Karnataka High Court
Nagaveni vs Mohammed Rasool on 8 December, 2022
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 2516 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO.2516 OF 2022(MV-D)
BETWEEN:
1. NAGAVENI
W/O V GURUMURTHY
NOW AGED ABOUT 53 YEARS
2. RAJESHA
S/O GURUMURTHY
NOW AGED ABOUT 35 YEARS
3. PAVITHRA
D/O GURUMURTHY
NOW AGED ABOUT 32 YEARS
4. MOUNESHA
S/O GURUMURTHY
NOW AGED ABOUT 29 YEARS
ALL ARE AGRICUTURISTS
R/AT VENKATPURA VILLAGE
Digitally signed DEVASANDRA HOBLI
by MOLAKALMURU TALUK
DHANALAKSHMI
MURTHY
...APPELLANTS
Location: High
Court of
Karnataka (BY SRI. RAGHU R., ADVOCATE)
AND:
1. MOHAMMED RASOOL
S/O ABDULLA SAB
MAJOR
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MFA No. 2516 of 2022
R/AT NO.16/8, BAZAAR STREET
ANEKAL TOWN, ANEKAL TALUK
BANGALORE 562106.
2. THE BRANCH MANAGER
SHRI RAM GENERAL INSURANCE CO LTD.,
BRANCH OFFICE, HOSUR MAIN ROAD
BELEKALLAHALLY, BANNERUGATTA ROAD
BANGALORE 560 076.
...RESPONDENTS
(BY SRI.B.PRADEEP., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 08.12.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 20.08.2019
PASSED IN MVC NO. 949/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT, CHALLAKERE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment and award dated 20.8.2019 passed by the MACT, Challakere in MVC 949/2017.
-3- MFA No. 2516 of 20222. Facts giving rise to the filing of the appeal briefly stated are that on 10.6.2017, when the deceased V.Gurumurthy was riding motorcycle bearing registration No.KA-16-V-5093 towards Venkatapura from Challakere near Lakshmi Poultry, BG Kere village, at that time, a bus bearing registration No.KA-51-B-9562 which was being driven in a rash and negligent manner, dashed against the vehicle of deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.
3. The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest.
4. On service of summons, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied.
The respondent No.1 did not appear before the Tribunal inspite of service of notice and hence was placed ex-parte.
-4- MFA No. 2516 of 20225. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and got exhibited documents namely Ex.P1 to Ex.P14. On behalf of respondents, now witness was examined but got exhibited documents namely Ex.R1 and 2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries.
The Tribunal further held that the claimants are entitled to a compensation of Rs.9,45,260/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with interest.
Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimants has raised the following contentions:
-5- MFA No. 2516 of 2022Firstly, the claimants claim that the deceased was aged about 55 years at the time of the accident and he was getting salary of Rs.15,000/- per month by working as Post Master and produced salary certificates at Ex.P-7, 11 and 12 and also earning Rs.10,000/- from agricultural lands. But the Tribunal has taken the income only at Rs.10,415/- p.m. Secondly, the Tribunal is not justified in adopting split multiplier while awarding compensation under the head of 'loss of dependency'. In support of his case, he has relied upon the judgment of the Apex Court in the case of N.JAYASREE AND OTHERS -V-
CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD. (2021 SCC Online SC 967).
Thirdly, as per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], an addition of 15% of actual salary to the -6- MFA No. 2516 of 2022 income of the deceased towards future prospects, where the deceased had a permanent job and was between the age group of 50-60 years, should be made. Hence, the same may be considered.
Fourthly, as per the law laid down by the Hon'ble Supreme Court in the case of PRANAY SETHI (supra), the claimants are entitled for Rs.16,500/- towards 'loss of estate' and Rs.16,500/- towards 'funeral expenses'.
Fifthly, as per the judgment of the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO.
LTD. -V- NANU RAM [2018 ACJ 2782], each of the claimants are entitled for compensation of Rs.44,000/-
under the head of 'loss of love and affection and consortium'.
Lastly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is on the lower side. Hence, he prays for allowing the appeal.-7- MFA No. 2516 of 2022
7. On the other hand, the learned counsel for the Insurance Company has raised the following counter-
contentions:
Firstly, the claimants claim that the deceased he was getting salary of Rs.15,000/- per month by working as Post Master and produced salary certificates at Ex.P-7, 11 and 12 and also earning Rs.10,000/- from agricultural lands. But the Tribunal considering the evidence of parties and materials available on record has rightly assessed the income of the deceased at Rs.10,415/- p.m. Secondly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable.
Lastly, in view of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others -v-
Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the -8- MFA No. 2516 of 2022 rate of interest granted by the Tribunal at 9% p.a. on the compensation amount is on the higher side. Hence, he prays for dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.
9. It is not in dispute that Gurumurthy died in the road traffic accident occurred on 10.6.2017 due to rash and negligent driving of the offending vehicle by its driver.
