MAHESH T P vs THE ORIENTAL INSURANCE CO LTD
- Court
- Karnataka High Court
HC-KAR
NC: 2026:KHC:54477
MFA No. 4006 of 2019
CNR: KAHC010283802019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 30 DAY OF SEPTEMBER, 2026
BEFORE
HON'BLE MS. JUSTICE TARA VITASTA GANJU
MISCELLANEOUS FIRST APPEAL NO. 4006 OF 2019 (MV-I)
BETWEEN:
MAHESH.T.P.
AGED ABOUT 31 YEARS,
S/O PRABHU,
RESIDING AT NO.2,
TH
4 MAIN ROAD, KAVERI LAYOUT,
ANTHONINAGARA, HEBBALA, KEMPAPURA,
BANGALORE-560 024.
…APPELLANT
(BY SMT. A.MANJULA., ADVOCATE FOR
SRI. D.KUMAR RAJU., ADVOCATE)
AND:
1. THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE-560 025.
(POLICY NO.42159/31/2017/801,
VALID FROM 05/07/2016 TO 04/07/2017)
2. NAGARAJU.C.
AGED ABOUT MAJOR,
S/O CHIKKATHIMMAPPA
R/AT NO.377,
VIDHYANAGAR CROSS,
BETTAHALASUR POST,
BANGALORE-56,
(EX-PARTY),
Digitally signed
by JAI JYOTHI J
Location: HIGH
COURT OF
KARNATAKA
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(R.C.OWNER OF SEPTIC TANKER
BEARING NO.KA-50-7403).
…RESPONDENTS
(BY SMT. HARINI SHIVANANDA., ADVOCATE FOR R1;
V/O DTD:19.01.2024-NOTICE TO R2 HELD SUFFICIENT)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED. 07.11.2018, PASSED IN MVC
NO.3074/2017, ON THE FILE OF THE XXI ACMM., AND XXIII
ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU
(SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL JUDGMENT
1. The present appeal seeks to challenge the judgment
and award dated 07.11.2018, in MVC No.3074/2017,
passed by the XXI ACMM And XXIII Additional Small
Causes Judge and MACT, Bengaluru [hereinafter referred
to as the ‘Impugned Award’]. By the Impugned Award, a
claim petition filed by the appellant/claimant for
compensation was allowed and compensation in the sum
of Rs.3,55,539/- was awarded along with interest rate 8%
per annum. The challenge in the present appeal is by the
injured claimant.
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2. Briefly, the facts are the appellant/claimant was
riding his Honda Unicorn motorcycle on 03.03.2017, which
was bearing registration No.KA-06-EA-7765, at about
09.00 a.m., when a Septic Tanker bearing registration
No.KA-50-7403, being driven at a high speed in a rash
and negligent manner, hit the motorcycle from the rear
and caused an accident. Due to the accident, the appellant
suffered injuries and was shifted to Apurva Hospital,
Yelahanka, Bangalore, where he took first aid and
thereafter Hosmat Hospital, Bangalore. He was treated as
an inpatient from 03.03.2017 to 13.03.2017. He also
underwent a surgery and was discharged with follow-up
treatment and bed rest.
3. Although the matter is listed for admission, since the
Trial Court Record is available and the learned counsel for
the parties have made their submissions, with their
consent, the matter is taken up for hearing and final
disposal at the stage of admission.
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4. A claim petition was filed under Section 166 of the
Motor Vehicles Act, 1988 [hereinafter referred to as the
‘MV Act’]. It was stated therein by the appellant/petitioner
that he had spent several lakhs towards medical expenses
and prior to the accident, he was working as an Auditor
earning a sum of Rs.40,000/- per month. However, he has
been completely bed-ridden after the accident and he is
suffering from a permanent physical disability.
5. The service of the petition was effected on the
respondent/owner of the vehicle. However, since there
was no appearance on his behalf, he was proceeded with
as ex-parte by the learned Tribunal. The respondent
No.2/insurance company appeared and contested the
matter by filing its written statement. It was contended by
the insurance company that the accident was not due to
the rash and negligent driving of the offending vehicle. It
was also stated that the owner has violated the terms and
conditions of the insurance policy.
