9911796707
TMI Blog2000 (7) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/ alleging that the accident occurred due to the rash and negligent diving by the driver of the car. 3. The petition was resisted by the respondents contending that there was no negligence on the part of the driver of the care; that the accident occurred when the driver of the car tried to avoid collision with a vehicle coming from the opposite side, by swerving to the left and that in that process, it dashed against the parked lorry. The respondents also contended that the compensation claimed is excessive. On the basis of the pleadings, the Tribunal framed appropriate issues regarding negligence, entitlement and quantum of compensation. 4. Common evidence was recorded in MVC No. 19/1994 and connected claim petitions arising from the said accident. The widow of the deceased was examined as PW1 and an official from the Income Tax Department was examined as PW4. Two other occupants of the car who were eye witnesses to the accident were examined as PW2 and 3, Exs. P-1 to P-118 were marked on behalf of the petitioners in all the cases. 5. After appreciating the evidence, the Tribunal by a common judgment dated 26-9-1995, allowing MVC No. 19/1994 in part. It held that the accid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he was also the Managing Partner of the firm of 'Padmavathi Commercials'; and that his net income was Rs. Three Lakhs per annum from the aforesaid businesses. 9. In her evidence, P.W.1 (the widow) stated that her husband (Govinda Setty) and his brother B. Varadaraj Setty were carrying on grocery business under the name and style of "M/s bellary Venkataswamy Setty"; that he was also a partner of "Padmavathi Commercials" along with his brother Varadaraj and his mother Padmavathi; and that the deceased was earning an annual income of Rs. 1,50,000/- to Rs. 2,00,000/- from the said businesses. She further stated that the firm of "M/s Bellary Venkataswamy Setty" is one of he biggest grocery / Kirana shops in Davangere city and after the death of her husband her son B.G. Raghavendra (second claimant) has been admitted as a partner in place of her husband in the said firm; and that on the death of her husband she had been taken as a partner in the firm of Padmavathi Commercials; and that she was received Rs. 6,00,000/- from LIC in regard to Life Insurance Policies taken by the deceased. 10. The claimants relied upon the following documents to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the determination of monthly contribution to the family at Rs. 3,000/- per month and the total loss of dependency assessed at Rs. 3,96,000/- by the Tribunal is correct and does not calls for interference. he also submitted that the award of amounts under conventional heads aggregating to Rs. 20,000/- is correct. he fairly conceded that having regard to the decision in Halen C. Rebello v. Maharashtra State Road Transport Corporation the deduction of Rs. 2,00,000/- on account of receipt of amount of LIC Policies from the compensation is erroneous. 14. In Helen Rebello the Supreme Court held that only the pecuniary advantages which accrue to the legal representatives, by reason of the accidental death in the motor accident and not the pecuniary advantages which would arise on account of any other form of death can be taken into account; and that, consequently no deduction can be made on account of receipt of Life Insurance amount received by the heirs of the deceased on account of contract of insurance between the deceased and insurer. In view of it, the deduction of Rs. 2,00,000/- on account of receipt of Life Insurance amount from the amount arrived at compensation, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other from of death. Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the pecuniary advantage liable for deduction. .....Similarly, any cash, bank balance, shares fixed deposits, etc., though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles act to be termed as pecuniary advantage liable for deduction." 17.2) In RUKMANI DEVI v. OM PRAKASH 1991 ACJ 3 the Tribunal awarded Rs. 1,26,000/- as compensation. The High Court red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of the death. The respondents contended that at best the loss the family will be the share of the deceased and not the entire income. The Punjab High Court held as follows: "The Hindu undivided family which owned the concern considered of the deceased, his wife and the minor children of very tender age. It is therefore, apparent that it was the deceased who was solely responsible for the running of this concern and on his death it had to be closed down. In these circumstances, the whole of the income of this concern would be a loss of this family and has to be taken into consideration while assessing the annual loss to the dependents. 19.1) In NAZEEMA v. GEORGE KURIAKOSE a division bench of the Kerala High Court, observed as follows: ".....In the present case, the appellants always enjoyed the benefit of the income from the business of Kallumkal Rubber syndicate as the dependents of Mohammed Basheer. After his death they enjoy the benefit as partners of the firm. The reality of the situation is that for all practical purposes the appellants were enjoying the benefit of the estate of the deceased, almost as much before his death as they do now. The fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partner who contributes to the capital and who also participates in the business of the firm and receives a share in the profits/losses with or without a monthly remuneration. Lastly the person may be a minor admitted to the benefits of the partnership without participation in the management of the firm, who is given only a share in the profits. The position in regard to these four