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2020 DIGILAW 1179 (KAR)

Satinder Kaur v. R. Sreenivasan, Major

2020-06-23

B.V.NAGARATHNA, RAVI V.HOSMANI

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JUDGMENT Ravi V Hosmani, J. - Though this appeal is listed for admission, with the consent of learned counsel on both sides, they are heard finally and disposed of by this judgment. 2. This appeal has been filed by the claimants seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal & XXI Addl. Small Causes Judge & XIX ACMM, Court of Small Causes, Bangalore, (SCCH-23), (hereinafter referred to as 'Claims Tribunal' for brevity), dated 30.05.2013 in MVC No.151/2012. 3. For the sake of convenience, the parties herein shall be referred to in terms of their status and ranking before the Claims Tribunal. 4. The brief facts leading to filing of the above appeal is that, on 02-07.2011 one Parminder Singh was riding his motorcycle bearing registration No.KA- 01-EF-6576 slowly and cautiously on the left side of the road from Krupanidhi college towards Madiwala police station. At about 12.00 noon, when he reached near Madiwala Sante beedi, a tanker bearing registration No.KA-05-C-3448 came at a high speed and in a rash and negligent manner and dashed against the motorcycle. On account of the accident, the rider of the motorcycle fell down and the wheels of the tanker ran over him resulting in his instantaneous death. Hence, the claimants, being his wife, children and father filed the claim petition under Section 166 of the M.V. Act 1988, (hereinafter referred to as 'Act' for short) claiming compensation of Rs.59,00,000/- from the owner and insurer of the tanker. 5. In response to the notice issued by the Claims Tribunal respondent No.1 - owner and respondent No.2 insurer entered appearance through their respective counsel. Only respondent No.2 filed written statement, admitting issuance of policy and coverage in respect of the offending vehicle. It however, contended that its liability was subject to the terms and conditions of the policy. It contended that the driver of the tanker was not having any valid and effective driving licence to drive hazardous goods vehicle. It also disputed the income of the deceased and the claim petition was bad for non-compliance of Section 134(c) and 158 (6) of the M.V. Act. Hence, it prayed for dismissal of the claim petition. 6. On the basis of the pleadings, the Claims Tribunal framed the following issues: 1. It also disputed the income of the deceased and the claim petition was bad for non-compliance of Section 134(c) and 158 (6) of the M.V. Act. Hence, it prayed for dismissal of the claim petition. 6. On the basis of the pleadings, the Claims Tribunal framed the following issues: 1. Whether the petitioners prove that one Parminder Singh died in an accident that occurred on 02-07-2011 at about 12.00 a.m. near 3rd KSRP Battalian (Sante Beedi road), Madiwala, Bangalore, due to rash and negligent driving of the Tempo bearing registration No.KA-05-C-3448 by its driver? 2. Whether the petitioners are entitled for compensation as claimed? If so, what quantum and from whom? 3. What order and award? 7. In support of their case, claimant No.1 examined herself as P.W.1 and got marked eleven documents as Ex.P.1 to Ex.P.11. Respondent No.2 got examined driver of the offending lorry as R.W.1 and marked two documents as Ex.R.1 and Ex.R.2. 8. The Claims Tribunal partly allowed the claim petition answering issue No.1 in the affirmative; issue no.2 by awarding Rs.20,40,000/- as compensation payable by respondents no.1 and 2 and issue no.3, as per final order. 9. Learned counsel, Sri. Jagadish G Kumbar, for the claimant-appellant and Sri. Prasanna Kumar, learned counsel for respondent No.1 appeared in person and Sri. A.N. Krishna Swamy, learned counsel for the insurer-Respondent No.2, appeared through video conference. 10. Learned counsel for the claimants submitted that the deceased Parminder Singh was earning more than Rs.55,000/- per month, as distributor of Amul Products, which is evidenced by the income tax returns for the year 2011-2012 as per Ex.P.11. However, the Claims Tribunal has awarded compensation taking monthly income of the deceased as Rs.20,000/- only, which calls for enhancement. He further submitted that the Claims Tribunal has not awarded adequate and just compensation under the other heads. 11. On the other hand, learned counsel for the insurer submitted that the claimants had produced income tax returns for the year 1995-1996 to 2003- 2004, which were for the periods much prior to the date of the accident. The deceased was also stated to have sold off the four gas transporting tankers and two articulated trailers prior to the accident. It was submitted that the income of the deceased reflected in the income tax returns was for the period when he owned the Gas transport business. The deceased was also stated to have sold off the four gas transporting tankers and two articulated trailers prior to the accident. It was submitted that the income of the deceased reflected in the income tax returns was for the period when he owned the Gas transport business. It was also pointed out that the income tax return for the year 2011-2012 was filed on 22.09.2011, which was subsequent to the date of the accident and the same cannot be taken as the income as on the date of his death. Hence, he opposed any enhancement of compensation and sought for dismissal of the appeal. 