Karnataka High Court
The Divisional Manager vs Smt.Kalavati W/O Kallppa Biranagi on 16 September, 2022
Author: S G Pandit
Bench: S G Pandit
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MFA No. 102980 of 2019
C/W MFA No. 101514 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 102980 OF 2019 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101514 OF 2019 (MV-D)
BETWEEN:
1. SMT.KALAVATI W/O KALLAPPA BIRANAGI
AGE.51 YEARS, OCC. SERVICE
R/O MUDHOL, TQ. MUDHOL
DIST. BAGALKOT-580013
2 KUMARI. POORNIMA D/O KALLAPPA BIRANAGI
AGE.29 YEARS, OCC. STUDENT
R/O MUDHOL, TQ. MUDHOL
DIST. BAGALKOT-580013
3. KUMARI. PREET D/O KALLAPPA BIRANAGI
AGE.27 YEARS, OCC. STUDENT
R/O MUDHOL, TQ. MUDHOL, DIST. BAGALKOT-580013
4 KUMARI. PRIYANKA D/O KALLAPPA BIRANAGI
AGE.23 YEARS, OCC. STUDENT
R/O MUDHOL, TQ. MUDHOL,DIST. BAGALKOT-580013
5. KUMAR. PRAVEEN S/O KALLAPPA BIRANAGI
AGE.11 YEARS, OCC. STUDENT
R/O MUDHOL, TQ. MUDHOL,DIST. BAGALKOT-580013
KM
SOMASHEKAR
SINCE APPELLANT NO.5 IS MINOR REP. BY NATURAL
Digitally signed by K M
SOMASHEKAR MOTHER M/G APPELLANT NO.1
Location: High Court of
Karnataka, Dharwad Bench
Dharwad.
Date: 2022.09.28 10:58:32
KALAVATI W/O KALLAPPA BIRANAGI
+0530
...APPELLANTS
(BY SRI. SANTOSH.B.RAWOOT & SANTOSH S HATTIKATAGI, ADVS.)
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MFA No. 102980 of 2019
C/W MFA No. 101514 of 2019
AND:
1. SHRI.S.MAHADEVAN S/O SUNDARAM
AGE.53 YEARS, OWNER OF LORRY NO.TN-90/A-2479
R/O D.NO.8/24, NETHI-MADU, MUNIYAPPAN KOVI
STREET, NATHI-MADU, TQ. SALEEM
DIST. SALEEM, TAMILNADU STATE-636002
2. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LIMITED
NEW COTTON MARKET, NILAJAGIN ROAD
HUBLI, DIST. DHARWAD-580112
...RESPONDENTS
(BY SRI.M.K. SOUDAGAR, ADVOCATE FOR R2)
(R1-NOTICE DISPENSED WITH)
THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 11.02.2019 PASSED
IN MVC NO.521/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.101514/2019
BETWEEN:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO .LTD.,
NEW COTTON MARKET, NILAJAGIN ROAD,
HUBBALLI, DIST: DHARWAD.
REP BY DULY CONSTITUTE AUTHORITY.
