Karnataka High Court
Manini W/O Jagannatha Kamble vs Premanand Bhupal Kamble on 24 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 344
Bench: Ravi Malimath, S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 24th DAY OF APRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE S.G.PANDIT
MISCELLANEOUS FIRST APPEAL NO. 24613 OF 2013 (MV)
BETWEEN:
1. SMT. MANINI
W/O JAGANNATH KAMBLE
AGE: 44 YEARS,
OCC:HOME MAKER,
2. KUMAR HANSRAJ
S/O JAGANNATH KAMBLE
AGE: 22 YEARS,
OCC: STUDENT.
BOTH ARE R/O HINDALAGA,
TQ & DIST:BELAGAVI.
...APPELLANTS
(BY SRI. RAJENDRA R PATIL, ADVOCATE)
AND:
1. MR. PREMANAND BHUPAL KAMBLE
MAJOR, OCC:SERVICE,
R/O 237, PRABHUDDHA,
AVACHIT NAGAR,
JAYSINGPUR, TQ:SHIROL,
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DIST:KOLHAPUR,
MAHARASHTRA STATE.
2. THE DIVISIONAL MANAGER
IFFCO-TOKIO GENERAL INSURANCE
COMPANY LTD.
CUSTOMER SERVICE CENTRE,
2ND FLOOR, AFL HOUSE,
LOK BHARATI COMPLEX,
MUMBAI-400059.
POLICY ISSUING OFFICE:
303, 3RD FLOOR, STELLER ENCLAVE,
ABOVE MC DONALD'S FAST FOOD,
AUND, PUNE-411007.
...RESPONDENTS
(BY SRI. G.N. RAICHUR, ADVOCATE)
(R1-SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD
DATED 18.05.2013 PASSED IN MVC NO.1210 OF 2012 ON
THE FILE OF THE FAST TRACK COURT-III AND MEMBER,
ADDITIONAL MACT, BELAGAVI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
*****
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 16/04/2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:-
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JUDGMENT
The claimants are before this Court in this appeal seeking enhancement of compensation granted in MVC No.1210 of 2012 on the file of the Fast Track Court-III and Member, Addl. MACT, Belagavi (for short, 'the Tribunal').
2. Brief facts of the case are that, the claimants who are none other than the wife and son of the deceased Jagannath Kamble, had filed a claim petition before the Tribunal seeking compensation of Rs.45,00,000/- with interest at the rate of 18% per annum, on account of death of the deceased, who died in the road accident occurred on 26.03.2012 at about 5.30 a.m. while he was traveling in a Car bearing No.MH-09-BS-7978 belonging to respondent No.1. It is further case of the claimants that the deceased Jagannath Kamble was serving with MSEB, Kolhapur as Technician and was getting salary of Rs.30,000/- per month. He had bright future and also every likelihood of he getting promotion in his future service with MSEB and he would have got salary of -4- Rs.50,000 to Rs.60,000/- per month. The respondents contested the case. The Tribunal based on the pleadings of the parties has allowed the claim petition in part with costs awarding a compensation of Rs.23,45,000/- with interest at the rate of 8% per annum from the date of petition till realization. Being dissatisfied with the same, the claimants are in appeal.
3. Heard the learned counsel appearing for the parties and examined the appeal papers along with the original records.
4. The learned counsel appearing for the claimants would contend that the income determined by the Tribunal is on the lower side even though there is sufficient material on record to prove the income and future prospects of the deceased. Further, the Tribunal has not added future prospects while determining the compensation under the head of loss of dependency. He further submits that the compensation awarded under the -5- conventional heads is also very meager. Hence, he prays for enhancement of compensation under all heads by allowing this appeal.
5. As against this, the learned counsel appearing for the respondent-insurer inter-alia contends that the Tribunal has erred in taking into consideration the income of the deceased for the entire multiplier of 11. He further submits that the Tribunal ought to have adopted split multiplier to arrive at compensation towards loss of dependency. He also submits that the deceased was aged about 55 years at the time of accident and he would have retired at the age of 60 years and after retirement his income would come down by 50%.
