Karnataka High Court
Shri.Mallikarjun S/O. Yallappa ... vs Shri.Umesh.M. S/O. Murthy K on 28 February, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28 T H DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
M.F.A.NO.104894/2019 (MV)
C/W
M.F.A.NO.103864/2018 (MV)
IN M.F.A.NO.104894/2019 (MV)
BETWEEN :
1. SHRI MALLIKARJUN
S/O YALLAPPA JOGANNAVAR,
AGE : 56 YEARS, OCC: 'D' GROUP
EMPLOYEE IN KIMS, HUBBALLI,
R/O HUBBALLI, THEN AT GANDHINAGAR,
DHARWAD.
AT PRESENT 3 R D CROSS,
GUDDIYALL ROAD,
SUBHASH NAGAR, HUBBALLI,
DIST: DHARWAD. PIN CODE-580 024.
2. SMT.ANITA
W/O MALLIKARJUN JOGANNAVAR,
AGE : 48 YEARS, OCC: HOUSEWIFE,
R/O HUBBALLI, THEN AT GANDHINAGAR,
:2:
DHARWAD.
AT PRESENT 3 R D CROSS,
GUDDIYALL ROAD,
SUBHASH NAGAR, HUBBALLI,
DIST: DHARWAD. PIN CODE-580024.
... APPELLANTS
(BY SRI SANJAY S.KATAGERI, ADVOCATE)
AND :.
1. SHRI UMESH M. S/O MURTHY K.
AGE : 48 YEARS, OCC: TRANSPORT BUSINESS,
R/O A/P: THIEETHA, TQ: KORATAGERE,
DIST: TUMKUR, PIN : 572 129.
(OWNER OF THE TATA INDICA CAR
BEARING NO.KA.64/1237)
2. THE NEW INDIA ASSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,
THE NEW INDIA ASSURANCE CO. LTD.,
SOMESHWAR HEIGHTS.
NEAR OLD D.S.P OFFICE,
P.B.ROAD, DHARWAD-580001.
... RESPONDENTS
(BY SRI RAVINDRA R.MANE , ADVOCATE)
(NOTICE TO RESPONDENT NO.1 IS DISPENSE D
WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1)
OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE
JUDGMENT AND AWARD DATED 03.08.2018 PASSED
IN MVC.NO.625/2016 ON THE FILE OF THE IV
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD,
PARTLY ALLOWING THE CLAIM PETITION FOR
:3:
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
******
IN M.F.A.NO.103864/2018 (MV)
BETWEEN :
NEW INDIA ASSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,
SOMESHWAR HEIGHTS.
NEAR OLD D.S.P OFFICE,
P.B.ROAD, DHARWAD,
REPRESENTED BY ITS DULY CONSTITUTED
ATTORNEY.
... APPELLANT
(BY SRI RAVINDRA R.MANE, ADVOCATE.)
AND :
1. SHRI MALLIKARJUN
S/O YALLAPPA JOGANNAVAR,
AGE : 55 YEARS, OCC: SERVICE,
R/O HUBBALLI, NOW RESIDINT AT
GANDHINAGAR, TQ. & DIST: DHARWAD.
2. SMT.ANITA W/O MALLIKARJUN JOGANNAVAR,
AGE : 46 YEARS, OCC: HOUSEWIFE,
R/O HUBBALLI, NOW RESIDINT AT
GANDHINAGAR, TQ: & DIST: DHARWAD.
3. UMESH M. S/O MURTHY K.
AGE : 47 YEARS, OCC: TRANSPORT BUSINESS,
R/O A/P: THIEETHA, TQ: KORATAGERE,
DIST: TUMKUR, PIN : 572 129.
(OWNER OF THE TATA INDICA CAR
BEARING NO.KA.64/1237)
... RESPONDENTS.
:4:
(BY SRI SAN JAY KATAGERI, ADVOCATE FOR R.1 &
R2)
(NOTICE TO RE SPONDENT NO.3 IS DISPENSE D
WITH.)
THIS APPEAL IS FILED UNDER SECTION 173(1)
OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE
JUDGMENT AND AWARD DATED 03.08.2018 PASSED
IN MVC.NO.625/2016 ON THE FILE OF THE IV
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD,
AWARDING COMPENSATION OF RS.44,45,000/- WITH
INTEREST AT 8% P.A. FROM THE DATE OF PETITION
TILL ITS DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION
THIS DAY, K.N.PHANEENDRA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
In M.F.A.No.104894/2019 the claimants and in M.F.A.No.103864/2018 the Insurance Company have called in question the judgment and award dated 03.08.2018 passed in MVC No.625/2016 by the IV Additional Senior Civil Judge and Additional M.A.C.T., Dharwad ("Tribunal" for short). The claimants/appellants in M.F.A.Nos.104894/2019 have filed this appeal seeking enhancement of the :5: compensation on various grounds, particularly with reference to loss of dependency by the Tribunal.
