Partly allowed

Shashikala v. L.V. Sunil Kumar

Karnataka HC11 Jul 2023MFA/1565/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Motor Accident Claims Tribunal award. The court held that the claimants failed to prove the deceased's alleged high income due to lack of credible evidence. Applying the Pranay Sethi formula using a notional income, the court enhanced the compensation from Rs. 5.75 lakh to Rs. 13.11584 lakh.

What did the court decide?

The impugned award modified to Rs. 13,11,584/- with 6% interest; Respondent to deposit the amount to the Tribunal.

Shashikala Vs L.V. Sunil Kumar — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:24104-DB MFA No. 1565/2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 1565/2013 (MV-D)

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BETWEEN:

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SHASHIKALA W/O LATE M.N. KUMAR AGED ABOUT 32 YEARS

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SUDARSHAN @ DARSHAN S/O LATE M.N.KUMAR AGED ABOUT 13 YEARS

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MANGALA @ AISHWARYA S/O LATE M.N.KUMAR AGED ABOUT 10 YEARS

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JAYAMMA

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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W/O LATE NAGASHETTY AGED ABOUT 50 YEARS

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ALL ARE R/AT MARANAYAKANAHALLI VILLAGE KASABA HOBLI, HOLENARASIPURA TALUK HASSAN DISTRICT

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(APPELLANT NOS. 2 AND 3 ARE MINORS AND ARE REPRESENTED BY THEIR MOTHER /NATURAL GUARDIAN APPELLANT NO.1) … APPELLANTS

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(BY SRI. CHETAN NAG S., ADVOCATE)

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AND:

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L.V. SUNIL KUMAR S/O VENKATARAMU R/O GANDHI CIRCLE

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NC: 2023:KHC:24104-DB MFA No. 1565/2013

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CHANNARAYAPATTANA HASSAN DISTRICT.

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2. THE MANAGER

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ICICI LOMBARD GENERAL INSURANCE CO LTD JINITH HOUSE, KESHAVRAO KADE MARG MAHALAKSHMI, MUMBAI 400034.

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REPRESENTED BY THE DIVISIONAL MANAGER ICICI LOMBARD GENERAL INSURANCE CO., LTD., REGIONAL OFFICE, C/22, MUJIMUS COMMERCIAL COMPLEX, HAMANAKATTE, MANGALORE – 1 … RESPONDENTS

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(BY SRI. GOVARDHANA V.S, ADVOCATE FOR R1 SRI.B C SHIVANNE GOWDA, ADVOCATE FOR R2)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 03.11.2012 PASSED IN MVC NO.390/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, MACT, HOLENARASIPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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"Whether the compensation awarded to the claimants

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under the impugned award is just?" is the question involved in this case.

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The appellants were petitioner Nos.1 to 4 and respondents were respondent Nos. 1 and 2 in MVC No.390/2012. For the purpose of convenience, the parties will

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3 - NC: 2023:KHC:24104-DB MFA No. 1565/2013

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be referred to henceforth according to their ranks before the Tribunal.

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Claimant No.1 is the wife, claimant Nos. 2 and 3 are the children and claimant No.4 is the mother of deceased M.N.Kumar. On 13.3.2012 at 1.30 p.m. when M.N.Kumar was riding his motorcycle bearing No.KA-02/EK-2094 near Idgah Maidan on Akkihebbal Mandagere Road within the limits of Kikkeri Police Station of K.R.Pet Taluk, Mandya District, tipper lorry bearing Regn.No. KA.05/C-2915 hit the said motorcycle causing grievous injuries to Kumar. When he was being shifted to Holenarasipura Government Hospital at 2.30 pm he succumbed to the injuries. At the relevant time, respondent Nos.1 and 2 were the registered owner and the Insurer of the said tipper lorry.

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Regarding the accident, on the complaint filed by one Kumara M.B S/o Boregowda, Kikkeri Police registered FIR as per Ex.P3 against the driver of tipper lorry. On investigation, Police filed charge sheet as per Ex.P10 against the driver of the tipper lorry for the offences punishable under Sections 279 and

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304A of Indian Penal Code, 1860 read with Sections 184 and 187 of the Motor Vehicles Act 1988.

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Claimants filed MVC No.390/2012 claiming that the accident and consequential death occurred due to actionable negligence of driver of tipper lorry. The claimants claimed that they were all residing with Kumar and dependent on his income and due to his untimely death, they are put to vagaries. Thus, they claimed compensation of Rs.40,00,000/-. They claimed that respondent Nos.1 and 2 being the owner and insurer of the offending vehicle were liable to pay damages.

