Karnataka High Court
Nirmala W/O. Sudarshan Gadawal vs Asgar Pasha S/O. Peer Khan on 13 September, 2017
Bench: L.Narayana Swamy, H.B.Prabhakara Sastry
MFA No.101045/2014
C/w. MFA No.24473/2013
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2017
PRESENT
THE HON'BLE Mr. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE Dr. JUSTICE H. B. PRABHAKARA SASTRY
MFA No.101045/2014 (MV)
C/W
MFA No.24473/2013 (MV)
MFA No.101045/2014 (MV)
BETWEEN:
SMT. NIRMALA W/O. SUDARSHAN GADAWAL,
AGED ABOUT 43 YEARS, OCC: HOUSEWIFE,
R/O. NGO COLONY, RAICHUR,
DIST. AND TALUK: RAICHUR,
NOW AT C/O. SMT. KAMALAXI W/O. BASAVARAJ
KUDSOMANAVAR,
R/O. NEAR HEAD POST, MRUTYUNJAYA NAGAR,
BAILHONGAL, DIST. BELGAUM.
...APPELLANT
(BY SRI. HANAMANT R. LATUR, ADV.)
AND:
MFA No.101045/2014
C/w. MFA No.24473/2013
2
1 SRI ASGAR PASHA S/O. PEER KHAN,
OCC: TRANSPORT BUSINESS, AGE MAJOR,
R/O. NAZARABAD, IST CROSS, TUMKUR,
TALUK AND DIST. TUMKUR,
OWNER OF THE LORRY NO.KA-06/C-2934
2 THE MANAGER,
ROYAL SUNDARAM ALLIANCE INSURANCE
CO, LTD., NO.186/7,
RAGHAVENDRA COMPLEX,
WILSON GARDEN, 1ST CROSS,
HOSUR MAIN ROAD, BENGALURU.
...RESPONDENTS
(BY SRI. G.N.RAICHUR, ADV. FOR R2 ;
NOTICE TO R1 DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 02.09.2013, PASSED IN MVC NO.2789/2011 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL.
MACT, BAILHONGAL, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA No.24473/2013 (MV)
BETWEEN:
THE MANAGER,
ROYAL SUNDARAM ALLIANCE INSURANCE CO, LTD.,
NO.186/7 RAGHAVENDRA COMPLEX,
WILSON GARDEN, 1ST CROSS,
HOSUR MAIN ROAD, BENGALURU,
REPTD. BY ITS AUTHORISED OFFICER,
MFA No.101045/2014
C/w. MFA No.24473/2013
3
ROYAL SUNDARAM ALLIANCE INSURANCE CO, LTD.,
SUBRAMANIYAM BUILDING,
II FLOOR,. 1 CLUB HOUSE ROAD
ANNASALAI CHENNAI (TN)
(INSURER OF LORRY BEARING NO.KA-06-C-2934)
(POL./COVER NOTE NO.3173909, VALID FROM
29/01/2011 TO 28/01/2012)
...APPELLANT
(BY SRI. G.N.RAICHUR, ADV.)
AND:
1 SMT. NIRMALA W/O. SUDERSHAN GADAWAL,
AGE 42 YEARS, OCC: HOUSEHOLD WIFE,
R/O. NGO COLONY, RAICHUR,
DIST. & TALUK: RAICHUR.
2 SRI ASAGAR PASHA S/O. PEER KHAN,
AGE MAJOR, OCC: TRANSPORT BUSINESS,
R/O. NAZARABAD, 1ST CROSS TUMUKAR,
TQ. AND DIST. TUMKUR.
...RESPONDENTS
(BY SRI. HANAMANT R. LATUR, ADV. FOR R1 ;
NOTICE TO R2 DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT, AGAINST JUDGMENT AND AWARD DATED
02.09.2013, PASSED IN MVC NO.2789/2011 ON THE FILE
OF THE PRL. SENIOR CIVIL JUDGE & ADDL. MACT,
BAILHONGAL, AWARDING THE COMPENSATION OF
`47,61,796/- WITH CURRENT AND FUTURE INTEREST AT
THE RATE OF 6% P.A. SHALL BE DEPOSITED WITHIN 3
MONTHS FROM THE DATE OF ORDER.
