Karnataka High Court
Divisional Manager vs Shivaji Bin Maruti Dalavi on 22 July, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF JULY 2019
PRESENT
THE HON'BLE MR. JU STICE ARAVIND KUMAR
AND
THE HON'BLE MR. JU STICE BELLUNKE A.S.
M.F.A.NO.101590/2015 (MV)
C/W
MFA.CROB.NO.100161/2016 (MV)
IN M.F.A.NO.101590/2015
BETWEEN:
DIVISIONAL MANAGER ,
THE UNITED INDIA INSURANCE CO. LTD.,
II N D FLOOR, SMITA SMRITI BUILDING,
MARUTI GALLI, BELGAUM,
NOW REP.ITS DIVI SIONAL MANAGER
T.NAGALINGACHARY, DIVISIONAL OFFICE, MARUTI
GALLI , BELAGAVI
... APPELLANT
(BY SRI RAVINDRA R.MANE, ADVOCATE)
AND :
1. SHRI SHIVAJI BIN MARUTI DALAVI
AGE: 20 YEARS, OCC: STUDENT
2. SHRI DOULAT BIN MARUTI DALAVI
AGE: 22 YEARS, OCC: STUDENT
3. SRI ANANT BIN M ARUTI DALAVI
AGE: 25 YEARS, OCC: STUDENT,
4. SMT.SAVITRI W/O. MARUTI DALAVI ,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK
:2:
5. SMT.LAXMIBAI W/ O. SHIVAJI DALAVI
AGE: 80 YEARS, OCC: SICK
R/O. VIDYAGIRI, 5 T H CROSS,
AZAM NAGAR, BELAGAVI.
6. ABUBAKAR RASUL NAIKWADE
AGE: 52 YEARS, OCC: BUSINESS,
R/O. SOLAPUR, TQ: HUKKERI ,
DIST: BELAGAVI.
... RESPONDENTS
(BY MISS REBECCA SOLOMAN FOR SRI VITTAL S.TELI ,
ADVOCATES FOR R2 TO R.5: NOTICE TO R.1-SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(I) OF MOTOR VEHICLES ACT ,
1988 PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD PASSED BY THE LEARNED 3 R D ADDL. DISTRICT
JUDGE AND 4TH ADDL. MACT, BELAGAVI IN
MVC.NO.1822/ 2013 DATED 09.01.2015 WITH COST
AND INTEREST IN THE INTEREST OF JUSTICE AND
EQUITY.
IN MFA.CROB.NO.100161/2016
BETWEEN :
1. DOULAT BIN MARUTI DALAVI
AGE: 22 YEARS, OCC: STUDENT.
2. ANANT BIN MARUT I DALAVI
AGE: 25 YEARS, OCC: STUDENT,
3. SAVITRI W/O MARUTI DALAVI ,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK
4. LAXMIBAI W/O SHIVAJI DALAVI,
AGE: 80 YEARS, OCC: SICK ,
ALL R/ O: VIDYAGI RI, 5 T H CROSS,
AZAM NAGAR, BELGAVI-590001.
... CROSS OBJECT ORS
(BY SRI VITTHAL S.TELI , ADVOCATE)
AND :
:3:
1. ABUBAKAR RASUL NAIKWADE
AGE: 52 YEARS, OCC: BUSINESS,
R/O: SOLAPUR, T Q: HUKKERI ,
DIST: BELAGAVI-591216.
2. DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE
CO.LTD., II FLOOR,
SMITA SMRITI BUILIDING,
MARUTI GALLI, BELAGAVI-590001.
3. SHIVAJI BIN MARUTI DALAVI
AGE: 20 YEARS, OCC: STUDENT,
R/O: VIDYAGIRI , 5 T H CROSS,
AZAM NAGAR, BELAGAVI-590001.
