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Shardaben Jayantilal Shah and ors. Vs. R.S. Belsare, Tax Recovery Officer Ii, Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 594 of 1977
Judge
Reported in(1978)0GLR636; [1978]112ITR156(Guj)
ActsIncome Tax Act, 1961 - Schedule - Rules 11(6) and 86(1); Constitution of India - Article 226
AppellantShardaben Jayantilal Shah and ors.
RespondentR.S. Belsare, Tax Recovery Officer Ii, Ahmedabad
Appellant Advocate K.H. Kaji, Adv.
Respondent Advocate G.N. Desai, Adv.
Cases ReferredBai Nanda v. Shivabhai
Excerpt:
direct taxation - compensation - rules 11 (6) and 86 (1) of schedule to income tax act, 1961 and article 226 of constitution of india - petition filed challenging order of attachment passed in respect of compensation granted to assessee-defaulter who died in accident - assessee-defaulter was sole bread earner - compensation granted for loss of life of bread earner and for damages suffered by assessee's family members after his death - held, compensation not liable to be attached. - - (4) where, upon the said investigation, the tax recovery officer is satisfied that, for the reason stated in the claim or objection, such property was not, at the said date, in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent.....j.b. mehta, j.1. the petitioners, dependants of the deceased defaulter-assessee, jayantilal r. shah alias maniar, have filed this petition challenging the order dated march 26, 1977, at annexure 'b', by the tax recovery officer rejecting the petitioners' objections against the attachment of the compensation amount awarded to them by the motor accidents claims tribunal in its decision at annexure '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 right to hold these 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.....
Judgment:

J.B. Mehta, J.

1. The petitioners, dependants of the deceased defaulter-assessee, Jayantilal R. Shah alias Maniar, have filed this petition challenging the order dated March 26, 1977, at annexure 'B', by the Tax Recovery Officer rejecting the petitioners' objections against the attachment of the compensation amount awarded to them by the motor Accidents Claims Tribunal in its decision at annexure '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 right to hold these 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 August 16, 1973, along with the petitioners in a motor taxi from Limbdi to Ahmedabad when the motor taxi collided with an 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 Application 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. 47,360 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 objection so 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 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. 59,904 which has been awarded only to these dependants 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-dependants alone. The respondent, Tax Recovery Officer, however, refused to release the attachment on the amount awarded even to these dependants as dependency benefit on the ground that the right to compensation accrued to the deceased in his lifetime which only has been awarded to these petitioners as 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 Dalal's case : [1975]99ITR179(Guj) 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 :

(1) that the matter involved disputed questions of fact as to the title of these compensation moneys;

(2) that there was a bar of alternative remedy of a civil suit or by filing an appear under rule 86(1) (c), which having not been exhausted, the present petition was incompetent.

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 Accidents 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 the respondent-Tax Recovery Officer from the concerned Income-tax Officer for the recovery of arrears of tax by recourse to the provisions of the Act and the Second Schedule. Under section 222(1) when an assessee is in default or in 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 of the modes specified therein in accordance with the rules laid down in the Second Schedule. One of the modes is specified in clauses (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 that the tax due is being recovered from the assessee by any mode specified in the Chapter. In the relevant Second Schedule, rule 1(b) defines 'defaulter' as the assessee mentioned in the certificate received by the Tax Recovery Officer from the Income-tax Officer for the recovery of arrears under this certificate. Under rule 4, if after the issue of notice under rule 2, if the amount mentioned in the notice is not paid, the Tax Recovery Officer shall proceed to realise the amount in any of the modes specified therein including -

(a) by attachment and sale of the defaulter's movable property.

3. Rule 11 provides for the procedure of investigation by the Tax Recovery Officer as under :

(1) Where any claim is preferred to, or any objection is made to the attachment or sale of, any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection : Provide that no such investigation shall be made where the Tax Recovery Officer considers that the claim objection was designedly or unnecessarily delayed.

(2) Where the property to which the claim or objection applies has been advertised for sale, the Tax Recovery Officer ordering the sale may postpone it pending the investigation of the claim or objection, upon such terms as to security or otherwise as the Tax Recovery Officer shall deem fit.

(3) The claimant or objector must adduce evidence to show that -

(a) (in the case of immovable property) at the date of the service of the notice issued under this Schedule to pay the arrears, or

(b) (in the case of movable property) at the date of attachment, he had some interest in, or was possessed of, the property in question.