THE REGIONAL MANAGER,
REGIONAL OFFICE ,HUBBALLI
...APPELLANT
(BY SRI. M K SOUDAGAR, ADVOCATE)
AND:
1. SMT.KALAVATI W/O KALLPPA BIRANAGI
AGE: 51 YEARS, OCC: SERVICE,
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MFA No. 102980 of 2019
C/W MFA No. 101514 of 2019
R/O MUDHOL, TAL: MUDHOL,
DIST: BAGALKOT-587313
2. KUMARI POORNIMA D/O DALLAPPA BIRANAGI
AGE: 29 YEARS, OCC: STUDENT M TECH,
R/O MUDHOL, TAL: MUDHOL,
DIST: BATALKOT-587313,
3. KUMARI. PREETI D/O DALLAPPA BIRANAGI,
AGE: 27 YEARS, OCC: STUDENT BE. M.TECH,
R/O MUDHOL, TAL: MUDHOL, DIST: BAGALKOT-587313
4. KUMARI PRIYANKA D/O KALLAPPA BIRANAGI,
AGE: 23 YEARS, OCC: STUDENT DIPLOMA,
R/O MUDHOL, TAL: MUDHOL, DIST: BAGALKOT-587313
5. KUMAR PRAVEEN S/O KALLAPPA BIRANAGI
AGE: 11 YEARS, OCC: STUDENT,
R/O MUDHOL, TAL MUDHOL, DIST BAGALKOT-587313
6. S MAHADEVAN S/O SUNDARAM
AGE: 53 YEARS, OCC: BUSINESS,
R/O D.NO.8/24, NITHI-MADU, MUNIYAPPAN
KOVIL STREET, NETHI-MADHU,
TAL: SALEM, DIST: SALEM, TAMIL NADU STATE-636002
...RESPONDENTS
(BY SRI.SANTOSH B MANE SRI. SANTOSH B RAWOOT, ADVS. FOR R1
TO R4) (R5-MINOR REP. BY R4) (R6-NOTICE DISPENSED WITH)
THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 11.02.2019 PASSED
IN MVC NO.521/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL,
AWARDING COMPENSATION OF Rs.34,07,308/- WITH INTEREST AT
9% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
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MFA No. 102980 of 2019
C/W MFA No. 101514 of 2019
JUDGMENT
Though these appeals are listed for admission, they are taken up for final disposal with the consent of learned counsel for both the parties.
2. Judgment and award dated 11.02.2019 passed in MVC No.521/2016 on the file of the learned Prl. Senior Civil Judge & JMFC, Mudhol (for short, 'Tribunal') is under challenge in the above two appeals by the Insurance Company on the ground of liability as well as quantum of compensation, whereas the claimants are in appeal praying for enhancement of compensation.
3. The claimants, who are wife and children of the deceased Kallappa Biranagi, who was working as Chief Officer, TMC, Kampli, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental death of Kallappa Biranagi that took place on 11.04.2016 involving Bus bearing registration No.KA-16/B- 193 and Lorry bearing registration No.TN-90/A-2479. It is stated that the deceased was a government servant and -5- MFA No. 102980 of 2019 C/W MFA No. 101514 of 2019 drawing salary of Rs.38,148/- per month, aged about 59 years 10 months as on the date of the accident.
4. On issuance of notice, respondent No.1 remained absent and placed exparte. Respondent No.2-Insurance Company appeared through its counsel and filed statement of objections denying the entire claim petition averments. It was contended that lorry in question was not insured with them and owner of the said lorry had entrusted the vehicle to a person, who had no effective driving license as on the date of the accident. It was further contended that owner of the lorry violated terms and conditions of insurance policy.
5. Before the Tribunal, claimant No.1-wife examined herself as PW1 apart from marking the documents as Exs.P1 to P22. The respondents did not examine any witness but marked insurance policy as Ex.R1. The Tribunal based on the material on record awarded a total compensation of Rs.34,07,308/- with interest at 9% per annum from the date of petition till realization on the following heads:
Loss of dependency Rs.33,37,308/-
Loss of consortium Rs. 40,000/-
Loss of estate Rs. 15,000/-
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MFA No. 102980 of 2019
C/W MFA No. 101514 of 2019
Funeral expenses Rs. 15,000/-
-------------------
Total Rs.34,07,308/-
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6. Heard the learned counsel Sri. Santosh B Rawoot, appearing for the claimants as well as learned counsel Sri. M.K. Soudagar for the insurance company and perused the appeal papers along with original records.
