THE PR. COMMISSIONER OF INCOME-TAX vs. M/S. RANJITPURA INFRASTRUCTURE PVT. LTD.,

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21-10-2017 PASSED IN MVC NO.44/2014 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

M.F.A. NO.711 OF 2018 BETWEEN:

LEGAL MANAGER RELIANCE GENERAL INSURANCE CO. LTD., REGIONAL OFFICE, EAST WING 5TH FLOOR, CENTENARY BUILDING NO.28, M.G. ROAD BANGALORE-560 001. ... APPELLANT (BY SRI. PRADEEP B AND SRI. S. MAHESHWARA, ADVS.,)

AND:

ELECTRONIC CITY BENGALURU PERMANENT ADDRESS R/AT NO.255(3/298-A) MAMOTTIL, 3, KANAM KANGAZHA PANCHAYAT KERALA-686515.

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21-10-2017 PASSED IN MVC NO.3629/2013 ON THE FILE OF THE X ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, (SCCH-16), AWARDING COMPENSATION OF RS.40,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

THESE MFAs COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

All the three appeals under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) arise out of the same accident and common judgment dated 21.10.2017 therefore, they were heard together and are being decided by this common judgment. M.F.A.No.689/2018 and M.F.A.No.711/2018 have been filed

by the insurance company, whereas M.F.A.NO.3183/2018 has been filed by the claimant seeking enhancement of the amount of compensation.

the claimant sustained grievous injury to the brain and was inpatient for a period from 16.03.2013 to 03.04.2013 and underwent surgery. Subsequently, he was discharged, however, it was pleaded that till today, he is in Coma and requires some medical attendant and non medical attendant. It was also pleaded that every month he is required to incur an expenditure for treatment, medicine and other incidental charges. It was averred that prior to accident, the claimant was working as Process Supervisor in Deutsche Bank Ltd., and was earning Rs.4,59,425/- per year. It was further pleaded that the accident took place solely on account of rash and negligent driving of the driver of Tata Sumo Vehicle. Accordingly, the compensation was sought. The claimant viz., Mrs.Praise Sarah Matthew filed a petition claiming compensation inter alia on the ground that the accident took place solely on account of rash and negligent driving of the driver of the Tata Sumo vehicle. It was also pleaded that prior to accident, she was working as Junior Lab Technician, Grade I and was earning a salary of Rs.13,000/- per month. On account of injuries sustained by her in the accident, she has suffered permanent disability and has lost her earning

capacity. The respondent No.1 did not appear and was proceeded exparte. The respondent No.2 filed the written statement in both the claim petitions, in which inter alia it was pleaded that accident took place on account of sole negligence on the part of the rider of the Honda Activa. It was also pleaded that Tata Sumo vehicle bearing registration No.KA51-3938 was not at all involved in the accident but the same has been falsely implicated in order to get compensation It was also pleaded that neither the driver of the vehicle had valid and effective driving licence nor valid permit and fitness certificate at the time of accident. It was pleaded that the vehicle was plied in violation of the terms and conditions of the policy, therefore, the insurance company is not liable to indemnify the insured. 4. The Claims Tribunal on the basis of the pleadings of the parties, framed the issues. The Claims Tribunal clubbed the claim petitions and recorded common evidence. The claimant examined Mrs.Mathew, Dr.K.Mahadevan, Mrs.Rosamma George, Mr.Y.Arun Raj, Mr.Lawrence, Mr.Aki Reddy Venugopal as PW1 to PW6 and got exhibited 50 documents viz., Ex.P1 to Ex.P50. The respondents examined

two witnesses viz., Santhosh B.L. and M.Jagadish as RW1 and RW2 and got exhibited 6 documents viz., Ex.R1 to Ex.R6.The Claims Tribunal vide impugned judgment dated 21.10.2017 inter alia held that the accident took place on account of rash and negligent driving of the driver of the Tata Sumo vehicle, as a result of which the claimant sustained injuries. It was held that the claimant in M.V.C.No.44/2014 is entitled to compensation of Rs.94,37,300/-, whereas, claimant in M.V.C.No.3629/2014 was awarded a sum of Rs.40,000/- as global compensation on account of injuries sustained by her in the accident. In the aforesaid factual background, these appeals have been filed. 5. Learned counsel for the insurance company submitted that the insured vehicle was not involved in the accident and in the First Information Report (FIR), spot mahazar, as well as sketch map, the number of the vehicle has not been mentioned. It is also pointed out that in the FIR, it has been mentioned that an unknown Tata Sumo vehicle has hit the claimants. It is also pointed out that in the IMV report also, it has not been found that insured vehicle has sustained any damage. It is also submitted that no

documents are available on record to show the involvement of the insured vehicle. It is also submitted that since, the Tribunal has awarded the amount of compensation towards loss of future earning capacity, therefore, the Tribunal erred in awarding a sum as loss of income during laid off period. It is further submitted that amount awarded towards attendant charges, conveyance charges and food and nourishment charges are on the higher side and the Tribunal ought to have awarded the interest at the rate of 6% instead of 9%. 6. On the other hand, learned counsel for the claimants has submitted that the accident took place at about 1.45 a.m. in the midnight and the charge sheet was filed against the driver of the offending tata sumo vehicle. It is further submitted that strict proof of an accident by a particular vehicle in a particular manner is not possible in the fact situation of the case as the accident took place at 1.45 a.m. in the night. It is further submitted that the claimants have adduced evidence to show that the tata sumo vehicle bearing registration No.KA 51 3938 was involved in the accident. It is also submitted that the Claims Tribunal has awarded compensation to claimant in MVC No.44/2014 which

is on the lower side. It is further submitted that attendant charges awarded to the claimant is on lower side and the Tribunal grossly erred in awarding a sum of Rs.50,000/- only towards future medical expenses as the claimant who had suffered 100% disability would require regular physiotherapy and medication for rest of his life. It is also urged that amount of Rs.1,00,000/- awarded on account of loss of amenities is on the lower side.

