Pankajkumar Joshi & Ors. Vs. New India Assurance Co. Ltd.  INSC 1412
(7 August 2009)
SUPREME COURT OF INDIA CIVIL APPEALLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No.12255 of 2007) Meenaben Pankajkumar Joshi & Ors.
... Appellants Versus New India Assurance Co. Ltd. ... Respondent
The claimants in a motor accident claims are before us aggrieved
by and dissatisfied with the judgment and award passed by a Division Bench of
the High Court of Gujarat whereby and whereunder a judgment and award dated
13.12.2005 passed by the Motor Accidents Claims Tribunal, Fast 2 Track Court-4,
Gandhidham - Kutch in MAC Petition No.297 of 2005 (original No.2 of 1998) was
The deceased Raj Kumar Joshi was a Director of a Company commonly
known as Kandla Clearing Agency Private Limited. He was drawing a salary of
Rs.7,500/- per month. He was, however, also running a proprietorship concern
carrying on business in `Clearing and Forwarding' in the name of Ultra Clearing
and Forwarding Company.
filed a claim petition before the Tribunal claiming a sum of Rs.90 lakhs as
compensation in respect of the death of the said Raj Kumar Joshi who died in a
motor vehicle accident and with a view to prove their case, appellants, inter
alia, filed income tax returns for the assessment years 1996-97 and 1997-98
disclosing the income from salary from the Directorship in Kandla Clearing
Agency Private Limited at Rs.66,000/- and Rs.90,000/- respectively. The said
returns were accompanied by a certificate issued by the Manager/Accountant of
the Company. In the said income tax returns, a sum of Rs.12.73 lakhs was also
shown as turnover of the business for eight months in respect of the said
proprietorship concern. The Tribunal passed an award for a sum of
Rs.49,25,000/- with proportionate costs and interest at the rate of 12% per
annum from the date of claim petition till 3 December 2000 and thereafter at
the rate of 9% per annum. Respondent No.1 herein preferred an appeal
thereagainst before the High Court questioning the correctness of the said
judgment and award.
The High Court by reason of the impugned judgment, so far as the
income of the deceased from the aforementioned proprietorship concern is
concerned, opined as under :
proceeding on the basis that the deceased had set up another business in the
name of Ultra Clearing and Forwarding Company in May 1997 and even proceeding
on the basis that there were deposits in the bank accounts of the deceased with
State Bank of Bikaner and Jaipur, we cannot at all approve of the approach of
the Tribunal in proceeding on the basis that the margin of profit or margin of
commission of the deceased in the said business was to the extent of 20%. The
very nature of the business of the deceased being that of clearing and
forwarding agent would mean that the deceased would be acting as an agent of
the consignors or consignees and, therefore, such receipts would to a
substantial extent be the price of the goods being consigned. The very fact
that after the accident the widow of the deceased filed income tax returns for
the salary income of the deceased for the previous years 1995-96 and 1996- 97
but did not file and income-tax return for the subsequent year i.e. 1997-98 for
the alleged business income allegedly earned between May and October 1997
belies the claimants' case that the deceased was getting substantial income
from the business being carried on by him in the name of Ultra Clearing and
Forwarding Company. We 4 are, therefore, shocked to find that the Claims
Tribunal accepted the claimants' case about the alleged income of the deceased
from the business in the name of Ultra Clearing and Forwarding company without
making any probe into such tall claim and without testing the claimants' case
even on the touchstone of commonsense."
supplied) So far as the question with regard to the applicability of the Indian
Evidence Act is concerned, the High Court while opining that the strict rules
of evidence would not apply to the claim proceedings before the Tribunal, held
as under :
foregoing discussion would show that there was no evidence on record before the
Tribunal to arrive at the conclusion that on the credit amount of Rs.12.73
lakhs, the deceased was getting commission of 20% as held by the Tribunal. The
finding of the Tribunal on this score is, therefore, not only incorrect and
unwarranted, but to say the least, perverse. No reasonable person instructed in
this branch of law would ever arrive at such conclusion that the deceased was
getting commission of 20% of the gross deposits made in his bank accounts. The
finding can never be said to be based on judicial considerations."
Court also interfered with the rate of interest opining that the rate of
interest should be fixed at 9% per annum from the date of the claim till the
date of deposit.
Mr. K.V. Vishwanathan, learned senior counsel appearing on behalf
of the appellant, would contend that the High Court committed a serious error
insofar as it held that a forwarding and clearing agent dealt with goods.
urged that the expenditures required to be incurred by a clearing and
forwarding agency will depend upon the expenditures required to be incurred in
terms of the agreement as clearing and forwarding agent does not deal with sale
of goods and as such the question of payment of any price of the goods being
consigned would not arise.
Before us, an application has been filed seeking permission to
reply upon additional documents containing various bills, debit notes, etc. to
show the nature of expenditure incurred by the said proprietorship concern.
Having heard the learned counsel for the parties, we are of the
opinion that keeping in view the provisions of Section 168 of the Motor
Vehicles Act, 1988 in terms whereof the Tribunal is required to award a fair
compensation, the additional documents sought to be produced before us should
be taken into evidence. We say so because the appellants have contended that
those documents were not available at the relevant time.
they have not been brought on records before the Tribunal also.
We, therefore, are of the opinion that the interest of justice
would be subserved if the matter relating to award of compensation is
considered afresh by the Tribunal upon taking additional documents placed
before us as additional evidence. The claimants unless admit or formal proof
thereof is dispensed with, may prove the said documents by examining witnesses.
The respondents, it goes without saying, would be entitled to cross-examine the
said witnesses produced on behalf of the appellants and would furthermore be
entitled to examine their witnesses in this behalf. We make it clear that all
other findings arrived at by the Tribunal and as modified by the High Court
shall remain undisturbed.
The appeal is allowed to the aforementioned extent and the matter
is remanded to the Tribunal with the aforementioned directions and
observations. However, in the facts and circumstances of this case, there shall
be no order as to costs.
.............................J. [S.B. Sinha]
.............................J. [Deepak Verma]