Karnataka High Court
The Oriental Insurance Co Ltd vs Sri M K Mohammad on 25 October, 2013
Author: B.S.Indrakala
Bench: B.S. Indrakala
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 25th day of October 2013
Before
The Hon'ble Mrs. Justice B.S. INDRAKALA
Miscellaneous First Appeal No.4006/2009 (MV)
BETWEEN:
The Oriental Insurance Co. Ltd.,
D.O.10, Chennai Dwaraka,
3rd Floor, 79, Uttarmar Gandhi Salai,
Chennai, Tamilnadu - 600 034,
Rep. by its the Asst. Manager,
The Oriental Insurance Co. Ltd.,
Regional Office, Leo Shopping Complex,
No.44/45, Residency Road,
Bangalore - 560 025.
... Appellant
(By Sri M.U.Poonacha, Advocate.)
AND:
1. Sri M.K.Mohammad,
S/o Late M.K.Ismail,
Aged 62 years.
2. Smt. Kunchibi,
W/o M.K.Mohammad,
Aged 57 years.
3. Alimamma,
D/o M.K.Mohammad,
Aged 26 years.
4. Neusa,
D/o M.K.Mohammad,
Aged 25 years.
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5. Ibrahim,
S/o M.K.Mohammad,
Aged 24 years.
6. Saleem,
S/o M.K.Mohammad,
Aged 21 years.
All are R/at Kodimane Kokkada Village,
Belthangady Taluk,
Now R/at C/o P.M.K. Moideen Kunhi,
Mubarak Manzil, Konaje Village,
Mangalore Taluk.
7. Sri M.C.Prabhu,
S/o Chinnappa, Major
R/at 161, Kanchayyanna Doddi,
Bannerghatta Post, Bangalore - 83.
8. Mr. Mohammad Hanief,
S/o Adam, Major,
R/at Kadavina Bagilu,
Andathadka Post,
Ilanthila Village,
Belthangady Taluk.
9. The Manager,
The United India Insurance Co. Ltd.,
Laxmidas Plaza, Ujire,
Dharmasthala Road,
Near S.D.M. College
Ujire - 574 240.
... Respondents
(By Sri Sandesh Shetty T., Advocate for R-1 to 3;
R-4 to 7 served; R-8 & 9 notice dispensed with.)
This Miscellaneous First Appeal is filed under Section
173(1) of MV Act against the judgment and award dated:
12.01.2009 passed in MVC No.1136/2006 on the file of the I
Addl. Dist. Judge and MACT, D.K., Mangalore, awarding a
compensation of Rs.4,46,000/- with interest @ 6% p.a from
the date of petition till realisation.
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This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
Respondent No.2 in MVC No. 1136/2006 on the file of the I Additional District Judge and Member, Motor Accident Claims Tribunal-II, Dakshina Kannada, Mangalore is in appeal challenging the judgment and award dated 12.1.2009 passed in the said case.
2. For the sake of convenience, the parties herein are referred to by their respective rank as arrayed before the Tribunal, appellant as respondent No.2/insurer and respondent Nos. 1 to 6 as claimants and respondent Nos. 7, 8 and 9 as respondent Nos. 1, 3 and 4 respectively.
3. The claimants filed the said claim petition under Section 163(A) of the Motor Vehicles Act (hereinafter referred to as 'the Act') before the Tribunal claiming Compensation from the respondents on account of the death of one M.K. Abu Sali in the motor 4 accident which occurred on 21.6.2006 wherein he was the driver of the jeep bearing registration No. KA 19 M 4346 which was proceeding from Uppinangady towards Nelliyadi and when the jeep reached a place called Bedrodi of Bajathoor village, at about 5.30 p.m. the lorry bearing registration No. KA 05 D/692 came from the opposite side being driven by its driver with high speed in a rash manner dashed against the said jeep due to which Sri Abu Sali succumbed injuries caused at the spot.
4. It is contended by the claimants that they are the parents and siblings of the said Abu Sali and the victim was aged about 30 years at the time of his death and was the driver of the jeep with an income of Rs.40,000/- per annum. The Tribunal while considering the said evidence of the claimants along with other clubbed cases, deemed it fit to award a sum of Rs.4,68,000/- with interest at the rate of 6% per annum from the date of petition till realisation. 5
5. Further it directed that respondent Nos. 2 and 4 shall indemnify respondent Nos. 1 and 3 equally. In other words, the appellant herein was made liable to pay 50% of the amount which was awarded by the Tribunal.