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6. Based on the contentions of the parties, the following
issues were framed:
“1. Whether the Petitioner proves that, he/she has
sustained injuries on account of road traffic accident
took place near Reliance Petrol Bunk, on B.B. Service
Road, Vidyanagara Cross, Bangalore, due to rash and
negligent driving of the driver of the Septic Tanker
bearing Reg.No.KA-50-7403 dated 03.03.2017 at about
09.00 a.m., as alleged in the petition?
2. Whether the Petitioner is entitled for Compensation?
If so, what is the quantum? From whom payable?
3. What order or award?”
7. In order to prove its case, the appellant/petitioner
examined himself as PW1 and marked 10 documents,
which included FIR (Exhibit-P1), charge-sheet (Exhibit-
P2), spot-panchanama (Exhibit-P8), sketch (Exhibit-P7),
and IMV report (Exhibit-P10). In addition, medical bills,
prescriptions, lab reports were also marked as Exhibits-
P3, P4, P5 as well as wound certificate (Exhibit-P9), x-rays
and outpatient files (Exhibits - P11 to P14). The Income
Tax Returns for the assessment year 2017-2018 were
exhibited as Exhibit-P6. The respondent did not examine
any witness nor produced any document.
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8. The learned Tribunal after examining the contentions
of the parties, found that so far as concerns the
occurrence of the accident, the defence of the respondent
/insurance company was without any merit. The
appellant/petitioner had already produced documents such
as FIR, complaint, charge-sheet, sketch, spot-mahazar
and IMV report. A complaint was also filed being Crime
No.71 of 2017 at the Jurisdictional Police Station.
9. It was thus held by the learned Tribunal that these
documents are of presumptive value under the law and
there is nothing elicited to the contrary in the cross-
examination by the respondent/insurance company of the
petitioner/PW1. Thus, it was held that the negligence of
the driver was proved.
10. On the disability, the learned Tribunal found that
based on the wound certificate and the examination of
PW2 – Dr.Krishna Prasad, that the petitioner suffered from
disability including difficulty kneeling, squatting, sitting
cross legged, climbing stairs and slopes. He needed rest
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after walking a short distance to relieve his pain. It was
found that PW2 had assessed the disability of the
appellant/petitioner at 49% to the right lower limb, while
17% to the whole-body. The learned Tribunal also found
that the functional disability was not referred to by the
witness. However, the appellant/petitioner was required to
undergo further surgery for removal of implants. Thus, the
learned Tribunal calculated the disability at 17% to the
whole-body.
10.1 To assess the income, the learned Tribunal found
that the salary certificates have not been placed on record
and only an Income Tax Return has been filed by the
appellant/petitioner. The learned Tribunal also found that
the return is of the year 2017-2018 and not of 2016-2017
and since the returns were filed on 08.11.2017, and the
accident occurred on 03.03.2017, they are not useful to
prove income. The relevant extract of this is set out
below:
“ Monthly income.
The Petitioner has contended in his evidence that, he was
working as an Auditor at M/s Thyssenkrupp Aerospace
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India Pvt., Ltd., and earning a sum of Rs.40,000/- per
month. He was also doing auditing of private sector and
earning a sum of Rs.30,000/- and totally he was getting a
sum of Rs.70,000/- per month and contributing the entire
amount to the family. To substantiate this income, the
Petitioner has produced Income Tax returns as per
Ex.P.6. But it is pertinent to note that the said
returns are of the year 2017-18. They are not of the
year 2016-17 and prior to it. Those returns are filed
on 8/11/2017. The present accident is occurred on
3/3/2017. As such, the Ex. P6 tax returns are filed
after occurrence of accident. Therefore, Ex. P6 tax returns
are not useful to the petitioner to prove his income. The
petitioner has not produced the tax returns of the
relevant period, i.e., the tax returns pertaining
years before occurrence of accident. He has not
placed salary certificates issued by M/s Thyssenkrupp
Aerospace India Pvt., Ltd. He also has not examined any
witness. Therefore, version of the petitioner that he was
getting a sum of Rs. 70,000/- per month is not
acceptable.”
