SMT. SHYAMALA.G v. BALRAJ LAWRENCE

(BY SRI.A.M.VENKATESH, ADVOCATE FOR R2; V/O DATED 27.09.2023, NOTICE TO R1 IS DISPENSED WITH) …RESPONDENTS THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.06.2023 PASSED IN MVC NO. 1203/2022 ON THE FILE OF THE IV ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL, BENGALURU CITY (SCCH-6), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND HON'BLE MR. JUSTICE RAJESH RAI K ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE S.G.PANDIT) The claimants are in appeal under Section 173(1) of the Motor Vehicles Act, 1988 (for short, ‘the Act’) against the judgment and award dated 19-06-2023 passed in M.V.C No. 1203/2022 on the file of the IV Addl. Judge, - 3 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR Court of Small Causes and MACT, Bengaluru (for short ‘the Tribunal’). The claimants are before this court not being satisfied with the quantum of compensation awarded by the Tribunal with a prayer for enhancement of the same.

2. The brief facts of the case are that the claimants No. 1 to 3 i.e. wife, daughter and mother of the deceased Sri. Girish.M filed a claim petition under Section 166 of the Act claiming compensation for the accidental death of the deceased in a road traffic accident that occurred on 07-02-2022 at about 1.45 p.m. involving Honda Activa bearing registration No. KA-05-JE-4601 and a water tanker bearing registration No. KA-05-AD-7108. It is stated that the deceased was indulged in business in the field of printing and binding work in the name and style of Eshwari Graphics earning Rs. 13,00,000/- p.a. and that the deceased was aged 51 years as on the date of his death and was hale and healthy. - 4 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR

3. Before the Tribunal, on issuance of notice, respondent No. 1 did not appear before the tribunal and was placed ex-parte, whereas, respondent No.2 appeared before the tribunal and filed their objections to the petition. Respondent No.2 denied the claim petition averments in toto.

4. The claimants in support of their claim, examined PW1 and PW2 apart from marking Ex. P1 to Ex. P25. On the other hand, respondent No. 2 has neither led any oral evidence nor produced any documents in their support. The Tribunal on appreciation of the materials on record awarded total compensation of Rs. 15,89,000/- with interest at the rate of 6% p.a., on the following heads: Sl No. Compensation under the Head Amount

4. Loss of dependency 13,64,000/- Funeral & Transportation Expenditure 25,000/- Loss of love and affection Loss of estate 1,50,000/- 50,000/- TOTAL 15,89,000/- - 5 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR

5. While awarding the above compensation, the Tribunal assessed the income of the deceased notionally at Rs. 15,500/- per month, adopted multiplier of 11 and deducted 1/3rd towards personal and living expenses of the deceased, while awarding Rs. 50,000/- each to the claimants for the ‘loss of love and affection’ of the deceased. The Tribunal also awarded an amount of Rs.25,000/- towards funeral costs, in addition Rs.50,000/- under the category ‘loss of estate’.

6. Heard Sri. A S Girish, learned counsel for the claimants and Sri. A M Venkatesh, learned counsel for the insurer of the offending vehicle. Perused the entire appeal papers including the Trial Court records.

7. Learned counsel for the claimants, Sri. A S Girish would submit that the Tribunal erred in assessing the monthly income of the deceased notionally at Rs.15,500/-. It is submitted that the claimants had produced the Income Tax Returns (for short ‘ITR’) filed by - 6 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR the deceased for the AYs 2020-21, 2021-22 and 2022-23 at Exs.P18 to P20, to prove the income of the deceased. Despite the same, the Tribunal has wrongly recorded a finding that the mere production of ITRs would not be sufficient to prove the income of the deceased. Further, it is submitted that the medical expenses incurred by the claimants prior to the deceased’s death has also not been granted by the Tribunal, despite production of medical bills at Ex. P22 to P25. Thus, it is submitted that the appeal filed by the claimants be allowed.

8. Per contra, learned counsel for the insurer would fairly submit that the income of the deceased ought to be assessed as per the ITRs produced by the claimants. However, it is submitted that the ITR filed for the year of accident, i.e. AY 2022-23 is on the higher side and thus, it is submitted that average income for the AYs 2020-21 and 2021-22 is to be taken. Further, it is submitted that the Tribunal has incorrectly granted compensation on the higher side under the conventional heads and thus, it is - 7 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR submitted that appropriate compensation be awarded under the conventional heads as per the decision of the Hon’ble Apex Court in NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI & OTHERS reported in AIR 2017 SC 5157.

9. Having heard the learned counsel appearing for the parties and on perusal of the entire appeal papers including the Trial Court Records, the following points would arise for our consideration: i. Whether the quantum of compensation granted by the Tribunal is just and proper?

