2009, awarded compensation to the appellant and his father-in-law to the tune of Rs.5,59,584/- and Rs.4,53,131/-, respectively, against which four appeals were filed before the High Court, one each by the appellant and his father-in-law and two cross appeals by the respondent, all of which were disposed of by the im pugned judgment. The appellant alone has assailed the impugned judgment and prays for grant of enhanced compensation amount. 3. As can be gleaned from the claim petition, the appellant and his father-in-law suffered serious injuries on 26 th January, 2005, when their car was hit by bus no. UP-25-G-9132, owned by the respondent and being rashly and negligently driven by one Alam Beg. The extent of the injuries caused to the appellant included haemorrhage, multiple cut s, bruises and fractures all over the body and post traumatic optic neuropathy. The appellant was treated at several hospitals and operat ed upon but suffered disability of 25%. He then filed a claim petition in the Tribunal, Karkardooma, Delhi, against the driver of bus no. UP-25-G-9132, Alam Beg, and the respondent on 27 th January, 2006. 4. Ultimately, the Tribunal, vide order dated 4 th April, 2009, inter alia held that bus No. UP-25-G-9132 was rashly and negligently driven by the driver, Alam Beg, and accordingly, awarded the appellant with compensation of Rs.5,59,584/- along with interest at 7% p.a. under the following heads: 623 “23. Keeping in view all the relevant factors, princ iples of law laid down in above mentioned cases and evidence on record, I am of the view that the petitioner is ent itled for compensation as per following details: 1. Cost of medicines :Rs.1,08,883.00 2. Cost of future treatment :Rs. 25,000.00 3. Loss of Income :Rs. 40,802.00 4. Loss of future income :Rs.1,78,044.00 5. Loss of income for 15 days :Rs. 1,854.62 6. Loss of enjoyment of life & Limb etc: Rs.1,00,000.00 7. Pain and Sufferings :Rs. 50,000.00 8. Compensation for attendant :Rs. 20,000.00 9. Special Diet :Rs. 20,000.00 10. Conveyance :Rs. 15,000.00 Total :Rs.5,59,583.62 or say :Rs.5,59,584.00" 5. Be it noted that the Tribunal in paragraph 17 of its judgment has adverted to Ext. PW-6/F, which reveals the date of bir th of the appellant as 7-11-1969 and on that basis, has recorded a finding that on the date of accident on 26 th June, 2005, the appellant was 36 years of age. Further, the Tribunal in paragraph 16 of its judgment has taken note of the fact that the appellant on the date of accident was work ing as Medical Representative with M/s. Stadmed Private Ltd., and a fter the accident he could not perform his duty because he remained confined to bed. 6. The Tribunal, while recording that the appellant earned a sum of Rs.50,556/- from ‘other sources’ namely bank interest and commission, over and above his salary, did not consider the said income on the ground that commission and interest could not be considered for computation of loss of income. The appellant had annexed his income tax returns f or the year 2004-05 as proof that his taxable income was consi derably higher than the amount considered by the Tribunal, as given hereunder: VIJAY KUMAR RASTOGI v. U.P. STATE ROADWAYS TRANSPORT CORPORATION [A. M. KHANWILKAR, J.] “STATEMENT OF INCOME NAME OF ASSESSEE Vijay Kumar Rastogi FATHER’S NAME Sh. Nand Kishore Rastogi DATE OF BIRTH 7 th Nov. 1969 ADDRESS OFFICE Stadmed Private Limited 138-B, Moahammed Pur, New Delhi – 110066 RESIDENCE C-40, ZI, Dilshad Garden, Delhi – 110095 STATUS : Individual RESIDENTIAL STATUS : Resident & Ordinarily Resident in India PA NUMBER STATUS : AEYPR8620R PREVIOUS YEAR ENDED ON: 31 ST MARCH 2004 ASSESSMENT : 2004-2005 COMPUTATION OF TAXABLE INCOME Income From Salary Gross receipt from salary as per Salary certificate 66,766.50 Less: Standard deduction u/s16(i) 22,225.50 44,511.00 Income from Business or Profession Income as per Income and Expenditure Account 99,805.00 Less: Income not covered under the said head Income from Salaries 66,766.50 Income from other sources 50,556.50 (17,518.00) Income from other sources Bank Interest 72.00 Commission 50,454.00 50,556.50 Gross Total income 77,549.50 625 Less: Exemption U/S 80L Bank interest 72.00 Gross Total income 77,477.50 Income Rounded off 77,480.00 Income Tax Due on Rs. 77480/- 4,496.00 Less: Deduction U/s 88 EPF contribution 6,491.00 LIP Paid 13,225.00 19,716.00 Amount allowed @ 20% 3,943.00 Tax Due 553.00 Tax Paid 553.00 Balance