6. The factum of the accident resulting in death of the deceased, age and occupation are not in dispute. To appreciate the contention of the claimants with regard to future prospects, it is essential to refer to the principles laid down by the Hon'ble Apex Court in the case of -6- National Insurance Company Ltd. Vs. Pranay Sethi & Others, reported in 2017 ACJ 2700 for the purpose of the present case, wherein it has held at para 61 of the judgment as under:
" 61. xxx xxx xxx i. xxx xxx ii. xxx xxx iii. xxx xxx iv. In case the deceased was self-
employed or on a fixed salary, an addition of 40 percent of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25 percent where the deceased was between the age of 40 and 50 years and 10 percent where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
v. xxx xxx
vi. xxx xxx
vii. xxx xxx
viii. Reasonable figures under conventional heads, namely loss to estate, loss of consortium and funeral expenses should be Rs.15,000/- Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the -7- rate of 10 percent in every three years." (emphasis supplied)
7. Taking into consideration the principles laid down in the above decision, the claimants would be entitled for addition of 15% to the actual salary of the deceased towards future prospects. The multiplier of 11 adopted and deduction of 1/3rd taken by the Tribunal is proper and same is undisturbed.
8. As regards the applicability of split multiplier, it is the contention of the learned counsel for the respondent insurer that the Tribunal ought to have adopted the split multiplier to arrive at compensation towards loss of dependency. The deceased was aged 55 years at the time of the accident and he was serving as Technician in MSEB. But, the question is whether the split multiplier has to be adopted to the facts and circumstances of the case on hand.
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9. It is relevant to refer to the judgment of the Hon'ble Apex Court in the case of Puttamma Vs. K.L.Narayana Reddy and another reported in AIR 2014 SC 706, wherein the Hon'ble Apex Court while dealing with the split multiplier in paragraphs 32 and 34 has held thus:
"32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in selection of multiplier, this Court in Sarla Verma prepared a table for selection of multiplier based on age group of the deceased/victim. Act, 1988 does not envisage application of split multiplier.
34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in the case of Sarla Verma (supra) as affirmed in the case of Reshma Kumari (supra)."
10. In the case of Oriental Insurance Co. Ltd. Vs. Mallikarjun S/o Awappa Hariwal and Others, (DD -9- 07.02.2018), the co-ordinate bench of this Court has held as follows:
"19. What could be gathered from these judgments is that basically there must be pleadings and evidence in support of the split multiplier and reasons must be given to apply the split multiplier. It is discernible that there is neither pleadings nor evidence in support of the split multiplier as now argued by the learned counsel for the Insurer. The focal point was the driver of the offending vehicle not possessing the valid and effective driving license, the epicenter of dispute being altogether different now a new plea raised by the Insurer at the appellate stage is not maintainable. There is no straight jacket formula for the application of the split multiplier. It depends upon the facts and circumstances of the case. In the absence of concrete foundation laid by the Insurer, no edifice can be built in the appellate stage
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to seek for the applicability of split multiplier."
11. Considering the aforesaid judgments of the Hon'ble Apex Court and this Court, it is clear that basically there must be some pleadings and evidence on record and also reasons to adopt the split multiplier method. It depends upon the facts and circumstances of the case. For the first time, the insurer has taken the contention with regard to applicability of split multiplier; neither the respondents have adduced any evidence nor suggested in the cross-examination of the claimants on that point. Therefore, the contention taken up by the insurer with regard to applicability of the split multiplier at the appellate stage is not maintainable and cannot be accepted. Hence, we are of the considered view that the multiplier of 11 has to be adopted considering the age of the deceased i.e. 55 years, adding 15% of the income towards future prospects. The Tribunal has determined and taken a sum of Rs.2,06,436/- as annual income after
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deducting 1/3rd towards personal expenses of the deceased, the same is not disturbed. Hence, the claimants shall be entitled for compensation of Rs.26,11,415/- (Rs.2,06,436 + 15% x 11) under the head of loss of dependency.
12. The amount of compensation granted under the conventional heads totaling to Rs.75,000/- is just and proper and same is not disturbed. But, the claimants would be entitled to a sum of Rs.15,000/- towards litigation expenses. In all, the claimants are entitled for total compensation of Rs.27,01,415/-. Accordingly, there would be an enhanced compensation of Rs.3,56,415/-, which shall carry interest at 8% per annum from the date of petition till realization.
13. In view of the above, we pass the following:
ORDER
1) The appeal filed by the claimants is allowed in part.
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2) The impugned judgment and award is modified to the extent that the claimants shall be entitled for enhanced compensation of Rs.3,56,415/- with interest at the rate of 8% per annum from the date of petition till deposit.
3) Respondent No.2 shall deposit the
enhanced compensation with
proportionate interest within a period of six weeks from the date of receipt of the certified copy of this judgment.
4) On deposit being made, 50% each shall be released in favour of the appellants.
5) Registry to draw the modified award accordingly.
Sd/- Sd/-
JUDGE JUDGE
JTR