Partly allowed

The Divisional Controller v. Smt B N Meenakshi

Karnataka HC9 Dec 2020MFA/7236/2019

Case brief

AI extract

What is this about?

Appeals against a Motor Accident Claim Tribunal award were heard. While dismissing the Corporation's appeal, the High Court held the Tribunal erred in using notional income when Income Tax returns were available. The Court re-assessed the deceased's income based on those returns, enhanced compensation, and dismissed the negligence argument by the Corporation.

What did the court decide?

Compensation awarded by Tribunal modified and enhanced to Rs.39,49,406/-. Corporation appeal dismissed; claimants' appeal partly allowed.

The Divisional Controller Vs Smt B N Meenakshi — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH DAY OF DECEMBER, 2020

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PRESENT

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THE HON'BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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MFA.NO.7236 OF 2019(MV-D) C/W MFA.NO.8713 OF 2019(MV-D)

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IN MFA.NO.7236 OF 2019

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BETWEEN:

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THE DIVISIONAL CONTROLLER KSRTC,CHIKKAMAGALURU DIVISION CHIKKAMAGALURU 577-101 NOW REP. BY CHIEF LAW OFFICER SHANTHINAGARA KH ROAD BENGALURU-560 027

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....APPELLANT

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(BY SRI. B. PALAKSHAIAH, ADVOCATE)

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AND:

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1 . SMT. B N MEENAKSHI W/O LATE B.S.PUTTANNA AGE 40 YEARS, HOUSEWIFE

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2 . MISS SUSHMITHA

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D/O LATE B.S.PUTANNA AGE 21 YEARS

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3 . MISS SUPREETHA D/O LATE B.S.PUTANNA AGE 16 YEARS SINCE MINOR REP. BY RESPONDENT NO 1 THE MOTHER NATURAL GUARDIAN ALL ARE RESIDING AT: BH RD, ALDUR AT AND POST CHIKKAMAGALURU TALUK 577-111

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4 . P.R.JAGADEESH S/O RAJEEGOWDA AGE 31 YEARS DRIVER KSRTC BUS BEARING REG NO: KA-18-F-661 BADGE NO : 1489 SAKALESHPURA KSRTC DEPOT SAKALESHPURA AT AND POST HASSAN DISTRICT 573-134

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5 . THE MANAGER UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICER CRESCENT COURT 1^ST FLOOR, KM ROAD CHIKKAMAGALURU CITY 577-101 P.NO. 2414003116P109856633 VALID FORM 25/10/2016 TO 24/10/2017

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….RESPONDENTS

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(BY SRI. GIRISH .B BALADARE, ADVOCATE FOR R1 TO R3 SRI. M.U. POONACHA, ADVOCATE FOR R5 V/O DATED 02.12.2020 NOTICE TO R4 IS D/W)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.06.2019 PASSED IN MVC NO.254/2017 ON THE FILE OF THE MACT AND 1^ST ADDITIONAL SENIOR CIVIL JUDGE, JMFC, CHIKKMAGALURU, AWARDING COMPENSATION OF RS.28,45,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS ENTIRE REALIZATION.

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IN MFA.NO.8713 OF 2019

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BETWEEN:

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1 . SMT. B N MEENAKSHI W/O LATE B S PUTTANA AGED ABOUT 40 YEARS

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2 . MISS SUSHMITHA D/O LATE B S PUTTANA AGED ABOUT 21 YEARS

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3 . MISS SUPRITHA D/O LATE B S PUTTANA AGED ABOUT 16 YEARS A MINOR, REP. BY HER NATURAL GUARDIAN MOTHER APPELLANT NO.1

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ALL ARE R/AT B H ROAD, ALDUR AT AND POST CHIKKMAGALURU TALUK CHIKKAMAGALUR DISTRICT-577 101

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....APPELLANTS

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(BY SRI. GIRISH .B BALADARE, ADVOCATE)

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AND:

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1 . THE MANAGER UNITED INDIA INSURANCE CO. LTD BRANCH OFFICE, CRESCENT COURT 1^ST FLOOR, K M ROAD CHIKKAMAGALURU- 577 101

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2 . THE DIVISIONAL CONTROLLER KSRTC CHIKKAMAGALURU DIVISION CHIKKAMAGALURU-577 101

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3 . P R JAGADEESH S/O RAJE GOWDA AGED ABOUT 31 YEARS DRIVER OF K S R T C BUS SAKALESHPURA K S R T C DEPOT SAKALESHPURA AT AND POST HASSAN DISTRICT-573 201

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….RESPONDENTS

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(BY SRI. B. PALAKSHAIAH, ADVOCATE FOR R2 V/O DATED 02.12.2020 NOTICE TO R1 AND R3 ARE D/W)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.06.2019 PASSED IN MVC NO.254/2017 ON THE FILE OF THE MACT AND 1^ST ADDITIONAL SENIOR CIVIL JUDGE, JMFC, CHIKKMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT FOR COMPENSATION.

