Karnataka High Court
The New India Assurance Co Ltd vs Sri Chandrappa Nagappa Madiwalar on 26 September, 2011
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT D HARWAD
DATED THIS THE 26TF1 DAY OF SEPTEMBER, 2011
BEFORE
THE HON'BLE MRS,JUSTICE B.V.NAGARATHNA
M.F.A NO.9947/2007 [MV]
A/W
M.F.A.CROB No.111/2008 [MV]
M.F.A.No.9974/ 2007
Between:
The New India Assurance Co., Ltd.,
Mudalgi Building, Club Rjoad Belgaum,
Rep. By Regional Office,
No.2-B, Unity Building Annex,
Mission road, Bangalore-560 027,
By its duly Constituted Attorney.
Appellant
(By Sri.G.N.Raichur, Advocate)
And:
1. Sri.Chandrappa
Nagappa Madiwalar,
Age 43 years, 0cc. :Coolie,
R/o. :Murgod, Taluk: Saundatti.
2. Smt. Balawwa
W/o. Sri. Chandrappa Madiwalar,
Age 38 years, 0cc.: Coolie,
R/o. :Murgod, Taluk: Saundatti.
3. Sri. Devendragouda
Ninganagouda Patil,
Major, 0cc: Service,
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R/o C/o. fire Brigade Office,
BailhongaL
Respondents
(By Sri Madan Mohan Khannur Adv. for R1-R2;
Sri Jagadish Patil, Adv. for R3)
This MFA is filed under Section 173(1) of MV ACT against
the judgment and award dated:26/4/2007 passed in MVC
No.507/2006 on the file of the Civil Judge (Sr.Dn.), Member,
Addi. MACT, Bailhongal, awarding compensation of
4,03,000/- with interest at the rate of 6% p.a. from the date
of petition till the date of realisation.
M.F.A. CROB No.111/2008
Between:
1. Shri Chandrappa
Nagappa Madiwalar
Age:42 years, Occ:Coolie,
R/o. Murgod, Tal:Saundatti.
2. Smt. Balawwa
W/o. Chandrappa Madiwalar
Age:37 years, Occ:Coolie,
R/o. Murgod, Tal:Saundatti.
c
4jpellant.
(By Sri. Madanmohan M. Khannur, Advocate)
And:
1. Sri. Devendragouda
Ninganagouda Patil,
Age: Major, 0cc.: Service,
R/o.C/o: Fire Brigade Office,
Bailhongal.
(Owner of Vehicle No.KA-24/II-6334)
2. The Divisional Manager,
New India Assurance Company Ltd,
Mudalgi Building, Club Road, Belgaum,
(Insurer of Vehicle nO.KA-24/Ii-6334)
(Policy No.671105/31/05/00531 issued
by Brancv Office, Gokak)
Respondents
(By Sri Jagadish Patil, Adv. for Ri;
Sri 0. N. Raichur Adv. For R2)
This MFA CROB is filed under Order 41 Rule 22 of CPC
1908 against the judgment and award dated:26/4/2007
passed in MVC No.507/2006 on the file of the Motor Accident
Claims Tribunal, Bailhongal, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This appeal and cross objection coming on for
admission this day, the Court delivered the following:
JUDGMENT
The Insurance Company has preferred this appeal seeking reduction in the compensation awarded by Motor Accident Claims Tribunal, Bailhongal, in MVC No.507/2006 by its judgment and award dated 26/04/2007.
2. MFA Cross Objection is filed by the claimants seeking enhancement of compensation, by assailing the afore said judgment and award.
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3. For the sake of convenience, parties shall be referred to in terms of their status before the Tribunal.
4. On account of the death of their son, Pundalik in a road traffic accident that occurred on 18.02.2006, the claimants filed a claim petition seeking compensation on various heads.
5. The said claim petition was contested by the Insurance Company. In support of their case, the claimants let in the evidence of two witnesses and produced 14 documents, which were marked as Ex.P. 1 to P.14. The respondent before the Tribunal did not let in any evidence. On the basis of the material evidence on record, the Tribunal awarded compensation of 4,03,000/- with interest 6% p.a. from the date of petition till realisation.
6. Being aggrieved by the same, both Insurance Company as well as claimants, have assailed the same by filing the appeal and cross objections respectively.
7. I have heard the learned counsel for the insurance Company, learned counsel for the claimants and learned counsel for the owner of the vehicle.
8. It is the submitted that on behalf of the Insurance Company that the deceased was a bachelor, aged about 19 years and the Tribunal ought to have deducted 50% towards personal expenses of the deceased. Instead of the same, the Tribunal deducted 1/3rd which is not in accordance with the decision of the Apex Court in the case of SARLA VERMA AND OTHERS VS. DELHI ROAD TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298. He also submitted that the quantum awarded by the Tribunal is on the higher and the same has to be reduced.
