Karnataka High Court
Smt Bharathi vs K S Ashwathanarayana on 27 September, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
M.F.A.NO.4392 OF 2007[MV]
BETWEEN:
1. SMT.BHARATHI
W/O BHIMRAO G DESHPANDE
AGED ABOUT 57 YEARS
2. JYOTHI
D/O BHIMRAO G DESHPANDE
AGED ABOUT 31 YEARS
3. SUDHINDRA
S/O BHIMRAO G DESHPANDE
AGED ABOUT 28 YEARS
ALL ARE RESIDING AT NO.1467
1ST FLOOR, 17TH MAIN
J.P.NAGAR, 2ND PHASE
BANGALORE. ...APPELLANTS
[BY:SRI M.B.NARGUND, ADVOCATE]
AND:
1. K.S.ASHWATHANARAYANA
S/O LATE SURAPPA
AGED ABOUT 53 YEARS
R/O KATTEMALAWADI VILLAGE
2
GAWADAGERI HOBLI
TQ:HUNASUR
DIST.MYSORE.
REPRESENTED BY
S.SANJAYA S/O SITARAMAIAH
AGED ABOUT 25 YEARS
C/O SRIKANTAMURTHY
NO.25/11, SRIRAMPUR 2ND PHASE
BEML LAYOUT
MYSORE.
2. NATIONAL INSURANCE COMPANY LTD.,
REPRESENTED BY ITS MANAGER
DIRECT AGENTS BRANCH
NO.371/A 3RD FLOOR
PRESTIGE SHOPPING ARCADE
RAMASWAMY CIRCLE
MYSORE 570024.
3. THE MANAGING DIRECTOR
KERALA STATE ROAD TRANSPORT
CORPORATION, TRIVENDRAM
4. INTERNAL INSURANCE OF KSRTC
TRIVENDRAM
BY ITS M.D.
5. HAMSA PAPPUTTY
ASST. TRANSPORT OFFICE
K.S.R.T.C. CHALKUDY
KERALA STATE. ...RESPONDENTS
[BY:SMT.A.SUMITRA, ADV., FOR R4
R1 & R2 - served
R5 - abated vide order dated 9.10.2009]
THIS MFA IS FILED UNDER SECTION 173/1 OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
23.8.2006 PASSED IN MVC NO.710/2005 ON THE FILE OF
THE XIX ADDL. JUDGE, COURT OF SMALL CAUSES,
3
MEMBER, MACT, METROPOLITAN AREA, BANGALORE,
(SCCH NO.17) PARTLY ALLOWNIG THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, N.KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the claimants seeking enhancement of compensation for the death of one Bhimarao G. Deshpande in a motor vehicle accident.
2. For the purpose of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the claim petition before the Tribunal.
3. The first claimant is the wife and the claimant Nos.2 and 3 are the children of deceased Bhimarao G Deshpande. On 10.4.2004, the deceased was travelling in a taxi bearing registration No.KA-45- 4545 from Mysore to Trivandrum. When the car was proceeding from Trichur to Ernakulam on NH-47 at about 11.45 a.m., a KSRTC bus bearing registration 4 No.KL-15-2279 owned by respondent No.3 driven by respondent No.5 came from the opposite direction and dashed against the car. On account of the accident, the deceased and the driver of the car sustained grievous injuries. They were taken to St.James Hospital, Chalkudi. The deceased was inpatient in the said hospital upto 14.4.2004 and thereafter he was Air lifted and admitted to Manipal Hospital, Bangalore for better treatment. However, the deceased succumbed to the injuries on 24.4.2004.
4. The deceased was a Consultant Engineer in Paper industry. It is the case of the claimant that in 1983 he started his consultancy in Mysore. He used to visit places like Japan, France, Spain, Canada and England for consultancy. He was earning about `70,000/- per month and was an income tax assessee. The claimants have produced the income tax returns for the period of three years. Therefore, 5 they claimed compensation in a sum of `3,00,00,000/-.
5. After service of notice, the respondent Nos.2 and 3 to 5 appeared through their advocate and filed written statement. The respondent No.2-insurer of the car specifically contended that the accident occurred solely on account of rash and negligent driving by the driver of the KSRTC bus. Therefore, they contended that, as there is no negligence on the part of the car driver, they are not liable to pay any compensation. The respondent No.5-driver of the bus contended that the accident occurred due to rash and negligent driving of the car by its driver and not on account of his negligence.
6. The Tribunal, on consideration of the aforesaid pleadings, framed the following issues:-
"1. Whether petitioner proves that Bhimarao G. Deshpande died on account of injuries suffered in RTA that occurred on 10.4.2004 6 at about 11.45 a.m. near Gandhinagar Desam Kodakara village, Mukandapuram Taluk, on NH - Trichur-Ernakulam road, due to actionable negligence by the driver of KSRTC bus bearing No.KL-15-2279 dashed against the taxi bearing No.KA-45- 4545?
