Karnataka High Court
C.R. Narasimha Murthy And Anr. vs K. Saroja And Ors. on 5 September, 1991
Equivalent citations: 1992ACJ492, 1991(3)KARLJ30
JUDGMENT M. Rama Jois, J.
1. This appeal is presented under Section 110-D of the Motor Vehicles Act by the owner of the vehicle and the insurer against the judgment and award made by the Motor Accidents Claims Tribunal in a claim petition presented by the respondents under Section 110-A of the Act.
2. The brief facts of the case are: The claim petition was presented by the wife, two minor children and the mother of one late M. Sheshagiri Rao. According to the claimants, Sheshagiri Rao died in a motor accident caused by lorry bearing registration No. MYD 3830 which hit the Bajaj scooter bearing registration No. MES 825 on which the deceased Sheshagiri Rao was riding. The accident took place on 15th April, 1986 near Sadashivanagar Police Station on Old Tumkur Road, Bangalore. They claimed a compensation of Rs. 8,77,400/-. The first issue for consideration by the Tribunal was as to whether the accident was caused on account of rash and negligent driving of the lorry bearing registration No. MYD 3830 by its driver who was the second respondent in the claim petition. On the basis of the evidence on record, the Tribunal answered the issue in the affirmative. There was no rebuttal evidence at all and the lorry driver did not come forward to give evidence. This finding recorded by the Tribunal is based on evidence and is unassailable.
3. As regards the quantum of compensation to be awarded, the evidence adduced was that the deceased was a Senior Auditor on the establishment of the Karnataka Agro-Industries Corporation Limited. It is a State Government under taking. The deceased was drawing a gross salary of Rs. 2,244.40 as on the date of the accident. It was also in evidence that he was the sole bread-earner of the family, and that on account of his death the family had to face untold hardship and misery.
4. The Tribunal applying the general principle laid down by this Court in various decisions that out of the gross salary l/3rd should be treated as required for personal expenses of the deceased, took Rs. 1,500/-as the monthly loss of dependency to the family. The deceased was aged 39 years on the date of the accident and he had still 19 years of service to his credit. The Tribunal applied multiplier of 13 and computed the total loss of dependency at Rs. 2,34,000/-. In addition to this, the Tribunal awarded a sum of Rs. 5,000/- towards loss of consortium; Rs. 5,000/- towards loss to the estate of the deceased and Rs. 5,000/- towards obsequies. A total of Rs. 2,49,000/- was awarded as compensation. Aggrieved by the said award, the appellants have presented this appeal.
5. In the appeal a compromise petition has been filed under Order 23, Rule 3 of the Code of Civil Procedure. According to the compromise petition, the respondents have agreed to receive a compensation of Rs. 1,93,000/- as against the compensation of Rs. 2,49,000/-, i.e., Rs. 56,000/- less than what the Tribunal has awarded. But for the fact that two claimants (respondent Nos. 2 and 3) are minors we would have proceeded to pass orders on the compromise petition. The question for consideration is whether we can proceed to accept the compromise petition and modify the award of the Tribunal in terms of the compromise? In this behalf Rule 7 of Order 32 of the Code of Civil Procedure casts a duty on the court to safeguard the interest of the minors and for that purpose prescribed procedure to be followed while passing a decree on the basis of agreement or compromise. The said provision reads:
Order 32, Rule 7.-(1) No next friend or guardian for the suit shall, without the leave of the court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
(1-A) An application for leave under Sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor: Provided that the opinion so expressed whether in the affidavit or in the certificate shall not preclude the court from examining whether the agreement or compromise proposed is for the benefit of the minor.
(2) Any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor.
6. From the above provision, it is clear that no compromise can be entered into by next friend or guardian except with the leave of the court which has to be recorded expressly in the proceedings. The provision also requires an affidavit to be filed by the next friend or the guardian making a statement to the effect that the compromise is in the interest of the minor. The provision also further requires that when the minor is represented by an advocate a certificate by the advocate to the effect that the agreement or compromise is for the benefit of the minor, has to be filed. In the present compromise petition neither such an application for leave to enter into compromise is sought for nor a certificate by the advocate is filed. Therefore, we have no other alternative than to reject the compromise petition.