(4) Where, upon the said investigation, the Tax Recovery Officer is satisfied that, for the reason stated in the claim or objection, such property was not, at the said date, in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the defaulter at the said date, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Tax Recovery Officer 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 the 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.

4. 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.

5. Therefore, under these relevant provisions the Tax Recovery Officer in pursuance of the certificate received by him from the Income-tax Officer for the recovery of arrears of this defaulter-assessee, Jayantilal, could under rule 4(a) realise the amount by attachment and sale only of the defaulter's movable property. Under rule 11 he has to decide this objection and the objector has to adduce evidence under rule 3(b) that in case of such movable property at the date of attachment he had some interest in, or was possessed of, the property in question. Thereafter, the Tax Recovery Officer has power under rule 11(4) and (5) to deal with these objections by releasing the property attached or by disallowing the claim on being satisfied as specified therein. Under rule 11(6), the party against whom the order is made is permitted to institute a suit in civil courts to establish a 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 is made conclusive by rule 11(6). When this order is made conclusive under rule 11(6), it is obvious that under rule 86(1) no appeal could lie from this order of the Tax Recovery Officer disallowing the objection claim to the Tax Recovery Commissioner because appeal is provided there against the original order passed by the Tax Recovery Officer which is other than an order which is made conclusive by these rules.

6. 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 Accidents 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 annexure '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 dependants and he was excluded from the dependant-claimants. Similarly, two married daughters 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 Claim Tribunal has allowed the claim of compensation only of the widow, two sons, motor daughter, the claim-applicants Nos. 1, 3, 4 and 5 and also the mother who was jointed as opponent No. 5. The Claim 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 and deducting that amount, the amount left 416 per month was held to be spent by the deceased on the family for maintenance of these dependants. 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)12GLR783 , where the settled legal position had been exhaustively examined, the Tribunal capitalised this dependency benefit of only these petitioners-dependants 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-dependants comes to Rs. 59,904 and adding Rs. 3,000 as conventional sum for loss of expectation of life, the total compensation awarded to the petitioners was 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 those dependants-petitioners who are proved to be actual dependants of the deceased. Therefore, the dependency benefit as worked out by way of working out only their maintenance element as the income of the deceased was found to be only Rs. 500 per month and deducting Rs. 84, the sum the deceased would have spent on himself, the balance amount of Rs. 416 per month spent on these dependants-members was only capitalised by 12 years' purchase factor and accordingly the total loss of income to these dependants-family members was 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 any savings being capitalised. Therefore, this was clearly the amount assessed by way of dependency benefit, for loss suffered only by these petitioners-dependants. An additional amount of Rs. 3,000 was added as conventional amount as per our decisions for the loss of expectation of life which alone was awarded to the estate of deceased and the petitioners got only that additional amount of Rs. 3000 as loss to the estate. Therefore, a bare perusal of the award of the competent forum, which has been set up by law in supersession of the ordinary civil courts, leaves no doubt that so far as the amount of Rs. 59,904 was concerned, which was awarded in equal shares only to these five petitioners-dependants, that amount was awarded in their own right for the total loss suffered by them as dependants and it was only the balance amount of Rs. 3,000 the conventional amount of loss of expectation for life which was by way of damages for expectation of life, which can be taken as the loss to the estate which has 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. 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 Claim Tribunal that we have now to answer the objections raised in this matter.

7. 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 dependants 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 their total dependency benefit, it is obvious that the question of title to these compensation moneys by way of dependency benefit of Rs. 59,904 is already adjudicated in the exclusive competent forum which is set up in supersession of the ordinary civil courts of law. Therefore, this is not a case where any disputed questions of fact arise for decision of the title of these petitioners to this compensation amount. Therefore, on that ground this petition cannot be thrown out. Even on the second objection, the legal position is completely settled by the Full Bench decision of five judges of this court in Spl. C. A. No 1721/1976 and others, decided on April 13, 1977, (since reported in Ahmedabad Cotton Mfg. Co. Ltd. v. Union of India AIR 1977 Guj 113 ), where the scope of the relevant fetter on the amended article 226(3) had been examined in that decision. Article 226(3) provides that no petition for redress of injury referred to in sub-clauses (b) and (c) of clause (i) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. It was first pointed out that this fetter is not attracted to a petition for enforcement of fundamental rights falling under article 226(1)(a) as it is restricted to sub-clauses (b) and (c) only. The second feature which was found in the context of other remedy was that adequate and efficacious remedy was implicit if the remedy was to be for redressing the injury as effectively as can be done in the writ petition. The third important feature found was that such remedy was provided for by or under any other law for the time being in force which makes it implicit that this must be a direct remedy specifically provided by or under the specific law in force under which the impugned action or order is made. Reference was made in this context to the relevant portion of the speech of the Union Law Minister while moving the Constitution (Forty-fourth Amendment), Bill, 1976, for consideration in Rajya Sabha on November 4, 1976. Said he :

