Karnataka High Court
Royal Sundaram Alliance Insurance ... vs Smt. Anjani W/O. Ajit Kulkarni on 6 February, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NOS.24072/2013
C/W 24595/2013 (MV)
IN M.F.A.NO.24072/2013
BETWEEN:
ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD.,
CORPORATE OFFICE: SUNDARAM TOWERS,
45 & 46 WHITES ROAD, CHENNAI-600014,
R/BY ITS OFFICE AT: SUBRAMANIYAM BUILDING,
II FLOOR, I CLUB HOUSE ROAD, ANNASALAI,
CHENNAI,
INSURER OF LUXURY BUS BEARING NO.
MH 09 BC 4334. ...APPELLANT
(BY SRI G.N.RAICHUR, ADV.)
AND:
1. SMT.ANJANI W/O. AJIT KULKARNI
AGE 45 YEARS, OCC: HOUSEHOLD WORK
2. KUMARI POOJA D/O. AJIT KULKARNI
AGE 19 YEARS, OCC: STUDNET
3. SRI AJIT S/O. RAMCHANDRA KULKARNI
AGE 48 YERS, OCC: NIL
ALL ARE R/O. C/O. D R KULKARNI,
FIRST CROSS SUBASH GALLI,
:2:
GANDHINAGAR, BELGAUM.
4. ZAKIRHUSSAIN SIKANDAR TAHASILDAR
AGE: MAJOR, OCC: TRANSPORT BUSINESS
AT POST: INGLI, TQ: HATHKANAGALE,
DIST:KOHAPUR,
STATE: MAHARASHTRA. ...RESPONDENTS
(BY SMT.K.M.GEETHA, ADV. FOR C/R1 TO R3,
NOTICE TO R4 DISPENSED WITH)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:15-07-2013 PASSED IN MVC
NO.2088/2012 ON THE FILE OF THE II-ADDL. SENIOR CIVIL
JUDGE AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF Rs.16,56,000/- WITH INTEREST AT THE RATE
OF 9% P.A., FROM THE DATE OF PETITION TILL DEPOSIT AND
ETC.,
IN MFA NO 24595/2013
BETWEEN
1. SMT.ANJANI W/O AJIT KULKARNI
AGE: 45 YEARS OCC: HOUSEHOLD WORK,
2. KUM.POOJA D/O AJIT KULKARNI
AGE: 19 YEARS OCC: STUDENT
3. SRI AJIT S/O RAMACHANDRA KULKARNI
AGE: 47 YEARS OCC: NIL
ALL ARE R/O C/O D R KULKARNI
FIRST CROSS, SUBHASH GALLI
GANHINAGAR, BELGAUM. ... APPELLANTS
(By Smt GEETHA K M, ADV.)
AND
1. ZAKHIRHUSSAIN SIKANDAR TAHASILDAR
AGE: MAJOR, OCC: TRANSPORT BUSINESS,
R/O AT POST: INGLI, TAL: HATHAKANAGALE,
:3:
DIST:KOLHAPUR, STATE: MAHARASHTRA
(OWNER OF LUXURY BUS NO.MH-09/BC-4334)
2. ROYAL SUNDRARAM ALLIANCE INSURANCE CO. LTD.,
CORPORATE OFFICE:SUNDARAM TOWERS,
45 & 46, WHITES ROAD, CHENNAI-600014
REPRESENTED BY ITS OFFICE AT:
SUBRAMANIYAM BUILDING, II FLOOR,
1 CLUB HOUSE ROAD,
CLUB ROAD, BELGAUM
(INSURER OF LUXURY BUS NO.
MH-09/BC-4334). ... RESPONDENTS
(By Sri.G N RAICHUR, ADV. FOR R2)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST
JUDGMENT AND AWARD DTD:15.07.2013, PASSED IN
MVC.NO.2088/2012 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE & ADDL. MACT, BELGAUM, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Insurer has filed M.F.A.No.24072/2013 challenging the legality and correctness of the judgment and award passed by II Addl. Senior Civil Judge and Addl. MACT, Belgaum, in M.V.C.No.2088/2012 dated 15.07.2013 whereunder claim petition filed by the parents and sister of the deceased came to be allowed in part and a compensation of Rs.16,56,000/- has been awarded with :4: interest at 9% p.a. Whereas claimants have filed M.F.A.No.24595/2013 seeking for enhancement of compensation.
