How to assess income of deceased in motor accident claim petition if his salary certificate is not available?

It is the specific case of the claimants that the deceased was possessing heavy vehicle driving licence and was earning Rs.15000/­ per month. Possessing such licence and driving of heavy vehicle on the date of accident is proved from the evidence on record. Though the wife of the deceased has categorically deposed as AW­1 that her husband Shivpal was earning Rs.15000/­ per month, same was not considered only on the ground that salary certificate was not filed. The Tribunal has fixed the monthly income of the deceased by adopting minimum wage notified for the skilled labour in the year 2016. In absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality. Merely because claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs.15000/­ per month. {Para 10}

                              Supreme Court

JUSTICE R. Subhash Reddy JUSTICE Hrishikesh Roy

Chandra @ Chanda @ Chandraram & Anr. Vs. Mukesh Kumar Yadav & Ors.

CIVIL APPEAL NO. 6152 OF 2021

1st October 2021

Author: R. Subhash Reddy, J.

Citation:  2021 ALL SCR 2196,(2022) 1 SCC 198.

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While calculating husband’s income for granting maintenance to wife, can husband’s mother who receives her independent pension be counted as a dependant to be maintained by husband?

 The next question which has to be decided by this Court is as to whether the court below was right in dividing husband’s income into six shares while calculating and granting interim maintenance.

30. It is an admitted fact that mother of husband is receiving pension @Rs.17,199/- and medical benefits etc. It is also not in dispute that the three storeyed house is in the name of mother, of which one floor is occupied by her, another by the husband and the third floor is occupied by the brother of the husband. According to wife, as per the copy of rent agreement placed on record, husband is paying a sum of Rs.8,000/- p.m. towards rent to her mother and such might be the position of brother too. And in this way, mother is getting additional rental income of approximately Rs.16,000/- per month.

31. Even if it is assumed that the rent agreement placed on record might have been manipulated to save income tax, then also it cannot be lose sight of that mother is receiving a good amount of pension and is thus, financially independent. In addition, she is also getting medical benefits from a Government Hospital, which is an added advantage towards her financial savings. Another plea put forth by the husband is that he had got employment in Indian Railways on compassionate grounds after demise of his father only because his mother had refused to procure it on medical grounds and tendered “no objection’ in his favour and therefore, he is liable to maintain her. The Hon’ble Supreme Court in Bhuwan Mohan Singh Vs. Meena & Ors. (2015) 6 SCC 353 has observed as under:- “2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.”

32. Accordingly, I find that the trial court has erred in keeping mother’s share in the income of husband.

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

 Pronounced on: 18.02.2021 

 CRL.REV.P. 322/2020 & Crl.M.A. 13958/2020

 NITIN SHARMA Vs SUNITA SHARMA & ORS.

CORAM: MR. JUSTICE SURESH KUMAR KAIT

Pronounced on: 18.02.2021 

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Whether Motor accident claim tribunal can treat depreciation costs on capital assets as income for grant of compensation?

 It was then contended by Mr. Jayanth Muth Raj that this Court must add to the annual income of the deceased, depreciation costs on capital assets to the amounts of Rs. 21,642, 74,685 and 7,701 as reflected in the tax return for the assessment year 1997-1998. We are unable to accede to this contention. Depreciation is the deduction allowed for the decline in the real value of tangible or intangible assets over its useful life. Its value varies over time and cannot amount to tangible income for the purposes of computing annual income in a claim before the MACT.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 9196-97 of 2019

Decided On: 09.12.2019

 Malarvizhi  Vs.  United India Insurance Company Limited 

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Bombay HC: Court should not deny maintenance to the wife if she is earning some income

 However, the fact that the wife carries on some business and earns some

money is not the end of the matter. Neither the mere potential to earn nor the

actual earning, howsoever meager it may be, is sufficient to deny the claim of

maintenance. The learned Judge, Family Court was justified in placing reliance

on the judgment of the Supreme Court in the case of Sunita Kachwa vs. Anil Kachwa  III 2014 (DMC) 878 S.C., wherein it was observed that, ‘the learned counsel for the respondent

submitted that the appellant-wife is well qualified, having post graduate degree in

Geography and working as a teacher in Jabalpur and also working in Health

Department. Therefore, she has income of her own and needs no financial

support from respondent. In our considered view, merely because the appellantwife

is a qualified post graduate, it would not be sufficient to hold that she is in a

position to maintain herself. Insofar as her employment as a teacher in Jabalpur,

nothing was placed on record before the Family Court or in the High Court to

prove her employment and her earnings. In any event, merely because the wife

was earning something, it would not be a ground to reject her claim for

maintenance.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.164 OF 2019

Mr.Sanjay Damodar Kale Vs  Ms.Kalyani Sanjay Kale,

CORAM : N.J. JAMADAR, J

PRONOUNCED ON : 26th May 2020

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Whether husband can prove that wife is earning income by filing photograph showing her presence at beauty parlour?