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THESE APPEALS COMING ON FOR ORDERS THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimants as well as the Corporation have come in appeals assailing the correctness and legality of the judgment and award passed in MVC.No.254/2017. The Corporation has preferred appeal in MFA.No.7236/2019 on the ground of negligence as well as quantum whereas claimants have preferred appeal in MFA.No.8713/2019 seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their rank before the Tribunal.

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The facts leading to the case are as under:

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The claimants filed claim petition by specifically contending that on 27.04.2017 at about 3.00 p.m., the husband of claimant No.1 namely B.S.Puttanna was proceeding in his Maruthi Swift Car bearing Reg.No.KA-18/N7026. It is stated that when the husband of claimant No.1 reached Aldurpura, at that juncture, the driver of the KSRTC bus bearing Reg.No.KA-18/F-661 came from Shringeri side in

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a rash and negligent matter and dashed against the car. On account of the impact and collision between the two vehicles, the husband of claimant No.1 sustained grievous injuries and he was immediately shifted to M.G.Hospital, Chikkmagaluru and thereafter was shifted to Mangalore Hospital in an ambulance but, however, the husband of claimant No.1 succumbed to the injuries on the way at Charmadi Ghat. The claimants specifically pleaded in the claim petition that deceased was hale and healthy prior to accident and was aged around 48 years. It was contended that he was working as Electrical Contractor and was earning Rs.1,00,000/- p.m. It was also contended that the entire family members were dependent on the income of the deceased. On these set of averments, the claimants filed claim petition claiming compensation of Rs.50,00,000/-.

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The Corporation on receipt of notice, contested the proceedings by filing written statement. It was specifically contended that the driver of the offending bus was not at all

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rash and negligent. It was specifically contended that the accident occurred on account of rash and negligent driving by the deceased himself who overtook another KSRTC bus and while doing so, lost control and even though the driver of the bus took the bus on the extreme left side, still the deceased came in a rash and negligent manner and dashed against the bus. It was also contended that deceased did not possess valid and effective driving licence as on the date of the accident and further, a plea was taken that petition was bad for non-joinder of necessary parties.

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Based on the rival contentions, the Tribunal formulated the following issues:

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"1) Whether the petitioners prove that Sri B.S.Puttanna, the husband of petitioner No.1 and father of petitioner No.2 died in a road traffic accident on 27-4-2017 at about 3.00 p.m., at Aldur pura, Chikkmagaluru Taluk, due to the rash and negligent driving of K.S.R.T.C. Bus

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bearing Reg.No.KA-18/F-661 by the 1^st respondent as averred in the petition?

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2) Whether the respondent No.2 proves that the petition is bad for non-joinder of necessary parties?

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3) Whether the petitioner is entitle for compensation? If yes, for what amount and from whom?

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4) What order or award?"

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The claimants in support of their contention examined

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the widow of the deceased as PW.1 and relied on documentary evidence vide Exs.P-1 to P-12. The Corporation in support of its contention examined three witnesses as RWs.1 to 3 and lead in rebuttal documentary evidence vide Exs.R-1 to R-15.

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The Tribunal having assessed the oral and documentary evidence answered issue No.1 in the affirmative by holding that the death of husband of claimant No.1 has occurred on account of rash and negligent driving by the driver of the offending bus. While determining compensation, the Tribunal has assessed the income of the deceased notionally at

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Rs.25,000/- and by adding 30% towards future prospects and by deducting 1/3^rd towards personal expenses, the Tribunal has awarded a sum of Rs.27,90,000/- under the head loss of dependency. Under conventional heads, the Tribunal has awarded a sum of Rs.55,000/-. The Tribunal, in all, has awarded total compensation of Rs.28,45,000/-.

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Learned counsel appearing for the

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appellant/Corporation in MFA.No.7236/2019 would vehemently argue and contend before this Court that the Tribunal erred in assessing the income of the deceased notionally at Rs.25,000/-. He would also submit to this Court that the multiplier of 12 applied by the Tribunal is also erroneous. Learned counsel on negligence would submit to this Court that the ocular evidence of RWs.1 to 3 would clearly establish the negligence of deceased and this material aspect is not at all dealt with by the Tribunal.