[Emphasis Supplied]
11. Under these circumstances, the learned Tribunal took
into consideration the notional income at Rs.9,000/-. In
addition, the learned Tribunal has also awarded amounts
for treatment, medical expenses and has awarded loss of
income during laid-up period. For loss of future income,
using the multiplier as set out in the Sarla Verma v.
1
Delhi Transport Corporation the learned Tribunal
1
(2009) 6 SCC 121
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calculated the disability at 10%, and made the following
calculations:
Rs.9,000 x 12 x 17 x 10% = Rs.1,83,600/-.
12. Accordingly, the following amounts were awarded by
the Tribunal:
Sl. Amount
Heads of Compensation
No.
(Rs.)
1. Pain & suffering 30,000/-
2. Medical expenses 53,939/-
3. Loss of income during laid up period 18,000/-
4. Loss of future income 1,83,600/-
5. Loss of future amenities and 20,000/-
happiness
6. Attendant, conveyance, food and 20,000/-
nourishment charges
7. Future Medical Expenses 30,000/-
TOTAL 3,55,539/-
13. As stated above, the challenge in the present appeal
is by the appellant/petitioner. The learned counsel for the
appellant/petitioner submits that the notional income
could not have been taken, since the appellant/petitioner
was a qualified Auditor. The appellant had filed the Income
Tax Returns reflecting his income as per Exhibit-P6. Thus,
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the income ought to have been calculated based thereon.
In addition, it is contended that the compensation
awarded towards 'loss of amenities and happiness' is
inadequate.
14. Learned counsel for the respondent/insurance
company on the other hand has made two submissions.
Firstly, she submits that no 'loss of income' could have
been awarded by the insurance company, since no salary
slips were filed, the loss of income was not proved by the
appellant/petitioner. Secondly, it is contended that the
appellant/petitioner only filed IT returns of one year. It is
stated that the Income tax returns to be considered should
have been filed for atleast 3 years.
15. Based on the averments of the parties, the points
that arise for determination before this Court are:
(i) Whether the learned Tribunal was right in
disregarding the ITRs filed by the
appellants/claimants, given the settled position
of law? and
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(ii) To what additional amounts, if any, are the
appellants/claimants entitled to?
16. This Court has heard the parties and perused the
records. The learned counsel for the respondent/insurance
company contends that since the Income Tax Returns for
the successive years was not filed, the learned Trial Court
could not have assessed the loss of future income.
17. The record reflects that the appellant/petitioner/PW1
has stated that he is an Auditor and working for
M/s.Thyssenkrupp Aerospace India Private Limited and
earning a salary of Rs.40,000/-, from the company and he
also earns income from other private companies by doing
auditing work. It is also stated by him that he is the only
earning member of his family and as a result of the
accident, he is unable to attend to his work. The relevant
extract of his affidavit is set out below:
“5. I submit that the injuries sustained in the said
accident have not united and is getting unbearable pain
often. On account of the said accident injuries I was
completely bed ridden, getting head ache and
giddiness often, cannot walk, stand sit squat on the
floor, cannot lift or carry weight, cannot ride any
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vehicle, as prior I was doing and undergoing deep
mental shock, pain and sufferings, since the injuries
caused are permanent in nature.
6. I submit that prior to the date of accident I was hale
and healthy and was working as Auditor at
M/s.Thyssenkrupp Aerospace India Pvt. Ltd., taking
Home salary of Rs.40,000/- per month, apart from
that I was also doing auditing work for private
sectors, earning a sum of Rs.30,000/- per month, in
total. I paying Income Tax, with the said earning I was
maintaining my family members, since I am the only
earning member in the family. On account of the said
accidental injuries till today I cannot attend to my
work, resulted in loss of earning and earning
capacity and put to great financial hardship. ”
[Emphasis Supplied]
