Karnataka High Court
Smt Girija W/O Ravi B Gowda Hawaldar vs Shivakumar S/O Gurulingappa Padshetty on 30 July, 2008
Equivalent citations: 2011 AAC 185 (KAR), 2010 (4) AIR KANT HCR 892, (2011) 2 KANT LJ 51, (2010) 2 CIVLJ 833
18 THE HIGH oomrr or L;
cmcurr BENCH AT % T
Dated this the day émaxy % '
THE HON'BLE MR.JUSHCE gowm
THE H915: NAGARAJ
msc.mar
Between:
I.S}2l'.1t.
"V31./o.vRé:vi.A«}3.G:9wci§fi'Hasvaldar
S/«3.Ra:vi "a E-Iawaldar
I Mmm: tllmugis his next friend and
Natural his real mother
" ~ 5 Appcflaritfio. I
« ' I;39ti1%i-tsidcnts of Devi Nagar
" ...Appe1laI1t
(By Sri. M.B/Ioinuddill, Adv.)
1. Shivakumar
S/ofiurulingappa Padshetty
'____"m(-----*\..----~---~'
(300: Driver and Owner of Santm Car
Bearing Rmistration NCLKA 32 M 3174 __ . A =
R/'0.Sh0p No.1-655/O, MSK Mill Road
Station Bazaar,Gu1banga. * "
:2. The New India Assurance CJo.Ltd.',--
threugh its Divisionai Maxzaggr
Sangameshwar Colcny '
Policy Cover Note 4.1.2003
Issued from BC) Sri11i3;tt1'(',a3_1i;3:Icx
New Cotton Market, Llfibfi. q_ V '
3. Smt.Shivam:md"
Age: 65 Hafiz-Q]<':h§1id
Tq; Jctwargiliifiti j
..R€spcndent$'' «, -
This Appea A filed under Sec. 173(1) of
the M1? Act against' the Judgment and Award dated
passed in:.:vc No.435/2004 on the me of
'2_th c«.1?r1.DiSf1i<it.._vJudgc and MACE', Gulbary partly
allowing "tI_1'e.. petition for compcnsaticn and
. imercst.
'e:nf1a1:x;':emcnt of compensation with 8%
Thi3 Misc.F'i1'st Appeal coming on for hcarillg
' flay, A'-rat: llagarq, J, delivered the following:
JUDGBEHT
The appellant N031 and 2 herein. respectively
being claimants 1 and 2 in MVC 435/O4 have sought
for enhancement cf ccempcnsation awarded under the
<'*---{N""'""'_'/
Ce
husband and father of the first and second appellant-
claimants respectiveiy and son of third I'CSpO1"1(iC11t -
Shivamma and death ef the deceased as a A. 2
the said accident on 29.2.2004; the liability I :
respflndent Insurance Compaiiiif to
compensation to the elaima ms I1aife all
totally unchallenged. Therefdte;:"'ethe
arises for our dCtCI'I}31'I}.E£v'i;'iC)I1i:ii; is,
to
be e t0"AAe'so;..3v to what
Our rmmggpn is in the 'affirmative'
'' holdifig t;§}a1iVv.the e;ppeii;ant-cia1'mants 1 and 2 and also
" Snltstxivamma shall be tegether
entitled ta compensation of Rs. 1 1,46,600/~
. .. .1»-v'44___étSA3g8.il;1Sf:'RS.8,22,325/- awarded by the Txibuxlal fer
reasons:
4. The ieamed counsel far the appellants,
~ 'epiacing strong reliance on the decision. of the Supreme
Court in the case of National Inswunce "
Ltd, - vsdndira Srivasttwa and others T' 1 V
1 rzoosmcc 162 cm; stmngly .:on-fiéxiczedj '
