Karnataka High Court
Smt.Namitha Deepak vs Sri. B Venkatesh Reddy on 22 December, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
M.F.A.No.6156/2017 c/w
M.F.A.No.4857/2017 (MV)
IN M.F.A.No.6156/2017:
BETWEEN :
1. SMT.NAMITHA DEEPAK
W/O LATE DEEPAK P.,
AGED ABOUT 32 YEARS.
2. MASTER AADYA D.,
S/O LATE DEEPAK P.,
AGED ABOUT 5 YEARS.
APPELLANT No.2 BEING MINOR,
REP BY HIS MOTHER/NATURAL
GUARDIAN APPELLANT NO.1
3. SMT.SUNANDA
W/O LATE M.V.PURUSHOTHAMMA
AGED ABOUT 60 YEARS.
ALL ARE PERMANENTLY
R/AT NO.27/1, M.M. CROSS, MARAPPA GARDEN,
BENSON TOWN POST, BANGALORE.
PRESENTLY R/AT
VIDYUTH NAGARA, HASSAN ...APPELLANTS
(BY SMT.IRFANA NAZEER, ADV.)
-2-
AND :
1. SRI B.VENKATESH REDDY
S/O SRI BHADRA REDDY, MAJOR
R/AT NARAYANA GATTA VILLAGE
MUTHANALLURU POST, ANEKAL TALUK,
BANGALORE RURAL-560099
2. THE MANAGER
ICICI INSURANCE COMPANY LTD.,
ICICI LOMBARD HOUSE
NO.414, VEER SARVAKAR MARGA
NEAR SIDDIVINAYAKA TEMPLE
PRABHADEVI, MUMBAI-400025 ...RESPONDENTS
(BY SRI B.C.SHIVANNE GOWDA, ADV. FOR R-2;
VIDE COURT ORDER DATED 22.12.2020 NOTICE TO R-1 IS
DISPENSED WITH.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
03.11.2016 PASSED IN MVC No.796/2015 ON THE FILE OF THE
5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.4857/2017:
BETWEEN :
THE MANAGER
ICICI INSURANCE COMPANY LTD.,
ICICI LOMBARD HOUSE, No.414,
VEER SARVARKAR MARGA
NEAR SIDDIVINAYAKA TEMPLE,
PRABHADEVI, MUMBAI - 400025
NOW REP BY ITS LEGAL MANAGER
ICICI LOMBARD GENERAL
INSURANCE CO. LTD., No.121,
THE ESTATE BUILDING, 9TH FLOOR,
DICKENSON ROAD, BANGALORE - 42 ...APPELLANT
(BY SRI PRADEEP B., ADV.)
-3-
AND :
1. NAMITHA DEEPAK
W/O LATE DEEPAK P.,
AGED ABOUT 32 YEARS.
2. AADYA D.,
S/O LATE DEEPAK P.,
AGED ABOUT 5 YEARS.
3. SUNANDA
W/O LATE M.V.PURUSHOTHAMMA
AGED ABOUT 62 YEARS.
ALL ARE PERMANENTLY
R/AT NO.27/1, M.M. CROSS,
MARAPPA GARDEN,
BENSON TOWN, BANGALORE.
PRESENTLY R/AT
VIDYUTH NAGARA, HASSAN
APPELLANT No.2 BEING MINOR,
RESPONDENT No.2 SINCE MINOR,
REP BY HIS MOTHER 1ST RESPONDENT
AS NATURAL GUARDIAN
4. SRI B.VENKATESHA REDDY
S/O BHADRA REDDY, MAJOR
R/O NARAYANA GATTA VILLAGE,
MUTTANALLURU POST,
ANEKAL TALUK,
BANGALORE RURAL - 560099 ...RESPONDENTS
(BY SMT.IRFANA NAZEER, ADV. FOR R-3;
NOTICE TO R-1 & R-4 ARE SERVED & UNREPRESENTED;
R-2 IS MINOR REP. BY R-1.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
03.11.2016 PASSED IN MVC No.796/2015 ON THE FILE OF THE
5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
ADDITIONA MACT AT HASSAN, AWARDING COMPENSATION OF
-4-
Rs.34,13,000/- WITH INTEREST AT THE RATE OF 9% P.A. FROM
THE DATE OF PETITION TILL PAYMENT TO PETITIONERS.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
The claimants as well as the insurer are before this Court challenging the judgment and award dated 03.11.2016 passed in MVC No.796/2015 on the file of the 5th Addl. District and Sessions Court and Addl. MACT, Hassan ('Tribunal' for short).
