THE PR COMMISSIONER OFINCOME TAX vs. M/S S N BUILDERS AND DEVELOPERS

NAGENDRA PRASAD SHETTY S/O BABU @ NARAYANA SHETTY, (SINCE DECEASED BY HIS LRS)

SRI. DEEPAK. R S/O G. RAMU, AGED ABOUT 34 YEARS, R/O H.NO.2-382, RATHNAKAR PAI COMPOUND, BANTWAL MUDA VILLAGE, JODUMARGA POST, BANTWAL TALUK, D. K. DISTRICT – 574 211

NATIONAL INSURANCE CO LTD., BRANCH OFFICE, GANESH BUILDING, 2ND FLOOR, BANTWAL CROSS ROAD, BANTWAL BRANCH, BANTWAL, D.K.DISTRICT – 574 211. REP BY ITS BRANCH MANAGER.

The factum of accident, injuries sustained in the accident and coverage of insurance is not disputed.

Heard the arguments from both sides and perused the records.

Learned counsel for the Insurance Company submitted that there is no nexus between the injuries sustained and death occurred. Further submitted that after the date of accident, four years later, the deceased died and hence, there is no nexus between the injuries sustained and death occurred. Further submitted that during the pendency of the claim proceedings, the claimant died and his legal heirs by coming on record have filed an application for amendment and it was allowed. But for filing additional written statement, opportunity was not given. Therefore, prays for remand of the matter. If the Tribunal had given opportunity to file additional written statement, then the Insurance Company would have proved that there is no nexus between the death of the deceased and injuries sustained.

Further submitted that the Tribunal has not adopted the correct parameters while determining the

On the other hand, learned counsel for the claimants submitted that in the accident the claimant/deceased had sustained grievous injuries resulting into breaking of cervical bone and spinal cord and suffered paraplegia and confined to bed. Later during pendency of the claim petition, after four years, the injured claimant died. Therefore, with reference to the documentary evidence submitted that it is proved that there is nexus between the injuries sustained and death occurred. Further submitted that the Tribunal has not adopted the correct parameters while assessing the quantum of compensation. Therefore, prays for enhancement of compensation. Further submitted that the Tribunal has committed error in deducting 10% of salary towards Income Tax and that is not permissible. Hence, on all

The medical evidence on record particularly Ex.P.3- wound certificate, Ex.P.7-disability certificate and Ex.P.36- postmortem report ought to have been considered. Whether there is nexus between the injuries sustained and death occurred. Ex.P.3-wound certificate reveals that the deceased has suffered the following injuries: “1. Contusion , 5cmx 5cm, over front aspect of upper mid &left side of the chest with underlying fracture of manubrium sternum and left sided 2nd rib (MRI of Cervical Spine)

Fracture dislocation of 2nd thoracic vertebra with cord rotation giving rise to loss of secondary and motor movements, i.e. paraplegia (MRI of Cervical Spine) .

Abrasion 3cm x 3cm, over front aspect of right knee.

Abrasion, 3cm x 2cm, over front aspect of left knee.”

Ex.P.7 is the disability certificate issued by the Kasturba Hospital, Manipal, proving the following criteria: “This Patient Mr. Nagendra Shetty (Hosiptal No. 023489003) was admitted in Dept. Neurosurgery on 20.12.2012 with alleged h/o RTA on 18.12.2012. Patient was not able to move both the lower limbs after the incident.

Upon considering these two documentary evidence in support of the evidence of doctor who is examined as P.W.4 the claimant has suffered fracture of spinal cord as there was breaking of cervical bone and vertebra and the deceased had suffered paraplegia. The doctor has given evidence that the claimant/deceased had suffered 100% of functional disability. When this being the health condition of the deceased when he was alive, it is proved that the claimant has suffered grievous injuries and has suffered septicemia confining to bed. Ex.P.8 to Ex.P.12-discharge summary and other medical records prove that the deceased had suffered paraplegia when he was