categories is as follows: (i) Where the deceased was a working partner, who had not contributed any capital to the firm, whatever income he derived either by way of remuneration or by way of share in profits is on account of effort and business acumen; and therefore the income from partnership in entirety will have to be treated as the 'income' of the deceased for the purpose of determining the loss of dependency. (ii) Where the deceased was a Stepping / Dormant partner who did not participate in the management of the business, but received the profits from the business only on account of capital contribution, no part of such income is derived by the exertion of the deceased. Such income is a dividend or a return on the investment. On the death of such sleeping partner his legal heir will eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased and the income attributable to the investment made. 23. There the deceased was carrying on any business [either as proprietor or as managing partner] which was run solely on account of his efforts and skill and such business is closed or is drastically reduced in scale, on account of his death, there can be little doubt that the earning of the deceased from such business will have to be taken as 'income' for calculating the loss of dependency. But, what is the position if the deceased was not carrying on the business by his individual skill and effort, but the deceased was a partner with several others or is a member of a family firm, and on his death his widow or son/daughter steps into his place in the partnership and family continues to have the income from the partnership which the deceased was getting earlier? In that event, can it be said that there is loss of entire income, which the deceased was getting from the partnership firm, for calculating loss of dependency? Obviously not in that event, the loss of income will be the monetary equivalent of the supervision, skill and effort of the deceased. But how is it to be calculated? A few illustrations will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,00,000.00 invested of each of them and 50% share in the profits/losses (the share in profits being Rs. 10,000.00 per annum during the relevant year. One of the partners died in a motor accident and his son is taken as partner in the place of the deceased on the same terms; and thus the family continues to get the same income (consisting of remuneration, interest on capital investment and share in profits/losses). In such a situation, the entire income which the deceased used to get from the firm (remuneration plus interest on capital plus share in profits) will not be the loss to the family for purposes of calculating the loss of dependency. Only the value of the effort put in by the deceased as partner will be a loss to the family. Thus, the remuneration of Rs. 5,000.00 per month or Rs. 60,000.00 per annum will be the loss of income. Illustration-D: On the same facts (as in illustration-C), the partnership merely provided for sharing of profits/loss at 50% each, without any remuneration or interest on capital contributed by the two partners. In the absence of evidence to the contrary, the 'income' for purposes of dependency can be arrived at by deducting the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od 1-4-1990 to 31-3-1991. They show that Govinda Setty and his wife (claimant No. 1) were partners in the said firm, along with Govinda Setty's brother and mother, Ex.P.10 is the profit and loss account of Padmavathi Commercials for the period 1-4-1992 to 31-3-1993. This shows that from 1-4-1992, the deceased Govinda Setty ceased to be a partner of the said partnership and his son B.G. Raghavendra (claimant No. 2) had been taken as a partner in place of Govinda Setty. There is nothing to show that Govinda Setty subsequently again became a partner of Padmavathi Commercials. Thus, the deceased was not a partner at all in the firm of Padmavathi Commercials at the time of his death, his son Raghavendra having been taken as a Partner in his place during the accounting year 1992-93 (Assessment Year 1993-94) itself. Hence, the contention that the deceased was deriving any income from the firm of Padmavathi Commercials and that such income should be taken as the income of the deceased for the determination of total loss of dependency, is rejected. 27. Therefore, what remains to be considered is the income of the deceased Govinda Setty from the BVS FIRM. In regard to the BVS FIRM, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not however dependents, as they were partners in two firms. For purpose of ascertaining the contribution to the family, the following two amounts will have to be deducted as held by the Supreme Court in U.P. STATE ROAD TRANSPORT CORPORATION v. TRILOK CHANDRA ILR 1995 Kant 2127 (i) personal expenses of the deceased and (ii) living expenses of the deceased. Having regard to his status and position in Society a sum of Rs. 500/- per month or Rs. 6,000/- per annum will have to be deducted towards personal expenses. Out of the balance of Rs. 54,000.00, one third will have to be deducted towards the living expenses of the deceased (by allotting two units to deceased and his wife and one unit to each of his two minor children) Thus, the contribution to the family from the deceased would have been Rs. 36,000/- per annum. As the death of Govinda Setty was on 10-10-1993 i.e. before the amendment of to the Motor Vehicle Act introducing Schedule-II, the applicable multiplier will have to be selected by taking the operative multiplier as 16 - vide the principles laid down by the Supreme court in THE GENERAL MANAGER KERALA STATE ROAD TRANSPORT CORPORATION v. SUSAMMA THOMAS and the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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