Karnataka High Court
G Sharanappa S/O. B. Basavana Gouda vs Sri. Khushidkhan S/O. Jainu Khan on 12 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 12th day of December, 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A No.25896/2011
C/w
M.F.A.No.25502/2011 (MVC)
M.F.A No.25896/2011
BETWEEN:
1. G.Sharanappa
S/o B.Basavana Gouda
Aged about 57 years
Occ: Agriculturist
2. Smt.G.Parvathamma
W/o G.Sharanappa
Aged about 41 years
Occ: House wife
3. Sumitha
D/o G.Sharanappa
Aged about 20 years
All are residing of Kenchamalanahalli
Khanhosahalli post
Kudligi Taluk
Bellary District,
Presently residing at Moka Road
:2:
Bellary. ...Appellants
(By Sri. Jadai Manjunath, Advocate)
AND:
1. Sri.Khushidkhan
S/o Jainu Khan
Aged about 41 years
Lorry Driver
Bearing No.HR-47/H-4109
R/o Mohammed Purchased Village
Lagin Taluk, Nuhu District
Haryana State.
2. M/s Delhi Gujarath Fit Corporation
Owner of the Lorry Bearing
Reg.No.HR-47/H-4109
R/o 25/5-6, Ganga Petrol Pump,
Amalk, Badpur Gram
New Delhi.
3. The Divisional Manager
ICICI Lombard
General Insurance Co.,
Mayura Hotel Complex,
2nd Floor, Bellary. ...Respondents
(By Sri.Nagaraj C.Kolloori, Advocate for R3;
Notice to R1 & R2 are dispensed with vide order
dated 06.11.2012)
This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 17.05.2011 passed in MVC
No.1413/2010 on the file of the member, MACT-9,
Bellary, partly allowing the claim petition for
:3:
compensation and seeking enhancement of
compensation.
M.F.A.No.25502/2011
BETWEEN:
ICICI Lombard Gen. Ins. Co. Ltd.,
Mayura Hotel Complex, II Floor,
Bellary
Now represented by its Manager Legal
II Floor, Bellad Building
Gokul Road,
Hubli. ...Appellant
(By Sri.Nagaraj C. Kolloori, Advocate)
A N D:
1. Sri.G.Sharanappa
S/o B.Basavanagouda
Aged about 56 years
Occ: Agriculture
2. Smt.G.Parvatamma
W/o G.Sharanappa
Aged about 40 years
Occ: Housewife
3. Sumitra
D/o G.Sharanappa
Aged about 19 years
Occ: Student
All are residing at
Kenchamalanahalli,
Tq: Kudligi,
:4:
Dist: Bellary
Presently resident of Moda Road
Bellary.
4. Sri.Kushidkhan
S/o Jainukhan
Aged about 40 years
Occ: Driver
R/o: Mohamad purchased village
Tq: Lagin
Dist: Nuhu, Hariyana
5. M/s Delhi Gujarat Fit Corporation
Ganga Petrol Pump,
Amalk, Budpur gram
New Delhi. ...Respondents
(By Sri.Jadai Manjunath, Advocate for R1 to R3;
Noticed to R4 & R5 are dispensed with Vide Court
Order dated 12.12.2012)
This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 17.05.2010 passed in M.V.C
No.1413/2010 on the file of the Motor Accident Claims
Tribunal-IX, Bellary, awarding the compensation of
`.4,98,500/- with interest at the rate of 6% p.a. from
the date of petition till its deposit.
These appeals are coming on for orders this day,
the Court delivered the following:
:5:
JUDGMENT
These two appeals are directed against judgment and award passed by Tribunal in MVC No.1413/2010 dated 17.05.2010 whereunder claim petition filed by parents and sister of the deceased victim has been allowed in part and compensation of Rs.4,98,500/- with interest at 6% p.a. has been awarded.
2 MFA No.25502/2011 is filed by the insurance company questioning quantum and is seeking reduction of compensation. MFA No.25896/2011 is filed by claimants seeking for enhancement of compensation. 3 Heard Sri Nagaraj C Kallori, learned Advocate appearing for Insurance company and Sri.Jadai Manjunath, learned Advocate appearing for claimants. In the appeal filed by claimants - MFA No.25896/2011, notice to respondents-1 and 2 has been dispensed with by order dated 06.11.2012. Said respondents-1 and 2 :6: are respondents-4 and 5 in the appeal filed by Insurance company i.e., MFA No.25502/2011. Since Insurance company is not questioning its liability to indemnify the owner of the offending vehicle, notice to respondents-4 and 5 is hereby dispensed with in MFA No.25502/2011 also.
