SHARDABEN JAYANTILAL SHAH Vs. R S BELSARE

JUDGEMENT

(1.) The petitioners dependents of the deceased defaulter assessee Jayantilal R. Shah alias Maniar have filed this petition challeng- ing the order dated March 28 1977 at Annex. B by the Tax Recovery Officer rejecting the petitioners objections against the attachment of the compensation amount awarded to them by the Motor Accident Claims Tribunal in its decision at Annex A dated August 25 1975 The petitioners have challenged this decision of the Tax Recovery Officer as being ultra vires depriving the petitioners of their fundamental rights to hold this compensation moneys which have been awarded to them in their own right by the competent Tribunal ignoring the settled law and proceeding on extraneous considerations The deceased assessee Jayantilal had met with an accident while he was travelling on 16-8-73 along with the petitioners in a motor taxi from Limbdi to Ahmedabad when the motor taxi collided with 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 15 1973 The Claim Applications Nos. 118 to 125 of 1973 had been filed before the Motor Accident 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. 47 300 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. 69904/ was awarded including Rs. 30(30.00 as damages for loss of expectation of life. Even the petitioners do not dispute that this amount of Rs. 300/ would go to the estate of the deceased and would be attachable. The petitioners have confined this petition only to the claim of the balance amount of Rs. 59904.00 which has been awarded only to these dependents by the Claims Tribunal in their own right by assessing maintenance element or dependency benefit as a loss which had resulted on account of the death of the deceased to these petitioners dependents alone. The respondent Tax Recovery Officer however refused to release (he attachment on this amount awarded even to these dependents as dependency benefit on the ground that the right to compensation accrued to the deceased in his life time which only has been awarded to these petitioners legal representatives and therefore the said compensation amount having been lawfully attached in recovery of the dues of the deceased defaulter assessee objection of the petitioner had been disallowed. The authority had also proceeded on the analogy of the principles which had been laid down by this Court in Bharatkumar Manilal Dalals case (1975) 99 I.T.R. 179 in the context of the Estate Duty Act in respect of policy moneys on personal accident policies. The petitioners have challenged this decision as ultra vires and violative of their fundamental rights. Although no affidavit in reply has been filed by the respondent the learned Government Pleader has supported the order and has raised preliminary objection as to the maintainability of this petition on two grounds:

(2.) At the outset we would consider the relevant provisions of the Income-tax Act and the Schedule II in this connection along with the decision of the Motor Accident Claims Tribunal in this matter as per the order at Annexure A. There is no dispute that the deceased was a defaulter assessee and his name was mentioned in the Tax Recovery certificate received by this respondent Tax Recovery Officer from the concerned I.T. Officer for the recovery of arrears of by recourse to the provisions of the Act and and schedule. Under sec. 222(1) when an assessee is in default or is deemed to be in default in making a payment of tax 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 modes specified therein in accordance with the rules laid down in Second Schedule one of the modes is specified in clause (a) viz. attachment and sale of assessees movable property. Sec. 26 specifies in clause (1) that notwithstanding the issue of a certificate to the Tax Recovery Officer under sec. 222 the Income-Tax officer may recover the tax by any one or more of the modes provided in the section. Under sec. 23? the several modes of recovery specified in this chapter shall not affect in any way

(3.) It is in the context of these relevant provisions that we will have to determine the rival contentions of the parties. We would also consider at this stage what was actually decided by the Motor Claims Tribunal which has been conferred exclusive jurisdiction in supersession of the ordinary civil Courts to adjudicate these motor accident claims and assess compensation in such cases A bare perusal of the decision of the Claims Tribunal at Annex. A reveals that after first finding the negligence established the Tribunal applied its mind to the question of assessing compensation in respect of the death of the deceased The Tribunal had pointed out that one of the claimants applicant No. 2 Rajnikant son of the deceased Jayantilal should be excluded because he was doing some business which would have small earning only enough for himself and his family members. He was therefore not treated as a dependent and he was excluded from the dependent-claimants. Similarly two married daughters who had been joined as opponents Nos. 3 and 4 were also excluded. Therefore out of all legal representatives of 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 income of the deceased at Rs. 500.00 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. 6000.00 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. 84.00 per month and deducting that amount the amount left of Rs. 416.00 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. 4992.00. After following the settled legal position laid down by this Court in Hirji Virji Transport v. Bashiran Bibi 12 G. L. R. 783 where settled legal position had been exhaustively examined the Tribunal capitalised this dependency benefit of only these petitioners dependents by 12 years purchase factor looking to the age of the deceased as 50 years. Therefore the Tribunal in terms held that consequently total loss of income to the family viz. the petitioners dependents comes to Rs. 59904.00 and adding Rs. 3000.00 as conventional sum for loss of expectation of life the total compensation award to the petitioners must be Rs. 62 904 This exhaustive discussion and the speaking award of the Tribunal makes it in terms clear that the compensation has been awarded not to all the legal representatives or heirs of the deceased but only to these dependents petitioners who are proved to be actual dependents of. the deceased. Therefore the dependency benefit was worked out by way of working out only their maintenance element as the income of the deceased was found to be only Rs. 500.00 per month and deducting Rs. 84.00 the sum the deceased would have spent on himself the balance amount of Rs. 416.00 per month spent on these dependents members was only capitalised by 12 years purchase factor and accordingly the total loss of income to these dependents family members vas held to be Rs. 59 904 The income of the deceased being hardly sufficient for the maintenance of the family members there was no question of an savings being capitalised. Therefore. this was clearly the amount assessed by way of dependency benefit for loss suffered only by these petitioners dependents. An additional amount of Rs. 3000.00 was added as conventional amount as per our decisions for the loss of expectation of life which alone was awarded to the estate of the deceased and the petitioners got only that additional amount of Rs. 3000.00 as less to the estate Therefore. a hare perusal of the award of the competent forum which has keen set up by law in supersession of the ordinary civil Courts leaves no doubt that so far as the amount of Rs. 59 204 was concerned which was awarded in equal shares only to these five petitioners dependents. that amount was awarded in their own right for the total loss suffered by them as dependents and it was only the balance amount of Rs. 3000.00. the conventional amount of loss of expectation for life. which was by way of damages for expectation of life which only can be taken as the loss to the estate which had been received by the petitioners. That is why the petitioners have categorically stated that so far as the compensation given to the estate is concerned of Rs. 3000.00 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 dependent 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 dependents have also filed an appeal F. A. 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 Claims Tribunal that we have now to answer the objections raised in this matter.