The claim of the petitioner that the first respondent is earning her livelihood from work in a parlour is founded on some photographs showing her presence at a certain place. This, to say the least, is not sufficient evidence to show that she has regular income sufficient to maintain herself and the minor daughter of the parties. The denial of this on the part of the respondents cannot be disbelieved at this stage, the burden being of the petitioner to prove his contentions by better proof.

In the High Court of Delhi at New Delhi

(Before R.K. Gauba, J.)

Khem Chand  v. Bhagwati alias Laxmi

Crl. M.C. 812/2016 & Crl.M.A. 3423/2016

Decided on January 22, 2019

Citation: 2019 SCC OnLine Del 6776

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Whether court can assess income of deceased for computation of compensation on basis of Income tax return?

REPORTABLE

We have given our anxious consideration to this

contention. There is no doubt that if the salary certificate is taken into

account the salary of the deceased should be taken as Rs. 1,06,176/-

since the gross salary was

Rs.8848 per month. That, however, in our view does not mean that

the income of the deceased as stated in the Income Tax return should

be totally ignored. It is not possible to agree with the observation of

the Tribunal that it was necessary for the claimants to “explain the said

contradiction” between two figures of income. The claimants had led

reliable evidence that the deceased had returned an income of Rs.

2,42,606/- for the assessment year 2004-05. This piece of evidence

has not been discredited. Indeed, it was possible that the deceased

had income from other sources also. There is nothing in the law which

requires the Tribunal to assess the income of the deceased only on the

basis of a salary certificate for arriving at a just and fair compensation

to be paid to the claimants for the loss of life.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) Nos. 7104-7105 OF

2016

UNITED INDIA INSURANCE CO. LTD.

Versus

INDIRO DEVI & ORS.

Coram:S.A. BOBDE, J.

Dated:JULY 03, 2018

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Whether wife can be denied ownership over property if her husband was taking income from said property?

The mere fact that the husband was also taking income from the property covered by Exts. A3, A4 and A5 sale deeds does not conclude that the said acquisition was not intended for the benefit of his wife. It is normal for a husband to take the income from the property of his wife and vice versa and nothing more can be attributed to such course of conduct. The sharing of income is insufficient to rebut the statutory presumption which is heavily loaded in favour of the ostensible title holder, we have no hesitation to hold that item Nos. 3, 4, 5 and 6 of the plaint 'A' schedule property belongs absolutely to the seventh defendant under Exts. A3, A4 and A5 sale deeds.

IN THE HIGH COURT OF KERALA

A.S. No. 677 of 1999

Decided On: 16.08.2016

Meenakshi Ammal Vs. Vijayalekshmi

Hon'ble Judges/Coram:

V. Chitambaresh and K. Harilal, JJ.

Citation: 2016 (3) KLT 690 : 2016 (3) KLJ 785 : 2016 (4) KHC 287

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Whether income of husband for grant of maintenance to wife can be determined on basis of income tax return produced by him?

 It is also clear from evidence that husband
has tried to hide his earning activity so also
his income and he has not come forward with clear
evidence regarding his income and therefore, I do
not see any irregularity or illegality by the
trial Court in holding that he must be earning
Rs.1,25,000/- p.m. considering the available
evidence on record. If at all applicant is clear
and certain that his income is not as has been
presumed by the trial Court, then, he should have
come forward with relevant documentary evidence.

An attempt was made by the applicant – husband to
prove that his yearly income is only
Rs.1,46,000/- by producing one I.T. Return, but
trial Court has rightly observed that since it is
a self-declaratory statement of the opponent and
that too pending the trial, same cannot be
considered as a reliable piece of evidence to
confirm the income of the husband. Whereas, wife
has categorically stated and deposed on oath that
husband and his family members are dealing with
manufacturing and selling of embroidery machines
and he is earning Rs.2 Lacs to Rs.3 Lacs p.m.
Thereby, when applicant – husband confirms that
he is doing the job work of embroidery work, it
is clear that he is doing some business and in
that case, he should have come forward with
proper and reliable evidence so as to disallow
the trial Court to presume his income. Though
applicant has tried to prove his Income-Tax
Returns of previous years, he has not bothered to
prove his income by proper and reliable evidence
so as to believe that he is earning only
Rs.15,000/- p.m.
8. In cross-examination the opponent – husband
has admitted that he is residing with his father
and that he has already filed Hindu Marriage
Petition for divorce and therefore, it is certain
and clear that he does not want to keep the wife
and children; whereas, so far as the earning
activity of his father and himself is concerned,
though he admits that he is doing the business of

