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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2020
PRESENT
THE HON’BLE MR. JUSTICE ALOK ARADHE
AND
THE HON’BLE MR. JUSTICE M.NAGAPRASANNA
M.F.A.NO.4600/2017(MV) C/W. M.F.A.NO.6705/2017(MV) IN M.F.A.NO.4600/2017(MV)
BETWEEN:
KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL OFFICE, K.H.ROAD, SHANTHINAGARA, BENGALURU – 560 027, BY ITS MANAGING DIRECTOR, REPRESENTED BY ITS CHIEF LAW OFFICER. …APPELLANT (BY SMT.RENUKA H.R., ADV.)
AND: 1. PANKAJA H.S W/O LATE JAYANNA K.B., AGED ABOUT 50 YEARS.
2 2. MARUTHI PRASAD J S/O LATE JAYANNA K.B., AGED ABOUT 29 YEAR.
SRINIVASA J S/O LATE JAYANNA K.B., AGED ABOUT 25 YEAR.
ALL ARE R/AT KODIHALLI VILLAGE, MADURE HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT – 561 203 OCC: MAID, KANAKENA HALLI, SASALU HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT – 561 203.
... RESPONDENTS (BY SRI SHRIPAD V. SHASTRI, ADV.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.02.2017 PASSED IN MVC NO.17/2013 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT MEMBER AT DODDABALLAPUR, BENGALURU RURAL DISTRICT, AWARDING COMPENSATION OF RS.33,14,800/- FIXED WITH INTEREST AT THE RATE OF 6% FROM THE DATE OF PETITION TILL PAYMENT.
IN M.F.A.NO.6705/2017(MV)
BETWEEN
SMT. PANKAJA H.S., W/O JAYANNA
AGED ABOUT 50 YEARS.
3 2. MARUTHI PRASAD. J S/O LATE JAYANNA, AGED ABOUT 29 YEARS.
SRINIVASA J S/O LATE JAYANNA, AGED ABOUT 25 YEARS.
ALL ARE RESIDING AT KODIHALLI VILLAGE, MADURE HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT.
OCC: MAID , KANAKENA HALLI, SASALU HOBLI, DODDABALLAPUR TALUK. ….APPELLANTS (BY SRI SHRIPAD V. SHASTRI, ADV. )
AND THE MANAGING DIRECTOR KSRTC, CENTRAL OFFICE, K.H.ROAD, SHANTHI NAGARA, BENGALURU – 27.
….RESPONDENT (BY SMT.RENUKA H.R., ADV.)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.02.2017 PASSED IN MVC NO.17/2013 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DODDABALLAPURA, BENGALURU RURAL DISTRICT. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.As. COMING ON FOR ADMISSION THIS DAY, M. NAGAPRASANNA J., DELIVERED THE FOLLOWING: JUDGMENT
These appeals, though listed for admission, are taken up for final disposal with the consent of the learned counsel appearing for the parties.
These appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988. MFA No.4600/2017 is filed by the Karnataka State Road Transport Corporation (‘Corporation’ for short) questioning the award of compensation, whereas, MFA No.6705/2017 has been filed by the claimants seeking enhancement of compensation determined by the Motor Accident Claims Tribunal ('Tribunal' for short ) in its judgment and award dated 17.02.2017.
5 3. Since both the appeals arise out of the same Award, they were heard together and are being decided by this common judgment.
Parties will be referred to as per their ranking before the Claims Tribunal.
Facts giving rise to the filing of the appeal briefly stated are that, on 05.08.2013, at about 8.00 p.m. the deceased Jayanna K.B. was riding his motorcycle bearing registration No.KA-43-K-7851 and proceeding towards Aralumallige, while he came near Aralumallige tank bund road, the driver of the KSRTC bus bearing Registration No.KA-40-F-601 coming from the opposite direction and driving in a rash and negligent manner dashed the motorcycle of the deceased. Due to the impact, the deceased sustained injuries and was shifted to the hospital at Doddaballapura and later admitted to M.S.Ramaiah
6 Hospital, Bengaluru. He succumbed to the injuries on 17.08.2013.
Thereafter, the claimants namely, the wife and children of the deceased Jayanna K.B., filed a petition under Section 166 of the Motor Vehicles Act, 1988 on the ground that the deceased, at the time of accident was aged 49 years and was working as Senior Veterinary Inspector at Gudumgere Veterinary Hospital, employed with the Government of Karnataka in the Department of Animal Husbandry and was drawing monthly salary of Rs.27,423/- and on the loss of the sole bread winner, the claimants claimed compensation of Rs.50,00,000/- along with interest at 12% per annum.