2. I have heard the arguments of Sri G.N.Raichur, learned counsel appearing for Insurer and Smt.Geetha K.M., learned counsel appearing for the claimants. Perused the judgment and award in question.
3. Sri G.N.Raichur, learned counsel has made available the depositions as well as exhibits produced before the Tribunal for perusal of this Court. Same has been perused. Contention of Mr.Raichur are as under:
i) To prove the contents of Ex.P.12 and Ex.P.13, i.e., salary certificate and certificate of Axis Bank authors are not examined,
ii) If claimants had examined the employer of the deceased, Insurer would have been in a position to cross-examine the said witness :5: and establish with regard to the stability of the deceased employment and as such contents of Ex.P.12 and Ex.P.13 could not have been relied upon by the Tribunal on its face value in the absence of any other evidence,
iii) Since deceased was bachelor and there is no evidence on record to show that sister was dependent on his income and father also being hale and healthy, sister could not have been considered as dependant on the income of the deceased and Tribunal could not have deducted 1/3rd as living expenses and 50% ought to have been deducted towards his personal expenses,
iv) Age of the mother ought to have been taken into consideration for the purpose of adopting multiplier and not the age of the deceased. :6:
On these grounds he seeks for reduction of the compensation.
4. Per contra, Smt.K.M.Geetha, learned counsel appearing for the claimants would contend that what has been awarded by the Tribunal itself is on the lower side and compensation requires to be enhanced. As such, the appeal filed by the claimants is to be allowed. She elaborates her submission by contending that Tribunal ought to have taken Rs.6,000/- as income earned by the deceased by way of commission from Amway Lifestyle Products as he had been employed as an agent and as such, income of deceased ought to have been taken at Rs.14,800/- p.m. and after deducting 1/3rd, loss of dependency to the claimants ought to have been computed or in the alternate salary of the deceased ought to have been taken at Rs.450/- per day or Rs.13,500/- p.m. She would also submit that compensation awarded by the Tribunal under :7: conventional heads is on the lower side and as such she seeks for enhancement of compensation.
5. Having heard the learned counsel appearing for parties and on perusal of the judgment and award in question as also depositions and exhibits made available by Sri G.N.Raichur, it would indicate that claimants contended before the Tribunal that deceased was a Computer Engineer and working at Compcare Computer Center, Kolhapur. They also produced a communication received by the deceased which indicated that first commission earned by him was on account of he having been appointed as an being the agent of Amway Lifestyle Products and being paid a sum of Rs.2,428/- by way of cheque to substantiate their claim that deceased was also working as an agent and earning money which ought to have been taken as the income. At the outset, it requires to be noticed that neither the author of Ex.P.12 nor any representative of the Amway Lifestyle :8: Products were examined on behalf of the claimants. As to whether non-examination of these two witnesses itself would be sufficient to discard this evidence or not requires to be considered. Mother of the deceased who has entered the witness box has stated that deceased had completed his Diploma in Computer Science and to establish this fact, she has produced the certificate dated 25.06.2009 issued by the University which clearly indicates that deceased had completed his III year Diploma Course in Computer Science. Said certificate came to be marked as Ex.P.15. Original of the said document was also produced before the Tribunal and after comparison, it has been returned back to claimants as evidenced from the records itslef. So also, Ex.P.12 and Ex.P.13. It is because of this reason, Tribunal accepted that income of the deceased can be accepted as reflected in Ex.P.12 which was Rs.9,800/-. :9:
6. One another reason assigned by the Tribunal for accepting the said document is on account of Tribunal considering the income of an agricultural labourer by keeping in mind economic growth and inflation rate and their notional income being considered in the range of Rs.4,500/- to Rs.6,000/- p.m. As rightly observed by the Tribunal, when a rustic villager is being paid Rs.4,500/- to Rs.6,000/- per month, there cannot be any exaggeration or it cannot be held or construed that income of the deceased at Rs.9,800/- p.m. being either on the higher side or excessive. In that view of the matter, Tribunal has rightly accepted these two documents which cannot be found fault and the reasons assigned by the Tribunal is just and proper. It cannot be ignored and same is hereby accepted by affirming the same.
