Karnataka High Court
Smt. R. Geetha vs Sri L.V.Krishna Mohan on 15 March, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 3646 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3646 OF 2014 (MV-D)
BETWEEN:
1. SMT.R.GEETHA
W/O LATE. SUBBA REDDY,
AGED ABOUT 45 YEA
2. SRI.R.S. JAGADISH REDDY,
S/O LATE. SUBBA REDDY,
AGED ABOUT 24 YEA
3. KUMARI R.S.BHARGAVI @ BHAVYA,
D/O LATE. SUBBA REDDY,
Digitally AGED ABOUT 22 YEA
signed by
SHAKAMBARI
Location: ALL ARE RESIDING AT NO. 1032,
HIGH COURT
OF SRI. SKANDHA NILAYAM,
KARNATAKA 8TH CROSS, KAMMAGONDAHALLY,
JALAHALLI WEST POST,
BANGALORE-560 015.
...APPELLANTS
(BY SRI. PARAMESHWARAPPA,T., ADVOCATE)
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MFA No. 3646 of 2014
AND:
1. SRI.L.V.KRISHNA MOHAN,
S/O L. VENKATESHWARA,
MAJOR, NO.17/110, 4TH CROSS,
SATHYANARAYANAPET,
BELLARY.
2. THE MANAGER,
ROYAL SUNDARAM ALLIANZ,
GENERAL INSURANCE CO. LTD.,
NO.132, BRIGADE ROAD,
BANGALORE-560 025.
3. SMT. KONDAMMA,
W/O OBUL KONDA REDDY,
AGED ABOUT 77 YEARS,
R/AT NO. 1032, SRI. SKANDHA NILAYAM,
8TH CROSS, KAMMAGONDAHALLY,
JALAHALLI WEST POST,
BANGALORE-560 015.
...RESPONDENTS
(BY SRI.RAVI SHANKAR S. SAMPRATHI, ADVOCATE FOR R2
NOTICE TO R1 IS DISPENSED WITH V/O/DATED: 24/11/2015)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD
DATED: 05.02.2014 PASSED IN MVC NO. 509/2012 ON THE
FILE OF THE VI ADDL. JUDGE, COURT OF SMALL CAUSES,
MEMBER, MACT, METROPOLITIAN AREA,
BANGALORE,(SCCH.NO.2), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
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MFA No. 3646 of 2014
JUDGMENT
Being aggrieved by the impugned judgment and award dated 5th February 2014 passed by the Member, Motor Accidents Claims Tribunal, Benglauru (VI Addl.Judge & MACT Sitting at SCCH-2) (`the Tribunal' for short) in Motor Accidents Claims Petition No.509/2012, the appellants (original claimants) have preferred this appeal seeking enhancement of compensation.
2. For the sake of brevity and convenience, the parties to the appeal are referred as they are referred and described in the impugned judgment.
3. The appellants/claimants herein had filed application under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as `the MV' Act) seeking compensation of `75,000/- on account of accidental death of Subba Reddy, the husband of claimant No.1 and father of claimant nos.2 and 3 and son of claimant no.4 and 5 who died in a motor vehicle accident occurred on 29.12.2011 at about 12.15 p.m. -4- NC: 2024:KHC:10803-DB MFA No. 3646 of 2014
4. It is the case of the claimants, that on 29.12.2011, at about 12.15 p.m. deceased Subba Reddy was riding his Honda Activa bearing Regn.No.KA-04-HF- 5692 on Tumakuru NH No.4 Main Road from West to East towards Yashwanthapura cautiously and slowly on the left side of the road. When he was so riding his motor bike, near SRS junction, the driver of lorry bearing Registration No. KA-34-A-7008 drove the same in a rash and negligent manner in a high speed and dashed against the Honda Activa ridden by deceased and caused the accident. Because of this accident, Subba Reddy fell down along with his Honda Activa, and the lorry ran over on Subba Reddy. Immediately people gathered there, shifted the injured for treatment to Ramaiah Hospital, Bangaluru. But, the doctor declared him brought dead. and thereafter, the Post Mortem was conducted.
5. It is the case of the claimants that, because of rash and negligent driving of the said lorry, the accident has taken place. At the time of accident, it is stated that -5- NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 the offending vehicle was owned by Respondent no.1 and insured with Respondent no.2.
6. It is the further contended by the claimants that, deceased Subba Reddy, at the time of accident, was aged 48 years and was an Industrialist. He was earning 50,000/- per month. They claimed a compensation of `75 lakhs. According to the case of the claimants, the entire family of the deceased i.e. claimants were depending on the income of the deceased. It is the further case of the claimants that, due to sudden and unnatural death of bread earner in the family, the petitioners are put to great mental shock and agony.