2. The claimants being the widow, daughter and mother of the deceased - Deepak P. instituted the petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation for the death of Deepak P in the motor vehicle accident.
3. It was averred in claim petition that on 12.04.2015 at about 9.00 a.m. while the deceased was traveling in his Maruthi Alto Car bearing registration No.KA-04-MG-693 on NH-75 near Dandiganahalli Hobli, -5- C.R. Patna Taluk, a car driven by the driver of the vehicle bearing No.KA-51-MB-7724 (offending vehicle) in rash and negligent manner dashed against the vehicle of the deceased - Deepak P. As a result, the deceased sustained fatal injuries and he succumbed to the said injuries while shifting for treatment at Government Hospital, Hassan. It was contended that the deceased was working in Arya Homniteck Solutions Pvt. Ltd., as Executive Commercial Grade and was also sleeping partner in other business aspects. The untimely death of the deceased has caused pain and suffering and loss of dependency etc., as the claimants were entirely dependant on the deceased who was maintaining the family.
4. Pursuant to the issuance of notice by the Tribunal, the owner of the offending vehicle has appeared and filed written statement denying the rash and negligent driving of the driver of the offending -6- vehicle. It was contended that the vehicle was insured and the policy was in force. The driver of the vehicle possessed valid driving licence and as such liability, if any, has to be fastened on the insurer.
5. The insurer appeared through its counsel and filed the written statement denying the petition averments. The defence set up was that the accident occurred due to the negligence of the deceased. Accordingly, sought for dismissal of the claim petition.
6. On the basis of the pleadings, the Tribunal has framed the following issues:-
1. Whether the petitioners prove that the accident occurred due to the actionable negligence on the part of the driver of the Car bearing Reg.No.KA-41-N-7204 and in the accident Deepak P suffered injuries and died?
2. Whether the petitioners are entitled for the compensation? If so, what is the quantum and from whom?
3. What order and award?-7-
7. The claimant No.1 was examined as PW.1 and Exs.P1 to P11 were marked on behalf of the claimants. The respondents have not tendered any evidence.
8. On appreciation of oral and documentary evidence, the Tribunal answered issue Nos.1 and 2 in the affirmative, allowing the petition in part awarded total compensation of Rs.34,13,000/- with interest at the rate of 9% per annum from the date of the petition till payment fastening the liability on the insurer to satisfy the award.
9. Being aggrieved by the quantum of the compensation awarded by the Tribunal as exorbitant, the insurer has preferred MFA No.4857/2017, whereas the claimants have preferred MFA No.6156/2017 seeking enhancement of compensation. -8-
10. Learned counsel for the insurer vehemently argued that the Tribunal committed an error in determining the monthly income of the deceased at Rs.26,000/- to reckon the loss of dependency without there being cogent and convincing evidence. The Tribunal failed to notice that there was no document to show that the deceased was working in Arya Homniteck Solutions Pvt. Ltd., as Execution Commercial Grade. The learned counsel argued that while considering the income tax returns filed by the deceased, the Tribunal has taken the entire income declared by the claimant sans deducting the income derived from the business in the capacity of the sleeping partner. Merely relying on the income tax returns, the Tribunal has assessed the monthly income of the deceased at Rs.26,000/- which is arbitrary and unreasonable. Nextly, it was argued that the compensation awarded under the conventional heads is excessive. Learned counsel further argued that the rate of interest awarded at 9% per annum is on the -9- higher side and the same requires to be reduced to 6% per annum.
11. Learned counsel for the claimants submitted that the deceased was earning Rs.1,00,000/- through his regular salary as well as other business ventures. However, the Tribunal has fixed the monthly income of the deceased at Rs.26,000/-. The Tribunal has awarded a partly sum of Rs.33,28,000/- towards loss of dependency. The deceased has left behind the widow, mother and minor child all of whom were solely dependant on the deceased for their future life. Considering these aspects, the compensation awarded under conventional heads is inadequate and accordingly sought for enhancement of compensation.
12. Having heard the learned counsel for the parties and perusing the original records, the points that arise for our consideration are:
- 10 -
1) Whether the monthly income of the deceased determined by the Tribunal at Rs.26,000/- to reckon the loss of dependency is justifiable?
2) Whether the compensation awarded by the Tribunal is just and proper?