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Per contra, learned counsel appearing for the

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claimants would vehemently argue and contend before this Court that insofar as negligence is concerned, the claimants have placed on record the clinching evidence as per Exs.P-1 to P-7. The said documents would clearly establish the negligence on the part of the driver of the offending bus. On quantum, learned counsel for the claimants would submit to this Court that the Tribunal erred in assessing the income of the deceased notionally. The notional assessment is contrary to Ex.P-12 which is the Income Tax returns submitted by the deceased for the years 2013-14, 2014-15, 2015-16 and 201617. Relying on Ex.P-12, he would submit to this Court that the clinching evidence on record clearly establishes that the deceased was an Income Tax assessee. Though the returns were placed on record, the Tribunal was not justified in assessing the income of the deceased notionally. On these set of grounds, he would submit to this Court that there is scope for enhancement.

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Heard learned counsel for the Corporation and learned counsel for the claimants. We have perused the pleadings of the parties and have meticulously examined the oral and documentary evidence on record.

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Regarding negligence:

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On meticulous examination of Exs.P-1 to P-7 and the ocular evidence of RWs.1 and 2, who are the driver and conductor of the offending bus respectively, we would find that the Corporation though has taken a specific contention that the accident has occurred on account of rash and negligent driving by the deceased himself, the self sworn testimony of RWs.1 and 2 would not in any way displace the evidence adduced by the claimants as per Ex.P-1 to P-7. From the records it is borne out that the crime was registered against the driver of the offending bus i.e., RW.1. On investigation, charge sheet is also filed against the driver of the offending bus. On meticulously examining the ocular evidence of RWs.1 and 2, we are of the view that the evidence of the said two

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witnesses is not credible which would displace the evidence adduced by the claimants in regard to negligence. The Tribunal has meticulously dealt with this issue and has come to conclusion that it is the driver of the offending bus who was rash and negligent and has caused the accident. The findings recorded by the Tribunal is based on the evidence placed on record. We do not find any illegality or infirmities in the finding arrived at by the Tribunal while dealing with issue No.1. In that view of the matter, the contention of the Corporation that deceased was negligent cannot be accepted and the same stands negatived.

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Regarding quantum:

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The Tribunal at para 29 of the judgment has taken

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note of the Income Tax returns. The Tribunal has referred to the Income Tax returns but, however, proceeded to assess the income of the deceased notionally at Rs.25,000/-. When the claimants have placed on record the Income Tax returns which is the best piece of evidence to assess the income, no reasons

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are assigned by the Tribunal in discarding Ex.P-12 which would clearly establish the income of the deceased. In this background, we are of the view that the Tribunal erred in assessing the income of the deceased notionally at Rs.25,000/-. The Income Tax returns would clearly establish the income of the deceased. By taking the average of the Income Tax returns filed by the deceased for the years 2013 to 2017, we would proceed to assess the income of the deceased at Rs.30,381/- p.m. The annual income of the deceased has to be assessed at Rs.3,64,572/- (30,381x12). Upto 2,50,000/-, there is an exemption. In excess of Rs.2,50,000/-, a sum of Rs.1,14,572/- falls under the taxable limit and accordingly, 10% has to be deducted towards tax which comes to Rs.11,457/-. If Rs.11,457/- towards Income Tax and Rs.2,400/- towards professional tax is deducted from Rs.3,64,572/-, the income of the deceased is assessed at Rs.3,50,715/- annually. Since deceased was aged 48 years, 25% has to be added towards future prospects. Hence, total

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income of the deceased is assessed at Rs.4,38,393/-. After deducting 1/3^rd and by applying the multiplier of 13, the compensation payable under the head of loss of dependency comes to Rs.37,99,406/(4,38,393x13x2/3). Under conventional heads, claimant No.1 is entitled for a sum of Rs.40,000/- towards spousal consortium and claimant Nos.2 and 3 are entitled for a sum of Rs.40,000/- each towards parental consortium and Rs.30,000/- is awarded towards loss of estate and funeral expenses. Thus, the total compensation re-determined by this Court comes to Rs.39,49,406/-.

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Hence, the following:

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ORDER

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i) MFA No.7236/2019 filed by the Corporation stands dismissed. MFA No.8713/2019 filed by the claimants is partly allowed.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.39,49,406/- as against Rs.28,45,000/which shall carry interest at the rate of 6%

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per annum from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The Corporation shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v) The modified compensation amount shall be disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly. vii) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith.

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viii) All pending I.As. stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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The Divisional Controller v. Smt B N Meenakshi

Case brief

What is this about?

What did the court decide?

The Divisional Controller v. Smt B N Meenakshi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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