Karnataka High Court
The Divisional Controller Nwkrtc vs Shri Malappa S/O Muttappa Karigar on 10 February, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 7H
10
DAY OF FEBRUARY, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
M.F.A. No.21313/2008 (MV)
CIW
M.F.A. CROB. No.804/2010 (MV)
M.F.A.No.21313/2008:
BETWEEN:
The Divisional Controller,
N.W.K.R.T.C.,
Navanagar, Bagalkot 587 101.
--
...Appellant
[By Shri Madanamohan M. Khannur, Advocate]
AND:
1. Shri Malappa Sb. Muttappa Karigar,
Age: 55 years, 0cc.: Agriculture,
RIo. Konnur, Tal: Jamkhandi,
Dist.: Bagalkot 587101.
--
By Chief Law Officer,
NWKRTC, Gokul Road, Hubli-580 030.
2. Smt. Mayawwa W/o. Malappa Karigar,
Age: 45 years, 0cc.: Household work,
Rfo. Konnur, Tal: Jamakhandi,
Dist.: Bagalkot 587 101.
--
Respondents
[By Shri Harish S. Maigur, Advocate]
.',.
This Miscellaneous First Appeal is flied under
Section 173(1) of MV Act, 1988, against the judgment
and award dated 14.04.2008 passed in M.V.C.
No.564/2007 on the file of the Member MACT, NoV,
Jamkhandi, awarding the compensation of
Rs.3,54,000/- with interest at the rate of 6% p.a.
from the date of petition till deposit.
M.F.A. CROB. No.804/2010:
BETWEEN:
1. Sri. Malappa Sb. Muttappa Karigar,
Age: 58 years, 0cc.: Agriculture,
R/o. Konnur, Tq.: Jamakhandi,
Dist.. Bagaikot.
2. Smt. Mayawwa W/o. Malappa Karigar,
Age: 48 years, 0cc.: Household work,
R/o. Konnur, Tq.: Jamakhandi,
Dist.: Bagalkot.
.Cross Objectors
[By Shri Harish S. Maigur, Advocate]
AND:
The Divisional Controller,
NWKRTC, Navanagar,
Bagalkot.
...Respondent
[By Shri M.M.Kannur, Advocate]
Cyo
This Miscellaneous First Appeal,, is filed under
Order 41 Rule 22 of The Code of Civil Procedure read
with Section 173(1) of MV Act, against the judgment
and award dated .14.05.2008 passed in MVC
No.564/2007 on the file of the Member MACT No.V,
(7'
:3:
Jamakhandi, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
4 (rj.f' cnb
These Miscellaneous First Appeals coming on for
admission, this day, the Court delivered the following:
JUDGMENT
These two appeals are directed against the judgment and award in M.V.C. No.564/2007.
2. M.F.A. No.21313/2008 is by the N.W.K.R.T.C., while M.F.A.CROB. No.804/2010 is by the claimants, seeking enhancement. As the genesis of these appeals is same, the appeals are clubbed together and taken up for final disposal.
3. The occurrence of the accident on 24.05.2007 involving N.W.K.R.T.C. bus bearing registration No.KA.25/F.1923, resulting In Injuries to cyclist Hanumath and his consequent death, are not in question. The Tribunal's finding, that the accident is a result of negligent driving by the driver of the bus, has reached finality and as the same has not been questioned the issue. The question is whether the compensation granted is reasonable. :4:
4. The appellant -- Corporation has seriously questioned the determination of compensation, firstly on the ground that the Tribunal has erred seriously in deducting 1/3w of the earning of the deceased, who was a bachelor. The second ground is the multiplier applicable should be based on the age of the daimants, whose age is more compared to the deceased and other claimants.
5. The claimants are in appeal seeking enhancement of compensation, on the basis multiplier to be adopted should be based on the age of the victim and not on the age of his parents -- daimants and consequently that only 3 l/ is deductible from his monthly earnings and not 50%.
6. Learned counsel for the ciaimants has relied on the decision of this Court in the case of ORIENTAL INSURANCE COMPANY LIMITED, BANGALORE, VS VISWANATH (SINCE DEAD BY LRS) & OTHERS, reported in 2012(1) AIR Kar R 64 and the decision of Apex Court in the case of PSSOMANATHAN & OTHERS :5: VS. DISTRICT INSURANCE OFFICER & ANOTHER, reported in 2011 AIR SCW 1313.
7. Learned counsel for the Insurance Company has referred to the case of SARLA VERMA VS. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 AC) 1298 and tried to distinguish these two decisions.
8. As could be seen from the dictum In the case of P.SSOMANATHAN & OTHERS VS. DISTRICT INSURANCE OFFICER & ANOTHER, the Apex Court dealing with a case of bachelor held that the age of the victim should be taken into consideration and not the age of parents. Besides, it is also held that merely because the victim is a bachelor, 50% of his monthly earnings cannot be deducted, it should be 1/31(1 only. Following the said decision, the learned Single Judge of this Court, in the case of ORIENTAL INSURANCE COMPANY LIMITED, BANGALORE, VS. VISWANATH, held that even in the case of a bachelor, deduction should be only 1/Yt and :6: multiplier applicable should be based on the age of the claimants.