... RESPONDENTS
(BY MISS REBECCA SOLOMAN FOR SRI VITTAL S.TELI ,
ADVOCATES)
THIS CROSS OBJECTION IS FILED UNDER ORDER
41 RULE 22 OF CPC, PRAYING TO MODIFY THE
JUDGMENT AND AWARD PASSED BY THE LEARNED III
ADDL. DISTRI CT JUDGE AND 4 T H ADDL. MACT ,
BELAGAVI IN MVC.NO.1822/2013 DATED 09.01.2015
RESERVED FOR JUDGMENT ON : 14.06.2019
JUDGMENT PRONOUNCED ON : 22.07.2019
THESE MISCELLANEOUS FIRST APPEAL AND
CROSS OBJECTI ON HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY,
BELLUNKE A.S. J., DELIVERED THE FOLLOWING :
JUDGMENT
M.F.A.No.101590/2015 has been preferred by respondent No.2/Insurance Company and M.F.A.CROB No.100161/2016 has been preferred by claimants / petitioners against judgment and :4: award dated 09.01.2015 passed in M.V.C.N.o.1822/2013 by learned III Additional District Judge and IV Additional M.A.C.T., Belagavi (hereinafter referred to as "Tribunal" for short).
2. Parties are referred to in these appeals as per their ranks before the tribunal.
3. Brief facts of the case are: claimants in M.V.C.No.1822/2013 filed a claim petition under Section 166 of Motor Vehicles Act claiming compensation for death of father of claimants Nos.1 to 3, husband of claimant No.4 and son of claimant No.5.
4. According to claimants on 07.04.2013 deceased Sri Maruti Dalavi was proceeding on a motorcycle bearing registration Nos.KA.23/Q.2144 on left side of the road running between Belagavi- Amboli, via Savanthwadi-Vengoorla road along with his friend and when they were going near banana garden, a lorry bearing registration No.MH.09/L-7934 came from opposite direction :5: driven by its driver in a high speed with rash and negligent manner endangering human life and dashed to the motorcycle of Maruti Dalavi. Consequently Maruti Dalavi fell-down and died instantaneously at the spot on account of injures sustained.
5. After his death, petitioners have spent money for transportation of dead body and funeral expenses. Deceased Maruti Dalavi was aged about 56 years as on the date of accident. He was working as Chowkidar in office of Executive Engineer. He was drawing a salary of Rs.19,214/- per month. Petitioners were totally dependent on the income earned by deceased Sri Maruti Dalavi. Therefore petitioners filed claim petition before the tribunal claiming compensation of Rs.50,00,000/- with costs.
6. After receipt of notice, respondent Nos.1 and 2 appeared. Respondent No.1 owner of vehicle has not filed any objections to claim petition. :6:
7. Respondent No.2 - Insurer of lorry filed objections contending that, liability of insurance company is subject to terms and conditions of policy issued by them. Age, income of the deceased and suffering by petitioners physically, mentally and financially are all denied. Respondent No.2 further contended that compensation claimed by claimants is highly excessive. Accident was not on account of rash and negligent driving of driver of lorry, but it is only on account of rash and negligent riding of motorcycle by deceased at the time of accident. Therefore, insurance company had prayed to dismiss the claim petition.
8. On the basis of pleadings of the parties, the tribunal framed following issues for its consideration:
1. ¢£ÁAPÀB 7.4.2013 gÀAzÀÄ ªÀÄÈvÀ ªÀiÁgÀÄw ²ªÁf zÀ¼À« CªÀgÀÄ vÀ£Àß ¸ÉßûvÀ£ÉÆA¢UÉ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï PÉJ-23/PÀÆå-2144 gÀ°è ¥Àæ A iÀiÁt ¸ ÀÄ wÛ z ÁÝUÀ ¯Áj ¸ÀASÉå JAºÉZï-09/J¯ï-7934 gÀ ZÁ®PÀ£ÀÄ ¸ÀzÀj ªÁºÀ£ÀªÀ£ÀÄß Cwà ªÉÃUÀ ºÁUÀÆ :7: CeÁUÀgÀÆPÀvɬÄAzÀ ªÀiÁ£ÀªÀ ¥Áæ t PÉÌ ºÁ¤AiÀĪÁUÀĪÀ jÃwAiÀÄ°è ZÀ¯Á¬Ä¹ ªÉÆÃmÁgï ¸ÉÊPÀ¯ïUÉ rQÌ ºÉÆqɹzÀ ¥ÀjuÁªÀĪÁV ªÀiÁgÀÄw ²ªÁf zÀ¼À« CªÀjUÉ wêÀæ ¸Àé g ÀÆ¥ÀzÀ UÁAiÀÄUÀ¼ÁV ¸ÀܼÀzÀ°è A iÉÄà ªÀÄÈvÀ¥ÀlÖ g ÉAzÀÄ ºÀPÉÆÌÃvÁÛ A iÀÄzÁgÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛ g ÉAiÉÄÃ?