selling and manufacturing embroidery machines, he
does not want to disclose several details and
even did not admit though proved on record by
documentary evidence that from the partnership
firm with his father, he has received an amount
of Rs.10,25,647/- in his personal account by one
single transaction on 31.10.2009. He further
states that he does not know as to how many
properties he is holding, but in next breath, he
has to admit that he holds more than 15 shops
jointly with her mother’s sister. He admits that
his family is having fleet of cars viz. Mercedes
Benz, Skoda, Corolla and Hyundai i-20 and that
they are holding Sawlani Estate, comprising of
5000 Sq.Yds., though he is saying that it is in
joint name. He also admits that his Bungalow is
of 500 – 600 Sq.Yds. and that their factory is in
two different sheds. He also admits that he does
not know that in which school his son is
studying, but has an audacity to say that the
school fees is paid by him, without disclosing
any proof. However, he also admits that school
fees is Rs.78,000/- p.a. All this evidence goes
to show that applicant has enough income to pay
reasonable and substantial amount of maintenance
to the wife and children. It cannot be ignored
that at Exh.20, the applicant has filed an
affidavit, wherein he has included his arguments
and therein though there is reference of I.T.
Returns for the years 2008 – 2009 and 2009 – 2010
with some other documents, practically, those

documents are thereafter never proved by the
applicant on record and therefore, when any
documents, which are simple xerox copies, and not
proved on record of the trial Court, then, those
documents cannot be looked into.
9. As already stated, this being a revision
application, there is limited scope of
interference and more particularly, when
applicant has not came forward with proper
evidence to prove his income by producing
statement of accounts and has instead produced
self-declaratory statement of I.T. Returns, and
more particularly, when he is residing with his
father and when they both are having valuable
properties and business and therefore, only
because of education of wife, it cannot be stated
that she is not entitled to maintenance or that
she is able to maintain herself.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 278 of2015

AMIT RAMCHAND SAWLANI.
V
CHITRA AMIT SAWLANI 
CORAM: MR.JUSTICE S.G.SHAH
Date : 09/08/2016
Citation:2016 CRLJ(NOC)340 Guj

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When income of joint family of husband can be taken in to consideration for grant of maintenance to wife?

It is seen that the reply is only of denial of the assertions made by the
Appellants. When the matter went for trial, the Appellant reiterated her case.
The Respondent in his examination-in-chief admitted that atleast 23 acres of
land belongs to the Joint Hindu undivided family and he is one of the
coparcener. In so far as other properties referred to in the Petition, he has merely
denied having any connection therewith inspite of the fact of having admitted
that godown was standing in his name. The fact remains that the joint Hindu
undivided family of which the Respondent was coparcener has substantial
properties. The Appellant had produced 7/12 extract before the lower Court to
establish the fact that the Family property consisting of mango grove was
around 75 acres of which 22 ares was used for cultivation of mango. The fact
that the family owns property has been accepted by the lower Court. The lower
Court has also accepted that joint family business was conducted through two
firms by the name “Ratna Mango House” and “Behere Bandhu Ambewala”.
The lower Court has rejected the plea of the appellant that income from all
sources would be around Rs.2 Crores per year. At the same time, it is noticed
that holding of other 22 acres of mango grove would generate substantial
income. We are conscious of the fact that the Respondent is one of the
coparcener and would have only part of share in the said income. It has come
on record that joint family also owns tempos and other vehicles. Considering

the life style of the Respondent family, it would necessarily follow that the
income of the Respondent was substantial. The Respondent only in crossexamination
produced his income tax return. However, when it came to the
question as to whether his father has filed income tax return as HUF. He has
denied knowledge thereof. That information is within the personal knowledge
of the Respondent. It was possible for the Respondent being one of the
coparcener of the Hindu undivided family and having share in the business and
income of the family, to have filed income tax returns in the name of HUF to
repel the claim of the Appellant that the income of the HUF was quite
substantial and almost around two crores per annum. The Respondent failed to
do so. In such a situation, adverse inference can be drawn against the
Respondent. We would therefore safely assume that the Respondent has
substantive income and considering holdings of the Joint family was capable of
paying monthly maintenance amount to the wife and the minor daughter as
prayed.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
 FAMILY COURT APPEAL NO. 22 OF 2006
WITH
CIVIL APPLICATION (ST.)NO.18788 OF 2010
IN
 FAMILY COURT APPEAL NO. 22 OF 2006
 Mrs. Mansi Milind Behere

Vs.
Shri Milind Pandurang Behere.

