IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.5002 OF 2012 [MV] CONNECTED WITH MISCELLANEOUS FIRST APPEAL NO.5004 OF 2012 [MV] IN MFA NO.5002 OF 2012:
BETWEEN 1. SMT. DARIYA DEVI, W/O. LATE SARVANAKUMAR, AGED 25 YEARS, 2. KHETHU KUMAR, AGED 5 YEARS, D/O. LATE SARVANAKUMR, 3. VEDUKA, D/O. OF SARVANAKUMAR, AGED 3 YEARS, APPELLANT NOS.2 AND 3 ARE THE MINORS & REPRESENTED BY THEIR MOTHER, NATURAL GUARDIAN APPELLANT NO.1, 4. PATHU DEVI, W/O. NARASINGA RAM, AGED 55 YEARS, 5. NARASINGA RAM, S/O. BHANA RAM, AGED ABOUT 60 YEARS, ALL ARE RESIDING AT NO.21, 2ND MAIN, 2ND CROSS, NETHAJINAGAR, H A FARM POST, KEMPAPURA, BANGALORE-560 024. ... APPELLANTS [BY SRI. S.N.HATTI, ADVOCATE] AND 1. BHURA RAM, S/O. KHETARAM, SRI. SWAROOP FURNITURES, NO.13/A, VAYANANDANA LAYOUT, ANJANEYA TEMPLE ROAD, HEBBAL, BANGALORE-560 024.
2. TATA AIG GENERAL INSURANCE COMPANY LTD., 2ND FLOOR JP & DEVI JAMBUKESWAR ARCADE NO.69, MILLER ROAD, BANGALORE-560 052. ... RESPONDENTS [BY SRI. JAGADEESH V.N., ADVOCATE FOR R1.
SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2] THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.1.2012 PASSED IN MVC NO.7253/2009 ON THE FILE OF THE MEMBER, MACT-V, COURT OF SMALL CAUSES, BENGALURU CITY, IN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
* * * IN MFA NO.5004 OF 2012: BETWEEN 1. SMT. PEMPAI DEVI, W/O. LATE JAGADESH SUTHAR, AGED 33 YEARS, 2. DEENESH, S/O. LATE JAGADESH SUTHAR, AGED 11 YEARS, 3. SHOHAN LAL, S/O. LATE JAGADESH SUTHAR, AGED 9 YEARS, APPELLANT NOS.2 AND 3 ARE MINORS & REPRESENTED BY THEIR MOTHER, NATURAL GUARDIAN APPELLANT NO.1.
4. SMT. RAMBHA, W/O. LATE KALLARAM SUTHAR, AGED 68 YEARS, ALL ARE RESIDING AT NO.30, 3RD CROSS, NETHAJINAGAR, HEBBAL POST, KEMPAPURA, BANGALORE-560 024. ... APPELLANTS [BY SRI. S.N.HATTI, ADVOCATE] AND 1. BHURA RAM, S/O. KHETARAM, SRI. SWAROOP FURNITURES, NO.13/A, VAYUNANDANA LAYOUT, ANJANEYA TEMPLE ROAD, HEBBAL, BAGALORE-560 024.
2. TATA AIG GENERAL INSURANCE, 2ND FLOOR, JP & DEVI, JAMBUKESWAR ARCADE, NO.69, MILLERS ROAD, BANGALORE–560 052. ... RESPONDENTS [BY SRI. JAGADEESH V.N., ADVOCATE FOR R1.
SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2] THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.01.2012 PASSED IN MVC NO.7254/2009 ON THE FILE OF THE MEMBER, MACT-V, COURT OF SMALL CAUSES, BENGALURU CITY, IN PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
* * * THESE MFAs COMING ON FOR DICTATING JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The above appeals are filed by the respective claimants seeking enhancement of compensation awarded by the Tribunal by its Common Judgment and Award dated 16.01.2012 passed in MVC No.7253/2009 and MVC No.7254/2009.
2. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for respondent No.2/Insurance Company in both the appeals.
3. The brief facts leading to the filing of these appeals are that;
On 30.06.2009 at about 4.30 a.m. deceased persons viz., Saravan Kumar, Jagadeesh Suthar and Chandra Ram were travelling in a Scorpio car bearing reg. No.KA-04/MG- 1175 along with other friends to go to Rajasthan to attend a wedding ceremony. One Hanuman Suthar was driving the said vehicle. When they were thus proceeding, near Hiriyur, Sira, at about 6.45 a.m., the driver of the said vehicle drove the same in a rash and negligent manner and hit the road side bridge and due to the impact of the said accident, the vehicle toppled and inmates of the vehicle sustained grievous injuries. In the said accident, Saravan Kumar, Jagadeesh Suthar and Chandra Ram succumbed to the injuries and others sustained grievous as well as simple injuries.
Respective claim petitions were filed seeking compensation before the Tribunal. On behalf of the claimants, P.Ws.1 to 8 were examined and several documents were marked.
The claimants in MFA No.5002/2012 [MVC No.7253/2009] are the widow, two minor children and parents of deceased Saravan Kumar. The claimants in MFA No.5004/2012 [MVC No.7254/2009] are the widow, two minor children and mother of the deceased Jagadeesh Suthar.