4 Parties are referred to as per their rank before the Tribunal.
5 Facts in brief leading to filing of this appeal are as under:
A Claim petition under Section 166 of Motor Vehicles Act, 1988 came to be filed seeking compensation of Rs.20 lakhs from respondents in respect of death of one Sri. G. Jagadish alleging that on 03.10.2010 deceased along with others was proceeding in a Tractor & Trailer for the purposes of loading manure towards National Highway No.13 and at that :7: time a lorry bearing No.HR 47/H-4109 came in a opposite direction driven in a rash and negligent manner and dashed against said Tractor & Trailer as a result of which, Sri.Jagadish sustained grievous injuries and on the same day, he succumbed to the injuries sustained in the said accident. Parents and unmarried sister who were dependent on deceased Sri.Jagadish sought for award of compensation by filing a claim petition as referred to herein supra.
6 On service of notice, respondents-1 and 2 therein namely, driver and owner of the truck were served and they were placed exparte. Insurance company appeared and filed its statement of objections by denying the averments made in claim petition. On the basis of pleadings of parties, Tribunal framed issues for its adjudication. Father of deceased got himself examined as P.W.1 and one witness by name Sri N M Kotresh was examined as P.W.2 and in all, claimants produced 30 :8: documents and got them marked as Exs.P-1 to P-30. On behalf of respondents, no oral or documentary evidence was tendered. On the basis of pleadings of parties and on appreciation of evidence tendered by the parties, Tribunal by its award dated 17.05.2011 allowed the claim petition in part and awarded a compensation of Rs.4,98,500/- namely Rs.4,68,000/- towards loss of dependency and under conventional heads Rs.30,500/- was awarded.
7 Learned Advocate for Insurance company would contend that income of the deceased at Rs.4,500/- per month taken into consideration by the Tribunal is on the higher side and same requires to be reduced since claimants were not able to produce any material evidence or establish the income of the deceased. 8 It is also contended that Tribunal committed a serious error in deducting 1/3rd towards personal :9: expenses of deceased and it ought to have been 50% since deceased was a bachelor and on these grounds, learned Advocate appearing for Insurance company would pray for reduction of compensation awarded by Tribunal.
9 Per contra, learned Advocate appearing for claimants would submit that Tribunal committed a serious error in not considering the fact that deceased was the only earning member of the family and as on the date of accident, he was 23 years old and was earning Rs.30,000/- per month and as such considering the notional income of the deceased at Rs.4,500/- per month and thereafter deducting 1/3rd towards his personal expenses by the Tribunal is erroneous and contends that income of the deceased ought to have been considered at Rs.30,000/- per month. He would also submit that Tribunal has taken age of the younger parent namely, mother of deceased as 50 years though : 10 : it has been contended that age of mother is 40 years and as such, multiplier which requires to be adopted is '15' and not '13' as adopted by the Tribunal. He submits that compensation awarded under conventional heads is marginally on the lower side and prays for enhancement of the same.
10 Having heard learned Advocates appearing for parties and on perusal of judgment and award passed by the Tribunal, the undisputed fact that would emerge is, as on the date of accident, deceased was 23 years and he was carrying on agricultural operations in the lands belonging to the family as per evidence tendered by father of deceased. In fact, claimants have produced the Crop Certificate which is at Ex.P-19 and it reflects that deceased was raising Chilli, Ground nut, Jowar crops in the lands and earning Rs.3,00,000/- per year. Total extent of undisputed land deceased was cultivating was to an extent of 20 acres. Exs.P-21 to P- : 11 : 28 - revenue records would establish this fact. Thus, to maintain this vast extent of land which undisputedly has remained with first claimant namely, father of deceased even after demise of his son. However, claimants would be compelled to expend money towards supervision charges for raising these crops. Tribunal has presumed that by appointing a coolie and paying Rs.150/- per day, said supervision work could be carried on which cannot be a ground reality. In fact, this Court while awarding compensation in a claim petition filed under Section 166 of Motor Vehicles Act, 1988 has taken a view that minimum wages that is being paid even to a coolie during the year 2010 is in the vicinity of Rs.150/- approximately. As such, by no stretch of imagination, it can be presumed that Supervisor or who could be considered as 'Maistry' would attend to supervisory work to an extent of 20 acres of land even if he is paid a meager sum of Rs.150/- per day. On the other hand, minimum salary : 12 : of such Supervisor or Maistry would be around Rs.6,000/- per month. Uncontroverted evidence of P.W.1 and documentary evidence namely Crop certificate - Ex.P-19 as also R.O.Rs. - Exs.P-21 to 28 would clearly establish that crops as mentioned by P.W.1 namely Chilli, Ground nut and Jowar are being raised in this 20 acres of land. As such, I am of the considered view that loss of supervision charges or loss of income of deceased can be construed as Rs.6,000/- per month.