7. In this situation, learned Counsel on both sides addressed arguments on the merits of the case. As stated earlier, as far as finding on the question of actionable negligence is concerned, the finding is based on evidence and there is no ground to interfere with the said finding.
8. As regards the quantum of compensation, as stated earlier, it is in evidence that the deceased was drawing a salary of Rs. 2,244.40, according to the salary certificate which was produced as piece of evidence and marked as Exh. P-l. Therefore, by deducting l/3rd out of the said amount towards personal expenses, the loss of dependency to the family comes to Rs. 1,500 per month. Having regard to the ratio of the decision of this Court in H.T. Bhandary v. Muniyamma ILR 1985 (2) Karnataka 2337, the appropriate multiplier to be applied is 12 as the deceased was aged 39 at the time of his death. It is not disputed that deceased was aged 39 years. The only error committed by the Tribunal is that it has applied multiplier of 13 instead of 12. In our opinion, only to this extent the appellants are entitled to the relief.
9. Learned counsel for the appellants submitted that there was a statement made by the first claimant to the effect that the deceased was paying a sum of Rs. 600/- in her hands for family expenses. On this basis he submitted that the loss of dependency should be taken as only Rs. 600/-. We are unable to agree. All that can be inferred from the statement made by the wife that the deceased was giving her Rs. 600/- for maintaining the family is that all other expenses such as payment of rent and other expenses of the family were being incurred by the deceased directly and only for day to day expenses of the house he was giving a sum of Rs. 600/- in the hands of his wife, otherwise it was impossible to meet the entire family expenses, including rentals of the house out of Rs. 600/-. Therefore, we are clearly of the view that the Tribunal was fully justified in fixing the loss of dependency of Rs. 1,500/- per month.
10. As stated earlier, the only error committed by the Tribunal is in applying multiplier of 13 instead of 12. As the monthly loss of dependency was Rs. 1,500/-, it worked out to Rs. 18,000/- per annum. By applying multiplier of 12, total loss of dependency comes to Rs. 2,16,000/-. To this Rs. 15,000 have to be added on other counts, such as loss of consortium, loss to estate of the deceased and towards performing ceremony. The total comes to Rs. 2,31,000/-. This, in our opinion, is just and fair compensation to which the claimants are entitled.
11. Learned counsel for the appellants submitted that the Tribunal was not justified in awarding interest at the rate of 9 per cent. In our opinion, having regard to the facts and circumstances of this case, it cannot be said that the Tribunal committed an error in awarding interest at the rate of 9 per cent. We find no justification to interfere with the said part of the award also.
12. Before concluding, it is necessary to apportion the amount of compensation between the claimants as the first claimant is the wife, second and third claimants are the children and fourth claimant is the mother of the deceased Sheshagiri Rao. In view of the award made by the Claims Tribunal, in our opinion, out of the compensation of Rs. 2,31,000/-, Rs. 60,000/- each should go to claimant Nos. 2 and 3 and Rs. 40,000/- to the mother and the balance of Rs. 71,000/- should go to the first claimant, the wife of the deceased. They shall also be entitled to interest in proportion to the amount to which they are entitled under the award.
13. In the result, we make the following order:
(i) The appeal is allowed in part. The compensation awarded by the Tribunal at the rate of Rs. 2,49,000/- is reduced to Rs. 2,31,000/-. The said amount shall be distributed and paid among the claimants as follows:
(a) Claimant No. 1 shall be entitled to a sum of Rs. 71,000/- (Rupees seventy-one thousand);
(b) Claimant No. 2 shall be entitled to a sum of Rs. 60,000/- (Rupees sixty thousand);
(c) Claimant No. 3 shall be entitled to a sum of Rs. 60,000/- (Rupees sixty thousand); and
(d) Claimant No. 4 shall be entitled to a sum of . 40,000/- (Rupees forty thousand).
(ii) The amount already paid or deposited in respect of each of the claimants shall be deducted out of the amount payable pursuant to this order with proportionate interest.
(iii) The balance of the amount payable to respondent-claimant Nos. 2 and 3 shall be deposited in the same manner in which a portion of the amount has already been deposited.
(iv) The insurance company shall make payment or deposit the amount within a period of eight weeks.