Karnataka High Court
M/S Reliance General vs Shri M Jayalakshmamma on 20 September, 2017
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MFA No.9661/2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF SEPTEMBER 2017
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO. 9661/2013 (MV-D)
BETWEEN :
M/S.RELIANCE GENERAL INSURANCE
COMPANY LTD., NO.3, 1ST FLOOR
NORTH WING, MANADI PLAZA
ST.MARKS ROAD
BANGALORE-560 001
REP. BY ITS MANAGER ...APPELLANT
(BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE)
AND :
1. SHRI M.JAYALAKSHMAMMA
W/O M.K.GURUSWAMY (LATE)
NOW AGED ABOUT 49 YEARS
2. M.G.SHASHIDHAR
S/O LATE M.K.GURUSWAMY
NOW AGED ABOUT 34 YEARS
BOTH ARE RESIDING AT
NO.2611/2, 1ST FLOOR, 2ND CROSS
GANDHINAGAR, MANDYA-571 401
3. L.N.SRIVANITHA
NO.3, NEW NO.35 AND 36
KALLAPPA BLOCK
GANDHI BAZAAR
BASAVANAGUDI
BANGALORE-560 004 ...RESPONDENTS
(BY SRI N.S.BHAT, ADVOCATE FOR R1 AND R2 FOR
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MFA No.9661/2013
SRI R.THAMILVANAN, ADVOCATE FOR SMT. SHWETHA
ANAND, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND AWARD
DATED:04.04.2013 PASSED IN MVC NO.6532/2011 ON THE FILE
OF THE 11TH ADDITIONAL JUDGE, MACT, COURT OF SMALL
CAUSES JUDGE, BANGALORE, AWARDING A COMPENSATION OF
RS.30,51,408/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
THIS PETITION TILL THE DATE OF REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
25.07.2017 FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGEMENT
K.S.MUDAGAL, J. :
This insurer's appeal arises out of the judgment and award dated 4.4.2013 passed by the XI Additional Small Causes Court and MACT, Bengaluru in M.V.C.No.6532/2011. By the impugned award, the Tribunal has granted compensation of Rs.30,51,408/- to the claimants.
2. Respondent Nos.1 and 2 are the claimants and the third respondent is the owner of the vehicle involved in the accident. Third respondent is arrayed as respondent No.1 before the Tribunal. For the purpose of convenience, parties will be referred to hereafter with their ranks before the Tribunal.
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3. The claimants are the widow and son of deceased M.K. Guruswamy. On 29.05.2011 at about 4.00 p.m., when the said M.K.Guruswamy and the pillion rider Puneeth were proceeding on motor cycle bearing No.KA-06-S-8729 near Bhakthanatha High School, B.G.Nagara within Bellur Police Station limits, the driver of the Honda City Car bearing No.KA-05-ME-3654 drove that in rash and negligent manner and dashed against them and caused accident.
4. In the accident M.K.Guruswamy and Puneeth suffered injuries and were shifted to A.C.Giri Hospital, B.G.Nagara. M.K.Guruswamy succumbed to the injuries in the hospital. His wife and son filed MVC No.6532/2011 and Puneeth, the pillion rider filed MVC No.6770/2011, alleging that the accident occurred due to rash and neg0ligent driving of the Honda City Car No.KA-05-ME-3654 by its driver.
5. In M.V.C.No.6532/2011, the claimants contended that due to untimely death of M.K.Guruswamy they have suffered damages and thus claimed compensation of Rs.25,00,000/- with interest.
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6. The third respondent/owner of the vehicle did not contest the matter. The insurer contested the matter denying the accident, negligence on the part of driver of the car, coverage of the policy, age, occupation and income of the deceased. Insurer further contended that accident occurred due to the rash and negligent driving of the rider of the motor cycle. It contended that the rider of the motor cycle and the driver of the Honda city car were not holding valid driving licence and thus it is not liable to pay compensation.
7. The Tribunal clubbed MVC No.6532/2011 & MVC 6770/2011 and recorded common evidence. On petitioners' side, P.Ws 1 to 4 are examined and Exs.P.1 to P.14 are marked. On behalf of respondents no evidence is adduced. The Tribunal after hearing the parties awarded compensation of Rs.30,51,408/- in M.V.C. No.6532/2011 with interest at 6% p.a. The above appeal is confined to sustainability of the award in M.V.C. No. 6532/2011. -5- MFA No.9661/2013
8. Sri H.N.Keshava Prashanth, learned counsel for the appellant-Insurance company in his arguments seeks to assail the award mainly on the following grounds:
i) The deceased was left with only three years of service and therefore the Tribunal ought to have applied split multiplier, the Tribunal committed error in taking multiplicand at Rs.41,965/- per month for the entire 9 multiplier;
ii) The widow of the deceased gets monthly pension on account of the death of her husband.