2. Whether the petitioner is entitled for compensation ? if so, what is the quantum?
3. What Order or award?"
7. Claimants, in order to substantiate their claim, examined claimant No.1 as PW1 and claimant No.3 as PW2 and produced 16 documents, which are marked as Exhibits P1 to P16. On behalf of the respondents, the driver of the bus was examined as RW1 and no documents were produced.
8. The Tribunal, on consideration of the aforesaid oral and documentary evidence on record held that the accident occurred on account of rash and negligent driving by the driver of the KSRTC bus 7 i.e. the 5th respondent and not on account of the driver of the car. It held that the claimants have established actionable negligence and are therefore entitled for the compensation.
9. Thereafter, on considering the evidence of PWs-1 and 2, medical bills produced, income tax returns filed, air tickets and other documents, the Tribunal came to the conclusion that the income of the deceased was about `3,00,000/- p.a. It deducted `15,000/- towards income tax and professional tax, deducted 1/3rd towards personal expenses of the deceased and as the deceased was aged about 59 years, it applied multiplier '10' and awarded a sum of `19,00,000/- as compensation under the head 'loss of dependency'. It also awarded `2,79,000/- towards medical expenses, `1,00,000/- towards travelling expenses, `10,000/- towards loss of consortium, `15,000/- towards funeral expenses, loss of estate, 8 transportation of dead body. Thus, in all, it awarded `23,04,000/- as compensation to the claimants.
10. Thereafter, the Tribunal held that the respondent No.3-the owner of the bus and the respondent No.4-internal insurance are jointly and severally liable to pay compensation amount to the claimants. The claim petition against the respondent Nos.1, 2 and 5 was dismissed. Aggrieved by the inadequacy of quantum, the claimants are in appeal.
11. The learned counsel for the appellant assailing the impugned judgment and award of the Tribunal contended that the income of the deceased is `70,000 per month. He submits that, in fact, the deceased used to receive `7,83,970/- towards technical fee, whereas the Tribunal has taken only `3,00,000/- towards his salary and deducted `15,000/- illegally towards income tax and 9 professional tax. Therefore, he submits that a case for enhancement is made out.
12. The facts are not in dispute. The deceased was aged 59 years. He was a consultant by profession. He met with a road accident and sustained injures in the said accident. It is later, he succumbed to the injuries. In fact, he had to be air lifted from the place of accident to Manipal Hospital, Bangalore for better treatment. But, he could not survive and he succumbed to the injuries.
13. The first claimant is the wife and the claimant Nos.2 and 3 are the children. The claimants have produced the income tax returns of the deceased, which are marked as Exhibits-P13, P14 and P15. The income tax returns for the assessment year 2002-2003 shows his income from profession as `2,45,672. The income tax returns for the 10 assessment year 2003-2004 shows his declared income as `2,78,082/- and the income tax returns for the assessment year 2004-2005, which is for the year subsequent to his death shows his income as `3,10,776/-. Taking into consideration the average of income of these three years, the Tribunal has held that the income of the deceased was `3,00,000/-. Out of this, a sum of `15,000/- was deducted towards income tax and professional tax and took the net income at `2,85,000/-. The appellant's contention is that the profit and loss account of the Firm, which was run by the deceased shows that he received `7,83,970/- towards consultancy and technical fees. Except in the profit and loss account, no acceptable evidence is produced to show the said income. The very profit and loss account shows the expenditure that he has incurred for running the said business. In that, the expenditure incurred was necessary for earning the said income and that income cannot be 11 taken as the basis for computation of income for the calculation of compensation under the head 'loss of dependency'. It is after making provision for all the expenditure, he had filed the income tax returns. In the income tax returns, he has shown the income from profession. It is that income, which has to be taken into consideration for deciding the 'loss of dependency'. Therefore, the Tribunal was justified in taking `3,00,000/- as the income of the deceased as reflected in the income tax returns. It has deducted `15,000/- towards income tax and professional tax and further deducted 1/3rd towards his personal expenses, applied correct multiplier of '10', as the deceased was aged 59 years on the date of accident and awarded `19,00,000/- as compensation under the head 'loss of dependency'.
14. Insofar as the compensation awarded under the other heads are concerned, it is just compensation and that is the reason the claimants 12 have not challenged the award except on the aforesaid grounds. Therefore, there is no error committed by the Tribunal in coming to the conclusion and no case for enhancement is made out. We do not see any merit in this appeal. Accordingly, we proceed to pass the following:-
ORDER Appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE VGR