7. Sri. M.K. Soudagar, learned counsel appearing for the appellant-Insurance Company would submit that even though appeal is filed questioning the liability as well as quantum, he would restrict the appeal only to the question of quantum of compensation. He further submitted that the deceased was a government servant working as Chief Officer, TMC, Kampli, aged about 59 years 10 months and he had only two months left in his service. Therefore, he submits that the Tribunal ought to have adopted split multiplier. He also submits that as the deceased had only two months remaining service and on his retirement, he would not have earned salary which he was earning during his service; and he would have received pension, as such, the Tribunal ought to have applied split multiplier while -7- MFA No. 102980 of 2019 C/W MFA No. 101514 of 2019 determining compensation on the head of loss of dependency. It is his submission that salary drawn should have been taken upto his retirement and after the date of his retirement, pension of the deceased has to be taken for determining loss of dependency. Sri. M.K. Soudagar in support of his contention, places reliance on the decisions of Co-ordinate Bench of this Court in ICICI Lombard General Insurance Co. Ltd. Vs. Gangawwa & Others1 and The New India Assurance Co. Ltd. & another Vs. Sri. Prithviraj & others2 and submits that in the instant case also, the claimants would be entitled for compensation on applying split multiplier. Further, leaned counsel submits that the Tribunal has rightly added 15% of the assessed income towards future prospects which is just and proper. He further submits that the Tribunal committed an error in awarding 9% interest on the compensation amount. It is his submission that normally, this Court grants rate of interest at 6% per annum on the compensation amount taking note of Bank rate of interest. Thus, he prays for modifying the 1 MFA 20781 of 2013, dated 11.10.2013 2 MFA 20727 of 2010 & connected matters, dated 08.12.2016 -8- MFA No. 102980 of 2019 C/W MFA No. 101514 of 2019 judgment and award of the Tribunal by allowing the appeal filed by the Insurer.
8. Per contra, Sri. Santosh B Rawoot, learned counsel for the appellants/claimants in support of his appeal submits that it is true that the deceased had only two months left in government service. Learned counsel places reliance on the decision of the Hon'ble Apex Court in R. Valli & Others Vs. Tamil Nadu State Transport Corporation Ltd.3, to contend that method of determination of compensation applying two multipliers is clearly erroneous and run counter to the judgment in Pranay Sethi, affirming the judgment in Sarla Verma. It is his submission that the Hon'ble Apex Court has made it clear in Valli (supra) that multiplier has to be applied based on the age of the deceased and applying split multiplier is clearly erroneous. Further, learned counsel would submit that since there are five dependents, claimants would be entitled to Rs.40,000/- each towards spousal consortium & parental consortium as held by the Hon'ble Apex Court in the case of Magma 3 Civil Appeal No.1269 of 2022, dated 10.02.2022 -9- MFA No. 102980 of 2019 C/W MFA No. 101514 of 2019 General Insurance Co. Ltd. Vs. Nanu Ram & Others4. Thus, he prays for allowing the appeal filed by the claimants and to dismiss the appeal filed by the insurer.
9. Having heard the learned counsel for both the parties and on perusal of the appeal papers along with original records, the only point that would arise for consideration in these appeals is, as to whether the Tribunal is justified in not applying split multiplier and whether the claimants would be entitled to the enhanced compensation?
Our answer to the above point would be in the affirmative for the following reasons:
10. The occurrence of the accident on 11.04.2016 and resultant death of Kallappa Biranagi involving Bus bearing registration No.KA-16/B-193 and Lorry bearing registration No.TN-90/A-2479 is not in dispute. It is also not in dispute that as on the date of the accident, the deceased was working as Chief Officer, TMC, Kampli, aged about 59 years 10 months and he had only two months left in his 4 2018 ACJ 2782
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MFA No. 102980 of 2019 C/W MFA No. 101514 of 2019 service. It is the contention of the insurer that since the deceased had left with few months service, split multiplier has to be adopted while determining the loss of dependency as the deceased would not get same salary on attaining the age of superannuation and the deceased would have received only pension which would be 50% of his last pay drawn. It is to be noticed that the judgments relied upon by the learned counsel for the insurer are rendered by co- ordinate Bench of this Court prior to judgment of Hon'ble Apex Court in the case of Pranay Sethi (supra), wherein the Hon'ble Apex Court has made it clear that multiplier has to be applied taking age of the deceased. The Hon'ble Apex Court in Valli (supra) was considering the question of application of split multiplier and while answering the said question, the Hon'ble Apex Court has observed as follows:
9. The judgments referred to by Mr. Tiwari are prior to the enunciation of law by this Court in Pranay Sethi. Therfore, such judgments no longer can be said to be good law as suitable multiplier is to be applied keeping in view the age of the deceased in terms of para 59.7 of the judgment in Pranay Sethi.