7. It is further stated that, petitioners being claimants have spent `25,000/- towards transportation of dead body, funeral and obsequies expenses. It is further stated that, with regard to the said accident, the Yashwanthapura Police have registered a case against the driver of the said lorry in Crime No.255/2011 for the offences punishable under Section 279 and 304A of IPC. -6-
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8. It is further stated by the claimants that the deceased was assessed for income tax and regularly submitting the income tax returns. On account of pecuniary and non-pecuniary damages, the claimants have claimed the compensation of `75,00,000/-, making respondent nos.1 and 2 jointly and severally liable to pay the compensation.
9. Respondent no.1. i.e., the owner/insurer of the offending vehicle though served, failed to appear before the Tribunal. Respondent no.2 Insurance Company alone appeared in the matter and contested the claim with the contention that, the claim made by the claimants is excessive. It denied the case of the claimants that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. Respondent no.2 has denied its liability to pay the compensation with a contention that there was breach of policy conditions on the part of the insured as the driver of the truck was not holding a valid and effective driving license to drive the -7- NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 vehicle. It is further contended that, the insurance company is not at all liable to pay the compensation.
10. Based upon the rival pleadings of both the parties, the Tribunal framed the issues. They read as under:
1. Whether the petitioners prove that the deceased Sri Subba Reddy died due to injuries sustained in the road traffic accident occurred on 29.12.2011 at about 12.15 p.m. on Tumkur Road i.e. NH-4 Main Road, near SRS Junction, on account of rash and negligent driving of the lorry bearing Reg.No.KA-34-A- 7008 by its driver?
2. Whether the petitioners are entitled for compensation as claimed? If so, from whom?
3. What order or Award?
11. In support of their case, the claimants have examined claimant no.1- wife of the deceased Smt.R.Geetha. She stepped into the witness box and deposed as per the case put-forth by claimants. She has produced number of documents marked as Ex.P1 to P29 and closed claimants evidence. Respondent no.2 failed to adduce any evidence in the case.
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12. On due appreciation of the rival pleadings and the evidence adduced in the case, the Tribunal has partly allowed the claim petition and awarded the compensation of `5,30,000/- with interest at the rate of 6% p.a. from the date of petition till realization from respondent no.1 and 2 jointly and severally. However, it was ordered directing respondent no.2 to deposit the compensation amount within 30 days from the date of the order.
13. Compensation awarded by the Tribunal under different heads is as per the table below:
Head Amount(`.)
1. Loss of dependency Nil
2. Loss of Love and affection 3,00,000-00
3. Transportation of dead body & 30,000-00
funeral and obsequies expenses
4. Loss of Consortium 2,00,000-00
Total 5,30,000-00
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14. Being aggrieved by the quantum of compensation awarded, the claimants have preferred this appeal seeking enhancement of compensation.
15. By referring to the rival pleadings, oral and documentary evidence adduced in the case, the learned counsel for the appellants submitted that, the reasons and findings recorded by the Tribunal in assessing the compensation at `5,30,000/- is not sustainable in law. It is submitted that, the Tribunal has erred in holding that, there was no loss of income to the claimants on account of accidental death of the deceased. It is submitted that, only for the reason that the said business being run by the deceased is being transferred in the name of claimant no.1 and there is no loss of dependency is absolutely wrong. The Tribunal has drawn inference that no loss of income resulted to claimants. It is submitted that, the Tribunal has overlooked the ground reality that in Indian Society, the women from respectable family is unable to run the business as being run by the men.
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16. It is submitted that, it was a travesty of justice on the part of the tribunal to deny the legitimate claim of compensation of claimants made by the widow and minor children of the deceased on the basis of assumption and presumption made by tribunal without any evidence brought on record to support such a contention. In support of his submission, the learned counsel for appellant has referred and relied upon the decision of the Hon'ble Supreme Court in the case of K.Ramya and others vs. National Insurance Co.Ltd1., and another decided on 30.09.2022.
17. The learned counsel has also relied upon the judgment in the case of United India Insurance Co. vs. Indiradevi and others and in the case of National Insurance Co. Ltd.,vs. Birdendar2.