MFA No.101045/2014
C/w. MFA No.24473/2013
4
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGEMENT COMING ON FOR
PRONOUNCEMENT THIS DAY, Dr.H.B. PRABHAKARA
SASTRY J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Both these appeals have been filed against the
judgment and award dated 02.09.2013 passed by the
Senior Civil Judge and Additional Motor Accident Claims
Tribunal, Bailhongal (hereinafter referred to as 'the
Tribunal' for short) in MVC No.2789/2011, wherein the
Tribunal has partly allowed the claim petition filed under
Section 166 of the Motor Vehicles Act, 1988 filed by the
present appellant in MFA No.101045/2014 and has
awarded a compensation of a sum of `47,61,796/- with
interest at the rate of 6% p.a.
2. The appeal in MFA No.24473/2013 is filed by
the Insurance Company, which was respondent No.2 in
the Tribunal and has sought for setting aside the
judgment and award under appeal, whereas MFA
MFA No.101045/2014
C/w. MFA No.24473/2013
5
No.101045/2014 has been filed by the claimant before the
Tribunal seeking enhancement of compensation awarded
by the Tribunal.
3. In MFA No.24473/2013, the appellant has taken
a contention that the Tribunal had no territorial
jurisdiction to entertain the claim petition. Further, it has
failed in applying the split multiplier. Stating that
awarding future prospects by the Tribunal is erroneous
the appellant has prayed for allowing his appeal.
In MFA No.101045/2014, the appellant has
stated that the Tribunal has erred in not considering the
salary of the deceased in its actuals and that the deceased
would have got `1,03,690/- p.m. at the time of
superannuation. Further, stating that the compensation
awarded under other conventional heads are also meager,
the appellant has prayed for allowing the appeal by
enhancing the compensation awarded by the Tribunal.
MFA No.101045/2014
C/w. MFA No.24473/2013
6
4. For the sake of convenience, the parties would
be referred to with their rankings they were holding in the
Tribunal.
5. Since both these appeals have arisen out of a
common judgment and award, they were clubbed and
heard together and marked for passing a common
judgment. Perused the materials placed before us. The
points that arise for our consideration are:
i) Whether the Tribunal had jurisdiction to
try the matter before it?
ii) Whether the Tribunal has erred in not
applying the spilt multiplier?
iii) Whether the compensation awarded by
the Tribunal requires any modification?
6. The claimant in the Tribunal has stated that she
is a resident of Bailhongal Taluk of Belagavi District. The
Tribunal at Bailhongal has entertained her claim petition.
It is the contention of the respondent-Insurance Company
MFA No.101045/2014
C/w. MFA No.24473/2013
7
that Ex.P3 reveals that the claimant was a resident of
NGO Colony, Raichur, the accident has taken place in the
jurisdiction of Jalahalli and respondent No.1 who is the
owner of the offending vehicle is resident of Tumkur. As
such, the Tribunal has no jurisdiction.
No doubt, the claimant has shown her address as
resident of NGO Colony, Raichur, District Raichur, but
also stated that, presently she is residing at near Head
Post, Murtyunjaya Nagar, Bailhongal, Belagavi District.
Ex.P3 is not any proof of address, it is only a
supplementary statement shown to have given before the
police, wherein the claimant is shown to have stated that
she was resident of NGO colony at Raichur. However, in
the claim petition, the claimant has shown that the said
address is her permanent address, but at present she has
been residing at Bailhongal Taluk of Belagavi District. In
support of the same and to corroborate her evidence, the
claimant has produced before the Tribunal a copy of LPG
MFA No.101045/2014
C/w. MFA No.24473/2013
8
connection pass book at Ex.P16, a copy of her S.B. A/c
pass book maintained at Corporation Bank, Bailhongal at
Ex.P17, a copy of the Family Progress and Cultivation
Project hand book issued to the family of the claimant by
Sreekshetra Dharmasthala Rural Development Project (R)
at Ex.P18, and photocopy of SBI A/c pass book of
Bailhongal Branch at Ex.P19. All these documents
uniformly show the address/place of residence of the
claimant as at C/o Kudasomanavar, R/o near Head Post,
Murtunjaya Nagar, Bailhongal. These documents and the
evidence of P.W.1 in that regard has not been denied or
disputed from the respondent's side. As such, it is clear
that the claimant is a resident of Bailhongal Taluk and
consequentially, the MACT, Bailhongal has got jurisdiction
to try the claim petition of the claimant. As such the
contention of the learned counsel for the respondent-
Insurance Company disputing the jurisdiction is not
acceptable.