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Respondent No.2 alone contested the petition denying the occurrence of the accident due to actionable negligence on the part of the driver of the tipper lorry No.KA-05/C-2915, involvement of the said vehicle in the accident, age, occupation, income of the deceased and its liability to pay the compensation.

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On behalf of the claimants, claimant no.1 was examined as PW.1, claimant no.4 was examined as PW.2 and Exs.P1 to P28 were marked. No evidence was adduced on respondents' side. The Tribunal on hearing the parties, relying on Exs.P2 to P10 the police records, held that accident occurred

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due to actionable negligence on the part of the driver of tipper lorry No.KA-05/C-2915. The Tribunal considered the age of the deceased as 40 years, notionally assessed his income at Rs.150/- per day, deducted 1/3rd of the same for the personal expenses of the deceased and awarded compensation of Rs.5,40,000/- towards loss of dependency.

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The Tribunal in all awarded Rs.5,75,000/- with 6% interest on different heads payable by Respondent No.2 as per the table below:

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Sl.No.	Heads	Amount in Rs.
1.	Loss of Dependency	5,40,000/-
2.	Funeral & Obsequies expenses	5,000/-
3.	Loss of Love and Affection	10,000/-
4.	Consortium	5,000/-
5.	Loss of Estate	15,000/-
	TOTAL	5,75,000/-

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The claimants challenge the said award on the ground that compensation awarded is inadequate. Before this Court, the claimants filed I.A.1/2023 to adduce additional evidence. Under the said application, the claimants have produced the following

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documents:

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i) IT Return Verification Form for Assessment Year 2012-13.

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ii) Form No.26AS for the Assessment Years 2011-12 and 2012-13. iii) An affidavit of the petitioner in form under Sec.65-B Certificate

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Submissions of Sri Chethan Nag S, learned counsel for the claimants:

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The Income Tax returns, Ex.P12-LIC Agent’s Certificate, Ex.P13 the Resume Letters, Exs.P18 and P19- Bank Pass books and Pan Card vide Ex.P20 clearly show that the deceased was an Income Tax assessee. Those documents further show that deceased had the annual income of Rs.1,73,120/- for the assessment year 2012-13. The said form further shows that an amount of Rs.28,850/- was refunded to the deceased as surplus tax paid, thus the annual income comes to Rs.2,01,970/-(Rs.28,850/- + Rs.1,73,120/-). Exs.P21 to 28 were official records. There was no reason to disbelieve them. Therefore, the finding of the Tribunal with regard to the income of the deceased is perverse. The compensation awarded on the other heads is on the lower side and contrary to the Supreme Court judgment in National Insurance Co.Ltd., vs. Pranay Sethi and others¹ .

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1 2017 ACJ 2700 SC

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NC: 2023:KHC:24104-DB MFA No. 1565/2013

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Submissions of Sri B.C.Shivannegowda, Standing Counsel for Respondent No.2:

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The claimants though contended that deceased was working as LIC agent, did not examine any LIC authorities to prove that he was earning the amount as claimed in Exs.P21 to 28 by way of commission. The income tax returns were not produced. Only Form No.16A was produced. The authors of those documents were not examined. The income tax return for the year 2012-13 is produced before this Court. Even that document shows, same was submitted to Income Tax Department on 26.3.2014 i.e. subsequent to the filing of the petition. Nothing is produced to show that prior to 2012 the deceased had such income. Therefore, it is clear that subsequently the income tax return for the year 2012-13 is got up only for the purpose of this case. The other documents produced by way of evidence are only alleged TDS records. The author of those records/documents is not examined. The other documents pertaining to 2010-11 and 2011-12 cannot advance the case of the claimants in any manner to enhance the compensation awarded by the Tribunal. The RTC records produced at Exs.P14 to 17 were neither standing in the name of the deceased nor those lands were yielding any income.

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Therefore, the Tribunal is justified in taking the notional income of the deceased at Rs.150/- per day and compensation awarded on other heads is also just and reasonable one. Hence, the appeal is liable to be dismissed.

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ANALYSIS :

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The finding of the Tribunal that the accident occurred due to actionable negligence of the driver of tipper lorry bearing Regn.No.KA-05-C-2915 leading to death of M.N.Kumar is not under challenge.