2. The brief facts of the case which are not much in dispute in this case are that:
On 28.04.2016 at about 9.30 a.m., the son of the deceased Saisagar Mallikarjun Jogannavar while proceeding on a motor cycle as a pillion rider along with his friend by name Clinton L., who was riding the said vehicle bearing Registration No.KA- 06/ES-623, near Amalapur gate, a Tata Indica Car bearing Registration No.KA-64/1237, driven by its driver in a high speed and in a rash and negligent manner came from the opposite direction and tried to over take the car which was moving ahead of it and dashed the motor cycle on which the deceased and his friend was traveling the motor cycle and the deceased met with an accident and due to the said accident, the son of the deceased fell down :6: from the said motor cycle and had sustained severe injuries on various parts of his body. Thereafter, he was taken to Sridevi Institute of Medical Sciences and Research Hospital, Tumkuru, where he succumbed to the injuries in the Hospital while undergoing treatment. On various grounds under various heads, the claimants have claimed compensation.
3. The learned counsel Shri R.R. Mane appearing for the Insurance company/appellant in M.F.A.No.103864/2018 has mainly challenged the above said judgment questioning the loss of dependency assessed by the Tribunal by taking a standard income or global income of the deceased as Rs.20,000/- per month. The Trial Court has taken the said income in an excessive manner and it ought to have taken Rs.10,000/- per month as income, when there is no set of rules or set of principles laid down with regard to the assessment :7: of income of the deceased who is not actually earning anything. The insurance company has also taken up the contention that when there is no fixed income either by way of salary or by way of any self employment the adding of future prospects is also wrongly awarded by the Tribunal. Lastly, learned counsel also contended that the multiplier adopted by the Tribunal considering the age of the deceased is also not correct and it should have applied the multiplier considering the age of the dependents i.e., parents of the deceased. Last but not least, the learned counsel for the insurance company further contended in support of the grounds taken up that the rate of interest awarded by the tribunal at the rate of 8% is wrong it ought to have awarded 6% per annum. Except taking the above said contentions, there is absolutely no ground taken up with regard to the liability of the insurance company, accident being :8: taken place, death of the deceased, age of the deceased and relationship between the deceased and the claimants.
4. In the above said background, the Court has to consider in detail the above said grounds. First we will take up the legal aspects with reference to the loss of dependency. The Tribunal has taken into consideration of the facts that, the deceased, son of the claimants who died in a motor vehicle accident, when he was studying in III Year Engineering in Akshaya Engineering College, Tumkur. The Tribunal has considered that, he would have got salaried job or he would have self employed and he would have at-least earned Rs.20,000/- per month. To the said amount, the Trial Court has added 50% towards the future prospects which in our opinion is not correct and also deducted 1/3 r d out of the income towards the :9: personal expenses of the deceased which is also not correct according to us.
5. It is well settled principles of law by various decisions of the Hon'ble Apex Court that, if a person is salaried, if he is aged below 40 years, 50% of future prospects have to be taken into consideration and if he is self employed, if his age is below 40 years, 40% future prospects has to be taken into consideration, and the same principle has to be applied in this case also.
6. In this case, there is no dispute that, the age of the deceased was 22 years. Therefore taking 50% of future prospects when there is no permanent job being established is not proper. We will discuss what is the future prospects that ought to have been taken into consideration little later.
7. Further the learned counsel for the Insurance Company Sri R.R.Mane is also correct in : 10 : submitting that 50% of the probable income of the deceased should have been taken into consideration for deduction towards his personal expenditure. Therefore, the evaluation made by the Tribunal is wrong.
8. Per contra, learned counsel for the appellants/claimants submitted that the deceased was an Engineering student and if he would have got permanent job or self employed, definitely he would have earned more than Rs.30,000/- per month. The Tribunal has taken annual income as Rs.20,000/-, which is on the lower side.