(2018) 5 SCC 656). On the touch stone of aforesaid well settled legal principles, facts of the case in hand may be

examined. The accident took place at about 1.45 a.m. on the new year’s eve. The driver of the tata sumo, after the accident, did not stop and ran away. However, the mobile phone of the driver of tata sumo vehicle fell down which was recovered by PW-1 Mrs.Praise Sarah Mathew. The mobile phone was handed over to the investigating officer and investigating officer, on the basis of mobile numbers available in the phone, traced out the owner and driver of the tata sumo and came to know about the registration number of the offending vehicle and filed the charge sheet. The investigating officer has been summoned by the insurance company as RW-2. However, as per the IMV report Ex.P5, the tata sumo vehicle was not damaged. The tata sumo vehicle was inspected on 04.01.2013. Therefore, the possibility of carrying out minor repairs cannot be ruled out. In any case, the offending vehicle is a heavy vehicle and if it dashes against the light motor vehicle namely moped from the back side, it may not get damaged. From perusal of IMV report, it is evident that 2 vehicles are involved in the accident and the accident has not occurred due to mechanical defects of either of the vehicles. The contents of mahazar

Ex.P2 and sketch Ex.P3 also show that both the vehicles were traveling in the same direction and therefore, the version of the claimants that the tata sumo vehicle dashed the Honda Activa from behind appears to be possible. It is also noteworthy that even in the complaint Ex.P1 the description of the vehicle has been mentioned. It is also pertinent to note that the driver of the tata sumo vehicle was the best witness to depose about the manner in which the accident had taken place. However, he has not been examined. The Tribunal has taken the holistic view of the matter and has recorded the conclusion that the accident took place on account of rash and negligent driving of the driver of the tata sumo vehicle. We concur with the view taken by the Tribunal on the issue of identity of the vehicle as well as the finding with regard to negligence on the part of the driver of tata sumo vehicle.

claimant has sustained right temporal subdural hemorrhage, multiple hemorrhagic contusion on right temporal lobe, left parital-occipital lobe, bilateral frontal lobe, left thalamic region with diffuse cerebral edema, multiple comminuted and variable depressed fracture in left squamous temporal and left perital bone and bilateral occipital bone fracture. From perusal of disability certificate as well as neuro disability assessment, Ex.P16 and Ex.P17 issued by Dr.K.Mahadevan of Government Medical College, Kottayam, who has also been examined as PW-2, it is evident that the claimant has suffered 100% disability to the whole body. The claimant, at the time of accident, was aged about 29 years and was working as Process Supervisor in Deutshe Bank and was earning Rs.4,59,425/- p.a. From perusal of Ex.P3, the annual net income of the claimant has rightly been assessed by the Tribunal at Rs.4,08,743/- excluding deduction. It is well settled in law that in case of permanent disability to the extent of 100% future prospects has to be taken into account. (See KAJAL Vs. JAGADISH CHAND & ORS. AIR 2020 SC 77,). Therefore, 40% of the amount has to be added on account of future prospects to the income of the

deceased which would be Rs.5,72,240/-. An amount of Rs.3,00,000/- is exempt from payment of income tax. Therefore, a sum of Rs.2,72,240/- shall be subject to tax. Out of the aforesaid amount, 20% of the amount has to be deducted on account of income tax. Therefore, the yearly income of the claimant comes to Rs.5,17,792/-. Since the claimant has suffered 100% permanent disability and is bed ridden and taking into account his age which is 29 years, the multiplier of 17 will have to be applied. Therefore, the claimant is held entitled to a sum of Rs.88,02,464/- under the head of loss of future income. The amount of Rs.1,30,000/- which has been awarded under the head of pain and suffering is on the lower side as the claimant has sustained brain injury and is bed ridden and is in a vegetative state, therefore, we enhance the same to Rs.2,00,000/-.

In KAJAL, supra, the Supreme Court has awarded the attendant charges at Rs.10,000/- p.m. and has assessed the same annually at Rs.1,20,000/- and by taking into account the multiplier of 18, the attendant charges have been determined. In view of aforesaid enunciation of law, the

claimant is held entitled to attendant charges to the tune of Rs.20,40,000/-. The amount awarded under the head of future medical expenses to the tune of Rs.50,000/- is on the lower side and the same is enhanced to Rs.2,00,000/-. The amount awarded by the Claims Tribunal under the rest of the heads is maintained except the amount awarded under the loss of income during laid up period as the claimant has already been awarded compensation under the head of loss of future income. Thus, the claimant is held entitled to the compensation as follows: 1. Pain and suffering Rs. 2,00,000/- 2. Medical expenses Rs. 9,91,869/- 3. Loss of future income due to permanent disability Rs. 88,02,464/- 4. Loss of future amenities and happiness Rs. 1,00,000/- 5. Attendant charges Rs. 20,40,000/- 6. Extra nutritious food and conveyance expenses Rs. 1,60,000/- 7. Future medical expenses Rs. 2,00,000/-

TOTAL Rs.1,24,94,333/-

The aforesaid amount shall carry interest at the rate of 6% p.a. from the date of petition till realisation. To the

aforesaid extent, the judgment dated 21.10.2017 passed in MVC No.44/2014 is modified. The amount in deposit shall be transmitted to the Claims Tribunal. In the result, appeals are disposed of.

Sd/- JUDGE

Sd/- JUDGE ss