MFA No.101045/2014
C/w. MFA No.24473/2013
9
7. MFA No.24473/2013 though filed by the
Insurance Company, but it has not disputed the
occurrence of the accident on the date, time, place and in
the manner as contended by the claimant in her claim
petition. The other MFA No.101045/2014 is filed by the
claimant herself. As such, the question of occurrence of
the accident on the date, time, place and in the manner
and also the liability of the respondents to pay
compensation to the claimant are not in dispute. As such,
these points need not be re-analysed again.
8. The claim petition has been filed by the wife of
the deceased Sudershan Gadawal, who is said to have
died in a Road Traffic Accident occurred on 22.09.2011.
The claimant has taken a contention that, at the time of
accident her husband being 52 years old working as a
Manager in Pragathi Grameena Bank, Gandal Branch,
Taluk Devadurga and used to earn a sum of `49,113/- per
month. The Tribunal after accepting the age of the
MFA No.101045/2014
C/w. MFA No.24473/2013
10
deceased at 52 years and he was working as a Manager in
Pragathi Grameena Bank has applied the multiplier '11',
which was the multiplier applicable to the age group of 51-
55 years. It is this application of the multiplier for the
entire period that has been disputed by the learned
counsel for the Insurance Company. According to the
learned counsel, when the multiplier falls within the date
of retirement, spilt multiplier is to be applied. According
to him, in the present case, the deceased was aged 52
years as on the date of the accident, the period of his
remaining service would be 8 years. Thus, the multiplier
falls within the date of retirement and in such a situation,
the split multiplier has to be applied, i.e., for the salary
drawn deducting Income Tax and Professional Tax, it has
to be multiplied with '8' and remaining '3' multiplier has to
be taken for the pensionary monthly amount, which the
deceased ought to have received. In his support, the
learned counsel relied upon three judgments of the
MFA No.101045/2014
C/w. MFA No.24473/2013
11
Coordinate Division Benches of this Court, which
judgments are:
i) Union of India and Others Vs. K.S.Lakshmi
Kumar and Others reported in ILR 2000 KAR
3809;
ii) Smt.Arati and Others Vs. Gouspeer
Hussainsab Makandar and Another in MFA
No.25007/2012 and connected matter decided
on 20.01.2014; and
iii) The New India Assurance Co. Ltd., Vs
Sri.Prithviraj and Others in MFA
No.20727/2010 (MV) and connected matters
decided on 08.12.2016.
9. The learned counsel for the claimant in his
argument submitted that in Sarla Verma's case since the
table has been given prescribing the multiplier, the same
multiplier requires to be applied, as such, split multiplier
has got no role to play. In this regard, he relied upon two
judgments of the Hon'ble Supreme Court in (i) Reshma
Kumari and Others Vs. Madan Mohan and Another
MFA No.101045/2014
C/w. MFA No.24473/2013
12
reported in 2013 ACJ 1253 and in (ii) Munna Lal Jain
and another Vs. Vipin Kumar Sharma and others
reported in 2015 ACJ 1985.
10. In K.S.Lakshmi Kumar's case (supra), the
Co-ordinate Division Bench of this Court has made the
observation about considering the split multiplier in the
following words;
"16. Where the multiplier applicable is higher
than the number of years of service which the
deceased had before superannuation, the
contribution to the family (or loss of dependency)
cannot obviously be calculated with the reference to
the salary income, for the entire period of multiplier.
Let us illustrate. If a person aged 56 years (whose
age of superannuation is 60 years) dies in an
accident, leaving him surviving his wife and two
children, how should the total loss of dependency be
calculated? Let us assume that his salary was
`6,000.00 and after retirement, his pension would be
`3,000.00. Under the Davies method accepted and
adopted by the Supreme Court, the applicable
multiplier will be '9'. But, deceased would have got
salary income for only 4 years and then he would
MFA No.101045/2014
C/w. MFA No.24473/2013
13
get only pension. If the deduction towards personal
and living expenses of the deceased is one third, the
contribution to the family during the period of service
(4 years period) would have been `4,000/- (that is
`6000-2000). But, obviously the contribution to the
family would not have been `4,000/- after his
retirement, that is from the 5th year onwards. When
the pension is `3000/- per month, after deducting
one third as personal and living expenses, the
contribution to the family will only to be `2,000/- per
month. Therefore, the loss of dependency cannot be
taken as `4,000/- per month for the entire period of
9 years representing the multiplier. It has to be taken
as `4,000/- per month for the first four years (when
he would have been in service) and `2,000/- per
month for the remaining five years (when he would
have received pension). The method adopted in the
above illustration will have to be applied in this
case"
11. Thereafter another Co-ordinate Bench of this
Court in Smt. Arati's case (supra) at paragraph No.11 of
its Judgment after arriving at a conclusion that the loss of
income to the family after the deductions from out of the
MFA No.101045/2014
C/w. MFA No.24473/2013
14
salary of the deceased would be `2,000/- per annum, was
pleased to observe as below;
"11. ................The multiplier applied is 11. It
is correct. The deceased was aged 54 years. He
would have attained the age of superannuation in
6 years during which period alone, he was
entitled to full salary. In which event, the loss of
income for the 6 years would be 12,00,000/-. For
the remaining 5 years period, if we take 50% of
the same as the income of the deceased by way
of pension, he would be entitled to `5,00,000/-
for the said period. Thus, `17,00,000/- would be
the loss of dependency to the claimants."
