IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 7TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT MISCELLANEOUS FIRST APPEAL NO.4358 OF 2015 (MV ) BETWEEN:
1. GYANCHAND MEHTA SON OF LATE MOKHAM SINGH MEHTA AGED ABOUT 64 YEARS, 2. CHANDRAKUMARI MEHTA WIFE OF GYANCHAND MEHTA AGED ABOUT 60 YEARS, BOTH ARE RESIDENTS OF NO.19 G.P.RAJARATHNAM ROAD HANUMANTH NAGAR BENGALURU-560 019.
… APPELLANTS AND:
(BY SRI.S.P.SHANKAR, SENIOR COUNSEL FOR SMT.MAMATA G KULKARNI, ADVOCATE) 1. BHARATHI WIFE OF RAMACHANDRA MAJOR IN AGE NO.45/3, 7TH CROSS, SIRSI ROAD CHAMRAJPET, BENGALURU-560 018.
2. IFFCO TOKIO, GEN. INSURANCE CO.LTD. SRI SHANTHI TOWERS, 4TH FLOOR NO.141, 3RD MAIN ROAD EAST TO NGEF LAYOUT KASTURI NAGAR BENAGLURU-560 043.
… RESPONDENTS (BY SRI.A.N.KRISHNASWAMY, ADVOCATE FOR SRI.H.N.KESHAVA PRASHANTH, ADVOCATE FOR R-2, R-1 NOTICE DISPENSED WITH VIDE ORDER DATED 14.08.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 06.02.2015 PASSED IN MVC NO.5773 OF 2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants/claimants are before this Court under Section 173(1) of Motor Vehicles Act, 1988, not being satisfied with the quantum of compensation awarded under judgment and award dated 06.02.2015 passed in MVC No.5773 of 2012 on the file of the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as ‘the Tribunal’ for brevity).
2. Claimants are the parents of deceased Arun Kumar Mehta. They filed petition under Section 166 of the Motor Vehicles Act, seeking compensation for the death of their son Arun Kumr Mehta, in a motor vehicle accident. On 18.05.2012, when the deceased was returning to his house on a scooter bearing registration No.KA-01-V-6102, a lorry bearing registration No.KA-05-AB-7417 driven in a rash and negligent manner dashed to the scooter of the deceased. As a result of which, the deceased fell down and left wheel of the lorry ran over his head and he died on the spot. It is stated that the deceased was aged about 29 years, as on the date of accident and was working as a Professional Consultant, earning Rs.30,00,000/- per annum.
3. Respondent No.1-owner of the lorry remained exparte before the Tribunal, whereas respondent No.2-
Insurance Company appeared before the Tribunal and filed objections. In the objections, it was contended that the accident took place due to the rash and negligent riding of the scooter by the deceased Arun Kumar Mehta and he was solely responsible for the accident. The second respondent-Insurer admitted the insurance policy and stated that the liability if any, would be subject to the terms and conditions of the policy. The insurer also denied the income of the deceased and dependency of the claimants.
4. The claimant No.1-father of the deceased got examined himself as P.W.1 and also examined P.W.2 in support of his case and marked documents as Ex.P1 to Ex.P26. The insurer-respondent No.2 examined its Assistant Manager as R.W.1 and marked copy of the insurance policy as Ex.R1.
5. The Tribunal, based on the material both oral and documentary on record assessed the income of the deceased at Rs.4,78,000/- per annum, and taking note of age of the younger parent, applied multiplier of 9 for determination of compensation and also awarded compensation on the head of future prospects. Thus, in all, the Tribunal awarded total compensation of Rs.32,76,500/- with interest at 9% p.a. from the date of petition till the date of realization. The claimants- appellants are before this Court not being satisfied with the quantum of compensation awarded by the Tribunal and claiming enhancement.
6. Heard the learned Senior counsel Sri.S.P.Shankar for the appellants/claimants and learned counsel for Respondent-Insurer and perused the records.
7. Learned Senior counsel contended that the Tribunal committed an error in taking only Rs.4,78,000/- per annum as income of the deceased ignoring the material documents available on record, i.e., Ex.P18 and Ex.P19. It is submitted that the deceased was working as Professional Consultant to various companies such as Suman Electric Udyogs Private Limited, MRK Chains and MRK Jewelers, and Mehta Light Creations and was earning more than Rs.30,00,000/- per annum. Further, he invites the attention of this Court to Ex.P18 and submits that Ex.P18 would clearly indicate that the deceased had received a sum of Rs.18,16,464/- as commission charges from 1st April 2011 to 31st March 2012 and a sum of Rs.3,32,000/- from 1st April 2012 to 18th May, 2012 from Suman Electric Udyogs Private Limited. According to the learned Senior Counsel, the Tribunal has failed to properly appreciate Ex.P18 and non-appreciation of the documents on record has resulted in taking Rs.4,78,000/- p.a. as income of the deceased to determine the compensation. Further, learned Senior Counsel contends that the Tribunal committed an error in taking multiplier of 9, considering the age of the younger parent, whereas, to determine the multiplier, the age of the deceased is to be taken. If the age of the deceased is taken, the appropriate multiplier would be 17, as the deceased was aged 29 years as on the date of accident.
