Smt Esther Leena Vs Icici Lombard Gen.Ins.Co.Ltd

KUM.R.PREETHI SHERYL AGED 15 YEARS MINOR REP BY HER MOTHER APPELLANT NO.1 ALL ARE R/AT NO.25/2, G-1, SERENADE HOMES, EJIPURA MAIN ROAD, VIVEK NAGAR, BENGALURU-47.

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…APPELLANTS

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(BY SRI. S.P. SHANKAR, SENIOR ADVOCATE FOR *SRI. K.T. MADHU , ALONG WITH SMT. MAMATA G KULKARNI.,ADVOCATE)

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AND:

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ICICI LOMBARD GEN.INS.CO.LTD HAVING ITS REGISTERED OFFICE NO.414, VEER SAVARKAR MARG

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*Retyped and Replaced vide Court order dated 11.09.2025.

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NC: 2025:KHC:28236-DB MFA No. 2803 of 2019

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HC-KAR

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NEAR SIDDHIVINAYAKA TEMPLE PRABHADEVI, MUMBAI. ALSO HAVING ITS BENGALURU BRANCH THE ESTATE 121, 9^TH FLOOR DICKENSONS ROAD, M.G.ROAD, BENGALURU-560 042.

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SRI.M.A. AHMED ALI S/O A.M.MOHD ALI NO.339/D, 6^TH CROSS, 17^TH D MAIN, 6^TH BLOCK, KORAMANGALAL BANGALORE-95.

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SRI.REHAN AHMED ALI S/O MOHAMMED ALI AHMED ALI NO.339/D, 6^TH CROSS, 17^TH D MAIN, 6^TH BLOCK, KORAMANGALA, BANGALORE-95.

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…RESPONDENTS

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(BY SRI.B.C. SHIVANNEGOWDA., ADVOCATE FOR * SRI. B. PRADEEP , ADVOCATE FOR R1; SRI. MOHAMMED AFIFULLA, ADVOCATE FOR R2 & R3)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01/01/2019, PASSED IN MVC NO.7923/2016, ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU (SCCH-15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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*Retyped and Replaced vide Court order dated 11.09.2025.

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HC-KAR

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and

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HON'BLE MR. JUSTICE B M SHYAM PRASAD

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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This appeal is by the Claimants in MVC No.7923/2016 on the file of the XIII Additional Judge, Court of Small Causes and Member of Motor Accident Claims Tribunal, Bengaluru [for short, ' the Tribunal ']. The Tribunal, by the impugned Judgment and Award dated 01.01.2019, has granted to the Claimants a sum of Rs.11,25,000/- with interest at 6% per annum from the date of petition to deposit under the following heads:

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1.Loss ofdependency	Rs.10,40,000/-
2. Medical Expenses	Rs. 15,000/-
3.Loss ofConsortium	Rs.40,000/-
4. Loss of Estate	Rs. 15,000/-
5. Transportation of dead body and funeral	Rs. 15,000/-
expenses.
*Total*	_Rs. 11,25,000/- _

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HC-KAR

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2. The deceased, Mr. J. Richard Rajan, has

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succumbed to the injuries suffered in a road accident on 23.04.2016, and he has died on 26.04.2016. The Claimants are his wife and children. The children were minors at the time of his demise. If these are the undisputed facts, the first respondent’s liability to pay compensation as the Insurer of the offending vehicle is also not in dispute. The Tribunal has computed the loss of dependency taking the income of Mr. J. Richard Rajan at Rs.8,000/- per month with the addition of 25% towards future prospects as he was aged 46 years at the time of his death. The Tribunal has taken the multiplier of ' 13 ' deducting 1/3^rd towards personal expenses.