18. The Supreme Court in the case of Raj Kumar Vs.
2
Ajay Kumar and Another has in detail discussed how
the Court must calculate 'loss of future earning' due to a
permanent disability, as a result of injuries in a motor
vehicle accident. It was held that the percentage of
economic loss is distinguishable from the percentage of
permanent disablement. What is required to be assessed
by the learned Tribunal is the ‘loss of earning capacity’ of
the injured in terms of his capacity to earn. The learned
Tribunal has to estimate how the disablement will affect
2
(2011) 1 SCC 343
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his earning capacity. This would depend on multiple
factors which include his avocation, education, age and
other factors. The principles for assessment of disability
have been summarized in the following manner:
"10. Where the claimant suffers a permanent
disability as a result of injuries, the assessment of
compensation under the head of loss of future
earnings would depend upon the effect and impact
of such permanent disability on his earning
capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as
the percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of
economic loss, that is, the percentage of loss of
earning capacity, arising from a permanent
disability will be different from the percentage of
permanent disability. Some Tribunals wrongly assume
that in all cases, a particular extent (percentage) of
permanent disability would result in a corresponding loss
of earning capacity, and consequently, if the evidence
produced show 45% as the permanent disability, will
hold that there is 45% loss of future earning capacity.
In most of the cases, equating the extent
(percentage) of loss of earning capacity to the
extent (percentage) of permanent disability will
result in award of either too low or too high a
compensation.
11. What requires to be assessed by the Tribunal is
the effect of the permanent disability on the
earning capacity of the injured; and after
assessing the loss of earning capacity in terms of a
percentage of the income, it has to be quantified in
terms of money, to arrive at the future loss of
earnings (by applying the standard multiplier method
used to determine loss of dependency). We may
however note that in some cases, on appreciation
of evidence and assessment, the Tribunal may find
that the percentage of loss of earning capacity as a
result of the permanent disability, is
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approximately the same as the percentage of
permanent disability in which case, of course, the
Tribunal will adopt the said percentage for
determination of compensation. (See for example,
the decisions of this Court in Arvind Kumar Mishra v.
New India Assurance Co. Ltd.[(2010) 10 SCC 254 :
(2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and
Yadava Kumar v. National Insurance Co. Ltd.[(2010) 10
SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) 8 Scale
567]).
12. Therefore, the Tribunal has to first decide
whether there is any permanent disability and, if
so, the extent of such permanent disability. This
means that the Tribunal should consider and decide with
reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii)if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
(iii)if the disablement percentage is expressed with
reference to any specific limb, then the effect of such
disablement of the limb on the functioning of the entire
body, that is, the permanent disability suffered by the
person.
If the Tribunal concludes that there is no
permanent disability then there is no question of
proceeding further and determining the loss of
future earning capacity. But if the Tribunal concludes
that there is permanent disability then it will proceed to
ascertain its extent. After the Tribunal ascertains the
actual extent of permanent disability of the claimant
based on the medical evidence, it has to determine
whether such permanent disability has affected or
will affect his earning capacity.
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain
what activities the claimant could carry on in spite
of the permanent disability and what he could not
do as a result of the permanent disability (this is
also relevant for awarding compensation under
the head of loss of amenities of life). The second
step is to ascertain his avocation, profession and
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nature of work before the accident, as also his
age. The third step is to find out whether (i) the
claimant is totally disabled from earning any kind
of livelihood, or (ii) whether in spite of the
permanent disability, the claimant could still
effectively carry on the activities and functions,
which he was earlier carrying on, or (iii) whether
he was prevented or restricted from discharging
his previous activities and functions, but could
carry on some other or lesser scale of activities
and functions so that he continues to earn or can
continue to earn his livelihood.
xxx xxx xxx
15. It may be noted that when compensation is
awarded by treating the loss of future earning
capacity as 100% (or even anything more than
50%), the need to award compensation separately
under the head of loss of amenities or loss of
expectation of life may disappear and as a result,
only a token or nominal amount may have to be
awarded under the head of loss of amenities or
loss of expectation of life, as otherwise there may
be a duplication in the award of compensation. Be
that as it may.
xxx xxx xxx
19. We may now summarise the principles discussed
above:
(i) All injuries (or permanent disabilities arising
from injuries), do not result in loss of earning
capacity.