On receipt of notice of proceedings, the respondent – Corporation appeared through its counsel and filed statement of objections in which
7 interalia it was denied that the accident has taken place due to rash and negligent driving of the KSRTC bus, the shifting of the deceased from Government Hospital, Doddabalpapura and later to M.S.Ramaiah Hospital, was also denied. It also denied the employment of the deceased. It was vehemently contended that the deceased had consumed alcohol while driving the motorcycle and the accident had occurred due to the deceased losing balance on consumption of alcohol.
From the aforesaid facts and circumstances of the case, the Claims Tribunal framed issues and recorded the evidence of the witnesses.
The claimants in order to prove their case, examined the wife of the deceased as PW.1 and an independent eyewitness by name Shivanna as PW.2 and produced as many as 18 documents namely,
8 Exs.P.1 to P.18. The salary certificate of the deceased was marked as Ex.P.11. On the other hand, the Corporation examined one witness namely, H.R.Lakshminarayana as RW-1, the driver of the Bus and produced one exhibit namely, the authorization letter was marked as Ex.R.1.
The Claims Tribunal on the basis of the evidence on record, held that the accident had taken place on 05.08.2013 on account of rash and negligent driving of the KSRTC bus by its driver and that the death of the deceased occurred on account of the injuries sustained by him in the accident. It has further held that the claimants are entitled to a compensation to the tune of Rs.33,14,800/- along with interest at the rate of 6% p.a.
In the aforesaid factual background, challenging the award of the compensation of award
9 of Rs.33,14,800/- as being contrary to law, the respondent - KSRTC has preferred M.F.A.No.4600 of 2017 and the claimants seeking enhancement of compensation have filed M.F.A.No.6705/2017 contending that the award of compensation is on the lower side and contrary to the settled principles of law with regard to loss of future prospects.
We have heard Smt. Renuka, learned counsel for Corporation and Sri Shripad V. Shastri, learned counsel for claimants.
The learned counsel for the appellant – Corporation would contend that the Tribunal has not considered that there was contributory negligence on the part of the deceased as the P.M. Report recorded that the deceased was smelling of alcohol. It is the contention that due to the consumption of alcohol the deceased was unable to ride the motorcycle in a
10 proper manner. Learned counsel would also contend that the income tax ought to have been deducted from the salary of the deceased by the Tribunal while arriving at the annual income of the deceased which would reduce the compensation to a large extent. She would further contend that the method of application of multiplier adopted by the Tribunal is erroneous inasmuch as the deceased who was an employee / government servant was to retire from service on attaining the age of superannuation at 60 years and he was with 11 years of service. In these circumstances, a split multiplier ought to have been adopted by the Tribunal which would be a just compensation to the claimants.
On the other hand, learned counsel for the claimants would contend that there is no evidence placed before the Tribunal with regard to the consumption of alcohol by the deceased at the time of
11 the accident and would contend that the accident has taken place solely on the rash and negligent driving of the KSRTC bus.
Insofar as the quantum of the compensation is concerned, he would contend that the future prospects of 10% is added which is erroneous and contrary to law. With regard to the submission of the learned counsel for the Corporation that a split multiplier ought to have applied by the Tribunal, learned counsel for the claimants admits the position but would submit that no contention has been advanced before the Tribunal or before this Court. Insofar as it pertains to the non-deduction of the income tax from the salary of the deceased, the learned counsel would contend that there was no evidence before the Tribunal to that effect and if the tax at source is not deducted by the employer it cannot later be deducted at the time of computation
12 of income of the deceased for the purpose of determination of compensation. He would place reliance of the judgment of the Hon’ble Supreme Court in the case of VIMAL KANWAR AND OTHERS V. KISHORE DAN AND OTHERS reported in (2013) 7 SCC 476.
We have given our anxious consideration to the submissions made and have perused the material on record.
The Tribunal on the basis of the evidence of PW.2 who was the independent eyewitness and Ex.P.3 –copy of the report, Ex.P.4 – statement of PW.2 given before the police, Exs.P.5 and P.6 - spot sketch and the spot mahazar and Ex.P.9 the motor vehicle accident report came to conclude that the accident took place due to rash and negligent driving of the KSRTC bus. Insofar as the contention with regard to
13 the contributory negligence on the part of the deceased is concerned, the Tribunal has held that there is no evidence in any of the reports to suggest that the deceased was in an inebriated state at the time of the accident. The KSRTC neither examined the doctor nor produced any document with regard to the contributory negligence of the deceased due to consumption of alcohol. Contributory negligence being a pure question of fact will have to be proved by cogent evidence before the Tribunal and the burden is on the party alleging such negligence. Since the Corporation has failed to discharge its burden of placing evidence before the Tribunal, the plea that the deceased being guilty of contributory negligence is unacceptable and deserves to be rejected.