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The claimants contended that the deceased was doing LIC business and agriculture and from such business and agriculture, he had monthly income of Rs.50,000/-. Therefore, the burden of proving the same was on the claimants. So far as agricultural income Ex.P14 to 17 show that those lands were standing in the name of claimant no.4 i.e. mother of the deceased. Those documents do not indicate that deceased was cultivating those lands. The total extent of the said lands is 2.15 guntas. In those lands, no crop was shown. Therefore, there is no evidence to show that those lands were yielding any income to claimant No.4 or to the deceased.

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So far as LIC business of the deceased and he earning handsome commission from the said business, claimants did not choose to examine any of the LIC authorities to prove the said income or business. Exs.P21 to 28 were not Income Tax returns but they were only Form - 16A. They were all purportedly issued by the Senior Branch Manager, LIC of India, Holenarasipura. The authors of those documents were not examined. Even before this Court, only the income tax returns for the year 2012-2013 is produced. The said document itself shows that return was submitted on 26.3.2014 i.e. after filing of the claim petition.

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Apart from that, if income of the deceased was consistently more than 2 lakhs as claimed or Rs.50,000/- per month the deceased would have filed income tax returns preceding the income tax return dated 26.03.2014. Had he filed the said income tax returns they should be available with claimants. Therefore, Exs.P21 to P28 nor Income Tax returns for the assessment year 2012-13 submitted on 26.3.2014 can be considered as credible documents to prove the income of the deceased at Rs.50,000/- per month and Rs.2,00,000/- per year. Therefore, the Tribunal was justified in assessing the income of the deceased notionally.

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As per Ex.P20 Pan Card, the date of birth of the deceased was 12.08.1969. The accident occurred during the year 2012. Therefore, as on the date of the accident deceased was aged 42 years. Considering age and occupation of the deceased, prevailing wage rates and cost of living during the year 2012, notional income assessed at Rs.150/- per day is on the lower side. Just assessment for the said year is Rs.7,000/per month. As per the judgment of Supreme Court in Pranay Sethi ’s case referred to supra and having regard to the age of the deceased, 25% is required to be super-added to the income of the deceased towards future prospects. Therefore, his income comes to (Rs.7,000/- + Rs.1,750/-)= Rs.8,750/- per month. As the deceased had four dependents, as per the judgment in Sarla Verma & Ors. vs. Delhi Transport Corporation & another² , 1/4th of his income has to be deducted for his personal expenses. Therefore, his income which could be contributed to the family comes to (Rs.8,750 x ¾) Rs.6,563/-, The applicable multiplier is 14. Therefore, compensation payable on the head of loss of dependency would be (Rs.6,563/- x 12 x 14) = Rs. 11,02,584/-.

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2 2009 (6) SCC 121

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As per the judgment of Hon’ble Supreme Court in Pranay Sethi 's, case referred to supra the claimants are entitled to compensation of Rs.40,000/- each for `loss of consortium' with escalation at 10% Which comes to (Rs.44,000 X 4) = Rs. 1,76,000/- Similarly, on the head of funeral expenses and loss of estate, they are entitled to compensation of Rs.15,000 + 15,000 with escalation at 10% each which comes to Rs.33,000/-.

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Therefore, the just compensation payable to the

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claimants is as follows:

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Sl.No.	Heads	Amount in Rs.
1.	Loss of Dependency	11,02,584/-
2.	Consortium	1,76,000/-
4.	Funeral & Obsequies expenses	16,500/-
5.	Loss of Estate	16,500/-
	TOTAL	13,11,584/-

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For the aforesaid reasons, the appeal deserves to be allowed in-part. Hence, the following:

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ORDER

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i) Appeal is partly allowed.

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ii) The impugned award is modified as follows:

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(a) Claimants are entitled to Rs.13,11,584/- with interest at 6% p.a. from the date of petition till its realization.

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(b) Respondent No.2 Insurer shall deposit the same before the Tribunal on adjusting the amount already deposited, if any, within four weeks from the date of receipt of a copy of this order.

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(c) On such deposit, the Tribunal shall release the same digitally to the claimants on furnishing the required documents.

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(d) Registry shall transmit the TCRs to the Tribunal forthwith.

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(e) The order of the Tribunal with regard to the investment is maintained.

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Sd/JUDGE

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Sd/JUDGE

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Sk/-

Shashikala v. L.V. Sunil Kumar

Case brief

What is this about?

What did the court decide?

Shashikala v. L.V. Sunil Kumar

Case brief

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