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TMI Blog1977 (6) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners in a motor taxi from Limbdi to Ahmedabad when the motor taxi collided with a S. T. Bus coming from the opposite side. The assessee, Jayantilal, thereafter expired on account of the injuries received in this motor accident on August 18, 1973. The Claim Applications Nos. 118 to 125 of 1973 had been filed before the Motor Accidents Claims Tribunal and a common award was made on August 25, 1975, by the Claims Tribunal in all these matters. So far as the petitioners' personal injuries were concerned, the amount of compensation awarded to them for their personal injuries was of Rs. 47,360 and at one stage it was also sought to be attached by the Tax Recovery Officer but at the time of the earlier writ petition, the said attachment was removed, and the authorities had agreed to hear the objections of the petitioners, as regards this particular claim in Application No. 121 of 1973 which had resulted in the award in respect only of the death of the deceased, Jayantilal, and where the total sum of Rs. 62,904 was awarded, including Rs. 3,000 as damages for loss of expectation of life. Even the petitioners do not dispute that this amount of Rs. 3,000 would go the estate of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Income-tax Officer may forward to the Tax Recovery Officer a certificate under his signature specifying the amount of arrears due from the assessee, and the Tax Recovery Officer, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein by one or more of the modes specified therein in accordance with the rules laid down in the Second Schedule. One of the modes is specified in clause (a), viz., attachment and sale of assessee's movable property. Section 226 specifies in clause (1) that notwithstanding the issue of a certificate to the Tax Recovery Officer under section 222, the Income-tax Officer may recover the tax by any one or more of the modes provided in the section. Under section 232, the several modes of recovery specified in this chapter shall not affect in any way-- (a) any other law for the time being in force relating to the recovery of debts due to Government ; or (b) the right of the Government to institute a suit for the recovery of the arrears due from the assessee ; and it shall be lawful for the Income-tax Officer or the Government, as the case may be, to have recourse to any such law or suit, notwithstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall make an order releasing the property, wholly or to such extent as he thinks fit, from attachment or sale. (5) Where the Tax Recovery Officer is satisfied that the property was,at the said date, in the possession of the defaulter as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Tax Recovery Officer shall disallow the claim. (6) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute ; but, subject to the result of such suit (if any), the order of the Tax Recovery Officer shall be conclusive. Rule 86 then provides in clause (1) that an appeal from any original order passed by the Tax Recovery Officer under this Schedule, not being an order which is conclusive, shall lie -- ...... (c) in the case of a Tax Recovery Officer, being an officer referred to in sub-clause (iii) of clause (44) of section 2, to the Tax Recovery Commissioner. Therefore, under these relevant provisions the Tax Recovery Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who had been joined as opponents Nos. 3 and 4 were also excluded. Therefore, out of all legal representatives or legal heirs of the deceased, the Claims Tribunal has allowed the claim of compensation only of the widow, two sons, minor daughter, the claim-applicants Nos. 1, 3, 4 and 5 and also the mother who was joined as opponent No. 5. The Claims Tribunal first assessed the income of the deceased at Rs. 500 per month which is the minimum non-taxable amount under the income-tax laws by making a conservative estimate and, therefore, the only income of the deceased was assessed at Rs. 6,000 per annum. Thereafter, as regards the amount spent on the deceased, considering this family of 12 consumption units, the deceased was held to consume a sum of Rs. 84 per month and deducting that amount, the amount left of Rs. 416 per month was held to be spent by the deceased on the family for maintenance of these dependents. Therefore, the annual dependency benefit was first worked out at the figure of Rs. 4,992. After following the settled legal position laid down by this court in Hirji Virji Transport v. Bashiran Bibi [1971] 12 GLR 783 (Guj), where the settled legal position had been exhaustive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why the petitioners have categorically stated that so far as the compensation given to the estate is concerned of Rs. 3,000, they do not challenge the order of the respondent and they have confined their challenge only to the balance amount of Rs. 59,904 which has been awarded to the petitioners as dependants in their own rights. Both the parties have stated that the S. T. Corporation has filed First Appeal No. 259/76 in this matter and these petitioners-dependants have also filed an appeal, First Appeal No. 55/76, for enhancement of the compensation amount and both these appeals are admitted by this court and are pending in this court. It is in this background of the relevant statutory provisions and the decision of the Motor Accidents Claims Tribunal that we have now to answer the objections raised in this matter. So far as the preliminary objection of the respondent is concerned, if we find from the settled legal position that in such cases where the dependents are allowed by capitalising the dependency benefit the compensation claim, award to such dependants is in their own right on a cause of action which accrued to them alone for loss caused by tortfeasor in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il suit which is by way of a collateral attack and which would be available in every case for ultra vires orders unless it is specifically excluded. It was further held that the amplitude of the fetter is made dependent on the existence of the other effective alternative remedy which was in terms provided whether by the specific law or under the subordinate legislation of such law. It was in terms held that such alternative remedy must be specifically provided for. The amplitude of the fetter would depend on the amplitude of such alternative remedy which is provided for direct attack by or under the law in question and not on any general remedy of a civil suit by way of a collateral attack. Applying the same ratio it is obvious that as rule 86(1)(c) does not provide for appellate remedy against such order which is made conclusive under rule 11(6), there is no specific alternative remedy for direct attack in the Act or under these rules enacted in Schedule II in question. The learned Government Pleader argued that rule 11(6) contemplates a civil suit as an alternative remedy created under the Act by this rule 11(6) itself. There is no substance in this contention because rule 11(6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decision