12. In Prithviraj's case (supra) another Co-ordinate
Division Bench of this Court very recently, after analysing
the Judgment of the Hon'ble Supreme Court in the case of
Puttamma and others Vs. K.L.Narayana Reddy and
another reported in 2014 ACJ 526 and also a Judgment
of a Co-ordinate Bench of this Court in Smt. Jarina and
others Vs. The Principal, KLE Society's Sri
B.M.Kankanwadi Ayurved College, Belgaum and
MFA No.101045/2014
C/w. MFA No.24473/2013
15
another (MFA No.101592/2014) and Connected
matters decided on 01.02.2016 and also referring to
K.S.Lakshmi Kumar's case (supra), Smt. Arati's case
(supra), was pleased to observe at paragraph 20 of its
Judgment as below;
"20. Therefore, on considering the
judgments referred to above what can be noticed
very much is that for applying the split multiplier
method, reasons must be given. Without assigning
any reasons, the compensation towards 'loss of
dependency' cannot be determined by splitting the
multiplier. In fact, this is the ratio laid down by the
Hon'ble Supreme Court in the case of
K.R.Madhusudhan and in the case of Puttamma,
the same has been reiterated."
13. The learned counsel for the claimant in his
arguments relied upon Munnalal Jain's case (supra) and
drew the attention of this Court at paragraph 13 of its
Judgment, which reads as below;
MFA No.101045/2014
C/w. MFA No.24473/2013
16
"13. In Sarla Verma, 2009 ACJ 1298 (SC,
at para 9, a two-Judge Bench dealt with this
aspect in ?Step 2. To quote:
"(9) xxx xxx xxx
Step 2 (Ascertaining the multiplier)
Having regard to the age of the deceased and
period of active career, the appropriate multiplier
should be selected. This does not mean
ascertaining the number of years he would have
lived or worked but for the accident. Having regard
to several imponderables in life and economic
factors, a Table of multipliers with reference to the
age has been identified by this court. The multiplier
should be chosen from the said Table with
reference to the age of the deceased.
14. The learned counsel for the claimant has also
relied upon Reshma Kumari's Case (supra) and drew the
attention of this Court to a portion in paragraph 34 of its
Judgment, which is as below:
"34. ........In all other cases of death where
the application has been made under section 166,
MFA No.101045/2014
C/w. MFA No.24473/2013
17
the multiplier as indicated in column (4) of the
Table in Sarla Verma (supra) should be followed."
15. It is submitted that in neither of the above two
cases the concept of split multiplier was either discussed
or considered by the Hon'ble Apex Court. In order to
maintain uniformity, the applicability of multiplier was
emphasised upon and more particularly the multiplier as
indicated in Sarla Verma's case (supra) was which
emphasized upon. By that it cannot be construed that by
taking the chart of the multiplier as given in Sarla
Verma's case (supra), its application as spilt multiplier
cannot be applied in suitable cases. In the instant case, it
is not in dispute that, multiplier of '11' for the age of the
deceased which was 52 years was taken as per the Sarla
Verma's case (supra) only. However, since the said
multiplier applicable was higher than the number of years
of service which the deceased had before superannuation,
the contribution to his family (loss of dependency), cannot
be calculated with reference to the salary income for the
MFA No.101045/2014
C/w. MFA No.24473/2013
18
entire period of multiplier. As such, the split multiplier is
required to be used taking the full salary for the remaining
period of service which is 8 years in the instant case for
attaining the age of superannuation and for the balance of
multiplier '3' is to be applied to the 50% of the salary
which is the pension amount which the deceased would
have got.