Payable/Receivable NIL (VIJAY KUMAR RASTOGI)” 7. Aggrieved by the Tribunal’s award, the appellant filed an appeal before the High Court, alleging that while passing the award, the Tribunal had erroneously calculated his income as Rs. 44,51 1/- per annum, disregarding his income from other sources and also re ducing the actual income earned by the appellant by following the standard deduction method. In the impugned judgment, the High Court while recording that the appellant’s taxable income was Rs.77,480/- less tax paid of Rs.4496/-, and while accepting that the accident had been caused by the rash driving of the bus driver, Alam Beg and that the ap pellant had in no way contributed to the causing of the accident, only enhanced the rate of interest on the compensation awarded from 7% to 9% as it felt that the rate of interest awarded was on the lower side but it did not enhance the compensation itself, on the ground that no case had be en made out for enhancement. The appellant challenged the a foresaid judgment by way of a review petition, which was also dismissed. 8. The short point which arises for our consideration is: whether the High Court committed manifest error by not considering other sources of income of the appellant including compensation of Rs.80,000/- on account of damage to the Maruti car of the appellant while upholding the compensation awarded by the Tribunal? 9. We have heard Ms. Rekha Rastogi, learned counsel for the appellant as also Ms. Garima Prashad, learned couns el for the respondent. VIJAY KUMAR RASTOGI v. U.P. STATE ROADWAYS TRANSPORT CORPORATION [A. M. KHANWILKAR, J.] 10. The principal issue that needs to be addressed in these appeals is about the denial of claim in reference to commission an d interest amounts earned by the appellant during the relevant period, as disclosed in the Income Tax Return filed by the appellant. The appellant claimed income from other sources under two heads, namely, Bank Intere st : Rs.72/-; and Commission : Rs.50,454/-. The Tribunal op ined that commission and interest cannot be considered for computation of loss of income and confined the claim of the appellant only on the basis of his net annual salary income to Rs.44,511/-. The Tribunal noted tha t the appellant did not file any document of his age, educational qualification or profession. The High Court, on the other hand, in paragraph 11 of the impugned judgment observed thus: “11. Regarding the deduction of tax paid from the net income of injured – Vijay Kumar Rastogi is concerned, I find that the total income of injured – Vijay Kumar Rastogi as per t he tax return (Ex.PW-6/F) is Rs.77477.50 and after deduction of tax of Rs.4,496/- the net income has been rightly taken into consideration by the learned Motor Accident Claims Tribunal. The disability of 25% suffered by injured Vijay Kumar Rast ogi has been rightly taken to be the functional disabili ty while keeping in view that the injured – Vijay Kumar Rastog i was working as the Medical Representative. No case for enhancement of compensation while taking the gross income of injured – Vijay Kumar Rastogi is made out, as net i ncome has to be taken into consideration while assessing the compensation in such cases. Regarding the applicati on of multiplier of 15 is concerned, I do find that in case of inju red Vijay Kumar Rastogi multiplier of 15 ought to have been adopted but by adoption of multiplier of 16, the differenc e in the compensation worked out is marginal and the same is set off by the fact that future prospects of injured Vijay Kumar Rastogi has not been taken into consideration and therefo re, this Court is not inclined to interfere with the aw arded compensation on this account. ” 11. Strikingly, the High Court noted the taxable income disclosed in tax return of the appellant for the relevant period as Rs .77,480/- (rounded off) and tax deduction of Rs.4,496/-, yet proceeded to hold that the net income of the appellant has been right ly taken into 627 consideration by the Tribunal. It is unfathomable that the High Court, despite having accepted the claim of the appellant founde d on his tax return for the relevant period, disclosing the taxable inc ome of the appellant as Rs.77,480/- (rounded off) and deduction of tax of Rs.4,496/-, could have affirmed the conclusion of the Tribunal that the net annual income of the appellant was Rs.44,511/-. It ought to have reckoned the taxable income for computing the