M/S SRI. PRABHULINGESHWAR SUGARS and CHEMICALS LTD. vs. THE ASST. COMMISSIONER OF INCOME-TAX

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 24th DAY OF JUNE, 2016 BEFORE THE HON’BLE MRS. JUSTICE RATHNAKALA MFA. No.23743/2011 (MV) C/w. MFA. CROB No.100146/2015 (MV) In M.F.A. NO.23743/2011 BETWEEN: The Deputy General Manager, NWKRTC., Gokul Road, Hubli, Rep. By its Divisional Manager, NWKRTC., Belgaum division, Belgaum (owner-cum-insurer of The KSRTC bus No. KA-22/1264) Represented by its Chief Law Officer, NWKRTC., Central Office, Hubli. … Appellant (By Shri. S.C. Bhuti, Advocate) AND: 1. Smt. Bhavana Rameshlal Girlani, Age: Major, Occ: Household, 2. Deepika Rameshlal Girlani, Age: 15 years, Occ: Student,

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 2 3. Akash Rameshlal Girlani, Age: 13 years, Occ: Student, 4. Koushal Rameshlal Girlani, Age: 10 years, Occ: Student, Respondents-2 to 4 since minors Represented by their mother and natural guardian Smt. Bhavana Rameshlal Girlani, 5. Sri. Naoomal V. Girlani, Age: ^0 years, occ: Business, All are r/o. 283, Main tower, Flat No.302, 5th Floor, Near Jhulelal Mandir, Ulhas Nagar-2, Mumbai. … Respondents (By Shri. Shreevatsa Hegde, Advocate for R1 Shri. Manjunath Jadai, Advocate for R1 to 5) This MFA filed under section-173(1) of the Motor Vehicles Act 1988, against the Judgment and award dated 30.04.2010, passed in MVC. No.536/2006 on the file of the Presiding Officer, Fast Track Court-II and Member, Additional MACT, Belgaum, awarding the compensation of Rs.14,45,609/- with interest at the rate of 6% per annum from the date of petition till its realization. In MFA. Crob No.100146/2015 BETWEEN: 1. Smt. Bhavana Rameshlal Girlani, Age: Major, Occ: Household,

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 3 2. Deepika Rameshlal Girlani, Age: 24 years, Occ: Student, 3. Akash Rameshlal Girlani, Age: 22 years, Occ: Student, 4. Koushal Rameshlal Girlani, Age: 19 years, Occ: Student, 5. Sri. Naoomal V. Girlani, Age: 69 years, occ: Business, All are r/o. 283, Main tower, Flat No.302, 5th Floor, Near Jhulelal Mandir, Ulhas Nagar-2, Mumbai. … Cross Objectors. (By Shri. Manjunath Jadai, Advocate) AND: The Deputy General Manager, NWKRTC., Gokul Road, Hubli, Rep. By its Divisional Manager, NWKRTC, Belagavi Division, Belagavi. … Respondent (By Shri. S.C. Bhuti, Advocate)

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 4 This MFA. Crob in MFA. No.100146/2015 is filed under Order-41 Rule 22 of CPC., r/w Section 173 (1) of the M.V. Act, against the Judgment and award dated 30.04.2010 passed in MVC. No.536/2006 on the file of the Presiding Officer, Fast Track Court-II and Member, Additional MACT, Belgaum, partly allowing the claim petition for compensation and seeking enhancement of compensation. The appeal and Cross Objection are coming for admission, this day, the Court delivered the following: JUDGMENT Sri. S.C. Bhuti, learned counsel standing counsel for NWKRTC., is directed to take notice for the respondent in MFA. Crob. No.100146/2015 and he is permitted to file his vakalat within four weeks from today. 2. MFA. No. 23743/2011 is preferred by the insurer, questioning both the quantum of compensation and liability fastened on it to pay the compensation. Whereas, MFA. Crob. No.100146/2015 is filed by the family members/dependents of deceased Rameshlal N. Birlani who died in the motor accident that occurred on 22.01.2006 involving the KSRTC., bus bearing registration No.22/F-1364, seeking enhancement of the compensation awarded by the Tribunal. They are the claimants in MVC. No.536/2006.

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 5 3. Both the appeal and cross-objection, since directed against the common Judgment and Award dated 30.04.2010 passed in MVC. No.536/2006, on the file of the Presiding Officer, Fast Track Court-II and Member, Additional MACT, Belgaum, for brevity (‘Tribunal’) are heard together and disposed of by this common judgment. 4. The claimants-cross objector, who are wife, minor children and aged father respectively of the deceased Rameshlal Girlani have filed a claim petition before the Tribunal U/S. 166 of the M.V. Act, (for brevity, ‘the Act’), claiming compensation in respect of the death of Rameshlal Girlani who died in a vehicular accident that occurred on 22.01.2006. The Tribunal on appreciation of the evidence on record, awarded total compensation of Rs.14,45,609/- with interest at 6% per annum. 5. In view of the fact that the Judgment rendered by this Court in MFA. Nos. 23741/2011 & 23744/2011 dated 30.10.2013 wherein the question of liability on the part of the NWKRTC., is already decided against it, the said question does not survive for consideration in these matters. Thus the only question that remains for consideration in these matters is as to whether the compensation awarded by the Tribunal is just and proper.