9. The learned counsel for the claimants relied upon the various rulings particularly a decision of this Court in M.F.A.No.294/2006(MV) between Shri Rajendra S/o Ganapatrao Joshi and another Vs. Shri K.Ananthakrishna Bhat and another) dated 09.02.2010, wherein this : 11 : Court referring to an Engineering Student has taken income at the rate of Rs.20,000/- per month for the accident taken place in the year 2002. The learned counsel also relied upon Ex.P.13, a copy of the same is produced, which is the Government Order bearing No.FD 7 SRP 2012 dated 21.04.2012 where the salary of an Engineer in the Government Job is fixed at Rs.22,000/- as on 2012. He has also relied upon another ruling of the Apex Court reported in (2015) 2 SCC 180 between Ashwinbhai Jayantilal Modi Vs. Ramkaran Ramachandra Sharma and another wherein, the Apex Court has taken an amount of Rs.25,000/- to the deceased who died, while studying MBBS. The accident was pertaining to the year 2002 precisely on 12.07.2002. The learned counsel also relied upon a decision of the Madras High Court reported in 2017 ACJ 1036 between S.Saraswathy and another Vs. A.Elumalai and another, wherein : 12 : the Court has taken into consideration the income per month of a person, who was studying Engineering at the rate of Rs.20,000/- for the accident happened on 05.08.2011.
10. Taking into consideration, the decisions of the Hon'ble Apex Court and High Courts cited supra, the accidents took place much earlier to 2011. Therefore, the amount taken at the rate of Rs.20,000/- during that period might have been adequate as per the Courts. Even considering in the year 2012, according to the Government, the amount of Rs.22,000/- was paid as salary to the said persons. Therefore, the incident happened so far as this case is concerned is in the year 2016. Considering the hike of the income every year, we are of the opinion that if an amount of Rs.25,000/- is taken into consideration it would meet the ends of justice.
: 13 :
11. Learned counsel for the Insurance Company contended that when there is no income while considering the global income, the Court has to bear in mind that the deceased had earlier studied diploma and thereafter joined engineering and he was not a bright student but an ordinary student, he would not have got a job so easily, so as to fix the income at that higher rate. Whether he gets the salaried job or he becomes a self employed irrespective of that the Court has to see the consistency in taking income by the Courts for the accidents taken place from the years 2005 to 2011 as noted above is approximately around Rs.20,000/-. Therefore, considering the approximate increase in the standard of living, earning capacity and earning potentiality of the deceased in our opinion an amount of Rs.25,000/- would be reasonable and that would have been taken into consideration by the Tribunal. : 14 : Accordingly, we fix the monthly income at the rate Rs.25,000/-.
12. Now coming to the future prospects as contended by the learned counsel that a decision reported in 2017 ACJ 2700 between National Insurance Company Limited Vs. Pranay Sethi and others case, only two categories are recognized. One is the permanent job and another is self employed or a person on a fixed salary then only the Court has to consider the future prospects of such person. If there is no actual income at all, the Court cannot consider the future prospects at all. We are hastening to accede to the submission made by the learned counsel. Even in Pranay Sethi's case the said point did not fall for consideration that, what should happen if a global income is fixed by the Court considering the potentiality of the person who would have : 15 : earned salary or money by way of self employment. Therefore, when such thing has not been specifically considered, we cannot conclusively say that all others are totally excluded from consideration. Therefore, the Court when fixes this global income on the basis of the logical interpretation that, if the deceased would have been alive, he would have done at least self employment or even he would have got a government job considering the educational qualification of that particular person. Therefore, when the Court taking into consideration the educational qualification and also the earning potentiality of the person fixes the global income, in such an eventuality, all further consequences should also follow to that particular amount. When the Court fixes the global income in such a manner fixing it as if it is : 16 : a salary or he would have earned by way of self employment in such an eventuality the Court has to consider and calculate the future prospects.
13. Therefore for the least, we can consider in this case that suppose he would not have got the government job at least he would have been self employed, and that he would not had kept himself idle. Therefore, the fixed salary by the Government as noted above is not taken into consideration but fixed global income has been taken into consideration by the Court. Therefore, in such an eventuality, when it is clear from the Pranay Sethi's case that, if a person till the age of 40 years, if he is self employed, 40% has to be added as future prospects to the said amount. Therefore, to the amount of Rs.25,000/-, if 40% is added, it will work out to Rs.25,000/ + Rs.10,000/- = Rs.35,000/-.
: 17 :
14. As rightly contended by the learned counsel for the insurance company, the Trial Court has erroneously deducted 1/3 r d from the said amount towards the personal expenditure of the deceased instead of 50% as he died as a bachelor. Therefore, if 50% is deducted from the said amount it will come around to Rs.17,500/- which can be taken into consideration as monthly income of the deceased.