The Tribunal awarded a compensation of Rs.6,11,000/- for the death of Saravan Kumar, in MVC No.7253/2009 and a compensation of Rs.6,11,000/- for the death of Jagadeesh Suthar, in MVC No.7254/2009.
4. The accident in question involving the Scorpio car bearing reg. No.KA-04/MG-1175, which is insured with the 2nd respondent herein is not in dispute. It is the primary contention of the learned counsel appearing for the appellants/claimants that deceased Saravan Kumar was a skilled interior wood work contractor and he was an income tax assessee. He was running one ‘Sri Venkalama Interiors’ and earning a sum of Rs.50,000/- p.m. Group of labourers were working under him. It is stated that the Tribunal has taken the notional income of the deceased at Rs.4,000/- p.m. in spite of sufficient evidence adduced before the Tribunal with regard to avocation and income of the deceased. The learned counsel for the appellants further submits that deceased Jagadeesh Suthar was also an interior wood work contractor and a skilled carpenter. He was an income tax assessee. He was running one ‘Jai Sri Jagadamba Maa Interior’ and was earning a sum of Rs.50,000/- p.m. The learned counsel for the appellants submits that the total compensation awarded by the Tribunal in both the cases is meagre and the Tribunal was not justified in taking the income of the deceased persons at Rs.4,000/- p.m. and the same is on the lower side in view of the copy of the income tax returns produced and marked in evidence.
5. The Tribunal has observed that the income tax returns of the respective victims have been filed subsequent to the death of the deceased persons. The probabilities cannot be ruled out that to show the income of the deceased persons at larger extent, the same have been filed subsequently. If at all the deceased were regular income tax payee and they had paid income tax during the previous years, the question is what prevented the claimants to produce the earlier income tax returns and acknowledgements. Hence, it cannot be presumed that the deceased were getting the income as stated in Exs.P8 and 13. Stating so the Tribunal refused to accept the said documents.
6. Learned counsel for the appellants has filed I.A. No.1/2015 in the respective appeals seeking production of additional documents and in support of the said application, affidavits of the widow of the deceased have been filed.
7. The appellants in MFA No.5002/2012 [MVC No.7253/2009] intends to rely on the following documents in support of the avocation and income of deceased Saravan Kumar:
1) Form No.16A 2) Bank Pass Book.
3) Income Tax Returns for 2008 and 2009.
4) Firm Registration Certificate.
5) Bharat Gas Connection Receipt.
6) Driving Licence.
The appellants in MFA No.5004/2012 [MVC No.7254/2009] intends to rely on the following documents in support of the avocation and income of deceased Jagadeesh Suthar:
1) LIC premium of Rs.10,000/- paid on 16.01.2009.
2) Statement of total income dated 24.12.2008.
3) Income Tax Returns for 2008 and 2009.
4) Farm No.16A TDS dated 05.07.2008.
5) Syndicate Bank Account Statements.
8. The learned counsel for the appellants would contend that the aforesaid documents purported to be produced as additional evidence are not casually got up documents and it is being produced to support and clarify that the deceased was a regular income tax assessee even much earlier and therefore, it is proper and necessary to produce the same as additional evidence to establish the proper income of the deceased persons.
The learned counsel appearing for the Insurance Company on the other hand would vehemently contend that the documents which are produced before the Tribunal have been considered by the Tribunal and Just and reasonable compensation has been awarded. He submits that if the appellants want to rely on any other material which they intend to produce now as additional documents, then respondent No.2 has a right to oppose the same and it is for the appellants to establish the documents before the Tribunal by adducing proper evidence and in that case, respondent No.2 shall have to be given sufficient opportunity to rebut the said evidence.
9. In view of the rival contention and I.A. No.1/2015 filed by the appellants in both the appeals seeking production of additional documents, I am of the view that to meet the ends of justice the matter has to be remanded back to the Tribunal for consideration of additional documents which are proposed to be produced by the appellants/claimants so as to arrive at a just and reasonable compensation. Accordingly, I pass the following:
ORDER MFA No.5002/2012 and MFA No.5004/2012 are disposed off in the following terms:
(1) The Judgment and Award dated 16.01.2012 passed in MVC No.7253/2009 and MVC No.7254/2009 on the file of the Member, MACT-V, Court of Small Causes, Bengaluru City are hereby set aside.
(2) The matter is remanded back to the Tribunal with a direction to dispose off MVC No.7253/2009 and MVC No.7254/2009 after considering the additional documents which are proposed to be produced by the claimants in the respective cases, if they are so advised.
(3) Both the parties be permitted to lead additional evidence, if any.
(4) The parties are directed to appear before the Tribunal on 12.06.2019 without further notice or any other date as directed by the Tribunal.
(5) All the contentions of the parties with regard to the additional evidence to be produced are kept open.
(6) The evidence already on record shall remain intact.
(7) The Tribunal shall dispose off the claim petitions in accordance with law as expeditiously as possible, within an outer limit of four months from the date of appearance of the parties.
(8) I.A. No.1/2015 in both the appeals are disposed off accordingly.
(9) Registry is directed to send back the L.C.R. to the MACT.
Sd/- JUDGE.
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