10. The answer to the above point would be in the ‘NEGATIVE’ for the following reasons: The accident that took place on 07.02.2022 at about

1.45 p.m. near BDA Specular Park Gate, 1st Block, BSK 6th Stage, Bengaluru, involving Honda Activa bearing registration No. KA-05-JE-4601 and water tanker bearing registration No. KA-05-AD-7108 that led to the accidental - 8 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR death of Sri. Girish M is not in dispute. There is no such dispute as to the liability and the negligence attributed by the Tribunal as well. However, both the parties have submitted that the quantum of compensation awarded by the Tribunal is incorrect.

11. The Tribunal has assessed the monthly income of the deceased notionally at Rs.15,500/- with a finding that production of ITRs would not prove the income of the deceased. We are not inclined to accept this finding by the Tribunal. The Income Tax Return duly filed by an assessee and accepted by the Revenue would be sufficient proof to establish the income of any person. We do not find any reasons to reject the income of the deceased as per the ITRs of the deceased produced by the claimants in Exs.P18 to P20.

12. However, it has been submitted on behalf of the insurer that there is a substantial increase in the income declared as per the ITR filed for the year of accident, i.e. - 9 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR AY 2022-23. Although there appears to be an increase in the income declared for the AY 2022-23 in comparison with the previous 2 AYs, the same would not be a reason to reject the income declared for the year of accident. It is to be kept in mind that the income declared by the deceased for the AY 2022-23 has been accepted by the Revenue and tax has been paid as per the income declared. In such circumstances, we deem it fit to assess the income of the deceased on the basis of the average of the income for the AYs 2020-21, 2021-22 and 2022-23.

13. The deceased had declared the income of Rs.10,08,730/- for the AY 2020-21, Rs.10,86,980/- for AY 2021-22 and Rs.12,81,580/- for AY 2022-23. The average annual net income upon deduction of the applicable income tax and professional tax for the 3 years would be Rs.10,02,315/. The deceased was admittedly aged 51 years as on the date of accident. Hence, the applicable multiplier would be ‘11’. Since the deceased had 3 dependents, 1/3rd is to be deducted for personal and living - 10 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR expenses of the deceased. It is noticed that the Tribunal has failed to add future prospects of 10% in the compensation assessed under the head ‘loss of dependency’. Thus, on reassessment the claimants shall be entitled to compensation under the head ‘loss of dependency’ as under: 10,02,315 X 10% -1/3rd X 11= 80,85,341/-

14. Insofar as the quantum of compensation to be awarded under the conventional heads, the Tribunal has erred in granting compensation of Rs.50,000/- each to the claimants for loss of ‘love and affection’ and Rs.25,000/- and Rs.50,000/- under the heads ‘funeral expenses and transportation expenses’ and ‘loss of estate’, respectively. In terms of the decision of the Hon’ble Apex Court in PRANAY SETHI (supra), the claimants shall be entitled to Rs.40,000/- each under the head of ‘loss of consortium’, and Rs.15,000/- under the heads ‘loss of estate’ and ‘funeral expenses and transportation expenses’, each to be enhanced at 10%, since the accident is of the year 2022. - 11 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR Further, it is noticed that the claimants had produced medical bills to the tune of Rs.2,23,820/- in Ex. P22 to P25. The same has not been considered by the Tribunal. We do not find any reasons to disregard the medical expenses incurred by the claimants prior to his death. Thus, the claimants shall be entitled to the following compensation: Sl. No. PARTICULARS AMOUNT

4. Loss of Dependency Loss of Consortium Loss of Estate Funeral Expenses and Transportation Charges Rs. 80,85,341/- Rs. 1,32,000/- Rs. 16,500/- Rs. 16,500/-

5. Medical Bills Rs. 2,23,820/- TOTAL Rs. 84,74,161/-

15. Thus, the claimants would be entitled to the enhanced compensation of Rs.84,74,161/- as against Rs.15,89,000/-awarded by the Tribunal, at the rate of 6% per annum from the date of petition till the date of realization. - 12 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR

16. In the result, we proceed to pass the following: ORDER a) Appeal is allowed in part. b) The impugned judgment and award of the Tribunal is modified holding that the claimants would be entitled to total compensation of Rs.84,74,161/- as against Rs.15,89,000/- awarded by the Tribunal. c) The entire compensation amount shall carry interest at the rate of 6% per annum from the date of petition till date of realization. d) The respondent-Insurance Company shall deposit the entire compensation amount with accrued interest before the Tribunal - 13 - NC: 2026:KHC:32494-DB MFA No. 6533 of 2023 HC-KAR within four weeks from the date of receipt of certified copy of this judgment. e) Apportionment, deposit and disbursement shall be made as per the award of the Tribunal. f) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith along with Trial Court Records. g) Draw modified award accordingly. SD/- (S.G.PANDIT) JUDGE SD/- (RAJESH RAI K) JUDGE NC List No.: 1 Sl No.: 1