9. In the instant case, the Tribunal has taken the age of deceased to fix the multiplier, but has deducted 50% of his earnings. The Insurance Company has questioned the choice of multiplier, while the claimants are questioning the deduction of 50% from the monthly earnings.
10. The concept of determining compensation by applying multiplier method and deducting the amount towards personal expenditure from the earnings of the victim, is based on the law laid down in the case of H.T.BHANDARV VS. IJUNIVAMMA reported in ILR 1985 KAR 2337. Thereafter, the law has made steady growth on the subject and now it is well settled that there could be no strIct formula for determining the compensation, In view of enactment of SectIon 168(A) under the amended Motor Vehicles Act, 1988 (hereinafter referred to as 'the act' for short). Difficulties which the Tribunal had faced earlier was with regard to quantifying compensation based \ ••v• •1 :7: on the tortuous liability, whereas by the Motor Vehicles Act to seek compensation is a statutory right. Depending upon pecuniary and non-pecuniary loss, the Tribunals have to determine "The Just" compensations as provided by Section 168 of the Act. Therefore, the methods evolved for determining compensation are only guide. While considering such claims all vicissitudes of life has to be taken Into consideration dependant upon fact sItuation. The deduction of rd 113 as a normal rule, earlier, is given a go-by by the Supreme Court in the case of S4RLA VERMA. While rendering the judgment, the Apex Court has taken into consideration all circumstances like expenses of a victim who was maintaining the claimants at the time of his death. If the number of dependants are more, normal deduction of 1/3" or deduction of lesser amount towards personal expenses is suggested as the best method which will meet the ends of justice. If the dependants are more then the normal deduction of 1/3'', should be ¼"'. From it, It Is clear that there is no strict formula or hard-and-fast rule. The Tribunal's have to consider the fact situation of each case to decide what :8: would be the amount deductible towards personal expenses. Therefore, it cannot be said that deducting 1/3w is not permIssible regarding claim if deceased was bachelor. Therefore, the views expressed by the Apex Court in this regard in SARLA VERMA'S would apply to this case.
11. As regards choice of multiplier Is concerned, even though the learned Single Judge of this Court has taken a view that age of the victim should be taken into consideration, but as stated In the para supra, even in SARLA VERMA'S case, there is no conclusion by the Apex Court that the age of the victim alone should be taken into consideration. This is because the claimants were only the parents. Had he been survived apart from parents like brothers and sisters, then a view could have been taken that the age of the victim would be material, but in the absence of any other heirs except parents, it may not be justified in taking the age of the victim to determine the multiplier. The dependency would end with the parents. In this view, the multiplier to be adopted in the facts of this case would be depending upon the age of the parents. The + :9: mother Is shown as 45 years and the father is shown as 55 years, the mother's age should be criteria, and therefore, the multiplier applicable would be 14.
12. The Tribunal has taken his income at Rs.3,000/- p.m. The avocation of claimants' i.e., agriculture, is not in dispute. The accident is of the year 2007. The claimants have produced the records relating to owning of agricultural land.
13. The learned counsel for the Insurance Company contended that it is the joint family property, and therefore, it does not show his ownership. These documents, undoubtedly, would show that he was involved in the agricultural activity, but we have to decide his income. The income of the agriculturist whether he cultivates his own land or land of others would be immaterial, because we have to consider his income. As in the year 1999 also, the Income of the unskilled labourer was taken at Rs.3,000/- per month. The accident is of the year 2000. There is no reason as to why the Tribunal should not consider the normal earning of a person :10: Involved in such avocation. If we do that, then he would not have had income of less than Rs.5,000/- per month. Therefore, the Tribunal's order in fixing the income at Rs.3000/- p.m. does not appear to be just in the circumstance. Hence, the Income of the deceased Is taken at Rs.5,000/- p.m. and deducting 1/3d towards his personal expenses, it comes to Rs.3,333/- and annually It would be Rs.40,000/- per month. The multiplier applicable is 14 and the loss of dependency comes to Rs.5,60,000/- as against a sum of Rs.2,88,000/-. To this, has to be added Rs.15,000/- towards loss to estate and Rs.1O,000/- towards funeral expenses and Rs.1O,000/- each to parents for loss of care and they are entitled to Rs.18,000/- as claimed by the claimants. The claimants are entitled to total compensation of Rs.3,25,000/-.
14. The appeal of the insurer fails. The Cross objectors' appeal of the claimants succeeds in terms of this order. The enhanced amount will carry Interest at 6% per annum and shall be deposited by the Insurance Company within four weeks from now. Rest of the directions in the award are conferred.
4.5. The amount in deposit is ordered to be Sal JUDGE Rsh/Vmb