COMMISSIONER OF INCOME TAX vs. SHRI V.M. CHANDRE GOWDA

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY M.F.A. NO.610 OF 2013 C/W M.F.A. NO.5374 OF 2013 (MV-D) M.F.A. NO.610 OF 2013 BETWEEN: THE DIVISIONAL CONTROLLER K.S.R.T.C. MYSORE RURAL DIVISION NEAR MYSORE LACK & PAINTS MYSORE 570001 NOW BY THE MANAGING DIRECTOR K.S.R.T.C., CENTRAL OFFICES K.H. ROAD, BANGALORE 560027 REPRESENTED BY ITS CHIEF LAW OFFICER. ... APPELLANT (BY MR. F.S. DABALI, ADV.,) AND: 1. H.J. THEJASHREE

W/O PHILOMINA RAJ

AGED ABOUT 28 YEARS. 2. PUNITHA KUMAR

AGED ABOUT 5 YEARS

S/O LATE S. PURUSHOTHAM.

SINCE MINOR REPRESENTED BY

NATURAL MOTHER AND

M/G RESPONDENT NO.1

SMT. H.J. THEJASHREE. 3. SMT. NAGAMMA

AGED ABOUT 51 YEARS

W/O M. SHIVA.

RESPONDENT NO.1 TO 3 ARE

RESIDING AT RAMASHETTY LAYOUT

OOTY-MYSORE ROAD

AT: NANJANGUD TOWN

MYSORE DISTRICT-571301. 4. K.B. REVEGOWDA

AGED ABOUT 55 YEARS

S/O BOMMEGOWDA @ SOMEGOWDA

(VOKALIGAGOWDA BY CASTE)

BADGE NO.7342, KSRTC DRIVER

GUNDLUPET DEPOT, GUNDLUPET TOWN

CHAMARAJANAGAR DISTRICT-571111. 5. THE MANAGER

M/S. BAJAJ ALLIANZ TLC INSURANCE

(INDIA) PVT. LTD

SRI AYYAPPA ARCADE

4A, PAMPA EXTENSION

KEMPAPURA, HEBBAL

NEAR PRESIDENCY COLLEGE

(OPP) STATE BANK OF MYSORE

BANGALORE 560024. 6. CHANDRASHEKAR K

S/O N. KRISHNA MURTHY

AGED ABOUT 53 YEARS

NO.78, OLD POLICE STATION ROAD

METAGALLI, MYSORE-570001

(OWNER OF MARUTHI OMNI CAR

NO. KA-05-B-255). 7. THE MANAGER

M/S. THE ORIENTAL INSURANCE

COMPANY LIMITED

NO.4/12, NAVEEN COMPLEX

1ST FLOOR, HEBBAL MAIN ROAD

METAGALLI, MYSORE-570001

POLICY NO.422805/31/2010/544

VALID FROM 29-05-2009 TO 28-05-2010. ... RESPONDENTS (BY MR. SHARATH S. GOWDA, ADV., FOR R1-R3 MR. H.N. KESHAVA PRASHANTH, ADV., FOR R5 R2 MINOR REPTD. BY R1 MRS. HARINI SHIVANAND, ADV., FOR R7 V/O DTD: 18-03-2013 NOTICE TO R4 IS D/W V/O DTD:24-2-2020 SERVICE OF NOTICE TO R6 IS HELD SUFFICIENT) - - -

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.08.2011 PASSED IN MVC NO.46/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, NANJANGUD, AWARDING A COMPENSATION @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT. M.F.A. NO.5374 OF 2013 BETWEEN: 1. H.J. THEJASREE

W/O LATE S. PURUSHOTHAMA

AGED ABOUT 28 YEARS. 2. PUNEETH KUMAR

S/O LATE S. PURUSHOTHAMA

AGED ABOUT 5 YEARS

MINOR REP. BY R1 MOTHER. 3. NAGAMMA

W/O LATE M. SHIVA

AGED ABOUT 51 YEARS.

ALL ARE R/AT RAMSHETTY BADAVANE

OOTY-MYSORE ROAD

NANJANGUD TOWN

MYSORE DISTRICT-571301. ... APPELLANTS (BY MR. SHARATH S. GOWDA, ADV.,)

4 AND: 1. K.B. REVEGOWDA

S/O SOMEGOWDA

BADGE NO.7342, KSRTC DRIVER

GUNDLUPET DEPOT

GUNDLUPET TOWN

CHAMARAJANAGAR DISTRICT-571111. 2. DIVISIONAL CONTROLLER, KSRTC

MYSORE RURAL DIVISION

NEAR MYSORE LAC & PAINTS

MYSORE -570001. 3. M/S BAJAJ ALLIANZ

T.L.C. INSURANCE (INDIA) PVT LTD,

SRI. AIYAPPA ARCADE

4-A, PADMA EXTENSION

KEMPAPURA, HEBBALA

NEAR PRESIDENCY COLLEGE

BANGALORE-24. ... RESPONDENTS (BY MR. F.S. DABALI, ADV., FOR R2 R1 SERVED V/O DTD: 16-02-2016 NOTICE TO R3 H/S) - - -

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 5.8.2011 PASSED IN MVC NO.46/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, NANJANGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