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Mr. S.P. Shankar, the learned Senior

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Counsel on behalf for the Claimants, argues for an enhancement in the compensation towards loss of dependency and loss of consortium without disputing the deduction towards personal expenses or the

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HC-KAR

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multiplier. On the Claimants’ case for enhancement on loss of dependency, Mr. S.P. Shankar submits that Mr. J. Richard Rajan was working as a Director with M/s Baunwert Advisors Private Limited with its office on HAL Airport Road, Bengaluru and that a Director of this Company, who is examined as PW.2, has spoken to the fact that the deceased was holding the office of a Director with this company until his death. The learned Senior Counsel emphasizes that this witness has produced the Company's annual reports for the years 2015-16, 2016-17 and such other documents to establish that Mr. J. Richard Rajan was indeed in office.

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On the actual income, Mr. S.P.Shankar

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invites this Court's attention to Ex.P.25 and the details of the tax deducted at source to contend that Mr. J. Richard Rajan, apart from other emoluments, was being paid a monthly salary of Rs.59,800/- and the Bank Passbook shows that this amount was

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HC-KAR

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being regularly credited to his account every month for the twelve months prior to the accident. The learned Senior Counsel contends that this Court must in the least take Mr. J. Richard Rajan’s income at Rs.59,800/- subject to the deduction towards income tax and professional tax.

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Mr. B. C. Shivannegowda, the learned counsel for the Insurer, submits that no credence can be attached to the Bank Passbook because the Claimants have not produced the IT Returns and that they should have produced the Returns to show that Mr. J. Richard Rajan was earning above Rs.59,000/-. The learned counsel argues that Mr. J. Richard Rajan himself had stated with the police, immediately after the accident, that he was working as an Accountant¹

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1 This evidence has prevailed with the Tribunal, and the Tribunal has disbelieved the Claimants’ case that Mr. J. Richard Rajan was working as a Director of M/s Baunwert Advisors Private Limited.

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HC-KAR

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and that this Court must also consider this evidence

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in deciding on the Claimants’ case for enhancement.

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Mr. B. C. Shivannegowda next vehemently

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argues that the Claimants cannot approbate and reprobate in seeking compensation based on the taxable income and in not producing the IT Returns. The learned counsel, as an alternative, submits that the loss of dependency must be computed taking the annual income of the deceased at Rs.3,00,000/because only income during the relevant time up to Rs.3,00,000/- was exempted from tax.

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This Court must observe that the Insurer

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does not dispute that Mr. J. Richard Rajan was indeed working with M/s Baunwert Advisors Private Limited. As to the nature of Mr. J. Richard Rajan’s engagement with this Company, though it is contended that he himself has stated with the police after his injury that he was an Accountant, this

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HC-KAR

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Court must test such statement as against the ocular evidence and the aforesaid documentary evidence such as SBI Bank Passbook [ Ex. P 25 ], the details of the TDS in Form No. 16 [ Ex.P.33 ] and the Statement of Profit and Loss [ Ex. P 40 ].

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The first Claimant is categorical in stating that her husband [Mr. J. Richard Rajan] was working as a Director with M/s Baunwert Advisors Private Limited and he was being paid a monthly income as per the SBI Bank Passbook [ Ex.P.25 ]. This evidence is also corroborated by the evidence of PW-2, who has reiterated that Mr. J. Richard Rajan was working as a Director. Mr.J.Richard Rajan’s nature of engagement with the Company and his actual income must be examined based on the contents of Ex.P.25–the Bank Statement for the period from 05.02.2015 and ending as of 20.05.2016 [ a date after the accident ]. It is seen from this Passbook that Mr. J. Richard Rajan, apart from being given credit every month to different other

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HC-KAR

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amounts, is paid by NEFT Rs.59,800/- consistently without fail. There are also periodical credits every month. As such, this Court opines that there cannot be impairing doubt about Mr. J. Richard Rajan was working with M/s Baunwert Advisors Private Limited as a Director on a monthly salary of Rs.60,000/- .

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The Claimants should ideally have produced Mr. J. Richard Rajan’s latest IT Returns, and this document would have established his taxable income beyond all doubt. However, the question is: should this Court compute the loss of dependency taking the tax-free income of

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Rs.3,00,000/- only because the IT Returns are not produced as exhibits ? This Court is of the considered opinion that when the nature of engagement is established and the income is established on the scale of preponderance [ as in this case with the production of Bank Statement and TDS Certificate / Profit and Loss Statement ] the income cannot be

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HC-KAR

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restricted to tax-free income only because the IT Returns are not produced in evidence. The Court must grant just and reasonable compensation ensuring that there is bonanza.