The claimants claim that deceased was getting salary of Rs.15,000/- per month by working as Post Master and produced salary certificates at Ex.P-7, 11 and 12 and also earning Rs.10,000/- from agricultural lands. Considering the evidence of the parties and materials available on record such as salary certificates, the Tribunal has rightly taken the income of the deceased at Rs.10,415/- p.m. In respect of applying multiplier, the Apex Court in the case of N.JAYASREE (supra) has held as follows:
-9- MFA No. 2516 of 2022(II) Whether the High Court was justified in applying a split multiplier?
22. The deceased was aged 52 years at the time of the accident. He was working as an Assistant Professor and getting a monthly salary of Rs.83,831/- (Rupees eighty-three thousand eight hundred thirty-one only). The evidence on record shows that he was a meritorious man having the qualifications of M.Sc, M.Phil. He was a first-class holder in M.Sc. He was a Selection Grade Lecturer in Mathematics and was a subject expert. He was also included in the panel of Mahatma Gandhi University and was appointed as Examiner in the Board of Examiners for CBCCSS Programme in Mathematics.
Subsequently, he was appointed as Deputy Chairman of the Examiners Board. Evidence on record also shows that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are appointed in so many colleges. It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement.
23. In Sarla Verma, this Court has held that while calculating the compensation, the courts should take into consideration not only the actual income at the time of the death but should also make additions by taking note of future prospects. It was further held that though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid disparate yardsticks being
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MFA No. 2516 of 2022applied or disparate methods of calculation being adopted.
24. In Reshma Kumari & Ors. vs. Madan Mohan & Anr., a three-Judge Bench of this Court has approved the judgment in Sarla Verma.
25. In Pranay Sethi2, this Court has not only approved the aforesaid observations made in Sarla Verma1 but also held as under:
"59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
26. In K.R. Madhusudhan and Ors. vs. Administrative Officer and Anr.10, this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of
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MFA No. 2516 of 2022dependency and held as under: 10 (2011) 4 SCC 689 "8. In Sarla Verma1 judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances.
9. We are of the opinion that the rule of thumb evolved in Sarla Verma is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same."
27. In Puttamma and Ors. vs. K.L. Narayana Reddy and Anr., this Court was again considering a case where split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus:
"32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma 11 (2013) 15 SCC 45 prepared a table for the selection of a multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier.
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33. In K.R. Madhusudhan v. Administrative Officer this Court held as follows: (SCC p. 692, paras 14-15) "14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6.
15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method.
34. We, therefore, hold that in absence of any specific reason and evidence on record the tribunal or the court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in Sarla Verma as affirmed in Reshma Kumari."
28. From the above discussion it is clear that at the time of calculation of the income, the Court
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MFA No. 2516 of 2022has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi, the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case."
In view of the law laid down by the Apex Court in the case of N.JAYASHREE (supra), the Tribunal is not justified in applying split multiplier while calculating the 'loss of dependency'.
To the monthly income of Rs.11,977/- of the deceased, 15% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in 'PRANAY SETHI' (supra).
Thus, the monthly income comes to Rs.11,977/-.
Considering the number of dependents, the Tribunal has
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MFA No. 2516 of 2022rightly deducted 1/4th of the income of the deceased towards personal expenses and remaining amount has been taken as his contribution to the family. The deceased was aged about 55 years at the time of the accident and multiplier applicable to his age group is '11'.
Thus, the claimants are entitled to compensation of Rs.11,85,723/- (Rs.11,977*12*11*3/4) on account of 'loss of dependency'.
In addition, the claimants are entitled to compensation of Rs.16,500/- on account of 'loss of estate' and compensation of Rs.16,500/- on account of 'funeral expenses'. Claimant No.1, wife of the deceased is entitled for compensation of Rs.44,000/- under the head of 'loss of spousal consortium'.
In view of the law laid down by the Supreme Court in the case of 'MAGMA GENERAL INSURANCE' (supra), claimant Nos.2 to 4 , children of the deceased are entitled
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MFA No. 2516 of 2022for compensation of Rs.44,000/- each under the head of 'loss of parental consortium'.
10. Thus, the claimants are entitled to the following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 11,85,723
Funeral expenses 16,500
Loss of estate 16,500
Loss of spousal 44,000
consortium
Loss of Parental 1,32,000
consortium
Total 13,94,723
Rounded off 13,95,000
11. In the result, the appeal is allowed in part.
The judgment of the Claims Tribunal is modified.
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MFA No. 2516 of 2022The claimants are entitled to a total compensation of Rs.13,95,000/- as against Rs.945,260/- awarded by the Tribunal.
In view of judgment of the Division Bench of this Court in the case of 'MS.JOYEETA BOSE' (supra), the enhanced compensation shall carry interest at 6% per annum.
The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.
Sd/-
JUDGE DM List No.: 2 Sl No.: 23