11 Deceased was an young boy aged 23 years with ITI certificate. In all probabilities he was possessing zeal to work and earn more and this fact cannot be ignored and as stated by P.W.1, deceased was carrying on agricultural operations with the assistance of coolies in these 20 acres of land by raising different crops and as such, over years his income would have escalated or prospects of earning more income was very bright. As : 13 : such, I am of the considered view that as held by Hon'ble Apex Court in SANTOSH DEVI Vs NATIONAL INSURANCE CO.LTD (AIR 2012 SC 2185) 30% towards future prospects has to be added to the income of the deceased. It has been held by Apex Court as under:
"13. In Sarla Verma's case (supra), another two Judge Bench considered various factors relevant for determining the compensation payable in cases involving motor accidents, noticed apparent divergence in the views expressed by this Court in different cases, referred to large number of precedents including the judgments in U.P.SRTC v. Trilok Chandra (1996) 4 SCC 362, Nance v. British Columbia Electric Railway Co. Ltd. 1951 AC 601, Davies v. Powell Duffryn Associated Collieries Ltd. 1942 AC 601 and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down straightjacket formula under different headings, some of which are enumerated below:
"(i) Addition to income for future
prospects
In Susamma Thomas this Court
increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the : 14 : imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self - employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
(ii) Deduction for personal and living expenses Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions.
Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the : 15 : deduction towards personal and living expenses of the deceased, should be one- third (1/3rd) where the number of dependent family members is 2 to 3, onefourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
(iii) Selection of multiplier We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M- 13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." Same requires to be applied to the facts on hand and when so applied, 30% requires to be added to income of deceased which would be Rs.7,800/- per month (6000+30%=1800+6000=7800). As such, income of deceased is taken at Rs.7,800/- per month. Though : 16 : learned Advocate appearing for claimant has contended that deduction made by Tribunal at 1/3rd is just and proper, same cannot be accepted for the simple reason that deceased was a bachelor and as such, he would tend to spend more on himself and as such, 50% is required to be deducted towards his personal and living expenses as held by Hon'ble Apex Court in SARLA VERMA vs DELHI TRANSPORT CORPORATION ((2009)6 SCC 121) and when so deducted, net income which requires to be reckoned for the purposes of computation of "loss of dependency" would be Rs.3,900/- per month (7800-50%). Same is taken for the said purpose. 12 Now turning my attention to the issue regarding multiplier, contention of Mr.Kolluri requires to be accepted, which is to the effect that P.W.1 - father of deceased himself entered witness box and has admitted his age to be around 55 to 56 years and he has also admitted that his wife is 5 to 6 years younger to him : 17 : and as such, accepting testimony of P.W.1 himself, if the age of wife is to be reckoned, it has to be necessarily in the vicinity of 50 years. By considering this evidence, Tribunal has applied multiplier of 13 and not 15 as contended by claimants. Claimants by contending age of the mother to be 40 years, did not venture to produce any material whatsoever to establish this fact. As such, Tribunal has rightly taken into consideration age of the mother at 50 years and adopted the multiplier of `13' which is proper. As such, same requires to be adopted for re-computation of loss of dependency.
In view of the discussion made hereinabove, loss of dependency to the claimants would be as under:
Rs.6,000/- + 30% = Rs.7,800/- = Rs.3,900/-2
Rs.3,900/- x 12 x 13 = Rs.6,08,400/-
As against a sum of Rs.4,68,000/- awarded by Tribunal, compensation under the heading 'loss of dependency' is enhanced to Rs.6,08,400/-.: 18 :
13 The accident in question occurred on 31.10.2010. Tribunal has awarded compensation of Rs.30,500/- under conventional heads which is marginally on the lower side and as such I am of the considered view that additional compensation of Rs.19,500/- if awarded would meet ends of justice and also in view of the fact that this Court has consistently been awarding compensation of Rs.50,000/- under conventional heads. Accordingly, additional compensation of Rs.19,500/- is awarded under the conventional heads.
14. Hence, for the reasons aforesaid, following order is passed:
i. MFA No.25896/2011 is hereby allowed in part;
ii. MFA No.25502/2011 stands disposed of.
iii. Compensation awarded by Tribunal under loss of dependency is enhanced from Rs.4,68,000/- to Rs.6,08,400/- and additional compensation of Rs.19,500/- is awarded under conventional heads, : 19 : which shall carry interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
iv. Enhanced compensation with interest shall be deposited by the Insurance company before the jurisdictional Tribunal within six weeks from the date of receipt of copy of this order.
v. Amount in deposit is ordered to be transmitted to the jurisdictional Tribunal forthwith by the Registry .
vi. No costs.
Sd/-
JUDGE *sp