12. Having heard the learned counsel for the respective parties and on perusal of the material on record, as well as the original record, following points would arise for our consideration: i) Whether the appellants are entitled to additional compensation? ii) What order? 13. In the above case, the Claims Tribunal has held that the accident that occurred on 02.07.2011 between the motorcycle and the tanker, was solely due to the rash and negligent driving by the driver of the tanker. It is also not in dispute that the claimants suffered loss of dependency due to the death of Parmindar Singh. The only dispute is with regard to the extent of the loss and quantum of compensation to be assessed in the instant case. Reg. Point No.1: 14. In the instant case, in order to prove the income of the deceased, claimants have produced the bank statement of the deceased as per Ex.P.10 and income tax returns for the assessment years 1995- 1996 to 2003-2004 and 2011-2012 as per Ex.P.11. Though the gross income for the assessment year 2011-2012 as indicated in the income tax return is Rs.6,16,232/-, the fact that the return was filed on 22.09.2011 i.e., after the date of the accident and death of Parmindar Singh, without producing the assessment order, we are persuaded by the contention of the learned counsel for the insurer, that the said income cannot be considered for calculating the compensation. However, it cannot be denied that the deceased was a seasoned businessman, as he owned a transport business for more than ten years. The fact that he intended to start a new business and therefore, closed his transport business is also not seriously disputed, as the claimants have not been cross-examined on this aspect. However, it cannot be denied that the deceased was a seasoned businessman, as he owned a transport business for more than ten years. The fact that he intended to start a new business and therefore, closed his transport business is also not seriously disputed, as the claimants have not been cross-examined on this aspect. The dispute is only with regard to income of the deceased. No income tax returns for the period between 2004-2005 and 2011- 12 were produced. Even during the year 2004-2005, the deceased was having gross annual income of Rs.3,42,667/-,which would be about Rs.28,555/- per month. From the evidence on record, the claimants have proved that the deceased Parmindar Singh was a businessman. At the same time, there are risks involved while starting a new business. The fact that the deceased had a good potential for earning, has persuaded us to consider Rs.25,000/- as his notional monthly income. 15. The deceased was aged about 55 years on the date of the accident. As per decision of the Supreme court in Sarla Varma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , the multiplier applicable would be 11. Further 10% has to be added towards future prospects as per the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi & Ors, (2017) AIR SC 5157 Considering the number of dependants, 1/3 has to be deducted towards personal expenses of the deceased. Thus the total loss of dependency would be as follows: Rs.25,000/- + 10% (future prospects) = Rs.27,500/- Rs.27,500/- - 1/3 (personal expenses) =Rs.18,333.31 Rs.18,333.31 X 12 X 11 = Rs.24,19,996.92, which is rounded of to Rs.24,20,000/-. Thus, a sum of Rs.24,20,000/- is awarded towards loss of dependency. It is noted here that father of the deceased died during the pendency of the claim petition. The remaining claimants are the wife, daughter and son of the deceased. Hence, we award a sum of Rs.40,000/- towards loss of spousal consortium to claimant No.1 and Rs.30,000/- each to the children towards loss of love and affection. Further, the claimants are also entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Thus, point No.1 is answered in favour of the claimants. Hence, we award a sum of Rs.40,000/- towards loss of spousal consortium to claimant No.1 and Rs.30,000/- each to the children towards loss of love and affection. Further, the claimants are also entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Thus, point No.1 is answered in favour of the claimants. Accordingly, the appellants are entitled to a total compensation of Rs.25,50,000/- with interest at the rate of 6% per annum, as against Rs.20,40,000/- under the following heads: Loss of dependency Rs.24,20,000/- loss of consortium Rs. 40,000/- Loss of love and affection Rs. 60,000/- Loss of estate Rs . 15000/- Loss of funeral expenses Rs. 15,000/- TOTAL Rs.25,50,000/- Reg. Point No.2: 16. "Xxx xxx xxx" 17. In the result, the appeal is allowed in part and disposed of in the aforesaid terms. The insurer is directed to deposit the compensation with up-to-date interest from the date of the claim petition till realization, before the Claims Tribunal within a period of six weeks from the date of receipt of a certified copy of this judgment. Since the enhancement is Rs.5,10,000/-, the entire amount is apportioned to the widow of the deceased i.e., first appellant herein. Out of the enhanced compensation with interest, Rs.5,00,000/- shall be deposited in Fixed Deposit in any Post Office or Nationalised Bank initially for a period of five years, which shall be free from encumbrances. The first appellant is entitled to draw periodical interest on the said deposit. The balance amount shall be released in her favour on due identification. Parties to bear their own costs. Office to transmit the original record to the Claims Tribunal forthwith.