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 6 6. Shri. S.C. Bhuti, the learned counsel for the appellant-Insurer vehemently submits that in the absence of any supporting documents like bank pass books and certificate issued by the competent authority as regards the business of the deceased, the Tribunal was not justified in solely placing reliance on the income tax return of the deceased for the year 2004- 05, 2005-06 and 2006-07 to assess the income of the deceased at Rs.1,45,190/- while computing the compensation payable towards ‘loss of dependency’. Having regard to the period of accident, the income of the deceased may be assessed at Rs.6000/- per month and to that extent, the Judgment and award of the Tribunal requires modification. 7. In reply, Shri. Shreevatsa Hegde, learned counsel for the Cross-objectors/claimants-dependents of the deceased submits that the claimants have produced three years income-tax returns of the deceased for the period 2004-05, 2005-06, 2006-07 which reflected gradual raise in the income of the deceased, and the Tribunal ought to have taken the average income of the deceased instead, it has taken the income as mentioned in the IT returns of the year 2004-2005 which has resulted in substantial reduction in the compensation payable to the claimants. The

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 7 compensation awarded by the Tribunal towards ‘loss of consortium’ is on the lower side and that the Tribunal erred in not awarding compensation towards ‘loss of love and affection’, and ‘loss to the estate’ arising out of the death of the deceased and prays for enhancement of compensation by modifying the judgment and award of the Tribunal. 8. In the light of the above rival submissions and on perusal of the impugned judgment and award of the Tribunal it emerges that the deceased was aged 46 years at the relevant point of time and he was survived by his wife, three minor children and aged father. Though the deceased was said to be a cloth merchant and earning profits from his business and the income-tax returns filed by him for the year 2004-05, 2005-06 and 2006-07 show his income at Rs.1,45,190/-, Rs.2,06,240/- and Rs.3,25,547/- respectively, the claimants have not produced any documentary proof like registration certificate for having established the business or his bank accounts etc. Under such circumstances, this Court is of the considered opinion that the income of Rs.1,45,190/- assessed by the Tribunal is on the higher side. Having regard to the fact that the accident is of the year 2006, it would be just and proper to assess the income of the

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 8 deceased at Rs.9000/- per month. Since the family of the deceased consists five members and the deceased was aged 46 years, the Tribunal rightly deducted ¼ of his income towards personal and living expenses and applied the correct multiplier-13. Applying the same method, the claimants-cross objectors are entitled for compensation of Rs.10,53,000/- (Rs.9000-2250(1/4)=6750 x 12 x 13 =10,53,000/-) towards ‘loss of dependency’ as against Rs.14,15,609/-. The minor children, in their tender age have lost their beloved father and the aged father of the deceased also lost love and support of his son in the evening of his life. Thus, it would be just and proper to award a sum of Rs.50,000/-. The first appellant being the wife of the deceased had lost care and comfort from her husband in the midway of her life, and hence, the compensation awarded by the Tribunal towards ‘loss of consortium’ is slightly on the lower side and hence, the same is enhanced from Rs.10,000/- to Rs.50,000/- and another some of Rs.50,000/- ‘towards loss of estate’. However, the compensation awarded by the Tribunal under other conventional heads are just and reasonable and does not call for interference. Thus, the claimants in Cross-Objection No.100146/2015 are entitled for total compensation of Rs.12,23,000/- (Rupees twelve lakhs

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 9 twenty three thousand only) as against Rs.14,45,609/- awarded by the Tribunal. For the foregoing reasons, I pass the following order: i) MFA. No.23743/2011 filed by the appellant-insurer is allowed in part. In modification of the impugned judgment and award dated 30.04.2010, passed in MVC. No.536/2006 on the file of the Presiding Officer, Fast Track Court-II and Member, Additional MACT, Belgaum, the compensation payable to the claimants is reduced from Rs.14,45,609/- to Rs.12,23,000/- (Rupees twelve lakhs twenty three thousand only) with interest at 6% per annum from the date of petition till the date of deposit. ii) The appellant-insurer is directed to deposit the compensation amount with accrued interest before the Tribunal within three weeks from the date of receipt of a certified copy of this Judgment. iii) On such deposit being made, 30% of the compensation amount with proportionate interest shall be kept in a fixed deposit in the name of the first respondent (wife of the deceased) in any nationalized banks of her choice, initially for a period of five years renewable for another five years. 15% each with proportionate interest shall be deposited in the name three children of the deceased (respondents-2 to 4) respectively the first respondent-mother can withdraw the periodical interest accrued therein for the welfare of her

MFA. No.23743/2011 (MV) C/w MFA. CROB No.100146/2015 (MV) 10 children and 10% with proportionate interest shall be kept in a fixed deposit in the name of the respondent No.5 (father of the deceased) for a period of five years in any nationalized banks of his choice. And the remaining 15% with proportionate interest shall be disbursed to the respondent Nos. 1 to 5 in equal proportion. iv) The Cross-Objection No.100146/2015 filed by the claimants (dependents of the deceased) for enhancement of compensation is dismissed, as the same is devoid of merits. v) The Registry is directed to transmit the statutory deposit if any made by the appellant-insurer along with the lower court records to the Tribunal forthwith. vi) Draw up the award accordingly.

Sd/- JUDGE VR