18. Relying upon these judgments and by referring to the overall facts and the evidence adduced by the 1 2022 Livelaw SC 816 2 AIR 2020 SC 434
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 claimants, learned counsel for the appellant submits that, compensation claimed by the claimants cannot be termed as excessive and exorbitant. It is submitted that the deceased was 48 years of age, he was doing business under the name and style of "Skanda Enterprises" and he was an income tax assessee. Initially, he was doing the business in a small scale and when he died, his business was enlarged. He was having sufficient income and was earning `50,000/- per month which was contributed by the deceased to maintain the entire family consisting of himself and all the claimants. Learned counsel for the appellants/claimants invited the attention to the documents produced by the claimants along with I.A.No.1/24 filed by the claimants to receive the additional evidence. To substantiate the same, according to the counsel for the appellants, the claimants have produced the income tax returns along with I.A.No.1/2024. In support of his submissions, the learned counsel has invited our attention to the copies of the income tax returns produced along with the I.A.No.1/2024.
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19. By referring to the income tax returns and copies of other documents, the learned counsel for the claimants argued that, the deceased had good earning from his business. He was having the property. Even after making expenditure, he was having sufficient net profits. In this background, learned counsel submits that, the Tribunal has erred in assessing the compensation and not awarding any compensation towards loss of dependency on account of accidental death of deceased. It is submitted that, the compensation awarded towards pecuniary and non-pecuniary loss are grossly inadequate and cannot be termed as just and fair.
20. It is submitted that, the loss of income caused to claimants has not been assessed based upon actual loss sustained by the claimants and proved in evidence. The Tribunal has failed to consider the future prospects and increase in the income of the deceased. While assessing the compensation, no addition has been made to existing income of deceased towards future prospects. So also, the
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 Tribunal has awarded very meager amount towards non- pecuniary damages. By referring to the Constitution Bench decision in the case of National Insurance Company Ltd., vs. Pranay Sethi and others3 the learned counsel submits that, the compensation assessed by Tribunal deserves to be re-assessed and enhanced.
21. The learned counsel submits that, considering the assessment of the Income Tax for the previous financial, the net income of the deceased has to be calculated, no deduction to be made from the said income. It is submitted that, as the deceased was 48 years old at the time of accident, the proper multiplier is to be applied in assessment of compensation in terms of decision in the case of Sarla Verma and others vs. Delhi Transport Corporation4. Considering the net yearly income of the deceased, the monthly income of the deceased has to be taken into consideration based upon the income tax returns. The deceased being self-employed person in the 3 2017 ACJ 2700 (SC), 4 2009 (6) SCC 121
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 age group of 40 to 50, the income to the extent of 30% to be added to the existing income of the deceased towards future prospects. It is submitted that, under the conventional heads such as loss of estate, loss of company, funeral expenses etc., the claimants deserve to be awarded the substantial amount in terms of the judgment in the case of Pranay Sethi (supra). In this background, learned counsel submits, the appeal deserves to be allowed and the compensation awarded by the Tribunal be re-assessed and computed in terms of principles laid down in the case of Pranay Sethi (supra).
22. On the other hand, the learned counsel for the respondent No.2 submits that, respondent no.2 is not liable to pay the compensation on the ground of breach of policy conditions. It is submitted that as per report submitted by the investigator appointed by respondent no.2-Insurance Company, it was revealed that the driver of the vehicle was not possessing the driving license. In that view, the respondent no.2 has proved that, there is
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 breach of policy on the part of the insurer. The driver of the vehicle involved in the accident as he was not possessing the driving license, in that view of the matter, the findings recorded to issue no.2 by the Tribunal is incorrect and not sustainable in law.
23. Learned counsel for respondent no.2 further submits, the award passed by the Tribunal on the point of compensation awarded calls for no interference. It is submitted that, the income tax returns cannot be accepted now. The Tribunal was justified to assess the compensation by considering the loss of income confined to managerial and supervisory loss.
24. In counter to the submission advanced by the counsel for respondent no.2, the learned counsel for appellant pointed out that though respondent no.2 has taken a plea that the driver of the vehicle was not holding a valid and effective driving license to drive the vehicle and insured has committed breach of policy conditions, still, respondent no.2 failed to adduce any evidence on its
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 behalf and discharge its burden to prove the breach of policy condition on the part of the insured. In that view, the Tribunal was fully justified to record finding with regard to the liability of respondent no.2. It is further submitted that, the respondent no.2 has not challenged the said finding by preferring any cross-appeal or cross- objection. In the absence of appeal challenging the findings with regard to the same, respondent no.2 is not entitled to raise such a challenge in appeal preferred by the appellants which is confined to quantum of compensation awarded by the Tribunal.