'But, of course, if there is an alternative remedy which is provided in the law under which a particular action is taken or an order is made, it is necessary that first that alternative remedy should be exhausted.....'

8. It was, therefore, held that this alternative remedy could never be the general remedy of a civil 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 dependant 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 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 fir 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) only emphasises that the decision of the Tax Recovery Officer on the objection claim under rule 11 in such summary proceeding is conclusive subject to any civil suit which the objector may file for establishing his right to the property in question. This is in line with the entire scheme of these provisions of summary recovery of the debt created after the assessment order. Section 232 reiterated several modes of recovery specified in that Chapter, which were not to be exhaustive, and the right of the Income-tax Officer or the Government to have recourse even to other law for recovery of dues to the Government or by filing a suit in a court of law was not affected thereby. As pointed out in Raja Jagdish Pratap Sahi v. State of U. P. : [1973]88ITR443(SC) , as per the settled principles and the consistent view taken by our courts, it is beyond doubt that where a taxing statute provides for a summary mode of recovery and is not exhaustive it is always open to the revenue to resort to any other mode open to it under the general law for recovery of the tax dues and it was in terms held that even section 232 would not imply that it is only by virtue of that specific provision that the legislature had conferred this right upon the revenue which it earlier did not possess. Once a debt was created in respect of tax dues, the State had always a right to recover it by any other modes open to it under the general law, unless as a matter of policy, only a specific mode to the exclusion of any other is prescribed by the law. It is only in consonance with the same scheme that rule 11(6) reiterates corresponding right also of the person concerned whose property is sought to be attached, clarifying that the decision of the Tax Recovery Officer in the summary proceeding was conclusive, subject to the right of the concerned party to established his right of the concerned party to establish his right to the property in question in a competent court of law by filing a civil suit. Therefore, it could never be urged in view of the settled legal position that rule 11(6) created this alternative remedy of filing a civil suit. Therefore, there being no special alternative remedy created by or under the Act, even in the relevant rules in Schedule II, the fetter in article 226(3) could not be invoked in the present case against the alleged ultra vires order. It is, therefore, not necessary to rest the decision on the wiser 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 dependants' 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. Therefore, there is no substance in the preliminary contentions raised by the learned Government Pleader on the alleged two grounds and they must fail.

9. Coming to the merits, the legal position in this connection is now very well settled and unfortunately the respondent, Tax Recovery Officer completely overlooked the same and proceeded on such extraneous ground of a decision under the Estate Duty Act. The learned Government Pleader rightly did not press in aid that decision in Bharatkumar Manilal Dalal v. Controller of Estate Duty : [1975]99ITR179(Guj) by the Division Bench consisting of Divan C.J. and B. K. Mehta J. The question in that decision had arisen in the context of the two insurance policies where the father of the deceased, accountable person, was nominated as a beneficiary in both the insurances for receiving the claim amount payable under the policies in case of death of the insured. The first policy covered certain travelling expenses against risk of air travel for his journey from the U. S. A. to India and back and the other was personal accident policy. The question had arisen in the context of sections 14 and 15 and section 5 and 6 of the Estate Duty Act, 1953. A very wide definition was given to the term 'property' in section 2(15) as including any interest in the property, movable or immovable, the proceeds of sale thereof, and any money or investment for the time being representing the proceeds of sale and also as including any property converted from one species into another by any method whatever.'Property passing on death' has been defined in section 2(16) as including property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and 'on the death of' includes 'at a period ascertainable only by reference to the death'. It is in the wider context of that legislation that the decision was made. It had been held that even though section 14 covered policy moneys received under a policy of insurance effected by any person on his life, it would not include such accident policy, in view of the established connotation of the term 'life policy'. Section 15 which was of the widest amplitude because of the words 'any other interest' was held to cover all kinds of interest which had been purchased or provided by the deceased in the nature 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 section 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 level 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 duty legislation. This decision in a totally different context could hardly be invoked in the present context even if the said ratio is presumed to be correct ratio, on which we are no expressing any opinion. Therefore, both the parties rightly did not rely upon the decisions in a totally different context of the estate duty legislation in the context of such contractual insurance accident policies or otherwise, and confined only to the settled legal position so far as such motor accident claims were concerned, where the whole position has now been well settled by the high authority.