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MFA No. 102980 of 2019 C/W MFA No. 101514 of 2019
10. A three-judge Bench in an order reported as United Insurance Co. Ltd. Vs. Satinder Kaur alia Satwinder Kaur & Ors. has applied the multiplier keeping in view the age of the deceased even if he was a bachelor. The Court held as under:
48. Another three-judge bench in Royal Sundaram alliance Insurance Co.
Ltd. Vs. Mandala Yadagiri Goud, (2019) 5 SCC 554 traced out the law on this issue, and held that the compensation is to be computed based on what the deceased would have contributed to support the dependents. In the case of the death of a married person, it is an accepted norm that the age of the deceased would be taken in to account. Thus, even in the case of a bachelor, the same principle must be applied."
11. Thus, we find that that the method of determining of compensation applying two multipliers is clearly erroneous and run counter to the judgment of this Court in Pranay Sethi, affiring the judgment in Sarla Verma. Since the deceased was 54 years of age on the date of incident, therefore, the suitable multiplier would be 11 as per judgment of this Court in Sarla Verma approved by this Court in Pranay Sethi.
11. A reading of the above paragraphs would make it clear that the Hon'ble Apex Court has held that applying two multipliers is clearly erroneous and run counter to the judgment in Pranay Sethi (supra). Therefore, multiplier applied by the Tribunal is proper and correct and contention
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MFA No. 102980 of 2019 C/W MFA No. 101514 of 2019 of the insurer with regard to application of split multiplier is liable to be rejected and it is rejected. Accordingly, the compensation awarded by the Tribunal under the head of loss of dependency is just and proper and needs no interference.
12. Further, the claimants being wife and children of the deceased would be entitled to Rs.40,000/- each towards spousal and parental consortium as held by the Hon'ble Apex Court in Magma General Insurance Company Limited (supra). Further, the claimants would be entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and transportation of dead body. Thus, the claimants would be entitled for modified compensation on the following heads:
Sl.No. Particulars Amount
1. Loss of dependency Rs.33,37,308/-
2. Loss of estate & Funeral Rs. 30,000/-
expenses
3. Spousal & Parental Consortium Rs. 2,00,000/-
(Rs.40,000/- each to claimants
1 to 5)
Total Rs.35,67,308/-
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MFA No. 102980 of 2019
C/W MFA No. 101514 of 2019
13. Thus, the claimants would be entitled to total compensation of Rs.35,67,308/- as against Rs.34,07,308/- awarded by the Tribunal.
14. The Tribunal while awarding compensation granted rate of interest at 9% per annum. Taking note of the present rate of Bank interest, we are inclined to reduce the rate of interest on the compensation amount from 9% awarded by the Tribunal to 6% per annum.
15. Hence, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of the Tribunal is modified to the extent that the claimants are entitled to total compensation of Rs.35,67,308/- as against Rs.34,07,308/- awarded by the Tribunal.
c) The entire compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.
d) The appellant-Insurer shall deposit the entire compensation amount with
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accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.
e) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith along with original records.
f) The apportionment, deposit and disbursement shall be made as per the award of the Tribunal.
g) Draw modified award accordingly.
SD JUDGE SD JUDGE JTR