25. In counter to submissions advanced by the learned counsel for the appellant, learned counsel for respondent no.2 contended that, respondent no.2 is entitled to raise such a challenge though no appeal or cross-objections are preferred by the respondent no.2.
26. The records of this case do reveal that during the pendency of this appeal, claimants have filed I.A.NO.1/2024 by invoking the provisions of Order 41 rule
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 27 of CPC seeking leave to produce copies of income tax returns filed by appellant on.1 R.Geetha for the years 2014-15, 2015-16. Along with this application, claimant no.1 herself has filed an affidavit stating that, she has produced the income tax returns so submitted by her for the aforesaid years to show that she has obtained the IT returns recently on instructions from the counsel on record on the advise of Chartered Accountant from the income tax portal. They are the authenticated documents as per the IT Act. The reasons for non-production of these documents before the tribunal which are now sought to be produced before this Court is the said documents have come into existence only after passing of the judgment and award. Therefore, she was unable to produced the same.
27. According to her affidavit, the said documents will help this Court to assess the compensation as well as loss being sustained by the claimants from the business being taken over by claimant no.1 after demise of her
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 husband-Subba Reddy. Hence, it is prayed to receive the additional documents produced along with I.A.1/2024.
28. To this I.A.1/2024, respondent no.2 has not filed any objections.
29. We have carefully examined the submissions advanced in the light of rival pleadings, oral and documentary evidence adduced in the case and judgment and award passed by the Tribunal. We have also perused the record and the proceedings.
30. On scrupulous reading of the records produced by the claimants, respondent No.2 has denied the occurrence of the accident. Claimants have produced the documents in support of their case with regard to rash and negligent driving of the offending lorry in the shape of Ex.P.1 to P.9 viz FIR, Complaint, Rough sketch, Mahazar, IMV report, Inquest Mahazar, Charge sheet, PM report and Death Certificate respectively. These documents are marked in evidence without any objections by the respondent. Owner of the offending Lorry remained
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 exparte. There is no concrete cross-examination by respondent no.2 with regard to the allegation of rash and negligent driving of the offending Lorry by its driver except bald denial. In the absence of such evidence, as rightly concluded by the Tribunal, it is proved by the claimants that the said accident has taken place because of rash and negligent driving of offending lorry by its driver. More so, this finding of the Tribunal is not challenged by respondent No.2 by preferring any appeal or cross objection. In view of rival submissions of both the side, the following points arise for consideration of this Court:
1) Whether the claimants have made out any justifiable and acceptable grounds to enhance the compensation as prayed?
2) Whether the claimants have made out grounds to receive the additional documents now sought to be produced along with I.A. No.1/2024?
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 Both the points are taken up together for discussion.
31. If we consider the issues framed in the matter, then, the burden to prove the breach of policy condition entirely rests upon the respondent no.2 Insurance Company. If we consider the pleadings of respondent no.2, no specific pleadings made to the effect that, respondent no.2 has verified the driving license of the driver of the vehicle and he was not possessing the effective driving license. It is vaguely stated that there is breach of policy conditions as the driver of the truck was not holding valid and effective driving license to drive the vehicle. The pleadings in the written statement is not a substantive evidence. The respondent no.2 neither examined the officers of respondent-Insurance Company nor examined any witnesses including the person, who alleged to have submitted report. In that view, respondent no.2 failed to prove its case that there was breach of policy condition.
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32. In order to prove the breach of policy condition on the part of the insured, the insurer is required to prove that owner/insured was guilty of willful breach of the condition of Insurance Policy or the contract of insurance. Merely asserting that there was a breach of policy conditions that itself is not sufficient to prove the breach of policy condition on the part of respondent no.2. In this context, it is useful to refer to the decision in the case of National Insurance Company vs. Swarna Singh5 wherein in para.110, the Hon'ble Apex Court has held with regard to the breach of policy conditions. It is held in the said judgment that, "the breach of policy condition i.e. for example, disqualification of the driver or invalid licence of the driver as contained in sub-sec.2(a)(ii) of Sec.149 has to be proved to have been committed by the insured for avoiding liability by the Insurance Company for liability". The Insurance Company has to prove its case with the legal evidence. In Swarna Singh's case supra, the Hon'ble 5 (2004) 3 SCC 297
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 Apex Court has summarized with regard to the Chapter-XI of Motor Vehicle Act, 1988 providing compulsory insurance of vehicles against 3rd party risks is a social welfare legislation to extend relief by compensation to victims of accident caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act are to be so interpreted with the said object.