6. Being aggrieved by the said judgment and award, respondent No.2 insurer of lorry bearing Registration No. KA 05 D 692 is in appeal contending that the Tribunal erred in deducting only 1/3rd of the income towards the personal expenditure of the victim instead of deducting 50% and further erred in applying the multiplier by considering the age of the victim. While it ought to have been the age of the younger parent of the victim which has to be considered while determining the appropriate multiplier. Further it is contended that the appropriate multiplier is 11 and not 16.
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7. Learned Counsel for the appellant reiterating the said contentions further submitted that the amount of compensation awarded needs to be reduced.
8. Per contra, learned Counsel for the claimants submitted that deducting 1/3 of the income of the victim is proper as the claim petition is under Section 163(A) of the Act and further submitted that the multiplier adopted by the Tribunal is also proper and the impugned judgment and award does not call for any interference.
9. Admittedly the petition is filed under Section 163(A) of the Act and as such, cause of accident is not in dispute. So also the death of the victim in the said accident is also not in dispute.
10. The Tribunal while considering the evidence placed on record assessed the income of the deceased at Rs.40,000/- per annum and by deducting 1/3rd of the income towards his personal expenditure as contemplated under Schedule-II of the Act, deemed it fit 7 assess the loss of dependency at Rs.26,607/- per annum.
11. With regard to the multiplier to be adopted, there is difference in respect of the multiplier to be adopted under Section 163(A) of the Act and the multiplier to be applied in this petition under 166 of the Act. In the decision reported in SARLA VERMA & OTHERS -vs- DELHI TRANSPORT CORPORATION AND ANOTHER (2009 ACJ 1298) wherein at para 17 it is observed as hereunder:
"17. The Motor Vehicles Act, 1988 was amended by Act 54 of 1994, inter alia, inserting section 163-A and the Second Schedule w.e.f. 14.11.1994, Section 163-A of the M.V. Act contains a special provision as to payment of compensation on structured formula basis, as indicated in the Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs.3,000 to Rs.40,000. It does not specify the quantum of compensation in case the annual income of the deceased is more than Rs.40,000. But, it provides the multiplier to be applied with reference to the age of the deceased. The Table starts with a multiplier of 15, goes upto 18, and then steadily comes down to 5. It also provides the standard deduction as one-third on account of personal 8 living expenses of the deceased. Therefore, where the application is under section 163-A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is not specified with reference to the annual income of the deceased, or is more than Rs.40,000, by applying the formula: (2/3 X A1 X M), that is two-third of the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation. Several principles of tortious liability are excluded when the claim is under section 163-A of MV Act. There are, however, discrepancies/errors in the multiplier scale given in the Second Schedule Table. It prescribes a lesser compensation for the cases where a higher multiplier of 18 is applicable and a larger compensation with reference to cases where a lesser multiplier of 15, 16, or 17 is applicable. From the quantum of compensation specified in the Table, it is possible to infer that a clerical error has crept in the Schedule and the 'multiplier' figures got wrongly typed as 15, 16, 17, 18, 17, 16, 15, 13, 11, 8, 5 and 5 instead of 20, 19, 18, 17, 16, 15, 14, 12, 10, 8, 6 and 5. Another noticeable incongruity is, having prescribed the notional minimum income of non-earning persons as Rs.15,000 per annum, the Table prescribes the compensation payable even in betweenRs.3,000 and Rs.12,000. This leads to an anomalous position in regard to application under section 163-A of MV Act, as the compensation will be higher in cases where the deceased was idle and not having any income, than in cases where the deceased was honestly earning an income ranging betweenRs.3,000 and Rs.12,000 per annum. Be that as it may".
12. In the circumstance, in the second schedule enumerating the manner in which the compensation has to be paid U/Sec.163-A of M.V. Act has not become 9 conclusive and there are number of discrepancies as observed in the aforesaid decision rendered in the case of Sarla Verma .Vs. Delhi Transport Corporation. Thus, in view of such glaring discrepancies, multiplier and multiplicand is to be calculated separately rather than considering the amount mentioned in the said schedule.
13. With regard to the exact multiplier to be applied, it is seen that in the decision reported in AMRIT BHANU SHALI -vs- NATIONAL INSURANCE CO. LTD. [(2012) 11 SCC 738] it is held as hereunder:
Para 15 "15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation."
14. Admittedly in this case also, there are 6 claimants and the deceased was the eldest son to his parents, and was also employed and thus it cannot be ruled out that the siblings of the deceased were dependant upon him. In the circumstances, the 10 multiplier adopted by the Tribunal considering the age of victim is also proper. Further in the circumstances of the case it is seen that awarding of additional amount towards conventional heads is also appropriate and the same does not call for interference. In the circumstances, the above appeal fails and the same is dismissed.
The amount in deposit is ordered to be transmitted to the jurisdictional Tribunal.
Sd/-
JUDGE Nsu/-