Re.Point No.1
13. The Tribunal has relied upon the income tax returns filed by the deceased for the assessment years 2013-14 and 2014-15 to determine the income for computing the loss of dependency. As per Ex.P11, the income declared by the deceased relating to the said assessment years 2013-14 and 2014-15 is Rs.2,48,146/- and Rs.3,75,874/- respectively. Learned counsel for the insurer stoutly argued that the returns submitted for the assessment year 2014-15 filed on 31.07.2014 discloses the income from salary as Rs.2,37,806/- and income from business or profession as Rs.1,38,068/-. Inviting the attention of the Court to the evidence of PW1, it was submitted that PW1 has
- 11 -
stated that the deceased was working as Executive Commercial Grade M8 with Arya Homniteck Solutions Pvt. Ltd., and was also working as a sleeping partner in some business ventures. There is no loss of income from the said business since the same can be continued by the family. In the absence of cogent evidence placed on record to establish the employment of the deceased, merely relying on the income tax returns, no income of the deceased could be determined. We cannot accede to the said submissions for the reason that the income tax returns at Ex.P11 were admittedly filed by the deceased prior to the date of the accident i.e., on 31.07.2014 relating to the assessment year 2014-15 and on 05.08.2013 relating to assessment year 2013-14. It is trite law that income declared by the assessee would be a valid piece of evidence to establish the income unless it is proved to be fake or manipulated.
- 12 -
14. The Hon'ble Apex Court in the case of Malarvizhi and others vs. United India Assurance Company Ltd., (D.D. 09.12.2019) has held that income tax returns could be relied upon as valid document to determine the annual income of the deceased, the same being a statutory document on which reliance may be placed. It is categorically observed that the determination must proceed on the basis of the income tax returns, where available.
15. The income tax returns filed by the assessee during his life time as per Ex.P11 were not disputed by the insurer. It was contended that the business could be continued in the family and as such, the income derived by the deceased as a sleeping partner cannot be considered for computing the loss of dependency. This argument is without any valid basis. Once such stand is taken by the insurer the onus shifts on the insurer to discharge the burden in proving that the family is
- 13 -
continuing the business of the deceased. The claimants have emphatically denied the same. In fact, neither any evidence has been tendered by the insurer nor anything positive is elicited from the mouth of the PW.1 to dislodge the evidence of the claimants. No witness has been examined on behalf of the Insurer. It is true that the business income of the deceased may not be considered if such business is continued by the family. In the absence of such evidence, merely on surmises and conjectures, no deduction could be made towards the income said to have earned by the deceased as a sleeping partner in some business venture which is duly declared in the returns not proved to have been continued by the family members of the deceased. Re.Point No.2
16. Taking the average of the income as per Ex.P11, the monthly income determined by the Tribunal at Rs.26,000/- deserves to be confirmed. Deducting the income tax and professional tax (Rs.1,200/- income tax
- 14 -
and Rs.2,400/- professional tax), the annual income of the deceased would be Rs.3,08,400/- as the tax element was nil upto Rs.3,00,000/- during the relevant period.. Adding 40% towards future prospects, the total income would come to Rs.4,31,760/-(3,08,400 + 1,23,360). Applying the multiplier of '16' as the deceased was aged about 33 years, deducting 1/3rd towards personal and living expenses of the deceased, the loss of dependency would work out Rs.46,05,440/- (4,31,760 x 16 x 2/3).
17. In terms of the dictum of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and New India Assurance Company Limited v/s Somwati and Others reported in 2020 SCC ONLINE SC 720, the claimants would be entitled to compensation of Rs.40,000/- towards loss of spousal consortium; Rs.40,000/- towards loss of parental consortium; Rs.40,000/- towards loss of filial
- 15 -
consortium; Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.
18. However, the rate of interest awarded by the Tribunal at 9% per annum requires to be reduced to 6% per annum keeping in mind the relevant factors like prevailing rate of interest and also to maintain uniformity in the orders keeping in mind the interest awarded at 6% p.a., consistently in identical circumstances by this Court.
19. For the reasons aforesaid, the total compensation awarded by the Tribunal is reassessed as under:
Sl.No. Particulars Amount [in Rs.]
1. Loss of dependency 46,05,440/-
Loss of Spousal
2. 40,000/-
Consortium Loss of Parental
3. 40,000/-
Consortium
4. Loss of filial consortium 40,000/-
5. Loss of Estate 15,000/-
Towards Funeral
6. 15,000/-
expenses
Total 47,55,440/-
- 16 -
Thus, the claimants shall be entitled to total
compensation of Rs.47,55,440/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization.
20. Hence, the following:
ORDER
i) Both the appeals are allowed in part.
ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.47,55,440/- (Rupees Forty Seven Lakhs Fifty Five Thousand Four Hundred and Forty only) as against Rs.34,13,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.
iii) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date
- 17 -
of receipt of the certified copy of the judgment and order.
iv) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.
v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.
vi) Draw modified award accordingly.
vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.
viii) All pending I.As. stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE PMR