33. Thus, the reasons and findings recorded by the Tribunal that the respondent no.2 has failed to prove the breach of policy condition suffers from no infirmity even it is presumed that respondent no.2 can raise challenge to the findings given by the Tribunal without filing appeal or cross-objection by recourse to Order 41 Rule 33 of CPC.
34. In that view, the submission advanced that respondent no.2 insurance company is liable to be exonerated from payment of compensation is devoid of merit.
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35. The claimants have approached with a case that, the deceased was sole bread earner of the family and they were fully dependent upon the income of the deceased. The claimants have claimed that deceased was earning not less than `50,000/- per month by carrying the business under the name and style `Skanda Enterprises'. According to them, he used to contribute his entire income for the maintenance of the family. The deceased was 48 years of age and he died in the accident. It is their case that, on account of accidental death, the claimants have claimed compensation towards pecuniary and non-pecuniary loss.
36. In support of the case of the claimants, the claimant no.1 i.e the wife of the deceased stepped into the witness box and deposed as per the case of the claimants. She has categorically deposed that, her husband was an industrialist having his plant under the name and style of "Skanda Enterprises" since 1992. He was only proprietor of the said Industry. He was earning a sum of `50,000/-. He was income tax assessee and he was contributing the
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 entire amount for the family maintenance. After the death of her husband nobody is there to look after his business. Hence, the claimants have sustained loss.
37. It is her further evidence that, because of this accidental death of her husband, herself and other claimants are put to untold pain, suffering and mental agony. Claimants have become helpless and destitutes because of death of her husband who was only bread earner in the family.
38. She has categorically deposed that her children are also depending upon the deceased. He was having the age-old parents. The records of this case do reveal that during the pendency of the claim petition, claimant no.4 the father of the deceased who was aged 80 years old died. Therefore, his name came to be deleted from the cause-title.
39. If we consider over all cross-examination of claimant No.1/PW.1, nothing concrete has been brought
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 through her cross-examination to find favour to the case of respondent no.2, except the fact that the said business which was run by the deceased during his life time, after his demise, the said business has been transferred in the name of claimant no.1.
40. On due appreciation of the rival pleadings and evidence adduced in the case, the Tribunal has assessed the compensation to be payable at `5,30,000/- as against the claim of `75,00,000/- made by the claimants. On the basis of the evidence brought through the cross- examination, it reveals that, the said "Skanda Enterprises"
being the proprietary concern standing in the name of the deceased was transferred in the name of claimant no.1, the Tribunal has inferred that, the claimant no.1 continue to run the business of her husband after his death and as such, no loss of income has been caused to the claimants on account of accidental death of the deceased.
41. The Tribunal has observed that in the facts and circumstances of the case, the claimants have not suffered
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 loss of income. The Tribunal has not awarded any compensation under the head `loss of dependency'. The learned Tribunal after making assessment, has awarded the compensation under the conventional heads i.e. loss of filial love and affection, transportation of dead body, obsequies ceremony and consortium.
42. In our view, the reasons and findings recorded by the Tribunal to assess the compensation to be payable at `5,30,000/-are not sustainable in law. There is no compensation awarded towards the head under the `loss of dependency', only for the reason that the said proprietary concern was transferred in the name of claimant no.1, the Tribunal was not justified in drawing inference that after the accidental death, the widow of the deceased running the business of her husband and deriving some income as earned by her deceased husband. It would be travesty of justice to deny legitimate claim of the claimants only on the basis inferences drawn by the Tribunal by ignoring the ground reality in the Indian
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 Society and over all position of the women in the Society. In this context, it is just and proper to rely upon a judgment of the Bombay High Court Halima Bhai vs. Abdul Jabbar Rakesh Kumar Mokasia (2002 Supp (2) Bombay CR 242) wherein it is observed that it would "travesty of justice to deny the claim of widow to fair compensation for herself and her children only on the ground she was able to run the business left by her husband, it is observed, law cannot be oblivious to the social reality. In paragraph-10, it is observed as under:
"The next aspect of the matter which needs consideration is as regards to the claim for compensation which has been made on behalf of the claimants. The deceased was, according to the deposition of P.W I claimants the age of deceased the time of the accident. The learned counsel for the contesting parties agreed that, is also the age which is disclosed in the post-mortem report. The deceased was the sole earner of the family and had 11 children. P.W. 1 stated that deceased was running his own shop by the name "Janata Kawelu Bhandar", and that he was carrying on that business for 25 or 26 yea P.W. 1 has however stated in the cross-examination that he had no personal knowledge regarding the income of his father and he had not produced the shop and establishment certificate. He stated that the shop was in a Gram Panchayat area. He further stated that the deceased was the Mutawali of Masjid. The witness denied the suggestion, that the deceased was not carrying on