15. Another important question raised before this Court is, with regard to the applicability of multiplier, learned counsel relying upon Susamma Thomas's case, Trilok Chandra's Case, Sarla Verma's case and as well as the latest decisions of the Apex Court, Pranay Sethi's case has submitted that, earlier the Supreme Court has taken divergent views in various decision but ultimately, majority of the : 18 : decisions, they have taken into consideration the age of the dependents and not the age of the deceased, whichever is higher. But whatever the decisions that have been cited by the learned counsel i.e., Susamma Thomas's case, Trilok Chandra's Case, and other cases have been taken into consideration in Pranay Sethis's case. We are of the opinion, after considering all the above said decisions and also Sarla Verma's case, the Apex Court has virtually reiterated that the age of the deceased has to be taken into consideration irrespective of the fact whether the claimants are more aged than the deceased. Though as contended by the learned counsel that, in Pranay Sethi's case a detailed judgment has not been rendered with reference to the age but the consideration of the Susamma Thomas's case, Trilok Chandra's : 19 : Case, Sarla Verma's case and thereafter reiterating that the age of the deceased has to be taken into consideration in our opinion the Supreme Court after consideration of the principles laid down in those cases has come to the conclusion that Sarla Verma's case has to be reiterated and age of the deceased has to be taken into consideration. Though the word "the age of the bachelor or age of the dependents has not been stated in Pranay Sethi's case, but in Sarla Verma's case it is categorically stated that the age of the deceased irrespective of the fact, whether he is a bachelor or whether he is a married person or whether he is aged person all those things have not been taken into consideration, but the age of the deceased has to be taken into consideration is the principle laid down in Sarla Verma's case, which has been : 20 : reiterated and affirmed by Pranay Sethi's case. Therefore, we do not want to indetail go on discussing with regard to the age of the bachelor is concerned but we simply apply the above said principle laid down in Pranay Sethi's Case and apply the age of the deceased in this case for the purpose of calculating the multiplier. Hence, if the above said monthly income of Rs.17,500/- is multiplied by 12 x the multiplier applied to the age of the deceased at "18", the loss of dependency works out to Rs.37,80,000/- as against Rs.43,20,000/- awarded by the Tribunal.
16. Learned counsel for the insurance company has also contended that the Tribunal also awarded compensation towards conventional heads as total sum of Rs.1,25,000/- which is excessive. As could be seen from the decision of Pranay Sethi's case as referred to by the : 21 : learned counsel for the insurance company that the loss of consortium is not available to the parents and funeral expenses and the loss of estate is only available and the parents are entitled for Rs.30,000/- towards conventional heads. But in Pranay Sethi's case it is not stated that towards love and affection no amount should be awarded. The calculation made in the Pranay Sethi's case towards loss of consortium, funeral expenses and loss of estate an amount of Rs.70,000/- can be awarded and it should not exceed Rs.70,000/-. So, therefore what we can infer is that towards any conventional heads, if the court is of the opinion that, some compensation has to be awarded it should not exceed Rs.70,000/-. Therefore, towards loss of love and affection to the parents though it is not in the nature of the consortium we can award : 22 : some amount towards that head also. Therefore in all, loss of estate and funeral expenses there cannot be any changes compared to the Pranay Sethi's case. Therefore, we are of the opinion that the compensation awarded by the Tribunal towards conventional heads is also little bit higher. However, the claimants are entitled for compensation of Rs.77,000/- towards the conventional heads as in Pranay Sethis' case itself, it is stated that for every three years 10% increase should be there. Almost three years are going to be completed after the decision of Pranay Sethi's case, we prefer to award Rs.77,000/- towards conventional heads. Therefore in all, the claimants are entitled to a total compensation of Rs.38,57,000/- as against Rs.44,45,000/- awarded by the Tribunal. : 23 :
17. So far as the interest awarded by the Tribunal at the rate of 8% is concerned, the accident happened in the year 2016 and parents are aged 53 years and 45 years. Considering the surrounding circumstances and also considering the pathetic situation of the mother and father and there is no other person to take care of them, in our opinion, award of 8% interest is also not so high and it is not so shocking to reduce the same. Hence, we agree with the interest awarded by the Tribunal and we do not want to disturb that portion also.
With the above said reasoning, we proceed to pass the following:
ORDER
(i) MFA No.104894/2019 and MFA No.103864/2018 are disposed of, by partly allowing MFA.No.103864/2018 : 24 : and awarding a total compensation of Rs.38,57,000/- along with interest at 8% per annum. Making it clear that the claimants /appellants in MFA No.104894/2019 are not entitled for any interest on the compensation awarded by this Court towards the delayed period of 407 days.
(ii) The apportionment and depositing of the amount as ordered by the Tribunal is not disturbed.
(iii) The appellant in MFA No.103864/2018 has to calculate the entitlement of the compensation of the claimants and make application before the Tribunal for refund of the amount they are entitled to.
(iv) The Insurance Company has also deposited a sum of Rs.25,000/- before this Court. The same is also ordered to be transmitted to the Tribunal and after calculation, the Tribunal is directed to pass appropriate orders : 25 : with regard to refund, on an application that may be filed by the Insurance Company.
Sd/-
JUDGE Sd/-
JUDGE EM/RSH/PL*