5 JUDGMENT M.F.A.No.5374/2013 has been filed by the claimants seeking enhancement of the amount of compensation, whereas, M.F.A.No.610/2013 has been filed by the Karnataka State Road Transport Corporation (hereinafter referred to as 'the KSRTC' for short) under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’ for short) against the judgment dated 05.08.2011 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident and from the same judgment, they were heard together and are being decided by this common judgment. 2. Facts giving rise to the filing of the appeal briefly stated are that on 23.10.2009, the deceased S Purushottam was proceeding in a Omni car bearing Registration No.KA-05- B-255. When he reached near Chikkahundi Village Gate, a KSRTC bus bearing registration No. KA-09-F-4100 which was being driven by its driver in a rash and negligent manner, came from the opposite direction and dashed against the vehicle in which the deceased was proceeding. As a result of

6 the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same. 3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 28 years at the time of accident and was running a business and was earning a sum of Rs.15,000/- per month. It was further pleaded that accident took place solely on account of rash and negligent driving of the KSRTC bus by its driver. The claimants claimed compensation to the tune of Rs.29,28,000/- along with interest. 4. The KSRTC filed written statement, in which the mode and manner of the accident was denied. It was further pleaded that the accident occurred wholly on account of the negligence of the driver of the Omni car. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.

7 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1, Nagamma (PW2) and got exhibited documents namely Ex.P1 to Ex.P16. The respondents neither adduced any oral nor any documentary evidence. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending KSRTC bus by its driver. It was further held, that as a result of aforesaid accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.8,00,000/- along with interest at the rate of 6% per annum. Being aggrieved, these appeals have been filed. 6. Learned counsel for the KSRTC submitted that the issue with regard to the negligence of the driver of the KSRTC bus has already been adjudicated by a bench of this court by a judgment dated 11.7.2013 passed in M.F.A No.4077/2011 and connected matters in which, inter alia, it has been held that the accident occurred on account of

8 negligence of both the drivers of the KSRTC bus as well as the Omni car to the extent of 60% and 40% respectively and the same has attained finality and therefore, the finding of the Tribunal with regard to negligence of the driver of the KSRTC bus in M.F.A No. 610/2013 is to be modified accordingly. Learned counsel for Respondent No.5 in M.F.A No. 610/2013 submitted that the Tribunal has rightly not fastened liability to pay the compensation on Respondent No.5. 7. On the other hand, learned counsel for the claimants submitted that the Tribunal erred in assessing the income of the deceased at Rs.6,000/- per month when Ex.P7 to Ex.P9 Income Tax Returns disclose that the deceased was earning Rs.15,000/- per month. It is further submitted that the Tribunal has erred in not making an addition to the tune of 40% to the income of the deceased on account of future prospects in view of the law laid down by the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157. It is further submitted that the sums awarded under the heads

9 ‘loss of consortium’ and ‘funeral expenses’ are on the lower side and deserves to be enhanced suitably. 8. We have considered the submissions made by learned counsel for the parties and have perused the record. The issue with regard to the negligence of the driver of the KSRTC bus has already been adjudicated by a co-ordinate bench of this court by its judgement dated 11.07.2013 passed in M.F.A No.4077/2011 and connected matters in which, inter alia, it has been held that the accident occurred on account of negligence of both the drivers of the KSRTC bus as well as the Omni car to the extent of 60% and 40% respectively and the same has attained finality. Therefore, the finding of the Tribunal with regard to the negligence of the driver of the KSRTC bus as well as the Omni car in MVC No.46/2010 is quashed and it is held that the accident occurred on account of negligence of both the drivers of the KSRTC bus as well as the Omni car to the extent of 60% and 40% respectively.

10 9. Now we may advert to the quantum of compensation. The claimants have produced Ex.P8 which the Income Tax return for the Assessment Year 2007-2008 which discloses that the deceased had paid income tax of Rs.225/- in respect of the taxable income of Rs.1,02,200/- was earning. Therefore, the income of the deceased is assessed at Rs.1,01,975/- per annum after deducting Rs.225 towards income tax. 10. In view of the law laid down by the Constitution Bench of the Supreme Court in ‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157, 40% of the amount has to be added on account of future prospects as the deceased was self employed. Thus, the annual income comes to Rs.1,42,765/-. Since, the number of dependents is 3, therefore, 1/3rd of the amount has to be deducted towards personal expenses and therefore, the annual dependency comes to Rs.95,177/-. Taking into account the age of the deceased which was 31 years at the time of accident as evident from Ex.P7 Income Tax Acknowledgement, the multiplier of ‘16’ has to be

11 adopted. Therefore, the claimants are held entitled to (Rs.95,177 x16) i.e., Rs.15,22,832/- on account of loss of dependency. 11. In view of laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.1,20,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a total compensation of Rs.16,72,832/- and the KSRTC is directed to pay Rs.10,03,700/- out of the aforesaid amount of compensation. Since the accident is of the year 2009, the prevailing rate of interest for the year 2009 in respect of fixed deposits for one year in nationalized banks being 6%,

12 the aforesaid amounts of compensation shall carry interest at the rate of 6% from the date of filing of the petition till the realization of the amount of compensation. However, it is made clear that the claimants are not entitled to interest for a period of 596 days on account of delay caused in filing the instant appeal. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified. The amount in deposit, if any, shall be transmitted to the Tribunal for disbursement to the claimants. Accordingly, the appeals are disposed of. Sd/- JUDGE Sd/- JUDGE ss