9. Per contra, the learned counsel for the claimants submitted that the Tribunal was not right in assessing the income of the deceased at 3,000/- per month, since the deceased was working as a mason. Therefore, the compensation has to be enhanced on the head loss of dependency. He further submitted that the multiplier was wrongly applied by the Tribunal, taking into consideration the -6- age of the mother. In support of his contention he has relied upon another decision of the Hon'ble Supreme Court in case of P.S SOMANATHAN AND OTHERS VS. DIS7RICT INSURANCE OFFICERS AND ANOTHER reported in 2011 BAR (Civil) 286. He therefore contended that this is a fit case where the compensation has to be enhanced.
10. Having heard the learned counsel on the both sides and on perusal of the material on record, the point that arise for my consideration is:
"Whether the claimants are entitled to enhancement of compensation in this case or the compensation awarded has to be reduced?'
11. From the material on record it is not in dispute that the claimants' son Pundalik, died in a road traffic accident that occurred on 18.0 1.2006. He was a bachelor at the time of his death. Having regard to the judgment of the Apex Court in Sarala Venna's case, the Tribunal ought to have deducted 50% of the income of the deceased towards his personal expenses.
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12. Paragraph 15 of the said judgment reads as follows:
"Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself, Even otherwise, there is also the possibility of his getting married in a short time, in which even the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and -8- dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
13. Therefore, the Tribunal ought to have deducted 50% of the monthly earning of the deceased instead of 1/3. To that extent, the contention of the learned counsel for the Insurance Company has to be accepted.
14. As far as the monthly earning of the deceased is concerned, the claimants have produced Ex. P. 11 and 12. Ex.P. 1 1 is the certificate issued by one Prakash S Anchi, Engineer and PWD Class-I Contractor. Ex.P. 12 is the licence for contract work. On the basis of the said documents, the claimants have stated that their son was working as Mason with a Class-I contractor. He was earning 4,500/- per month. The Tribunal has not believed the said evidence since the author of the certificate was not examined before the Tribunal. However, the fact that the deceased was a -9- working as a Mason, has been established by the claimants. Since the accident was occurred in the year 2006 and the deceased was aged about 19 years, it is just and proper to assess the monthly income of the deceased at Z4,500/- per month, taking into consideration the prospective earningp that the deceased would have earned, but for the unfortunate accident. Therefore, the monthly income of the deceased is assessed at ?4,500/-.
15. As far as the multiplier to be applied is concerned, the contention of the counsel for the claimants is that, in view of the decision of the Hon'ble Apex Court, the age of the deceased has to be reckoned for applying the proper multiplier, that the Tribunal was not right in reckoning the age of the mother for applying the multiplier. No doubt, in the case of P.S. SOMANATHAN AND OTHERS, the Apex Court has found that the High Court proceeded to compute the compensation on the age of the mother rather than on the age of the deceased. In the very same judgment there is a reference to Sarata Verma's case in para 23 of the judgment of the Apex Court, which reads as follows:
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"The High Court unfortunately took a very technical view in the matter of applying the multiplier. The High Court cannot keep out of its consideration the claim of the daughter of the first claimant, since the daughter was impleaded, and was 49 years of age. Admittedly, the deceased looking after the entire family. In determining the age of the mother, the High Court should have accepted the age of the mother at 65, as given in the claim petition, since there is no controversy on that, By accepting the age of mother at 67, the High Court further reduced the multiplier from 6 to 5., even if we accept the reasoning of the High Court to be correct. The reasoning of the High Court is not correct in view of the ratio in Sarla Verna (supra). Following the same the High Court should have proceeded to compute the compensation on the age, of the deceased,"
16. Based on the facts of the particular case, age of the mother being 67 years and the High Court having reduced the multiplier based on the age of the mother by ignoring the fact, the deceased was looking after the entire family, the Apex Court held that the age of the mother could not have been taken for the purpose of selecting the multiplier. In the instant case, however, it is noticed that the claimant
- 11- appellants are aged about 42 years and 37 years and since the age of mother is only 37 years, the Tribunal was justified in taking her age into consideration for the purpose of selecting the multiplier. The same is also supported by the reasoning of the Apex Court in Sarla Verrna's case, which has been referred to in the case of P.S. Somanathan. arid others Vs. District Insurance Officers and another. Therefore, that portion of the judgment of the Tribunal in applying the multiplier on the basis of the age of the mother would not call for any interference. In the circumstances, compensation under the heading loss of dependency would have to be reassessed as follows:
4,5OO/2 x 12 x12=4,O5,OOO/-
17. In addition to the compensation under the heading loss of dependency, a sum of 3O,OOO/- is awarded under conventional heads. The total compensation would be 4,35,OOO/- instead of 4,O3,OOO/-. The said compensation shall carry interest 6% p.a. from the date of petition till realisation. Thus, the appeal filed by the Insurance Company is dismissed while the cross objections are allowed in part. -12- The statutory deposit to be transmitted to the Tribunal. Parties to bear their own costs.
sdf ]UDGE Rms*