Therefore, Tribunal ought to have given deduction to the same while computing the compensation;
iii) Since the second claimant (son) is major, the Tribunal ought to have deducted ½ of the income of the deceased towards his personal expenses. The Tribunal committed error in deducting 1/3rd towards personal expenses of the deceased;
iv) The Tribunal committed error in holding that the accident occurred due to rash and negligent driving of the car.
-6-MFA No.9661/2013 In support of his contentions, he relies upon the following judgments.
i. Kumaran and others vs. Roy Mathew and Others, 2017 ACJ 1323 ii. Karnataka State Road Transport Corporation vs. Narasubai Joshi @ N.L.Joshi & Others, ILR 2014 Kar.4931 iii. Union of India and others vs. K.S.Lakshmi Kumar and others, ILR 2000 Kar.3809 iv. Smt. Arati and Others -vs- Gouspeer Hussainab Makandar and another in M.F.A.No.25007/2012 c/w The Divisional Manager -vs- Smt. Arati and others in M.F.A.No.25650/2012 (High Court of Karnataka, Dharwad Bench) D.D.on 20.01.2014
9. Sri N.S.Bhat, learned counsel for the claimants seeks to justify the award on the following grounds:
i. The Tribunal has held the issue of rashness and negligence against the driver of the vehicle in both MVC.Nos.6532/2011 and 6770/2011 and none have challenged the award in M.V.C. No.6770/2011, therefore it is not open to the appellant-insurer to question the same;-7- MFA No.9661/2013
ii The pension and other terminal benefits arising out of death of the victim are not the pecuniary advantages and therefore they cannot be deducted in the damages payable;
iii The insurer has not made out any grounds to apply the split multiplier;
iv. Deduction towards personal expenses is justifiable since there are two dependants.
In support of his contention, he relies upon the following judgment Puttamma and others -vs- K.L.Narayana Reddy and Another, (2013) 15 SCC 45.
10. Having regard to the rival contentions, the question that arises for consideration is whether the compensation awarded by impugned award is just and proper? Re. The occurrence of the accident and negligence
11. The claimants in this case and another injured Puneeth filed two claim petitions, namely, MVC 6532/2011 and 6770/2011 contending that the accident occurred due to rash and negligent driving of lorry No.KA-05-ME-3654 by its driver. The Tribunal by common judgment in both the -8- MFA No.9661/2013 cases has held that the accident occurred due to rash and negligent driving of lorry No.KA-05-ME-3654 by its driver. None of the respondents have challenged the award in MVC No.6770/2011. Thereby the findings in MVC 6770/2011 regarding the accident, rashness and negligence have attained finality.
12. Having accepted that finding, it is not open to the insurer again to question the same in this case. Moreover, the owner of the vehicle did not contest the petition denying all those aspects. Secondly, though the insurer contended that the accident occurred due to the negligence on the part of the deceased Guruswamy himself, it did not adduce any evidence to prove its contention. Therefore, there is no merit in the contention that the Tribunal's finding on rashness and negligence is erroneous. Re. Loss of Dependency
13. As per Exhibit P.13 the Service Record, the date of birth of deceased Guruswamy is 10.5.1954. Thus the Tribunal rightly held that he was 57 years old at the time of the accident. There is no dispute that the deceased was working as Junior Engineer in Chamundeshwari Electricity -9- MFA No.9661/2013 Supply Corporation Limited (Hereafter referred to as 'CESCL' for short). His service record and the evidence of PW.3/the Executive Engineer of CESCL show that at the time of the accident, the deceased was drawing gross salary of Rs.44,665/- per month.
14. The Tribunal deducted Rs.200/- per month towards professional tax and Rs.2500/- per month towards income tax and computed his actual salary at Rs.41,965/- per month. Since the deceased was 57 years old at the time of the death, as per the judgment of the Supreme Court in RAJESH & OTHERS vs RAJBIR SINGH & OTHERS, (2013)9 SCC 54, the Tribunal ought to have added 15% of the income towards future prospects. Thereby the monthly income of the deceased comes to 41965+6294(15%)=48,259.00.
15. The Tribunal deducted 1/3rd towards the personal expenses of the deceased holding that the claimants are the two dependant family members of the deceased. But the evidence on record shows that the second claimant was 32 years old at the time of filing the petition. He has not entered the witness box to state that he was depending -10- MFA No.9661/2013 upon his father. PW.1 in her cross-examination admits that the second claimant is aged 33 years and running cement business at Bellur.