CORAM:- A.M.KHANWILKAR AND
 A.A.SAYED, JJ
DATED:- AUGUST 9, 2010

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Whether burden of proof is on husband to prove quantum of his income?

Calcutta High Court in the Case of Shambhunath Jaiswal Vs. Anjana Jaiswal 1990(3) Cril. 268(Cal.) held that burden of proving quantam of husband income is on the husband and not on wife. In such situation the learned Judge has rightly directed the applicant for producing last three years income tax returns and salary slips.

Madhya Pradesh High Court

Navneet vs Smt.Priyanka on 17 July, 2015

                    Cr.R. NO. 458/2015

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How to ascertain income of person who is doing labour work in absence of documentary evidence?

 The appellant/claimant in his appeal further claimed that he had been earning [pic]10,000/- p.m. by doing vegetable vending work. The High Court however, considered the loss of income at [pic]3500/- p.m. considering that the claimant did not produce any document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is expected to produce documents to prove his monthly income. In this regard, this Court, in the case of Ramchandrappa v. Manager, Royal Sundaram Alliance Company Limited[2], has held as under:

“13. In the instant case, it is not in dispute that the Appellant was aged about 35 years and was working as a Coolie and was earning [pic]4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of [pic]3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was [pic]100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of [pic]3000/- p.m. Secondly, the Appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.

14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, Appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between [pic]100/- to [pic]150/- per day or [pic]4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the Appellant from [pic]4500/- to [pic]3000/- per month. We, therefore, accept his statement that his monthly earning was [pic]4500/-.”

9. There is no reason, in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning [pic]6,500/- per month.

Supreme Court of India

Syed Sadiq Etc vs Divisional Manager,United India ... on 16 January, 2014

Bench: Sudhansu Jyoti Mukhopadhaya, V. Gopala Gowda

Citation;2015 ALLSCR347

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How to ascertain income of deceased victim in MACT case for grant of compensation?

 There is no dispute about the principle laid down in above-stated cases that even in proceedings initiated under Section 166 of Motor Vehicles Act, the criterion of structured formula as mentioned in 2nd Schedule can be considered. But, this principle of law also tells us that notional income given in clause 6 of 2nd Schedule is only for guidance and if there is any other evidence available on record, the other evidence must also be taken into account. In the instant matter, there is evidence led by the appellants that deceased Sk. Umar was earning income of Rs.1,500/-per month by selling wigs. Although, this has been denied by respondent no. 2, mere denial is not enough. Some circumstances should have been brought on record to controvert the same. But, that is not the case here. At the same time, Tribunal has also not accepted the bald statement of the appellants that income of the deceased was Rs.1,500/-per month. The Tribunal has only considered the effect of the statement by inferring that the deceased was doing some business and indeed earning some income. Therefore, by way of some approximation, the Tribunal considered the income of the deceased on notional basis and found it to be of Rs.3,000/-per month. I do not see any illegality in the finding so recorded by the Tribunal. Thus, I find that the income of the deceased can be taken to be at Rs.3,000/-per month for calculating the loss of dependency.

Equivalent Citation: 2015(3)ALLMR565

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 1023 of 2013

Decided On: 20.11.2014

 Shahana
Vs.
 Sureshsingh Thakur Gajrajsingh Thakur

Hon'ble Judges/Coram:
S.B. Shukre, J.

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Whether Burden of proof is on husband to disclose his income in maintenance case?

These observations were endorsed by the Privy Council again in Rameshwar Singh v. Bajit Lal Pathak, AIR 1929 PC 95 at p. 99 and have now been quoted with the approval by the Supreme Court in Hiralal v. Badkulal, . We are of opinion that as a matter of onus under Section 106, Evidence Act and also otherwise under the principle enunciated in the aforesaid decisions of the Privy Council and the Supreme Court it was for the husband to disclose his income and he not having done that and not having also specifically denied the amount alleged by the wife to be his income, we would have to go by such allegation for the purpose of this application.

Calcutta High Court

Chitra Sengupta vs Dhruba Jyoti Sengupta on 3 April, 1987

Equivalent citations: AIR 1988 Cal 98, 92 CWN 54

Bench: A Bhattacharjee, A K Nayak

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How to determine quantum of maintenance if husband suppresses his income?

Maintenance wife alleging that husband is having handsome salary. No Contra assertion is made by husband. Husband did not choose to produce any salary certificate to indicate his probable salary he is in possession of relevant document to prove his precise income. Adverse inference u/s 114 of evidence act is to be drawn against him.

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

Thoombath Haris And Others vs Khadeeja Sherbin on 20 August, 2009

Mat.Appeal.No. 284 of 2009()

Basant,J.

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