(ii) The percentage of permanent disability with
reference to the whole body of a person, cannot be
assumed to be the percentage of loss of earning
capacity. To put it differently, the percentage of loss of
earning capacity is not the same as the percentage of
permanent disability (except in a few cases, where
the Tribunal on the basis of evidence, concludes
that the percentage of loss of earning capacity is
the same as the percentage of permanent
disability).
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(iii) The doctor who treated an injured claimant or
who examined him subsequently to assess the
extent of his permanent disability can give
evidence only in regard to the extent of permanent
disability. The loss of earning capacity is
something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in
different percentages of loss of earning capacity in
different persons, depending upon the nature of
profession, occupation or job, age, education and
other factors."
[Emphasis Supplied]
19. The respondent has also produced the evidence of a
doctor/PW2, a doctor working as an Orthopedic Surgeon in
the Hosmat Hospital. He has stated that the Doctor has
examined the appellant/petitioner and has treated him
during the period of his hospitalisation. The Doctor also
set-out that he is aware of the medical procedures that
were undertaken on the respondent. PW2/Doctor after
examining the appellant/petitioner has assessed the
disability and found that his right lower limb mobility has
been reduced and that his stability has also been reduced.
Using the value charts and standard manuals, the
PW2/doctor has calculated his lower limb disability at 49%
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and his whole-body at 17%. The relevant extract of the
evidence of the doctor is set out below:
“5. Procedure: I submit that he had the following
procedures on 04-03-2017 Dynamic hip screw right hip
with long barrel plate with derogation screw and bone
grafting was done.
6. Result: The right trochanteric fracture femur fracture
has healed with pain and stiffness of the right hip with
prominent implants. He walks with a limp.
7. Disability Assessment: I submit that he was
assessed for disability on 20-06-2018.
8. Problem statement: The patient says that he was
working as a financial analyst before the accident. He
says that he has partially resumed work. He says that he
has great difficulty in kneeling, squatting, sitting cross
legged and climbing stairs and slopes. He says that he
needs rest after walking a short distance to relieve his
pain. He says that he gets pain on sleeping and turning
towards his right side. He says that he walks with a limp.
He is unable to walk fast.
9. Right Lower limb – mobility
•
Right hip - flexion extension- 80 degrees
(Normal 130 deg)
•
Rotations- 45 degrees (Normal 90 deg)
•
Abduction adduction- 45 degrees (Normal 70deg)
•
Right Hip-14%.
10. Stability component
•
Squatting-9%
•
Kneeling -5%
•
Cross-legged -8%
•
Standing on one leg -8%
•
Stairs -7%
•
Slopes -7%
•
Both legs -4%
•
Taking turns -4%
•
Pain -4%
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11. Using the combined values chart with reference to the
standard manuals (calculation in the case sheet)
•
Lower limb disability - 49%
•
Whole body - 17%
12. Note: The findings mentioned in the disability
assessment correlate with the problems mentioned by the
patient in the problem statement.
He will need implant removal right femur which will
cost Rs. 60,000.”
[Emphasis Supplied]
20. PW2/Doctor has also found that right femur implant
removal will also cost him Rs.60,000/- is also requisite.
21. As stated above, no appeal has been filed by the
respondent/insurance company. In its written statement,
it has denied the injuries sustained by the
appellant/petitioner. In addition, the insurance company
has stated that qua the liability of the owner that it cannot
be saddled with the liability of the insurance.
22. The facts in contention are not disputed by the
parties or the way the accident took place or the
negligence. The only question in dispute is regarding the
quantum of compensation awarded. The grounds urged
today do not form part of the written statement of the
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espondent/insurance company. In any event and given the
settled position of law that Income Tax Returns are to be
considered at the time of calculation of compensation by
the Motor Vehicle Accident Tribunals. It is also settled law
that the ITRs cannot be ignored or disregarded by the
learned Tribunal.
