SMT.ASHVINI W/O JAGANATH SHIVAMOGGI vs. SMT.S.A HEMA W/O S V ANANTHA PADMANABHA

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2nd DAY OF JULY 2020 PRESENT

THE HON’BLE MR. JUSTICE S.G. PANDIT

AND

THE HON’BLE MR. JUSTICE V. SRISHANANDA

MFA NO.103021/2015 (MV)

BETWEEN

AGE:36 YEARS, OCC:HOUSEHOLD.

AGE:9 YEARS, OCC:STUDENT.

SHIVAMOGGI, AGE:67 YEARS, OCC:NIL

ALL ARE R/O TILAVALLI, NOW AT RANEBENNUR,

DIST:HAVERI.

APPLT NO.2 IS MINOR, REP. BY M/G MOTHER I.E.

APPELLANT NO.1.

...APPELLANTS (BY SRI. G.S. HULMANI, ADVOCATE)

AND

PADMANABHA. AGE:MAJOR, OCC:NOT

KNOWN, R/O ANAVATTI, SORABHA,

TQ & DIST:SHIVAMOGGA.

UNITED INDIA INSURANCE CO. LTD.,

ENKAY COMPLEX, KESHWAPUR, HUBBALLI.

...RESPONDENTS (BY SRI. SHASHANK HEGDE FOR SMT. PREETI SHASHANK, ADVOCATE FOR R2) (R1-SERVED)

THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 27.07.2015 PASSED IN MVC NO.366/2007 ON THE FILE OF THE II ADDL. DISTRICT JUDGE AND MEMBER, ADDL. MACT, HAVERI, SITTING AT RANEBENNUR 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 claimants are in appeal praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under judgment and award dated 27.7.2015 in MVC No.366/2007 on the file of the II Addl. District and Sessions Judge and Member, Addl. MACT, Haveri, sitting at Ranebennur (for short, ‘Tribunal’).

3 Shivamoggi in a road traffic accident occurred on 11.03.2006 involving a motor cycle bearing registration No.KA-15-7895. The accident involving the above motorcycle and the accidental death of the deceased is not in dispute in this appeal. 3. The claimant No.1-wife of the deceased examined as PW1 apart from examining the witnesses as PW2 to PW7 and got marked the documents as per Exs.P1 to P36. Whereas, on behalf of the respondents, RW1 was examined apart from marking the documents as Exs.R1 and R2. 4. The Tribunal based on the material on record awarded total compensation of Rs.36,81,112/- with interest at the rate of 6% per annum from the date of petition till the date of payment on the following heads: Medical Expenses

Rs.7,00,000/- Loss of estate

Rs.25,000/- Love and affection

Rs.15,000/- Funeral ceremony

Rs.15,000/-

4 Transportation of dead body Rs.10,000/-

Loss of consortium

Rs.29,16,112/-

Total

Rs.36,81,112/-

5 Tribunal failed to award any compensation on the head future prospects. Since the deceased was aged about 35 years, the claimants would be entitled for adding 40% of the assessed income towards future prospects as held by the Hon’ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others, reported in AIR 2017 SC 5157. It is further submitted that the Tribunal failed to award medical expenses as claimed. The Tribunal had awarded medical expenses of Rs.7,00,000/- as against claim of Rs.10,00,000/-. It is his submission that the claimants had placed on record necessary bills which the Tribunal failed to take into consideration. Further, learned counsel submitted that the claimants 2 and 3 who are minor son and mother of the deceased would be entitled for Rs.40,000/- each on the head of parental and filial consortium as held by the Hon’ble Apex Court in the case of 2018 ACJ 2782 Magma General Insurance

6 Company Ltd. Vs. Nanuram and Others. Thus, he prays for enhancement of compensation. 8. Per contra, learned counsel for the respondent No.2-Insurance Company would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. It is his submission that the Tribunal ought to have taken average of 3 years income taking note of the IT returns for the Assessment Years 2003-04, 2004-05 and 2005- 06. Instead of taking average income of previous three years, the Tribunal erroneously took the income of the deceased at Rs.2,73,386/- as shown in the IT returns for the Assessment Year 2005-06 that too without deducting statutory deductions, such as, income tax and professional tax. Thus, he prays for revising the income assessed by the Tribunal. Thus, he prays for reducing the compensation awarded by the Tribunal. 9. Having heard the learned counsel for the parties and on perusal of the trial Court records, the

7 following points would arise for consideration in this appeal: i) Whether the claimants would be entitled for adding 40% of the assessed income towards future prospects? ii) Whether the claimants would be entitled for enhancement of compensation?