In so far as the award of compensation by the Tribunal without deducting income tax from the salary of the deceased is concerned, it is pertinent to
14 refer to the Judgment of the Hon’ble Supreme Court answering an identical question, in the case of VIMAL KANWAR cited supra, wherein it is held as follows: “22. The third issue is “whether the income tax is liable to be deducted for determination of compensation under the Motor Vehicles Act”.
In Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] this Court held: (SCC p. 133, para 20)
“20. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation.” This Court further observed that: (SCC p. 134, para 24) “24. … Where the annual income is in taxable range, the words ‘actual salary’ should be read as ‘actual salary less tax’.” Therefore, it is clear that if the annual income comes within the taxable range, income tax is required to be deducted for determination of the actual salary. But
15 while deducting income tax from the salary, it is necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head “salaries” one should keep in mind that under Section 192(1) of the Income Tax Act, 1961 any person responsible for paying any income chargeable under the head “salaries” shall at the time of payment, deduct income tax on estimated income of the employee from “salaries” for that financial year. Such deduction is commonly known as tax deducted at source (“TDS”, for short). When the employer fails in default to deduct the TDS from the employee's salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1-A) of the Income Tax Act, 1961. Therefore, in case the income of the victim is only from “salary”, the presumption would be that the employer under Section 192(1) of the Income Tax Act, 1961 has deducted the tax at source from the employee's
16 salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However, there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary, and the annual income falls within taxable range, in such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income.”
In terms of the afore-extracted declaration of law by the Hon’ble Supreme Court, it is clear that if the employer has not deducted the tax at source as prescribed under Section 192(1) of the Income Tax Act, 1961. The presumption of such deduction will be in favour of the employee. In those circumstances, the entire salary will have to be taken into
17 consideration as income for the purpose of determination of compensation. Thus, the contention of the learned counsel for the Corporation that the income tax ought to have been deducted from the salary of the deceased as he was a government servant cannot be accepted and the salary considered as per the salary certificate - Ex.P.11 by the Tribunal is in accordance with law.
In so far as the application of split multiplier to the facts of the case , though this contention is not urged before the Tribunal or before this court , we deem it proper to consider the same as it is a question of law and is admitted by both the learned counsel that split multiplier ought to have adopted by the Tribunal . The deceased was aged 49 years when the accident took place and the income of the deceased as per Ex.P.11, the salary certificate was Rs.27,432/-. The suitable multiplier that would be applicable as
18 regards the age of the deceased is ‘13’ but since the deceased was to attain the age of superannuation at the age of 60 years and remainder of service was 11 years. Hence, the applicability of a split multiplier will have to be considered. In this regard, it is apposite to refer to the judgment of the Co-ordinate Bench of this Court in the case of SMT. SHANTHA RAMAMURTHY AND OTHERS VS. KANIKA RAJ AND ANOTHER reported in 2004 (1) KLJ 386, wherein paragraph No.8 reads as follows: “8. The next question relates to the choice of the multiplier applicable to the case having regard to the age of the deceased and the fact that the deceased would have superannuated from service within a period of 8 years or so. The decisions of this Court in Gulam Khader's case, supra and K.S. Lakshmi Kumar's case, supra, provide a complete answer to that question. In the case of victims of road accidents falling in the age group of 48 to 52, the correct multiplier applicable according to the decision in Gulam Khader's case, supra is
19 12 and not 11 applied by the Tribunal. Since however the deceased was holding a job from which he was supposed to superannuate upon attaining the age of 58 years, the ratio of the decision in the case of K.S. Lakshmi Kumar, supra, would apply. That decision rules that whenever the date of superannuation falls within the period of multiplier, the salary received during the service period and pension received for the balance of the period alone can be the basis for computing the loss of dependency. Applying that principle to the instant case, we are of the opinion that the multiplier will have to be different for two different period into which the multiplier may have to be split namely, (i) upto date of superannuation of the deceased, and (ii) after his retirement. Insofar as the period upto the date of his superannuation is concerned, the claimants would be entitled to a compensation of Rs.32,400 × 8 = Rs.2,59,200/- towards loss of dependency. For the balance period of 4 years according to the decision in K.S. Lakshmi Kumar's case, supra, the multiplier has to be determined on the basis of the pension which the deceased may have received. It is common
20 ground that the deceased was not entitled to receive any pension from the company with which he was employed. That does not however imply that for the balance of the period of 4 years, the claimants will not be entitled to any compensation on account of loss of dependency. The least which the appellants are entitled to urge is that for the balance of the period, the multiplicand may be determined by reference to the notional income of a non-earning victim of the road accident. That concept of a notional income in the case of non-earning victims of road accidents has been recognised by the Parliament in the 1994 amendment to the Motor Vehicles Act. We therefore see no reason why determination of the compensation for the balance of the period i.e., post-retirement part of the multiplier the multiplicand cannot be assessed on the basis of the said notional income. Taking the notional income of the deceased at Rs.15,000/- p.a. and deducting 1/3rd of the same towards his expenses, the appellants could reasonably claim that the contribution of the deceased towards the family would have been Rs.10,000/- p.a. The
21 compensation payable to the claimants for the post-retirement period of the deceased would therefore work out to Rs.10,000 × 4 = Rs.40,000/- taking the total compensation on account of the loss of dependency to Rs.2,99,200/- rounded of to Rs.3,00,000/-.”
