Karnataka High Court
The Divisional Manager The New India ... vs Kasturbai W/O Devindra Jatgond And Ors on 13 October, 2020
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
M.F.A.No.201588/2016 (MV)
BETWEEN:
The Divisional Manager,
The New India Assurance Company,
Sharanabasappa Appa Road,
Kalaburagi-585102.
... Appellant
(By Sri Manvendra Reddy, Advocate)
AND:
1. Kasturbai W/o Devindra Jatgond,
Age about 52 years,
Occ: Household, R/o Benchincholi,
Tq. Humnabad, Dist. Bidar-585401.
2. Renukadevi D/o Devindra Jatgond,
Age about 32 years,
Occ: Household, R/o Benchincholi,
Tq. Humnabad, Dist. Bidar-585401.
3. Aruna D/o Devindra Jatgond,
Age about 30 years,
Occ: Household, R/o Benchincholi,
2
Tq. Humnabad, Dist. Bidar-585401.
4. Shivakumar S/o Devindra Jatgond,
Age about 26 years,
Occ: Student, R/o Benchincholi,
Tq. Humnabad, Dist. Bidar-585401.
5. Shanthkumar S/o Devindra Jatgond,
Age about 21 years,
Occ: Student R/o Benchincholi,
Tq. Humnabad, Dist. Bidar-585401.
6. Maheboob Basha S/o Jamalsab
Age: 44 years, Occ: Business
R/o H.No.304/A, Shivvanagar
Davanagere-577006.
... Respondents
(R1 to R6 are served)
This MFA is filed under Section 173(1) of Motor
Vehicles Act praying to call for records and set aside the
Judgment and Award dated 23/06/2016 passed in M.V.C.
No.237/2014 on the file of Senior Civil Judge and MACT,
Humnabad, by allowing the above appeal, in the interest of
justice and equity.
This appeal coming on for Final Hearing this day,
P.KRISHNA BHAT J., delivered the following:
JUDGMENT
This is an insurer's appeal calling in question the correctness of the judgment and award dated 3 23.06.2016 in MVC No.237/2014 by the learned Senior Civil Judge and MACT at Humnabad.
2. Brief facts are that on 16.01.2014 at about 10.15 p.m. while the deceased driving NEKRTC passenger bus bearing registration No.KA-38/F-750 stopped the same near Devanhalli Hogaribomman Halli
- Hosapete by the side of the road, the offending lorry bearing registration No.KA-27/A-5110 came from the opposite direction driven by its driver in a rash and negligent manner and in high speed and dashed to the bus and on account of the impact injuries the deceased died on the spot itself. The claim petition filed by the dependents of the deceased was allowed by awarding a compensation of Rs.15,97,250/- with interest thereon at the rate of 6% per annum from the date of petition till the date of payment.
3. Learned counsel Sri Manvendra Reddy appearing for the appellant - Insurance Company 4 vehemently contended that the judgment and award of the learned Tribunal is erroneous and unjust. In support of the said submission, he argued that on the evidence placed before the learned Tribunal, it ought to have returned the finding that the accident had occurred on account of negligence of both the driver of NEKRTC bus (deceased) and the driver of the offending lorry and accordingly liability to pay the compensation awarded should have been suitably apportioned as between the two vehicles. He also made a strong grievance that learned Tribunal has seriously erred in taking the multiplier at 9 for the deceased who was aged 58 years for the purpose of calculating loss of dependency as he was soon to retire from service within two years and, for the same reason, calculating the multiplicand for the entire 9 multiplier based on the salary of the deceased with the permissible deductions is wrong and, thereby, learned Tribunal permitted itself to award an exorbitant compensation. Elaborating the 5 said submission, he states that notwithstanding the decision of the Hon'ble Supreme Court of India in the case of Puttamma and Others vs. K.L.Narayana Reddy and Another [(2013) 15 SCC 45 - para No.34] prohibiting the Tribunals from adopting split multiplier, coordinate Benches of this Court have been consistently adopting the split multipliers where the income of the deceased was soon going be almost 50% of what it would have been were the benefit of the service to continue for a period far shorter in number of years than the number of multiplier. He, therefore, submits that the award is required to be interfered with on this count as well. He further submits that learned Tribunal has also erred in quantifying the compensation on other permissible heads as well.