head towards loss of income. This, in our opinion, is the manifest error committed by the High Court. The appellant is justified in relying upon the decisions of this Court which have taken the view that loss of taxable earning should be reckoned for the purpose of determining just compensation as enunciated in National Insurance Co. Ltd. Vs. Indira Srivastava and Ors. 1, which has been followed in Oriental Insurance Company Limited Vs. Jashuben and Ors.2, and Kavita Vs. Deepak and Ors. 3 It has been held that the “income” should include those benefits, either in terms of money or otherwise, which are taken into consideration for t he purpose of payment of income tax or professional tax, although some elements thereof may or may not be taxable due to the exemption co nferred thereupon under the statute. 12. The computation of taxable income as disclosed by the appellant in his tax return for the assessment year 2004-2005 f or the previous year ended on 31 st March, 2004, unambiguously reinforces the claim of the appellant that his annual taxable income was Rs.77,480/- (rounded off) and income tax due thereon was Rs.4,4 96/-. After providing deduction of the income tax payable by the appellant, the amount towards the head ‘loss of income’ of the appellant would be Rs.72,984/- and not Rs.44,511/- as assumed by the Tribunal. 13. In other words, compensation under the head ‘loss of income for 11 months’ would be (Rs.72,984 ÷ 12) x 11 = Rs.66,902. Similarly, towards the head ‘loss of future income’ computed by the Tribunal on the basis of disability suffered by the appellant to the extent of 25% in relation to his lower limb and keeping in mind that the age of appellant was only 36 years on the date of the accident and the exposition in the case of Sayed Sadiq Vs. Divisional Manager United India Insurance Co. Ltd.4 (paragraphs 10 and 11), the appellant would be entitled to 40% 1 (2008) 2 SCC 763 2 (2008) 4 SCC 162 3 (2012) 8 SCC 604 4 2014 (2) SCC 735 VIJAY KUMAR RASTOGI v. U.P. STATE ROADWAYS TRANSPORT CORPORATION [A. M. KHANWILKAR, J.] of Rs.72,984 i.e. Rs.29,194 (rounded off) x 15 (multiplier), which comes to Rs.4,37,910. Thus, the appellant would be entitled to receive enhanced compensation [Rs.66,902 - Rs.40,802= Rs.26,100 (Rupees twenty six thousand one hundred) and Rs.4,37,910 - Rs.1,78,044 = Rs.2,59,866 (Rupees two lakh fifty nine thousand eight hundred and sixty six)] under these two heads, instead of Rs.40,802/- and Rs.1,78,044/- awarded by the Tribunal. In other words, the compensation amount towards these two heads would stand enhanced by Rs.2,85,966/- (Rupees two lakh eighty five thousand nine hundred and sixty six only) as indicated above, to which the appellant would be entitled along with interest at the rate of 9% (nine percent) per annum in terms of our decision. 14. The appellant has also claimed further compensation towards damage to his Maruti Car which, according to the app ellant, was completely damaged, as mentioned in the Mechanical Inspection Report (Ext. PW-6/D) and the value of the car providing third party insurance (Ext.PW-6/E). On a careful scrutiny of the judgment of the T ribunal, we find that the Tribunal has not analysed this claim at all. That grievance was made by the appellant before the High Court, as noted in paragraph 9 of the impugned judgment claiming compensa tion of Rs.80,000/- towards the same. The High Court in paragraph 13 of the impugned judgment, however, rejected the claim on the finding that the appellant had failed to invite its attention to any document indicating that the appellant had incurred the expenses of Rs.80,000/- towards car repair. Even in the present appeals, the appellant has failed to invite attention of this Court to any document on record in support of the said cl aim. Resultantly, we find no reason to interfere with the opinion expressed by the High Court on the issue under consideration. 15. A priori, the appellant would succeed in getting additional amount of Rs.2,85,966/- (Rupees two lakh eighty five thousand nine hundred and sixty six only) as enhanced compensation towards ‘loss of income’ and ‘loss of future income’, along with interest at the rate of 9% (nine percent) per annum thereon from the date of filing of the claim petition before the Tribunal till the date of realization. 16. The appeals are allowed to that limited extent in the above terms with no order as to costs. Devika Gujral Appeals allo wed.