Our answer to the above points would be in the negative for point No.(i) and in the affirmative for point No. (ii) for the following reasons: 10. Present appeal is under Section 173 of the Act. In an appeal under Section 173 of the Act, the appellate Court to consider the entire case on facts and law by re-appreciating the entire evidence on record. The Hon'ble Apex Court in the case of Sharanamma and Others Vs. Managing Director, Divisional Controller, NEKRTC, reported in (2013) 11 SCC 517 at paras 10 and 11 has held as follows: “10. When an appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter shall be

8 referred to as “the Act”), before the High Court, the normal rules which apply to appeals before the High Court are applicable to such an appeal also. Even otherwise, it is well-settled position of law that when an appeal is provided for, the whole case is open before the appellate Court and by necessary implication, it can exercise all powers incidental thereto in order to exercise that power effectively. A bare reading of Section 173 of the Act also reflects that there is no curtailment or limitations on the powers of the appellate Court to consider the entire case on facts and law. 11. It is well settled that the right of appeal is a substantive right and the questions of fact and law are at large and are open to review by the appellate Court.

Thus, such powers and duties are necessarily to be exercised so as to make the provision of law effective.”

9 praying for enhancement of compensation, there shall not be reduction in total compensation awarded by the Tribunal. But it is permissible to re-assess the compensation granted on various heads.

On re-assessment, if the amount calculated is less than the amount awarded by the Tribunal, then the amount awarded by the Tribunal is to be maintained. The above principle is laid down by the Hon'ble Apex Court in the case of Jayakodi and Others Vs. Branch Manager, National Insurance Company Ltd. and another, reported in 2010 ACJ 697, wherein para-5 reads as follows: “5. It was submitted that as the insurer has not challenged the award of Rs.30,000/- by the High Court under the head ‘shock and mental agony to parents’, it should not be disallowed in an appeal filed by the claimants. It is true that in an appeal by the claimants for enhancement, the compensation awarded should not be reduced. But that is with reference to the ‘total compensation’ awarded which is the agreegate of sums awarded under various heads. When an appeal is filed by the claimants

10 claiming enhancement, the appellate court will calculate the just compensation, in accordance with law. If the amount so calculated is in excess of what is awarded, the difference is awarded as additional compensation. If the amount calculated is found to be less than or equal to the amount awarded by the Court below, then the amount awarded by the Court below is maintained. But there cannot be any objection for recalculation of compensation under various heads in accordance with law. So long as the total amount awarded is not less that what is awarded by the Court below, there cannot be any objection if the amount is reduced under any particular head.”

11 Enterprises, Dealers in Iron and Steel at Bengaluru and it is claimed that the deceased was having a sum of Rs.50,000/- per month as income. The learned counsel would submit that the assessment of the income of the deceased by the Tribunal is on the lower side. In support of their claim, the claimants have placed on record, Ex.P34-IT returns for the year 2003-04 which would indicate that the deceased had gross salary of Rs.1,57,669/-; Ex.P35 would indicate gross income of Rs.2,33,733/- for the A.Y.2004-05 and Ex.P36 would indicate the gross income of Rs.2,73,386/- for A.Y. 2005-06.

The Tribunal took the income of Rs.2,73,386/- shown in Ex.P35 i.e. IT returns for the A.Y. 2005-06 for awarding compensation which according to us is not proper and the income arrived at by the Tribunal is erroneous. The deceased was carrying on business as stated in the claim petition and the business income always fluctuates from year to year. Wherever, the income tax returns are placed on

12 record, normal practice is to take average of previous three years income. If the average income of the deceased for the Assessment Years 2003-04, 2004-05, 2005-06 are considered, then income would be Rs.2,21,596/-. The deceased had paid income tax in a sum of Rs.19,828/- for the A.Y. 2003-04, Rs.39,293/- for the A.Y. 2004-05 and Rs.52,215/- for the A.Y. 2005- 06. Average of three years income tax would be Rs.37,112/-. If the same is deducted from the assessed income of Rs.2,21,596/-, net income would be Rs.1,84,484/-. Thus, his annual income could be assessed at Rs.1,84,484/-, but the assessment of income of the deceased by the Tribunal is on the much higher side. 14. The next contention urged by the learned counsel for the appellants is that the Tribunal failed to award any compensation on the head of future prospects. The deceased was aged about 35 years. The Hon’ble Apex Court in the case of Pranay Sethi (supra)