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 any business. On behalf the claimants an effort was made to examine three witnesses in support of their plea that a large business was being conducted by the deceased. P.W. 2 deposed that the deceased had purchased articles of the value of `15,000 to 20,000/-, from his shop every month. The learned trial Judge discarded the testimony of this witness, who had stated that the deceased was purchasing roof tiles and flooring from his shop situated at Gandhi Bag, Nagpur. The learned trial Judge was of the view that given the extent of the turnover, the deceased ought to have been an income-tax assessee. But, no such details were forthcoming. One of the witnesses, P.W. 3, stated that for a period of five years after the death of the deceased, his widow was assisting her sons and that they were running the shop. The learned trial Judge has, therefore, concluded that some income has been derived after the death of the deceased from the shop and, therefore, there was no loss as a result of the death. This reasoning is, to say the least completely unsustainable. I find merit in the contention of the learned Counsel appearing on behalf of the applicant that the mere fact that the widow of the deceased had continued to run the shop after the death of deceased, is not a reason to discard the claim for compensation. There was a shop belonging to the deceased. After the death of the sole bread earner in the accident, it was left to the widow to eke out a living for herself and for the 11 children whom the deceased left behind. The fact that she took over the reins of the shop would not justify the inference that she was not entitled to compensation or that she has derived income to the same extent, as the deceased in the conduct of the business. To deny a widow a claim to fair compensation for herself and eleven children on the ground that after all, she was left with a shop to run, would simply be a travesty of justice. The law cannot be oblivious to social reality. The learned Counsel appearing on behalf of the applicant has submitted that the claimants belong to a muslim
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 family and it is not unlikely that the widow of the deceased would have had in this case little wherewithal to run the business is effectively as did the deceased is." (para 10) (emphasis supplied)
43. The next aspect of the matter which needs consideration is as regards to claim for compensation which has been made on behalf of the claimants. The deceased was according to the deposition of PW.1, 48 years of age at the time the accident. Learned counsel for the contesting parties have not denied the same. The deceased was sole bread-earner of the family and had 2 children. The deceased was running his own business under the name and style of "Skanda Enterprises".
44. While assessing the compensation, the Tribunal is expected to award just and fair compensation. What can be the just and fair compensation is to be assessed on the basis of over all facts of the case, no hard and fast view can be laid as to the assessment of compensation. In the case of Pranay Sethi (supra), the Apex Court has laid down the following principles to be borne in mind while assessing the compensation.
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 "59. In view of the aforesaid analysis, we proceed to record our conclusions:
59.1. The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma , a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
59.2. As Rajesh has not taken note of the decision in Reshma Kumari , which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made.
The addition should be 30%, if the age of the deceased was between 40 to 50 yea In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 yea An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma which we have reproduced hereinbefore. 59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with para 42 of that judgment.
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 59.7. The age of the deceased should be the basis for applying the multiplier.
59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
45. In view of the aforesaid analysis, we proceed to record our conclusions:
Claimant No.1 is the wife of the deceased and claimant nos.2 and 3 are his children and 5 is the mother who is alive as per the petition averments. It is not in dispute that, the deceased was a businessman by profession and was running "Skanda Enterprises" being a proprietary business. He was income tax assessee as per the IT returns produced in this case. Similarly, the deceased had Pancard issued by the IT department in which his date of birth is stated as 15.12.1963. The said copy of the Pancard is marked as Ex.P14. To show that deceased was running the proprietary business under the name and style "Sri Skanda Enterprises", the acknowledgement issued by Directorate of Industries and
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 Commerce is produced at Ex.P10 issued by the Govt. of Karnataka.
46. With regard to the transfer of the proprietary business in the name of claimant no.1, the claimant no.1 relies upon Ex.P11 i.,e. Value Added Tax registration certificate. She has produced the copy of the statement of total income for the assessment year 2009 and 2010, balance sheet as on 31.3.2009, trading and profit and loss account extract for the year ending 31st March 2009, acknowledgement for having submitted the returns as per Ex.P17. Income Tax returns for the year 2011-12. So also, other documents are produced by the claimants.
47. The date of birth shown in the pan card proves that the deceased has completed 48 years of age when the accident took place. Thus, considering the age of the deceased, we have to assesss the compensation and award the same.