10. In Gobald Motor Service Ltd. v. V. M. K. Veluswami, : [1962]1SCR929 their Lordships considered the entire settled legal position in the context of Law Reform (Miscellaneous Provision) Act, 1934, and it was pointed out at pages 6, 7 and 8 that the cause of action under section 1 and under section 1 are different. While under section 1 damages were recoverable for the benefit of the persons mentioned therein, under section 2 compensation goes to the estate, Whereas under section 1 damages were totally in respect of the loss sustained by the persons mentioned therein, under section 2 damages can be claimed, inter alia, for the loss of expectation of life. Though in some cases parties entitled to compensation under both the section may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under section 1 may be different from those claiming under section 2. Prima facie, as the two claims are to be based upon different clauses of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. That is why when a difficulty arose, where the party claiming compensation under both the heads was the same and the claims under both heads synchronise in respect of a particular sub-head or in respect of the entire head, it was held that in that situation the party would not be entitled to recover damages twice over in respect of the same wrong. Further, proceeding at page 7, Lord Macmillan's observation in Davies' case [1942] AC 601, 610 (HL), have been approved as under : [1962]1SCR929

'The rights of action in the two cases are quite distinct and independent. Under the Law Reform Act the right of action is for the benefit of the deceased's estate; under the Fatal Accidents Act the right of action is for the benefit of the deceased's dependents. 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.'

11. 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 los caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate.'

12. Therefore, the whole law on this branch was approved and stated as under : [1962]1SCR929 :

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.'

13. Therefore the whole law on this branch was approved and stated as under (See : [1962]1SCR929 ) :

'The rights of action under sections 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the section is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa.'

14. This ratio is reiterated in the later decision in C. K. Subramonia Iyer v. T. Kunhikuttan Nair : [1970]2SCR688 , where, after following the Davies' case ratio [1942] AC 601, the observations of Lord Wright were approved as under :

'The general nature of the remedy under the Fatal Accidents Acts has often been explained. These Acts 'provided a new cause of action and did not merely regulate or enlarge an old one', as Lord Sumner observed in Admiralty Commissioners v. S. S. Amerika [1917] AC 38 at page 52 (HL). The claim is, in the words of Bowen L. J., in Vera Cruz No. 2 [1884] 9 PD 96 (CA) for injuriously affecting the family of the deceased. It is not a claim which the deceased could have pursued in his own lifetime, because it is for damages suffered not by himself, but by his family after his death.'

15. Thereafter, at page 379, it was held that even the mode of assessment of damages is not free from doubt. It is beset with certain difficulties. It depends on many imponderables. Their Lordships approved Davies' methods of assessing damages by capitalising the loss on the basis of appropriate years purchase factor. At page 380, their Lordships held that the number of years' purchase is left fluid, from twelve to fifteen, which was quite a common multiple in the case of a healthy man, and the number should not be materially reduced by reason of the harzadous nature of occupation of the deceased man. These principles, however, were only appropriate where the deceased was the bread-winner of the family. Following this settled legal position and after re-considering even the earlier decisions of this court in Bai Nanda v. Shivabhai : (1966)7GLR662 , where Nance's method was followed, it was held by this court in Hirji Virji Transport Co. v. Bashiran Bibi : (1971)12GLR783 , 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 case in C. K. Subramonia Iyer's case, : [1970]2SCR688 , 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 dependants is by way of losing the amount which would have been spent on them by the deceased during the period of his expected useful life Under section 2, however, the loss estimated is of the loss to the estate of the deceased. Under the first head the loss had an element of maintenance, while under the second head the loss has a saving element. That is why their Lordships added in Gobald Motor Service's case, : [1962]1SCR929 , that the loss under these two heads should not be assessed twice over. In other words, there should not be overlapping. If, therefore, from the income of the deceased the amount which had been spent on his is deducted, the remaining amount would either be spent on the dependants or would be saved. Loss to the dependants can be arrived at by capitalising the first amount which was the amount spent on the dependants, while the second amount can be arrived at by capitalising the saving made by the deceased from year to year. Of course, the estate could get additional amount by way of damage for the mental agony, suffering and loss of expectation of life. For this damage as per the settled legal position discussed in the earlier decision in Bai Nanda v. Shivabhai : (1966)7GLR662 . damages were to be awarded only as conventional amount which in this country should not be less than Rs. 3,000 because conventional damages on this head in England were initially pound 200 and were raised to pound 500 after devaluation of sterling currency. Thereafter, both these methods were considered in Davies' [1942] AC 601) and Nance's [1951] AC 601 cases and it was pointed out that the same result was reached and how the preference of the experienced judges was now for the later Davies' method which was now finally settled even by the decisions of the Supreme Court in the country.