13 has laid down that the claimants would be entitled for adding 40% of the assessed income towards future prospects. 15. In the normal course, the claimants would have been entitled for awarding compensation on the head of future prospects. Section 168 of the Act speaks of awarding just compensation. As stated above, the Tribunal has assessed the income of the deceased on higher side at Rs.2,73,386/- per annum taking IT returns of the A.Y. 2005-06. The Tribunal had failed to properly assess the income of the deceased by taking an average of three years’ income showed in IT returns of the years 2003-04 to 2005-06. If the average income, after deducting the income tax, is taken, it would have been Rs.1,84,484/- per annum. If 40% is added to the said income towards future prospects, it would be less than the compensation awarded by the Tribunal. Therefore, we feel that as the Tribunal has assessed the income of the deceased on much higher side, the

14 compensation awarded by the Tribunal is much more than the compensation entitled by the claimants on the head of loss of dependency. Since there is no appeal by the insurance company challenging the quantum of compensation, we refrain ourselves from reducing the compensation by taking re-assessed income of the deceased in an appeal by the claimants praying for enhancement of compensation. The Hon'ble Apex Court in the case of Jayakodi (supra), has held that in an appeal filed by the claimants for enhancement of compensation, on reassessment of compensation on various heads, if it is found to be less than the amount awarded by the Tribunal, then the amount awarded by the Tribunal is to be maintained. By following the principles laid down in the said decision, we are of the view that taking the re-assessed income of the deceased at Rs.1,84,484/- per annum and adding 40% towards future prospects, would be disadvantageous to the claimants. Hence, in the peculiar facts of the present

15 case, we deem it appropriate to observe that the compensation awarded by the Tribunal on the head of loss of dependency would also include future prospects since the Tribunal has taken annual income of the deceased at Rs.2,73,386/- instead of Rs.1,84,484/-. 16. In the present case, there are three claimants, hence, deduction of 1/3rd towards personal and living expenses of the deceased taken by the Tribunal and taking multiplier of 16 is proper and correct which needs no interference. 17. The claimants submitted that they have placed on record Ex.P11 to P19 which would indicate that the claimants have incurred medical expenses of Rs.8,36,595/-, but the Tribunal ignoring those bills has awarded a sum of Rs.7,00,000/- on the head of medical expenses. When Exs.P11 to P19 are looked into, the claimants would be entitled for a sum of Rs.8,36,595/- as against Rs.7,00,000/- awarded by the Tribunal on the head of medical expenses. The claimants 2 and 3

16 are minor son and mother of the deceased. The minor son has lost his father at very young age and has also lost parental aid, protection, affection, society, discipline, guidance and training of his father in building his career. Further, the mother has lost his son at the evening of her life and she has lost love and affection of her son. Hence, both of them are entitled for Rs.40,000/- each on the head of parental and filial consortium. Thus, the claimants would be entitled for the following modified compensation: Loss of dependency

= Rs.29,16,112/- Medical Expenses

= Rs.8,36,595/- Parental and filial consortium

= Rs.80,000/- Conventional heads

= Rs.70,000/-

Total

= 39,02,707/-

17 19. In the result, we proceed to pass the following: ORDER (i) Appeal filed by the claimants is allowed in part. (ii) The judgment and award of the Tribunal is modified to the extent that the claimants shall be entitled to total compensation of Rs.39,02,707/- as against Rs.36,81,112/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till the date of payment. (iii) Respondent No.2-Insurance Company shall deposit the enhanced compensation amount with accrued interest within a period of six weeks from the date of receipt of certified copy of this judgment. (iv) On deposit made by the insurance company, 50% of the enhanced

18 compensation shall be released in favour of the 1st claimant-wife of the deceased with accrued interest. Remaining 50% shall be kept in fixed deposit in any nationalized bank in the name of the 2nd claimant-minor son of the deceased till he attains the age of majority, with liberty to the 1st claimant- wife of the deceased to withdraw the periodical interest accrued on it. (v) Draw the modified award accordingly.

Sd/- JUDGE

Sd/- JUDGE JTR