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014
48. So far compensation awarded by the Tribunal towards filial love and affection to claimant nos.2, 3 and 5, it is observed that claimant nos.2 and 3 have lost their father and claimant no.5 at her evening age has lost her son. The Tribunal has awarded compensation to the extent of `1,00,000/- each to claimant nos.2,3 and 5 in all `3,00,000/-. In our considered view, the compensation awarded is on the higher side as per the judgment in Pranay Sethi (supra). It ought to have been `40,000/- each with hike at 10% for every three years i.e from 2011 to 2023 is `53,240/- each in all `1,59,720/-(`53,240/-X3).
49. So far as expenses towards transportation of dead body, funeral and obsequies expenses, Tribunal has awarded a global compensation of `30,000/- which, in our opinion is just and proper. It cannot be presumed that the claimants have not spent any amount towards the said ceremonies. Therefore, no interference is required under this head.
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014
50. Claimant no.1 being he wife has lost her husband at a very young age as rightly observed by the learned Tribunal. Now, the business run by her deceased husband is transferred in her name and she is burdened with doing the said business. She has got the responsibility of her children and aged in-law i.e claimant no.5. She lost the company of her husband which cannot be compensated in terms of money by awarding compensation as rightly observed by the Tribunal. The Tribunal has awarded `2 lakhs towards loss of consortium. In our opinion, this is on higher side in view of judgment in Pranay Sethi (supra). Petitioner No.1 being the wife is also independently entitled for `40,000/- towards consortium. Hence it is held that, under the head of consortium, petitioner no.1 is entitled for `.40,000/- with hike at 10% every three years which comes to Rs.53,240/-.
51. So far as `loss of dependency' is concerned, now we have to read the documentary evidence as well as oral evidence spoken to by claimant no.1.
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014
52. As could be seen from the petition averments, it is the case of the claimants that, deceased was running the business under the name and style of `Skanda Enterprises'. During his lifetime, he has submitted his income tax returns for the year 2009-10, 2010-11 and 2011-12 as under:
Year Return income(`)
2009-2010 5,53,120.00
2010-2011 4,35,090.00
2011-2012 4,79,930.00
53. After demise of the Subba Reddy, it is claimant no.1 who took over the business of her husband and continued the said business. It has come in the evidence of PW.1/claimant no.1 that, the second petitioner has completed Bachelor of Engineering. As on the date of giving her evidence, the third petitioner was unmarried. The `Skanda Enterprises' is transferred in the name of
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 PW.1 i.e. claimant no.1. It is her evidence that, she is running the said enterprises with the help of supervisor. It is suggested to PW.1 that, the said 'Skanda Enterprises' is running under profit but, this suggestion is flatly denied by PW.1. Even it has come in the evidence of PW1-claimant no.1 that, she has no intention to close the said 'Skanda Enterprises'. Along with the interim application filed by the claimant to receive the additional evidence, she has produced the income tax returns of the said 'Skanda Enterprises' for the year 2013-14, 2014-15 and 2015-16. The total income from the said business has been shown as `2,63,660/- for the year 2013-14, `4,54,870/- for the year 2014-15 and `3,84,020/- for the year 2015-16.
54. On reading the income tax returns submitted by the deceased for the years 2009-10, 2011-12 and 2012- 13 as stated above, if calculated, the average three years' income comes to `4,89,380/-. Thus, the income per month is reckoned at `40,782/- (`4,89,380/12). Likewise, income derived by claimant no.1 from the said business as shown
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 in her income tax returns of the said "Skanda Enterprises"
for the year commencing from 2013-14 to 2015-16 comes to (`3,67,517/-). This is the average income for three years'. This is borne out from the income tax returns submitted by claimant no.1 to the Income Tax Department. If calculated, the average income per month comes to `30,626/-(i.e. `3,67,516/12). If the income is calculated during lifetime of deceased is compared to the income being derived by the "Skanda Enterprises" having taken over by claimant no.1 comes to `40,782- `30,626 = `10,156/-per month.
55. It is the evidence of claimant No.1 that, she has taken over the "Skanda Enterprises". Now a days the large number of women entrepreneurs are competing with men.
Evidentially claimant No.2 namely R.S.Jagadish Reddy has completed his Engineering. There is no evidence that, claimant No.2 is independently working as an Engineer.