4. The respondents have remained unrepresented, though, they have all been served with notice.
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5. The evidence placed before the learned Tribunal clearly shows that at the time of the accident namely, on 16.01.2014 at about 10.15 p.m. the deceased driver of NEKRTC bus bearing registration No.KA-38/F-750 had stopped the bus on the left side of the road for checking the head lights. The evidence also shows that he had parked the bus for the said purpose by the side of the road. At that time, the driver of the offending lorry came driving the same from the opposite direction in a rash and negligent manner and dashed the same to the bus which had resulted in the instantaneous death of the deceased on the spot itself. The charge sheet is also filed against the driver of the offending lorry. The appellant - insurer or the owner of the offending lorry have not chosen to examine the driver of the lorry to explain as to under what circumstances according to them the accident had occurred. In that view of the matter, we are of the considered opinion that evidence clearly shows that 7 accident had taken place only on account of rash and negligent driving of the offending lorry by its driver. Accordingly, the contention of the learned counsel Sri Manvendra Reddy that there was contributory negligence on the part of the deceased himself does not merit acceptance and accordingly it is rejected.
6. Learned counsel Sri Manvendra Reddy nextly contended that since the deceased was aged 58 years at the time of the accident and it cannot also be disputed that the age of retirement in the establishment namely, NEKRTC where he was working as a driver was 60 years, applying the same multiplicand for the entire multiplier of 9 tantamounts to awarding windfall compensation to the dependents of the deceased. In support of the said submission, he places reliance on two decisions of coordinate Benches of this Court rendered in MFA No.201260/2015 decided on 28.06.2018 (Shriram General Insurance Co. Ltd., vs. Ningamma W/o Shivappa and Others) and one 8 reported in 2018 (4) KCCR 3505 (DB) (Branch Manager, ICICI Lombard General Insurance Company Limited, Mumbai vs. Smt.Soumya and Others).
7. Computing an appropriate and just compensation to the dependents of the deceased is a process which is fraught with lot of uncertainty. Some kind of educated guesswork is required to be applied in the said process. However, the entire process has been fairly crystallized over a period of almost four decades now by a series of decisions of Hon'ble Supreme Court and particularly eversince the decision of the Hon'ble Supreme Court of India in Sarla Verma vs. Delhi Transport Corporation - (2009) 6 SCC 121 case. It has been equally crystallized that multiplicand is arrived at after fixing the income of the deceased based on the source of livelihood as per the evidence presented before the learned Tribunal and thereafter, making the permissible deduction. Similarly, multipliers have also 9 been fixed based on the age brackets of deceased. The question of applicability of split multiplier as is strongly canvassed before us by Sri Manvendra Reddy, learned counsel for the appellant is also no longer res-integra. Hon'ble Supreme Court of India in Puttamma's case (Supra) after surveying the entire case law applicable on this aspect had this to say in paragraph No.34 of its judgment:
"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."
8. The two decisions rendered by coordinate Benchs of this Court relied upon by Sri Manvendra Reddy do not make any reference to the decision of the Hon'ble Supreme Court of India in National Insurance Company Limited vs. Pranay Sethi and Others reported in 2017 ACJ 2700 case. He is correct in 10 saying that the overriding consideration for the Court in this jurisdiction should be awarding just compensation. The Hon'ble Supreme Court of India has disapproved of the practice of applying split multiplier as a matter of general application. We also notice that the total compensation awarded for the death of the deceased who is a skilled and experienced driver who had much to offer to the family for atleast another five years post- retirement is a total sum of Rs.15,97,250/-. Therefore, by no stretch of imagination could it be said that the compensation awarded in this case is either exorbitant or unjust or unreasonable. Accordingly, we do not, in this case, feel inclined to interfere with the award made by the learned Tribunal. The subsidiary contention raised by learned counsel for the appellant is that on the other recognized heads, the compensation awarded by learned Tribunal is on the higher side. It may be so; but marginally. We also need to be conscious of the development of the law on award of compensation under 11 conventional heads from Pranay Sethi (Supra) to New India Assurance Company Limited Vs. Somwati & Others reported in 2020 SCC OnLine SC 720 case. The deceased had left behind five dependents/legal representatives (National Insurance Company Limited vs. Birender and Others - 2020 SCC Online SC 28). The learned Tribunal has awarded Rs.2,00,000/- under the conventional heads. Regard being had to the observation of the Hon'ble Supreme Court of India in all these cases, we are not persuaded to accept the contention of learned counsel for the appellant that the learned Tribunal has awarded excessive compensation on conventional heads also. Therefore, we do not feel inclined to interfere with the award made by learned Tribunal on that count as well. In the view as above, there is no merit in this appeal and accordingly it is liable to be dismissed. Hence, the following:
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ORDER The above appeal is dismissed.
The amount in deposit shall be transmitted the concerned Tribunal forthwith.
The appellant shall deposit the entire award amount with interest within eight weeks from the date of receipt of certified copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE Srt