23. The Supreme Court in Smt.Anjali & Others vs.
3
Lokendra Rathod And Others case, while relying on its
judgment in Malarvizhi & Ors. Vs. United India
4
Insurance Co. Ltd. & Ors. has held that the ITRs filed
by the appellants/claimants to prove the income of the
deceased cannot be disregarded. It is a statutory
document on which reliance shall be placed. The relevant
extract of the judgment is set out below:
th
“8. Assailing the High Court’s impugned order dated 16
August, 2018, the learned Counsel appearing on behalf of
the Appellants has contended:
a. The High Court and the Tribunal failed to
consider the deceased’s Income Tax Return filed
on 28.05.2010 for the year 2009-2010, the HC
rejected the ITR on the ground that earlier
3
(2022) SCC Online SC 1683
4
(2020) 4 SCC 228
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returns were not filed while the Income Tax
Inspector was examined.
b. The High Court and Tribunal failed to observe that
since the number of dependents exceeded 6 members,
the deduction made towards personal expenses ought
to be one-fifth (1/5th). In the present case there are 7
dependents of the deceased.
c. The Tribunal failed to award any amount under the
Conventional Heads and the High Court awarded a sum
of Rs.70,000/- in lumpsum under the Conventional
Heads, whereas the same ought to have been
Rs.1,20,000/- as per the Supreme Court’s judgment
in Malarvizhi & Ors. Vs. United India Insurance CO. Ltd.
& Ors.
d. Both the Tribunal and High Court awarded interest at
the rate of 6% per annum from the date of application
while it ought to have been 9% as held in Malarvizhi &
Ors. Vs. United India Insurance Co. Ltd. & Ors.(Supra).
9. The Tribunal and the High Court both committed
grave error while estimating the deceased’s income
by disregarding the Income Tax Return of the
Deceased. The appellants had filed the Income Tax
Return (2009- 2010) of the deceased, which reflects
the deceased’s annual income to be Rs.1,18,261/-,
approx. Rs.9,855/- per month. This Court
in Malarvizhi & Ors. (Supra) has reaffirmed that the
Income Tax Return is a statutory document on
which reliance be placed, where available, for
computation of annual income. In Malarvizhi (Supra),
this Court has laid as under:
“10. …We are in agreement with the High Court that
the determination must proceed on the basis of the
income tax return, where available. The income tax
return is a statutory document on which reliance
may be placed to determine the annual income of
the deceased.” Hence, this Court is of the opinion that
the deceased’s annual income be fixed at Rs.1,18,261/-
, approx. Rs.9,855/- per month keeping in mind the
deceased’s Income Tax Return for the year 2009-
2010.”
[Emphasis Supplied]
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24. Recently as well, the Supreme Court in the case of
Rashmirekha Tripathy And Another. Vs. The Branch
Manager (Legal Claims), Sriram General Insurance
5
Company Limited And Others case, has held that
where the ITRs has been filed, the latest among those
ITRs requires to be taken into consideration where an
employee is salaried. However, where the individual is
self-employed or carrying on his own business, the
average income of the previous three years’ ITRs shall be
taken into consideration. If only 1 or 2 years' returns have
been filed, the fluctuation of income must be seen along
with the surrounding circumstances of the business must
be seen in the following terms:
“18. We find force in the submission put forth by Mr. J.R
Midha, learned senior counsel. There must be a
bifurcation made between salaried individuals and
self-employed individuals when it comes to
assessment of annual income. In our view, for
salaried individuals, only the ITR of the previous
year will be sufficient for showcasing the annual
income from salary. The reason for considering only
the preceding year is that the financial impact of
promotions is significant and may be reflected in the ITR
for only that year. A situation may also arise whereby
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the deceased/claimant might not have completed a year
in the promoted position before the accident or might
not have filed ITR for such period. In such cases the
Court concerned shall take reference to the promotion
letter and other corroboratory financial statements.