Therefore, upon considering all these evidence on record, it is proved that there is direct nexus between the injuries sustained and death occurred. The grievance of the Insurance Company is that opportunity was not given for filing additional written statement and additional evidence and taking defence to prove that there is no nexus between the injuries suffered and death occurred, which is taken care of while appreciating the evidence on record as discussed above. From the medical evidence on record as discussed above, it is unequivocally proved that the claimant has suffered much when he was alive and suffered 100% of disability due to fracture of spinal cord and has become paraplegia. Therefore, it is proved that the claimant died due to the accidental injuries. Mere four years gap between the date of accident and date of death is not the criteria to hold that the occurrence of

Insofor as quantum of compensation is concerned as submitted by the learned counsel appearing for both sides, the Tribunal has committed error in deducting 1/3rd of income towards personal and living expenses. The Tribunal has also committed error in choosing the multiplier according to the age of the mother. Therefore, the quantum of compensation is hereby re-assessed by holding the correct parameters as per the judgments of the Hon’ble Supreme Court in the catena of decisions.

It is stated that P.W.1 is the mother of the deceased and has given evidence that her son deceased was working as a sales executive and was receiving salary of Rs.11,159/- as per Ex.P.23-salary certificate. Ex.P.34 is the salary particulars issued by the HR of the Company who is examined as P.W.3. The Tribunal has taken gross salary and deducted 10% of income towards income tax. Hence, the Tribunal has committed error. In holding the income of the deceased Ex.P.23 is the salary certificate, which shows the gross salary of Rs.11,159/- and the only deductable amounts are income tax and professional tax. In the salary certificate, there is no deduction towards income tax, but professional tax of Rs.150/- is deducted. The net salary after deducting provident fund, profession tax, ESIC and labour welfare fund, comes to Rs.10,363/- by deducting Rs.796/-. The only amount can be deducted towards salary is professional tax as per Ex.P.23 for assessing the monthly salary of the deceased for quantification of compensation. Therefore, the amount of Rs.150/- of professional tax is deducted from gross salary of Rs.11,159/-, then the net salary would come to Rs.11,009/-

The Tribunal has granted compensation of Rs.3,28,979/- towards medical expenses and hospitalization charges. The claimants have produced the medical bills worth Rs.4,30,277/- and R.W.1 who is the insurance claim officer of the hospital deposed that the amount of Rs.73,422/- was deducted. Further Rs.20,000/- amount was paid under Suraksha Yojana and also discount of Rs.3,976/- was deducted from the bill. Therefore, the Tribunal after deducting Rs.1,01,298/- has awarded compensation of Rs.3,28,979/- towards medical expenses and hospitalization charges, which is found to be correct, and it needs no interference.

The Tribunal has awarded compensation of Rs.1,00,000/- towards loss of love and affection, which is on the lesser side. There are totally three legal dependants of the deceased, hence, as per the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Co. Limited Vs. Nanu Ram & Others1 and National Insurance Co. Ltd. Vs. Pranay Sethi,2 the claimants are entitled to Rs.40,000/- each with 10% escalation under the head loss of consortium including loss of love and affection. Accordingly, Rs.1,32,000/- (Rs.40,000 x 3 + 10% escalation) is awarded under the head loss of consortium including loss of love and affection.

Further compensation of Rs.16,500/- (Rs.15,000/- + 10% escalation) is awarded towards Transportation of dead body and funeral expenses as against Rs.10,000/- awarded by the Tribunal.

The Tribunal has not awarded compensation under the head loss of estate. Hence, compensation of Rs.16,500/- (Rs.15,000/- + 10% escalation) is awarded towards loss of estate.

Thus, in all the claimants are entitled to total compensation determined by this Court as follows:

The Tribunal has awarded compensation of Rs.18,29,700/-, but the claimants are entitled to total compensation of Rs.21,76,979/-. Hence, the claimants are

Thus, considering the submission on the quantum of compensation is concerned, the compensation is re-determined. Hence, the appeal filed by the Insurance Company is liable to be dismissed and appeal filed by the claimants is liable to be allowed in part.

Accordingly, I proceed to pass the following ORDER i. MFA.No.739/2018 filed by the Insurance Company is dismissed.