7. However, insofar as 10% added by Tribunal as future prospects is concerned, though assailed by : 10 : Mr.G.N.Raichur that there was no proof with regard to stability of the income of claimant as also with regard to Company where the deceased was working, I am not inclined to accept the said contention for reasons more than one. Deceased was a young boy aged about 23 years. He had completed his 3rd year course of Diploma Course in Computer Science and had joined the employment and was earning Rs.9,800/- p.m. Obviously, he was very enterprising and as such he had taken the risk of getting himself being appointed as an agent of Amway Lifestyle Products. Having been so appointed, he had received his first cheque by way of commission as per Ex.P.13. Said communication has been forwarded to the deceased by the bankers of Amway Lifestyle Products namely the Axis Bank Limited which indicates that he was paid Rs.2,428/- by way of commission. Though the claimants namely parents and sister of the deceased contended his income by way of : 11 : commission ought to have been taken at Rs.6,000/- p.m., it was not accepted by the Tribunal and rightly so. As to whether he would have continued as a Commission Agent with the said Company and would have earned Rs.6,000/- per month that too regularly as contended are all in the domain of ifs and buts and as such same cannot be considered. However, taking into consideration that deceased was a Diploma Engineer, Tribunal by modest estimate has considered and added 10% as his future prospects which cannot be construed either as excessive or exorbitant. Said finding also does not suffer from any infirmity whatsoever calling for interference and same is hereby affirmed.
8. Insofar as deduction of 1/3rd made by the Tribunal is concerned, Sri Raichur would contend that the sister cannot be construed as a dependant in view of the law laid down by the Apex Court in SHAKTI DEVI VS. NEW INDIA INSURANCE COMPANY LIMITED AND : 12 : ANOTHER (Civil Appeal No.3660/2006 dated 09.11.2010) whereunder the Apex Court considered as to the mode, method and extent of deduction to be made towards personal and living expenses and held that if the deceased is survived by the parents and siblings only the mother would be considered to be a dependant and 50% would be treated as personal and living expenses of the deceased bachelor and 50% as the contribution to the family. A caveat has also been put by Their Lordships holding that in the event family of a deceased bachelor is large and dependant on income of the deceased as in a case where a widowed mother and large number of younger non-earning sisters or brothers are dependants, his personal and living expenses can be restricted to 1/3rd and contribution to the family will have to be taken as 2/3rd. It has been held as under:
: 13 :"10. Then with regard to deduction for personal and living expenses, in Sarla Verma this Court again considered Susamma Thomas, U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors. (1996) 4 SCC 362) and Fakeerappa and Another v. Karnataka Cement Pipe Factory and Others (2004) 2 SCC 473) and held as under :
"31. 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 event 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 : 14 : dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent 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."
9. Keeping these principles in the mind, when the facts of the case are examined it would clearly indicate that deceased was aged about 23 years. Though in the : 15 : claim petition, it is stated that age of the mother is 44 years, in the cross-examination, it is clearly admitted that her age is 54 years. This would obviously go to show that age of the father would be more than age of the wife namely 56 or 57 years. As on the date of accident, they were 52 years and 54 years respectively. If it is so, their daughter or sister of the deceased who was then aged 17 years cannot be construed or held as being dependant on the income of deceased and she would have been under the care and custody of her father. As on the date of accident, deceased was working at Pune. The claimants were residents of Belgaum which would clearly indicate that deceased was living separately from the claimants and in a city like Pune, a bachelor would tend to spend more on himself i.e., at least 50% on himself or in other words, contribution to the family members cannot exceed 50%. This court cannot loose sight of the fact that deceased : 16 : would have spent towards his food expenses, lodging expenses, entertainment, transportation and the like. As such, as noticed by the Hon'ble Apex Court in the judgment noted hereinabove, deceased being a bachelor living in a city like Pune, the probability of spending 50% towards his own expenses cannot be ruled out. Hence, I am of the considered view that Tribunal committed a serious error in construing and deducting only 1/3rd towards his personal expenses or living expenses when undisputedly deceased was a bachelor it ought to have been 50%.