16. In Sarla Verma vs. Delhi Transport Corporation, (2009)6 SCC 121, Para 30, the honouarble Supreme Court has held as follows:
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one- third (1/3rd) where the number of dependant family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceeds six."
(emphasis supplied)
17. The Division Bench of this Court in Smt.Arati and Others, referred to supra, while dealing with the similar issue, held that the major sons are not the dependants and therefore did not take into consideration their number as -11- MFA No.9661/2013 dependants while deducting towards personal expenses of the deceased. It was held that where the deceased has only one dependant half of his income has to be deducted towards personal expenses.
18. Having regard to the aforesaid facts and the judgments, the Tribunal ought to have deducted 50% from the income of the deceased towards personal expenses of the deceased. Thus, the monthly income of the deceased comes to Rs.(48259-24129) 24,130/-.
19. The other contention is that the first claimant gets family pension, DCRG etc., therefore while computing the multiplicand, the Court should give deduction for the same. In this regard, the Apex Court in Vimal Kanwar and others vs. Kishoredhan and others, (2013)7 SCC 476, relying on its earlier judgment in Helen C Rebello vs. Maharshtra SRTC (1999)1 SCC 19, has held as follows:-
"19. The aforesaid issue fell for consideration before this Court in Helen C. Rebello v. Maharashtra SRTC. In the said case, this Court held that provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage"
receivable by the heirs on account of one's death but all these have no correlation with the amount -12- MFA No.9661/2013 receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction."(emphasis supplied) Therefore there is no merit in the contention that deduction shall be given to the pension, provident fund, insurance etc., receivable by the claimants on account of death of Guruswamy.
20. The other question raised is that the Trial Court should have applied split multiplier. Since deceased was 57 years old, as per Sarla Verma's case, the multiplier of 9 applies. It is contended that the deceased was left with only three years service and after superannuation, he was getting only half of the salary as pension. It is contended that the Tribunal should have taken the multiplicand equal to the income of the deceased till the period of superannuation and for the balance period, the pension receivable should have been the basis for computing the loss of dependency.
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21. The Apex Court in Puttamma and others vs. K.L.Narayana Reddy and another, (2013)15 SCC 45 in that regard has held as follows:-
"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 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.
xxx
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." (Emphasis supplied)
22. In this case, the insurer in his pleadings has not taken any plea regarding application of the split multiplier or that the deceased lacked potentiality to earn the same income even after his superannuation. Nothing is suggested in the cross-examination of the claimants' witnesses on that point, nor the respondents have adduced -14- MFA No.9661/2013 any evidence in that regard. Therefore, there is no merit in the contention that the Tribunal ought to have applied the split multiplier in computing the loss of dependency.
23. In cases of Arati and Others -vs- Gouspeer Hussainab Makandar and Karnataka State Road Transport Corporation vs. Narasubai Joshi @ N.L.Joshi & Others, referred to supra, the judgment of the supreme Court in Puttamma's case is not referred to.
24. Having regard to the judgment in Puttamma's case, the aforesaid judgments and the judgment in Union of India and others referred to supra, are not applicable. Therefore, the loss of dependency is reassessed as follows:
Rs.24130 x12 x 9= Rs. 26,06,040.00 Reg. Loss of Consortium etc.,
25. As per the judgment in Rajesh vs. Rajbir Singh, referred to supra, Rs.1,00,000/- has to be awarded to the spouse towards loss of consortium. Towards transportation of dead body and funeral expenses Rs.25,000/- has to be awarded. The compensation awarded by the Tribunal on those heads therefore requires to be modified accordingly. The compensation awarded on -15- MFA No.9661/2013 the heads of loss of love and affection to the son and loss of estate needs no interference.
26. Therefore, the compensation payable is reassessed as follows:
HEADS AMOUNT IN RS.
Loss of dependency 26,06,040.00
Loss of Consortium 1,00,000.00
Loss of love and affection to 10,000.00
the son
Loss of estate 10,000.00
Transportation of dead body 25,000.00
and funeral expenses
Total 27,51,040.00
For the aforesaid reasons, the compensation of Rs.30,51,408/- awarded by the Tribunal is hereby reduced to Rs.27,51,040/-. The rest of the award regarding interest and apportionment etc., is maintained. The appeal is allowed in part accordingly. In view of the disposal of the appeal, I.A.I/2017 stands disposed of.
Sd/-
JUDGE Sd/-
JUDGE hr/nv