The principles that would emerge from the above quoted judgment are that: 1. If the remainder of service of an employee having a determined age of superannuation is less than the applicable multiplier, such multiplier will have to be split into two. 2. The first part of the split multiplier will be upto the date of superannuation taking actual income of the deceased. 3. The second part of the multiplier will be after his retirement taking pension that the
22 deceased would have received as income after his retirement.
In terms of the afore-quoted principles the case on hand will have to be considered. The deceased was aged 49 years on the relevant date and the applicable multiplier is ‘13’. A split multiplier will have to be applied taking the salary of the deceased for the remaining period of service and pension receivable for the balance of the period of the multiplier for computing the loss of dependency. Thus, the multiplier of ‘13’ will have to be split namely, (i) upto the date of superannuation of the deceased and (ii) after his retirement. The salary of the deceased was Rs.27,423/- p.m. In view of the law laid down by the Hon’ble Supreme Court in the case of‘NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157, 30% will have to be towards future prospects, which
23 comes to Rs.35,650/- and out of this, 1/3rd will have to be deducted towards personal expenses, which would be Rs.23,767/-. Thus, the monthly income of the deceased is determined at Rs.23,767/-.
To this amount, the applicable multiplier ‘13’ will have split into two , namely multiplier ‘11’ upto the date of superannuation of the deceased taking the above determined income and multiplier ‘2 ’ after his retirement at 60 years taking pension , which is 50% of the salary as his income .Thus upto superannuation the compensation is determined at Rs.23,767/- x 12 x 11, which would be Rs.31,37,244/-. For the remaining multiplier of two, the claimants would be entitled to a compensation which is determined as follows: The monthly salary of the deceased is Rs.27,432/-, 50% of the monthly salary would be the amount of pension which comes to Rs.13,716/- out of
24 which, 1/3rd is deducted towards personal expenses, which would come to Rs.9,144/- x 2 = Rs.18,288/-. Thus, the total compensation of Rs.31,37,244 + Rs.18,288 = Rs.31,55,532/- is to be awarded on account of loss of dependency.
The claimants are three in number namely, the wife and children. In view of the law laid down by the Supreme Court in ‘MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM’ reported in 2018 ACJ 2782, Rs.40,000/- each is required to be awarded towards loss of consortium and loss of love and affection.
Thus, the total amount of compensation under this head is assessed at Rs.1,20,000/-.
In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all the claimants would be entitled
25 to the total compensation of Rs.34,70,257/-. The amount of compensation shall carry interest at the rate of 6% p.a. from the date of filing the petition till the payment is made to the claimants.
At this stage learned counsel for the corporation would request this Court to grant reasonable time to satisfy the award to the claimants due to the prevailing situation of COVID – 19 and shortage of funds with the Corporation . We are inclined to accept the request of the learned counsel subject to condition that the compensation shall be satisfied by the Corporation within four months from the date of receipt of the copy of this order, failing which the entire amount shall carry interest at the rate of 9% p.a. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
26 The amount in deposit, if any, shall be transmitted to the Claims Tribunal for payment to the claimants. Accordingly, both the appeals are disposed of.
Sd/- JUDGE
Sd/- JUDGE
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