8. Per contra, learned counsel appearing for the insurer submits that the Tribunal on proper assessment of the material on record has awarded just compensation which needs no interference. He further submits that Ex.P18 cannot be believed as the author of the document nor anyone in support of Ex.P18 is examined.
9. Having heard the learned counsel for the parties, the following two questions arise for consideration in this appeal:
(i) Whether the Tribunal is justified in taking Rs.4,78,000/- p.a. as income of the deceased ignoring Ex.P18.?
(ii) Whether the multiplier applied by the Tribunal at 9 is proper, taking into consideration of the age of the younger parent?
10. The answer to question No.1 is in the affirmative and negative in respect of question No.2 for the following reasons:
11. The accident occurred on 18.05.2012 and the accidental death of Arun Kumar Mehta, the son of the claimants-appellants is not in dispute in this appeal. Firstly the appellant is before this Court contending that the Tribunal committed an error in rejecting Ex.P18 while determining the income of the deceased. The claimants in support of their claim to establish the income of the deceased have produced income tax returns for the assessment years 2010-11 to 2012-13. Income for the year 2010-11 as declared before the Income Tax authorities is Rs.4,06,031/- and for the year 2011-12 is Rs.4,28,395/-. But the income shown for the year 2012-13 is Rs.22,07,412/-. Admittedly, the accident has taken place on 18.05.2012 and the death of Arun Kumar Mehta is on the same day. The income tax returns is filed subsequent to the death of Arun Kumar Mehta. Ex.P18 does not contain any date and it is issued by Suman Electric Udyogs Private Limited singed by its authorized signatory. Name of the authorized signatory is also not shown. But Ex.P18 states that the deceased was paid a sum of Rs.18,16,464/- as commission charges from 1-4-2011 to 31-03-2012 and a sum of Rs.3,32,000/- from 1-4-2012 to 18-05-2012. Nobody is examined in support of Ex.P18. Ex.P22 and Ex.P23 are the bank statements for the relevant period, which does not indicate the receipt of the above said amounts as commission in the bank statements. When a specific question is put to Senior counsel appearing for the appellants as to whether there is an entry in the Bank Statement with regard to Commission received under Ex.P18, he was not able to indicate such an entry in the pass book or bank statement. Therefore, we are of the opinion that the Tribunal has rightly not believed Ex.P18 and has rightly determined the income of Rs.4,78,000/- p.a., as the income of deceased taking note of the income tax returns for the assessment years 2010-11 and 2011-12. The Tribunal arrived at Rs.4,78,000/- as income of the deceased after deducting Rs.22,000/- towards income tax, which according to us is proper and is in accordance with law.
12. The next contention urged by the learned Senior counsel appearing for the appellants is that the Tribunal has committed an error in adopting multiplier 9 based on the age of the younger parent. He submits that the multiplier is to be determined taking the age of the deceased. We find force in the submission of the learned Senior Counsel in this regard. Catena of decisions of the Hon'ble Supreme Court have laid down that for determination of multiplier, the age of the deceased is to be taken into consideration. The decision of the Hon'ble Supreme Court in the case of SARLA VERMA (SMT) AND OTHERS v.s DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009) 6 SCC 121 would make it abundantly clear that age of the deceased will have to be taken for determination of the multiplier. As on the date of accident, the deceased was aged about 29 years and the appropriate multiplier to be adopted is 17. Therefore, in our view, the Tribunal committed an error in taking multiplier 9 based on the age of the younger parent. The Tribunal has also awarded compensation towards loss of future prospects at 50%.
13. Further, as the deceased was a bachelor, the Tribunal has rightly deducted 50% towards personal expenses of the deceased. Thus, assessing the income of the deceased at Rs.4,78,000/- p.a., adding 50% towards future prospects and deducting 50% towards personal expenses, the annual income of the deceased could be taken at Rs.3,58,500/- and adopting multiplier 17, the claimants are entitled to compensation of Rs.60,94,500/- under the head loss of dependency. Further, the Tribunal has awarded Rs.25,000/- under the head loss of love and affection, which according to us is on the lower side. The claimants are parents of the deceased who was aged 29 years, the parents have lost love and affection of their son, hence, it is appropriate to enhance the same to Rs.1,00,000/-. A sum of Rs.25,000/- awarded by the Tribunal towards funeral expenses is not disturbed. We deem it appropriate to award a sum of Rs.15,000/- towards litigation expenses. Thus, the claimants would be entitled to total compensation awarded at Rs.62,34,500/- with interest at the rate of 9% p.a., as against Rs.32,76,500/- awarded by the Tribunal. The claimants are entitled to compensation as under:
Total Rs.62,34,500.00 Thus, they are entitled to enhanced compensation of Rs.29,58,000/-.
15. Accordingly, we proceed to pass the following:
The appeal is partly allowed. The impugned judgment and award dated 06.02.2015 passed in MVC No.5773 of 2012 by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru is modified. The claimants are entitled to compensation of Rs.62,34,500/- as against Rs.32,76,500/- with interest at the rate of 9% p.a.
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JUDGE JUDGE mpk/- CT:bms