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It is indeed canvassed on behalf of the Insurer that the Claimants are approbating and reprobating in contending that Mr. J. Richard Rajan was earning a much higher income than the income exempted from tax but without producing IT Returns. However, for a party to succeed on the principle of approbation and reprobation, which hinges on a party taking an inconsistent stand, must prove the inconsistency with due opportunity to the other side. In the present case, it should suffice for this Court to observe that on behalf of the Insurer, it is not even suggested to the first claimant [ or to the other witnesses ] that the Claimants are taking an inconsistent stand in claiming an income higher than the taxable income without filing the ITR. As such,

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HC-KAR

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the Insurer cannot avoid its liability to pay just and reasonable compensation on such ground.

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This Court, when these circumstances are holistically considered on the scale of preponderance of probabilities, must opine that the claimants have established the actual income of Mr. J. Richard Rajan at Rs.60,000/- and the Tribunal has erred in opining that the Claimants have not established Mr. J. Richard Rajan’s income accordingly. The deduction towards income tax and professional tax will be as

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under:

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[A] Annual Income [Rs.60,000 12]*	Rs. 7,20,000/-
[B] Deductions :
_Up to Rs.5,00,000/- _	_Rs.25,000/- _
20% of the amount exceeding Rs.5,00,000/- [Rs.2,20,000/-]	Rs. 44,000/-
_Professional Tax _	_Rs.2,400/- _
	_Rs. 71,400/- _
Net Annual Income [A-B]	Rs. 6,48,600/-
Net Monthly Income	_Rs.54,050/- _

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HC-KAR

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This net monthly income must be taken

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for the computation of the loss of dependency with addition of 25% towards future prospects deducting 1/3^rd towards personal expenses and applying the

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multiplier of ' 13' .

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_Detailsfor Computation of _	*Loss o*	*f Dependency*
MonthlyIncome		Rs.54,050/-
Addition towards Future
Prospects	25%	Rs.13,513/-
Monthly Income + Future
Prospects		Rs. 67,563/-
Annual Income		Rs. 8,10,756/-
Deduction Towards personal expenses	1/3	Rs. 2,70,252/-
Multiplicand [After Deduction
towards personal Expenses]		Rs. 5,40,504/-
Multiplier	13
*Loss of Dependency*		*Rs.70,26,552/-*

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The Claimants are the wife and two and children of the deceased J. Richard Rajan and each of them on their own account would be entitled to Rs.40,000/- towards loss of consortium and there must be enhancement. As such, this Court answers the question for consideration holding that the claimants must be granted enhancement in

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HC-KAR

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compensation in a sum of Rs.60,51,552/- with interest at the rate of 6% per annum from the date of petition till deposit. The comparative table is as

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under:

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	By the Tribunal	By this Court
Loss of dependency	Rs.10,40,000/-	*Rs.70,26,552/-*
Medical expenses	Rs. 15,000/-	Rs. 15,000/-
Loss of consortium	Rs. 40,000/-	Rs. 120000/-
Loss of estate	Rs. 15,000/-	,,
Transportation of dead body and	Rs. 15,000/-	Rs. 15,000/-
funeralexpenses
*Total*	*Rs.11,25,000/-*	*Rs.71,76,552/-*
*Enhanced co*	*mpensation*	*Rs.60,51,552/-*

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In the light of the afore, the following:

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ORDER

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The appeal is allowed-in-part granting to the appellants a total compensation Rs.71,76,552/-, including the enhanced compensation of Rs.60,51,552/- , with interest at 6% per annum from the date of the petition to the date of deposit calling upon the Insurer

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to deposit this enhanced compensation with

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*Retyped and Replaced vide Court order dated 11.09.2025

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