16. The learned counsel for the Insurer in his
argument also submitted that, taking the future
prospectus at 15% by the Tribunal was also incorrect. No
doubt, following the Judgment of Hon'ble Apex Court in
Civil Appeal No.3409 of 2017 (Chikkamma and
another Vs. Parvathamma and another) the Co-
ordinate Benches of this Court generally were not
awarding future prospectus. However, the same was for
the reason that that there is no evidence or proof from the
claimants side to establish that the deceased had assured
future prospectus in his career. However, in the instant
MFA No.101045/2014
C/w. MFA No.24473/2013
19
case, the claimant as PW-1 in her evidence has stated that
her husband was assured of getting 10% increase in the
total salary for every year as per the banking salary
norms. In her cross-examination, she has further stated
that, on an assumption, it can be stated that, in case her
husband was alive, at the time of his retirement, he would
have got a salary of `1,03,690/- per month. She has also
got produced and marked two documents at Ex.P-20 and
Ex.P-21 shown to have been issued by the Chief Manager
of the Bank, where the deceased was working, giving the
details of the salary of the deceased Sudarshan, till he
reaches the superannuation and the actual salary he was
drawing. Those documents have not been seriously denied
or disputed from the respondents' side. Considering those
documents, it is clear that the deceased had future
prospectus and assured increment in salary as per the
banking norms was also assured. It is in this background,
the total monthly salary taken by the Tribunal at
`56,479/- (rounded of to `56,480/-) cannot be found fault
MFA No.101045/2014
C/w. MFA No.24473/2013
20
with. After deducting the income tax and 1/3rd of the
income towards the personal expenses of the deceased, his
contribution to the family was taken at `4,27,436/- which
also cannot be found fault with. Thus, with the said
inputs, the computation of compensation under the head
of 'loss of dependency' would be ;
1 Loss of dependency at `34,19,488/-
`4,27,436 X 8(multiplier)
2 50% of the salary (`28,240/- per `10,16,640/-
month X 12 (months) X 3
(multiplier)
3 Income tax in the compensation `44,36,128/-
amount is not being deducted for
the reason, the total annual
income from compensation would
be within the income tax limit
after applicable standard
deductions etc., Thus in total
In view of the above, the contention of the claimant
for enhancement in the compensation under the head of
'loss of dependency' cannot be considered. On the other
hand, the Tribunal as contended by the Insurance
Company in its appeal, by improper application of the
MFA No.101045/2014
C/w. MFA No.24473/2013
21
multiplier has awarded higher compensation of a sum of
`47,01,796/- minus `44,36,128/- = `2,65,668/-.
17. With regard to the compensation under the
conventional heads, we are of the view that the
compensation awarded by the Tribunal being marginally
on the lower side, it deserves to be enhanced. Accordingly,
under the conventional heads all put together, we propose
to award an additional compensation of a sum of
`40,000/-. Thus, the total compensation for which the
claimants are entitled would be as below:
1 Loss of dependency `44,36,128/-
2 Compensation granted under the
conventional head i.e. `15,000/- +
`15,000/- + `15,000/- + `15,000 = `1,00,000/-
`60,000/- & enhancement granted
`40,000/-
Total `45,36,128/-
Whereas, the Tribunal has granted a sum of
`47,61,796/- which is excess by a sum of `2,25,668/-.
Therefore, the appeal filed by the claimant in MFA
No.101045/2014 seeking enhancement of compensation
does not deserve to be allowed. On the other hand, MFA
MFA No.101045/2014
C/w. MFA No.24473/2013
22
No.24473/2013 filed by the Insurance Company
challenging the quantum of compensation awarded and
seeking setting aside of the Judgment and award under
appeal deserves to be allowed in part.
Accordingly we proceed to pass the following order:
ORDER
MFA No.24473/2013 is allowed in part. The Judgment and award dated 02.09.2013 passed in MVC No.2789/2011 passed by the Senior Civil Judge & Addl. MACT, Bailhongal is modified to the extent that the total quantum of compensation awarded at `47,61,796/- is reduced by a sum of `2,25,668/- and is fixed at `45,36,128/- (Rupees Forty Five lakhs thirty six thousand one hundred and twenty eight only).
MFA No.101045/2014 filed by the claimant is dismissed.
The rest of the terms of the award regarding awarding interest, its rate, liability of the respondent/s to MFA No.101045/2014 C/w. MFA No.24473/2013 23 pay the awarded compensation and the terms of deposit/release of the amount and awarding the Advocate's fee would all remain unaltered.
Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE MBS/*Svh/−