10. It also requires to be noticed that Tribunal has taken into consideration age of the deceased to adopt the multiplier. Deceased was aged 23 years and as such, Tribunal has adopted the multiplier of 18 whereas mother of the deceased who is younger of the living parent was aged 54 years as on date of demise of her son and even according to her affidavit filed in lieu of : 17 : examination-in-chief her age is 54 years. Her evidence was tendered in the year 2013 i.e., one year after the date of accident. Hence, even if the age of the mother is to be considered at either 52 years or 53 years, appropriate multiplier as per SARLA VERMA VS. DELHI TRANSPORT CORPORATION (2009 (6) SCC 121) case would be 11.
11. Smt.Geetha, learned counsel for the claimants would contend that in view of the law laid down by the Apex Court in AMRIT BHANU SHALI AND OTHERS VS. NATIONAL INSURANCE CO. LTD., (AIR 2012 SCW 3901), age of the deceased is to be taken for adopting the multiplier is concerned, I am not inclined to accept the same inasmuch as the Hon'ble Apex Court in catena of judgments have taken a view starting from GENERAL MANAGER, KERALA STATE ROAD TRANSPORT CORPORATION, TRIVANDRUM VS. MRS. SUSAMMA THOMAS (AIR 1994 SC 1631) AND RAMESH SINGH AND : 18 : ANOTHER VS. SATBIR SINGH AND ANOTHER (2008 ACJ
814) whereunder it has been held that age of deceased has no relevance in adopting appropriate multiplier when the claimants are parents and after noticing the judgment of three Judges in the case of NEW INDIA ASSURANCE COMPANY LTD., VS. SHANTI PATHAK AND OTHERS (2007 ACJ 2188), this Court in the case of BANGALORE METROPOLITAN TRANSPORT CORPORATION, CENTRAL OFFICE VS. B.N.NAGESH AND ANOTHER (ILR 2013 KAR 739) has held that age of the younger parent is to be taken and not the age of the deceased. In the instant case, Tribunal has taken age of the deceased to adopt the multiplier and as such it requires to be modified by considering the age of the mother which is 54 years and adopting the multiplier of
11. Thus, the compensation that becomes payable to the claimants by construing the income of the deceased : 19 : at Rs.10,780/- p.m. after deducting 50% towards his personal expenses would be as under:
Rs.10780=5390X12X11=Rs.7,11,480/- 2
12. Thus, compensation awarded by the Tribunal towards loss of dependency in a sum of Rs.15,52,302/- cannot be sustained and it is hereby modified.
13. Insofar as the compensation awarded by the Tribunal in a sum of Rs.1,03,600/- under other heads is just and reasonable and it does not call for any interference. Hence, following:
ORDER
i) M.F.A.No.24072/2013 is hereby allowed in part,
ii) Judgment and award passed in M.V.C.No.2088/2012 is hereby modified and a sum of Rs.8,15,080/- is hereby awarded to claimants 1 to 3 in substitution to what has : 20 : been awarded by the Tribunal which shall carry interest at the rate of 9% p. a. from the date of petition till date of payment or deposit whichever is earlier,
iii) Claimant Nos.1 and 3 would be entitled to the compensation in the ratio of 60:40,
iv) If there are any amount still payable, the Insurer shall deposit the same before the jurisdictional Tribunal,
v) The amount in deposit is ordered to be transmitted to the jurisdictional Tribunal for disbursal,
vi) M.F.A.No.24595/2013 is hereby dismissed.
No costs.
SD/-
JUDGE Jm/-