on the wider ground, evolved in that Full Bench decision that at least so far as this purported order is concerned, there being no right of appeal specifically provided, the mere fact that the order could be a matter of collateral attack by way of general remedy of a civil suit could never come in the way of the petitioners' invoking the writ jurisdiction of this court. This writ remedy is the only effective and efficacious remedy, when in the face of the settled law and the decision of the competent tribunal, these dependents' moneys are sought to be attached by the Tax Recovery Officer, as the jurisdiction under these relevant provisions to recover these arrears of the defaulter-assessee is only from the property of the defaulter-assessee and not from the property of his dependants. There is equally great force in Mr. Kaji's contention that, so far as the present case is concerned, it would fall even under clause (a) of article 226 itself because the fundamental right of holding property of the petitioners in the shape of compensation moneys awarded to them in their own right is directly violated by this alleged ultra vires order of the Tax Recovery Officer. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of annuity or policy other than life insurance policy as passing on his death to the extent of beneficial interest accrued or acquired as a result of death. The contract of insurance contained in the two relevant policies was construed in that case as conferring on the deceased, benefit of the policies, viz., right to exact a particular amount of damages depending on the loss of limb or life, and so the contention was negatived that the deceased had no interest in the policies. Section 15 was, therefore, held applicable as it was only on the death of the insured that the beneficial interest of the father was generated. Even as regards sections 5 and 6, it was held in view of the width of the definition of the term " property " that the property in the nature of interest was in existence in the lifetime of the deceased which passed on his death to the beneficiaries designated or to his legal representatives, and, therefore, that property was clearly dutiable under section 5. In any event, the deceased was held to have a right to property under the said policy which he could have disposed of by sale and, therefore, it was deemed to pass on his death under section 6 of the estate du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the right of action is for the benefit of the deceased's dependants. But, inasmuch as the basis of both causes of action may be the same, namely, negligence of a third party which has caused the deceased's death, it was natural to provide that the rights of action should be without prejudice to the one or the other. " It was further pointed out that this principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of the Lahore High Court in Secretary of State v. Gokal Chand, AIR 1925 Lah 636. In that case, Sir Shadi Lal C.J. observed at page 636 as under : " The law contemplates two sorts of damages the one is the pecuniary loss to the estate of the deceased resulting from the accident : the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled ; while damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate." Therefore, the whole law on this branch was approved and stated as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and after re-considering even the earlier decisions of this court in Bai Nanda v. Shivabhai [1966] 7 GLR 662 (Guj), where Nance's method was followed, it was held by this court in Hirji Virji Transport Co. v. Bashiran Bibi [1971] 12 GLR 783 (Guj), that although both Nance's method and Davies' method give the same result, experienced judges now follow only Davies' method which had now been finally approved by their Lordships as appropriate for dealing with such cases in C.K. Subramonia Iyer's case, AIR 1970 SC 376. At page 787 ([1971] 12 GLR 783), it was pointed out following the settled legal position that the assessment was to be made of the loss suffered by tortious act by making an account of all gain and loss arising as a result of the death of the concerned victim (of course otherwise than as by way of fruits of insurance). A fair amount of damages has to be assessed not by way of giving any solatium but as a compensation, which is proportionate to the injury. For the loss caused under section 1A of the Fatal Accidents Act, the loss which resulted to the dependents is by way of losing the amount which would have been spent on them by the deceased during the period of his exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first time in their own right on the death of the deceased due to the injuries inflicted to the deceased in this motor accident. As stated by Lord Wright in Davies' case [1942] AC 601 (HL), in the aforesaid passage approved by their Lordships in C. K. Subramonia Iyer's case, AIR 1970 SC 376, this was a new cause of action and it was not a claim which the deceased could have pursued in his lifetime for the simple reason that it was for the damages suffered not by himself but by the family members after his death. If this settled ratio was appreciated by the Tax Recovery Officer, he could never hold that these petitioners-dependants were getting this dependency benefit not in their own right and that the cause of action for this dependency benefit had accrued to the deceased in his lifetime. That observation of the Tax Recovery Officer is based on a complete misconception of the settled legal position as per the law declared in our country by their Lordships and, therefore, the decision of the respondent-Tax Recovery Officer is wholly contrary to law as he has sought to attach not the property of the deceased, defaulter-assessee, but the property of the petitioners-claimants which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also capitalised and added by way of loss to the estate, the revenue should not be precluded from proceeding against it. Mr. Kaji rightly says that he would have no objection that if any such claim is awarded in appeal, the authorities would have a right to pursue their remedy against the estate of the deceased in their hands when it is so awarded to them. But so far as the present compensation amount of Rs. 59,904 is concerned, which has been sought to be attached and which on undisputed facts is only capitalisation of the maintenance element, the amount awarded would go to the petitioners-dependants alone by way of dependency benefit. Therefore, no technical contention could be raised that even that amount belongs to the estate of the deceased by any stretch of imagination. In that view of the matter, so far as this compensation amount of Rs. 59,904 was concerned, the whole order of the Tax Recovery Officer is totally without jurisdiction as in the guise of attaching property of the deceased, defaulter-assessee, he has sought to attach the property of the petitioners as awarded by the competent authority by ignoring the relevant consideration of the aforesaid settled legal posi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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