16. In view of the aforesaid settled legal position, it is obvious that when the compensation was assessed in the present case for loss of life of such a bread-winner by applying Davies' method and the learned Tribunal was careful enough to exclude even the heirs and legal representatives like the earning eldest son, Rajnikant, or the two married daughters, it was obvious that the compensation of Rs. 59,904 had been assessed only by way of dependency benefit as the total loss suffered by the petitioner-dependants alone. As earlier pointed out, the cause of action to these dependants of the deceased for the 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, 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 petitioner-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 petitioner-claimants which they received in their own right and whose title was settled in their favour by the competent Motor Claims Tribunal in the aforesaid decision at annexure 'A'.

17. The learned Government Pleader, however, vehemently argued that cases might arise where, as pointed out by their Lordships, the claimants might be the same claimants under both the heads in section 1(a) and section 2 and, therefore, the compensation may overlap under the two heads. The Tribunal may be careful to avoid that overlapping by awarding the same amount twice over, but still, however, the question would have to be considered whether the dependency benefit was capitalised which involved only the maintenance element or even the saving element was capitalised under the first head. If the amount of the deceased's saving was capitalised, as per the aforesaid settled legal position, that would go to the estate and to which a further amount by way of loss of expectation of life to the extent of conventional amount would be added. But that alone is the amount which goes to the estate. The compensation which is assessed for the injurious affection to the family of the deceased by depriving them of their dependency benefit or the amount which were spent on them by the deceased, as per the settled legal position, belongs to the dependants, and that is not a claim which the deceased could have pursued in his own lifetime, because it is not for the damages suffered by himself but by the family dependants after his death. In the present case, the Tribunal was careful enough to exclude even other family members, the eldest son and the two married daughters who were all legal representatives and the heirs of the deceased and who would have a claim to the estate of the deceased. While working out the dependency benefit these eligible claimants are not the same. So far as the dependency benefit is concerned, it has been estimated on the basis of only 12 consumption units and the loss has been worked out for injurious affection of these petitioner-dependants alone. Therefore, the whole argument of the learned Government Pleader is only academic and could never be advanced so far as the present controversy is concerned.

18. The learned Government Pleader next argued that appeals have been filed by both the parties and, therefore, in addition to this dependency benefit, if in appeal some further saving element is 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 petitioner-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 position and by taking into account thoroughly extraneous consideration of the ratio of Bharatkumar manilal Dalal's decision : [1975]99ITR179(Guj) , which is in the context of estate duty legislation and which has admittedly no bearing in the present context.

19. In that view of the matter this petition must be allowed by quashing the impugned order of the Tax Recovery Officer at annexure 'B' and by directing the Tax Recovery Officer to release the said amount of Rs. 59,904 also from attachment in connection with the aforesaid tax dues of the deceased, defaulter-assessee, Jayantilal, and restraining the respondent from recovering these dues from the aforesaid compensation amount of Rs. 59,904 which belongs to the petitioners. It is clarified that the Tax Recovery Officer shall be entitled to continue his proceeding of recovery from the remaining amount of Rs. 3,000 which was awarded by way of loss of estate of the petitioners as conventional amount of loss of expectation of life, and that he is allowed to proceed even in respect of any further amount which may be awarded to the petitioners by way of loss to the estate in the pending appeals before this court. The rule is accordingly made absolute with costs.


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