Tribunal committed serious. * cgror A ' . V
loss of dependency by tfxe pay
(Rs.3,890/-,) and
I-IRA of Rs.111:1__ thga... to
Rs.6, 141/- ugjfithe deceased
instead Rs. 10,206/- less
the ._ such as Income Tax,
Pr'ofessio:'1Aa}. in Ex.PI3 the salary
V.cexti1i<:9,<'1'te;~ He submitted that the Tribunal
grror in not considering the prospects
of ".i;;rOA1z.1£$tior1, increments, periodical wage
' the deceased, who was onfiv about 21
coijid have got during his entire service in
the 'loss of dependency'. He also
that, the Tribunal was not justified in
awarding only meager amount of Rs.5,000/-- towards
consortium in favour of Ehfi farst appellant-claimant
g---.....€\-------..,__
Wife and Rs.3,000/-- only towards funeral and
expenses and also in not awarding the.--.4"%:o§éfi:".v:5f:&
medicines as found in various bi1ls'u.:1c1¢r--Ex._vP15,
5. As agajxlst the above fit' .
learned counsel for the
Veetvesh B.Pati1, sécond
respondent-Insurer the
deceased was of any pI'0IIlt3tiO11 the Tribunal has of Rs.6141/--- as the monthly "i:::;c0;11é' . ' deceased; the amounts , '_ aw§2;'.§é;iL'~ by under dificrcnt heads is qiiittz and as such ixnpugned Judment not cal} for any interference in this '.V.'aDpg«'g 1- .' 4' " ~ the case of National Insurance Company -- Indira Bu-ivastava referred to supra, which is relied the by the learned counsel for the appellant, the Ho1:1'bic Apex Court has observed at Paragraph Ne-s. 13,14 and 21 as under:
Paru.13. The question came consideration before a learned Single Jt;£dgveT 2." ' of the Madras High Court in the __ uer,-j' National Insuranee Cm, Ltd, »e...?ad:§:deathy V' & Ora, cm No.114 of 2906._d€CfQed' 29.1.2007, wherein it was heid: "
'Income tax, Pmfeesioriai tax which are deduc1fedu.._fi-om salaried person. gaese-m-.'t_he""cefi'e13'"-A of the Govenmient --'_uniz'Zer' head. and there' ie...5'no 'r-e'_lum:
Funcg _ .-Special V' "Fund, L1 Cf, C;'eit_fr£b1;ztr22n a:'e--v Paid 7Gi'*«d the eontnbufiien Hrepézyable to time of V._vo£untary--«V.. -death or for 'emy. Ofi'l.3?'~ Such eo?a.et7ibution'§.Ama£2e by the salaried e _ per-s&?!;"e:.re,*--defefi'ed payments and they cire... «savings. The Supreme as ewéu cw , High have held that the
- payabie under the ' Mei'e3rV'§!ehides Act is statutory and ti'-mt deferred payments made to z the' employee are contractual.
Cfsurts have held that there cannot be any deductions in the etatutery emnpensmian, gf the Legal Representatives are entitled to lumpsum payment under the contractual liabflity. J' the contributions made by the employee which are otherwise saving fiom the salary are deducted from the gross income wad only the net income is taken for ccmzputing the (--.....r""-"""\....a-
dependency compensation, then the Legal Representatives of the victim would lose considerable portion H l the income. fit view of th,e~settle'.¥:l proposition of law, I am of '1 ' the Tnlmnal cam make onlyV _ statutory such as V and any other w}1ic.Pl"' is not repayable by fmm the cf .deoec"23ed person while ' ~. » monthly dependency 'V l My ._.matie' by the enapldyee dw"?n9 " ' Of the c2:Lfi1,Vthl'ay*Vshozzlc_i_ T' while ':§:or2'¢12'vulti'2%;:."VV._»"'l _ ' -dependency eaqaressed by a Single' vlhldge of Andhru rradeah in S;""Nanayanamma & Ore... v.
.' of India, lfintmy "9f'I'¢ie9:e:r2ag2:;n1ea~uons and am, xuzoom
2 533:3; ' . 'In this background, now we will the present deductions made by the Tribunal fi'om the salary of the clewased in fixing the monthly contribution of the deceased to his family. The Tribunal has not even taken proper care while deducting the amounts firom the salary of the deceased, at least the very nature of deductions from the salary of the deceased' My view is that the deductnlans C'-
11..
washing allowance of Rs.292/- and Repast of "
Bhatta of Rs.165/- and other allowance of T the total of which comes to Rs. iv '1 * , 'V
8. Following the pflnciylcs dovzfidd 'tho V Hoxvble Apex Court in the aboveo%isa:;1a¢c:si;m§, are of the opinion that in taking the monthly ' at R36, 141/-- V' salary of Rs. 1o,2oo/%%- R$.$,so7/- excluding the not have been excluded.