19. When it comes to self-employed / individuals
carrying out their own business , in our view, the
average of the income specified in the ITRs of up
to the previous three years is to be taken as a
reference point for assessment of annual income
from their business. There may also be a scenario
where only one or two ITRs have been filed. Given
such scenarios and the fluctuation of income in
these professions, surrounding circumstances are
also to be taken into consideration. These would
include:
a) The nature of the business (including geographic
location, category etc.);
b) Growth pattern of the business and impact of
death on the business;
c) Potential growth of business (for instance certain
businesses are capital intensive at the outset and are
profitable at scale/in the future);
d) Negative income (certain businesses may require
losses in the initial years, which may not reflect the
true financial standing); and
e) Any other relevant factor relating to the business.
20. The date when the ITRs are filed would also
become a relevant consideration, as there may be
scenarios where inflated income is showcased
after death/injury. In these circumstances, the
surrounding factors of the business would become more
relevant. However, if sufficiently supported by financial
statements, such ITRs may also be taken into
consideration.”
[Emphasis Supplied]
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25. It is not disputed that the injured was an auditor.
The income tax return which has been filed by the
appellant/petitioner has been filed for the assessment year
2017-18, which would pertain to the financial year 2016-
2017. The gross total income as shown is Rs.4,10,724/-
and thus the monthly income would be Rs.34,227/-
(Rs.4,10,724 ÷ 12).
26. The Supreme Court in the Rajkumar Ajay Kumar
case has held that the Doctor who treated an injured
claimant or examined him would calculate the physical
disability and it is on the said basis that the loss of earning
capacity is to be calculated by a learned Tribunal. The
learned Tribunal based on the evidence before it has
assessed the functional disability of the
appellant/petitioner at 10% to the whole-body. Thus, the
compensation will be calculated accordingly.
27. Given the settled legal position, the compensation
towards ‘loss of future income due to disability’ is re-
calculated in the following terms:
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Rs.34,227 x 10% = 3,422 x 12 x 17 =
Rs.6,98,230.8/- (rounded off to Rs.6,98,231/-)
27.1 In addition, amounts towards loss of income during
laid-up period should be awarded. Further, the
appellant/petitioner had to have a surgery for removal of
implants, and hence future medical expenses would also
require to be awarded and loss of amenities would also
require to be enhanced considering the gravity of the
injuries. Accordingly, the award of compensation is
recalculated in the following terms:
Sl. Heads of Compensation Amount
(in Rs.)
No.
1 Towards loss of future income 6,98,231/-
due to disability
2 Towards pain and suffering 75,000/-
3 Towards diet, attendant charge, 50,000/-
travelling expenses
4 Towards medical expenses 53,939/-
5 Loss of income during laid up 68,454/-
period (Rs.34,227 x 2)
6 Future medical expenses 30,000/-
7. Loss of amenities 50,000/-
Total 10,25,624/-
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28. Thus, appellant/claimant would be entitled to total
compensation of Rs.10,25,624/- along with the interest as
awarded by the learned Tribunal from the date of petition
till the date of realization.
29. Accordingly, the Court proceeds to pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The Impugned Judgment and Award dated
07.11.2018, in MVC No.3074/2017, passed by the XXI
ACMM And XXIII Additional Small Causes Judge and
MACT, Bengaluru is modified, to an extent that the
appellant/claimant is entitled to a total compensation of
Rs.10,25,624/- along with interest at the rate of 8%
per annum.
(iii) The remaining portion of the Impugned Award of
the learned Tribunal remains undisturbed.
(iv) The Insurance Company shall deposit the
enhanced compensation along with interest applicable
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thereon, within a period of eight weeks from the date of
receipt of a copy of this judgment.
(vi) On such deposit of the compensation, the same
shall be released in favour of the appellant/claimant, on
filing of an appropriate application by the appellant/
claimant for withdrawal of the enhanced amount.
(vii) The Registry is directed to draw the modified
Award accordingly.
(viii) The Registry is directed to transmit a copy of this
judgment to the concerned Tribunal along with its
records.
(ix) All pending application(s) stand closed.
(x) No order as to costs.
Digitally signed by TARA
VITASTA GANJU
Location: HIGH COURT OF
KARNATAKA
Sd/-
(TARA VITASTA GANJU)
JUDGE
JJ
List No.: 1 Sl No.: 20
26