Karnataka High Court
The Manager vs Achutha Acharya on 10 April, 2018
Bench: B.S Patil, S Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2018
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
AND
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
M.F.A.No.1219/2018 (MV)
Between:
The Manager,
National Insurance Co. Ltd.,
Bharath Building, P.M. Rao Road,
Mangalore, D.K. District,
Represented by The Deputy Manager,
National Insurance Co. Ltd.,
Regional Office, Shubhram Complex,
M.G. Road, Bangalore-1 ... Appellant
(By Ms. Manjula.N. Tejaswi, Advocate)
And:
1. Achutha Acharya,
S/o Late Janardhana Acharya,
Aged about 59 years,
Father of deceased Praveen Acharya.
2. Smt. Sheelavathi,
W/o Achutha Acharya,
Aged about 48 years,
Mother of deceased.
3. Naveena,
Aged 25 years,
Younger brother of deceased.
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4. Savitha,
Aged 22 years,
Unmarried younger
sister of deceased.
Respondent Nos.1 to 4
Are residing at Madappady House,
Thannirupantha,
Post and Village,
Belthangady Taluk,
Dakshina Kannada- 575 003.
5. M. Krishna Bhat
S/o Bheema Bhat,
Age: Major,
R/O Machimale House,
Aryapu Post and Village,
Puttur Taluk,
Dakshina Kannada
District- 575 003. ... Respondents
(By Ms. Haleema Ameen, Advocate
for Sri. S. Vishwajith Shetty, Advocate for R-1 to R-4;
Sri. Arun Shyam, Advocate for R-5)
This M.F.A. is filed under Section 173(1) of MV Act
against the judgment and award dated 19.02.2016 passed in
MVC No.750/2015 on the file of 5th Additional District &
Sessions Judge & Member, Additional MACT, D.K.,
Mangalore, sitting at Puttur, D.K., awarding compensation of
Rs.21,51,000/- with interest at 6% P.A. from the date of
petition till the date of deposit.
This M.F.A. coming on for orders, this day,
S.Sunil Dutt Yadav, J., delivered the following:
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JUDGMENT
The insurer is in appeal challenging the order of the Motor Accidents Claims Tribunal, Dakshina Kannada, Mangalore in MVC No.720/2015 dated 19.2.2016 whereby compensation of Rs.21,51,000/- with interest at 7% p.a. from the date of petition till the date of deposit was awarded in favour of claimants/petitioners who are the parents and siblings of the deceased, who had succumbed to injuries as a result of the accident on 22.1.2015.
2. The relevant facts are that deceased was riding motorcycle bearing registration No.KA-21-R-6583. He met with a fatal accident as a result of rash and negligent driving of a private bus on 22.1.2015. The deceased was aged about 28 years and was working as a goldsmith and claimed to be earning about Rs.28,000/- per month.
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3. Claim petition was filed by the parents and siblings of the deceased and in answer to the said claim petition, the appellant denied all averments made in the claim petition and contended that the accident had, in fact, occurred due to rash and negligent riding of the motorcycle by the deceased. It was also averred that the compensation claimed was exorbitant and speculative.
4. Petitioner No.1 was examined as PW1 and the Manager of Shyam Jewels (P) Ltd., was examined as PW2 and an eyewitness was examined as PW3. The Tribunal allowed the claim petition by awarding compensation of Rs.21,51,000/- with interest at the rate of 7% p.a. from the date of the petition till the date of deposit. The Tribunal took into account the avocation of the deceased as goldsmith and relied upon Ex.P10, which was produced by the Procurement Manager of M/s.Shyam Jewels (P) Ltd., which evidenced 5 that the deceased was working as a job-worker. The Tribunal took the income of the deceased as Rs.20,500/- per month by taking note of Exs.P10 and P14 and after making an allowance of 50% as deduction for living and personal expenses of the deceased and adopting multiplier of '17' for quantification. After providing for compensation under the conventional heads, the Tribunal awarded compensation of Rs.21,51,000/-. The Tribunal had awarded sum of Rs.20,91,000/- towards loss of dependency (Rs.10250 x 12 x 17).
5. Appellant has sought to assail the order of the Tribunal primarily contending that the Tribunal ought not to have taken note of the averment that deceased was working as a goldsmith in the absence of proof and had grossly erred in taking the income of the deceased at Rs.20,500/- on the basis of Exs.P10 and P14. It was also contended that age of the deceased should not have 6 been taken note of while adopting the multiplier when calculating compensation towards 'loss of dependency' and in fact, the age of the younger parent should have been taken note of.
6. It is seen that the appeal has been filed with a delay of 619 days and an application for condonation of delay has been filed.
7. While considering the application for condonation of delay, it is noticed that the affidavit filed by the Deputy Manager of the appellant Company in support of the application is bald and does not even attempt to make out any sufficient ground to condone the delay. The only reason that has been assigned seeking to explain the delay is that the file was misplaced and not traceable and only some time before filing of the appeal, file was traced and sent to the present counsel to file the appeal. The ground assigned 7 cannot be said to be one that makes the delay beyond the control of the appellant and reflects negligent attitude towards prosecuting the proceedings in a diligent manner. There is no legally acceptable ground made out to condone the delay.
8. Looking into the merits of the matter, the Tribunal has passed a well considered order and has awarded appropriate compensation.
9. The contention of the appellant that multiplier adopted for the purpose of calculation of 'loss of dependency' is faulty insofar as the age of the younger parent of the deceased ought to have been considered is not legally tenable inasmuch as the Tribunal has rightly referred to the judgment in case of Munna Lal Jain Vs. Vipin Kumar Sharma reported in (2015) 6 SCC 347, wherein the Apex Court has observed as follows:-
"11. The remaining question is only on multiplier. The High Court following 8 Santosh Devi, has taken '13' as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased."
10. In fact, in a recent decision of Apex Court by the Constitutional Bench in the case of National Insurance Company Vs. Pranay Sethi reported in AIR 2017 SC 517, the Supreme Court has settled the issue by observing as follows:
"(vii) The age of the deceased should be the basis for applying the multiplier"
Further it is to be noted that the Tribunal while adopting the multiplier of '17' has adhered to the 9 observations made by the Hon'ble Supreme Court in Sarala Varma's case.
11. As regards the contention that the income of the deceased was erroneously considered, it is to be noted that Exhibit P10 is a document issued by the Procurement Manager of M/s. Shyam Jewels (P) Ltd., and has been spoken to by the Manager PW2. Ex P14, which is the Income Statement has been relied upon by the Tribunal to take note of the income of deceased, which cannot be found fault with.
12. It is also pertinent to note that if the claimants themselves had sought for enhancement as per the law laid down in Pranay Sethi's case where the deceased is self employed, an addition of 40% of the income would have to be taken into account while determining the compensation. In the light of the same it would be 10 inequitable to tinker with the compensation awarded by the Tribunal.
13. In the light of the above, appeal is dismissed both on the ground of delay and also on merits.
Sd/-
JUDGE Sd/-
JUDGE VGR/RS/* ct:am