The to the not monthly of'~Rs.8;8'G7[_f___§§:1e deductions made from the Rs.502/- towards family pension towards contribution to provident towards PF Advance and Rs.1m/- ftoivéards 'festival advance. If these deductions, the of which comes to Rs.1083/- is added to the net of Rs.8,80'?/-. the total comes to RS.9740/-. Fugrthcr, the Tribunal ought to have added to this amount a sum of R322 I/- being the contribution by (~""""'*'~al"_."°"-'--Iv-""""""' I3 thf: empioycr to the Provident Fund equal to the contribution of the deceased. If this is added said amount of Rs. 9740/- the further total "V-3?': ~ RS996}/--. The Tribunal was.j1.1stific:d""'i£i.';v»'i1ot' ._ V considezing Rs. 3264/- which, %%1n¢1usi=§¢ Rs.3,099/- which the salaly and Rs.165/- wngch Bhatta. But, it was ndf' Rs.6'70/- "%J'1'owancc of 123.292/-; aI1d.Rs.3'78/-. If this amount the said amount of Rs.3fi"é4:/' is»: RS996 1. /-- the net montly _ v,x{tv_:i(A:Ak:z i:i*1€ Tribunal ought to have 3 loss cf dependency comes to kizys;:f:3§7«z§0'"(Rs,%9961 + Rs.670=0O -» Rs.3264.oo == This entire calculation may be ' ' ' 1 ' ~ . as under:
' F"
'$5
9. Ftlrther, the Tribunal 1.1; prospects of promotion of asu Driver and also periodieal annual increments earned throughout hhwas about 21 years. of the whieh:"fl1e~. have earned as on the date of Therefore, we have only , '_ to wore:-: as to what would have been the" of the deceased at the time of supe;-axmuatufm, Therefore, we are of the considered E taking into consideration the periodical 'Ciflei*eB1ents, wage revision, bonus chances of V' piiemofion, ete., and also the statutory deductions /"'"--.5'4N"'"'"\-/"
\£ towards Prefessional Tax, Income Tax, eI:e.._;--V .. monthly income of the deceased could be ' estimating the loss 61" dependenifi 'to~ Rs.9,000/-~ p.m., as agai11st_R_s. 85 by us supra and also as the Tribunal in the impegneri «L
10. If Rs.9,.§)00/- income of the deeeasee / towards his mrsenal to the famiiy eozlsistifeegnv ef third respondent Weuld be V.£€4S.6,G{)€)f}' or Rs.72,000/- per V It is.' dispute that deceased was aged as on the date of his death. Therefore, :15 this Court in Gillan: Kinder': case H V .V 2W0 EAR 4416 the proper niultiplier beadapted would be ':5'. But, in view of the fact
--' the deceased was a salaried person, he would have earned full salary of Rs. 9000/- p.111., fill the date of his superannuation and thereaftecr his inceme by Way of pension Weuid have been reduced by 50% (--~_...fW_""""""""
1:'?
Rs.10,000/- which shall be inclusive of towards transportation of dead body and M incidental expenses. The Tribtnlai not any amount of compensation to 2,» son of the deceased, «floss affection'. Therefore, '_ hereby of Rs.10,000/- in his
12. On 'Judgment it could be has awarded a sum er Rs. hospital charges as part of the 'medical treatment given _to me the date of accident on he died, any amount towards actual cost of by the claimant under the ' series. In this regard, the Tribunal « 'ohsei§ed at para. 13 of its Judgment that since bills are of the same date, it is highly . V "'.io§ombabIe that on single day the patient might have been administered with that much of medicines as found therein worth more than Rs.1,000/-- per day. %
11. 3.7. Having regard to the circumstances of the case, we feel that T ' submission" of the learned _ deserves acceptance. Third respoxidehnt n1ot2"1.e,.r" and '' also both the appellants, the deceased, have been the iznpugled judgment in the eompensatiort V their respective ameunt which has '.T__I'ibIur1aI. Therefore, WC do not feel it IeamnabIe.VA'te:"ttisturb the same. However, submissions of the learned .appeHaJ1ts, we feel that the appellant respectively 50% and 30% of the aizeount of compensation and the 3rd dtesdpondeat mother shall get 220% of it along with A' ___'~eropo1?t7ionate interest on their respective shares.
18. In View of the foregoing discussion, we answer the mint raised for our detetmmaden in the 'amrmetive' and pass the following, (~,\..,«..«-
«>29 portions ef the respective shares in enhanced compensation Dambifi' - appellants and 3:" respondent. , respondent ~-- Insurance 'V _ deposit into the "
amount of comperieeifiqn Wi1__:h thereon as af<'3resaidV____§Fi1:;I1i1f;» fear T_ i§ree.3<s from the date ._C;raufi11g.1ip.V_Qf'me modified award. The aware in 4-
terms ~.
sal-
judge
«sax.
_____ .. v