When there is no evidence to that effect, it can be construed that, he must have joined his hands with
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 claimant No.1 to continue business in "Skanda Enterprises". As per Ex.P10 the said "Skanda Enterprises"
is manufacturing micro machinery components and the nature of work is "job work". Thus, claimant No.2 being an Engineer must be engaged in the manufacture of machinery components. The income tax returns submitted by the claimants by way of additional evidence show that, there is increase in the income. So, there may not be any loss of income because of death of deceased husband of claimant No.1, father of claimant Nos.2 and 3 and son of claimant No.5. As rightly submitted by the counsel for respondent No.2, there were no handicaps to continue the "Skanda Enterprises" by the claimants. But however, considering the circumstances of the case, certain amount is to be granted towards 'loss of dependency'. If the Income Tax Returns submitted by claimant No.1 in respect of her business and the Income Tax Returns submitted by the deceased are compared, by calculating the average income earned by the deceased during his lifetime and
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 average income earned by the claimants after demise of deceased, it comes to `10,156/-per month.
56. Though it is alleged that, the "Skanda Enterprises" is running under loss, but, in view of claimant No.2 being an Engineer must be helping his mother claimant No.1. There may not be that much of loss as alleged by the claimants. The law says that, in a case of present nature, reasonable compensation is to be awarded which must be just and proper. Therefore, it is to be calculated as follows. Average income being derived from the aforesaid income is `10,156/-. As deceased was a businessman, towards his personal expenses certain amount is to be deducted. As per law laid down by Hon'ble Apex Court, as the deceased was a married person and having four dependents, 1/3rd of `10,156/- is to be deducted. It comes to `6,770.67/- rounded off to `6,771/- . One more aspect which is to be considered in this case is that, as per the Judgment in Pranay Sethi (supra), as the deceased was self-employed and aged between 40-50
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 years, 25% of his income has to be added towards `future prospects' (`6771 x 25%). It comes to `1,692.75/- rounded off to `1,693/-. Thus, `6,771/- and `1,693/- are to be added, it comes to `8,464/-. If the same is calculated annually, it comes to `1,01,568/- (`8,464/- x
12). As the deceased was aged about 48 years, the proper multiplier i.e. applicable is 13. Then it comes to (`1,01,568 x 13) `13,20,384/-. This would be the 'loss of dependency' to the claimants.
57. It is the case of the claimants that, respondent no.1 was the owner of the offending vehicle and respondent no.2 was the Insurer of the said vehicle. The Tribunal has fastened liability on respondent nos. 1 and 2 jointly and severally. However, respondent no.2 being the Insurance Company as the policy is not denied, it is directed to respondent no.2 to indemnify the compensation. The Insurance Company has not preferred any appeal on this aspect. That means the finding fastening the liability on the Insurance Company is not
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 denied and has become final. Therefore, respondent nos.1 and 2 are jointly and severally liable to pay the enhanced compensation but, however, as respondent no.2 being the Insurance Company has to pay the enhanced compensation to the claimants as per the table below:
Head Amount(`.)
1. Loss of dependency 13,20,384/-
2. Loss of Love and affection 1,59,720/-
To claimant No. 2, 3 and 5
3. Transportation of dead body & 30,000/-
funeral and obsequies expenses
4. Loss of Consortium 53,240/-
Total 15,63,344/-
Rounded off to
`15,63,350/-
58. Accordingly, points for consideration are
answered. Consequently, the appeal filed by the claimants deserves to be allowed in-part. Resultantly, we pass the following:
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 ORDER [i] The Appeal filed by the appellants- claimants is allowed in-part.
[ii] I.A.1/2024 filed under Order XLI Rule 27 of CPC, is allowed. Documents so produced along with I.A No. 1/2024 are received on record.
[iii] The impugned judgment and award dated 05.02.2014 passed by the learned VI Addl.Judge, Member, MACT, Court of Small Causes, Bengaluru in M.V.C.No.509/2012 is hereby modified to the extent that the compensation awarded at `5,30,000/- is enhanced by a sum of `10,33,350/- (Rupees Ten Lakh Thirty Three Thousand Three Fifty only) thus, fixing the total compensation at `15,63,350/- (Rupees Fifteen Lakh Sixty Three Thousand Three Fifty only).
[iv] Out of the enhanced amount of compensation, Fifty percent (50%) be released in favour of the claimants equally immediately after its deposit.
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NC: 2024:KHC:10803-DB MFA No. 3646 of 2014 [v] The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing respondent No.2- Insurance Company to deposit the awarded amount, awarding the interest, its rate, apportionment among claimants shall remain unaltered.
There shall be modified award accordingly. Registry to transmit a copy of this judgment along with records to the concerned Tribunal without delay.
Sd/-
JUDGE Sd/-
JUDGE Sk/-