2. 1£Éà JzÀÄgÀÄzÁgÀgÀÄ ªÁºÀ£ÀzÀ ªÀiÁ°ÃPÀ ªÀÄvÀÄÛ 2£Éà JzÀÄgÀÄzÁgÀgÀÄ ¸ÀzÀj ªÁºÀ£ÀzÀ «ªÀiÁzÁgÀgÁVzÀÄÝ, ¯Áj ¸ÀASÉå JAºÉZï-09/J¯ï-7934 gÀ ZÁ®PÀ£À vÀ¦à ¤ AzÀ¯Éà C¥ÀWÁvÀªÁVzÀÄÝ, »ÃUÁV 2£Éà JzÀÄgÀÄzÁgÀgÉà 1£Éà JzÀÄgÀÄzÁgÀgÀ ¥ÀgÀªÁV CfðAiÀÄ°è PÉÆÃjgÀĪÀAvÉ ¥ÀjºÁgÀ PÉÆqÀ¨ÉÃPÁVzÉ JA§ÄzÁV ºÀPÉÆÌÃvÁÛ A iÀÄzÁgÀgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛ g ÉAiÉÄÃ?
3. ºÀPÉÆÌÃvÁÛ A iÀÄzÁgÀgÀÄ gÀÆ.50,00,000/- UÀ¼À ¥ÀjºÁgÀ ºÉÆAzÀ®Ä CºÀðgÁVgÀÄvÁÛ g ÉAiÉÄÃ
4. 2 £Éà JzÀÄgÀÄzÁgÀgÀÄ ¯Áj ¸ÀASÉåB JAºÉZï-
09/J¯ï-7934 gÀ ZÁ®PÀ£ÀÄ ZÁ°Û A iÀÄ°è g ÀĪÀ ªÁºÀ£À ZÀ¯Á¬Ä¸ÀĪÀ ZÁ®£Á ¥ÀvÀæ ºÉÆA¢gÀĪÀÅ¢®è ªÀÄvÀÄÛ «ªÀiÁ µÀgÀvÀÄÛ U À¼À£ÀÄß G®è A X¹zÁÝ£É, DzÀPÁgÀt ¥ÀjºÁgÀ PÉÆqÀ®Ä vÁªÀÅ dªÁ¨ÁÝgÀgÀ®è JAzÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛ g ÉAiÉÄÃ?
5. ¥ÀPÀë U ÁgÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀ ºÉÆAzÀ®Ä CºÀðgÀÄ? :8:
9. Trial of the claim petition was conducted, thereafter tribunal answered the issues as follows:
«ªÁzÁA±À 1 B ¸ÀPÁgÁvÀäPÀªÁV
«ªÁzÁA±À 2 B ¸ÀPÁgÁvÀäPÀªÁV
«ªÁzÁA±À 3 B ¨s Á UÀ±ÀB ¸ÀPÁgÁvÀäPÀªÁV
«ªÁzÁA±À 4 & 5 B CAwªÀÄ DzÉñÀzÀAvÉ
10. Consequently tribunal awarded
compensation of Rs.18,57,000/- to claimants and fastened the liability to pay compensation on respondent No.2 - insurance company. Accordingly, respondent No.2 was directed to deposit compensation amount. Said judgment and award is challenged by respondent No.2 - Insurance Company by filing M.F.A.No.101590/ 2015 before this Court on following grounds:
11. Tribunal has committed an error in assessing the income of deceased and failed to apply split multiplier; tribunal could not have added 15% towards future prospects on income of the deceased. Deceased had only 26 months :9: service as on the date of his death; tribunal committed an error in awarding compensation of Rs.1,00,000/- each on the head of loss of love and affection, Rs.2,00,000/- towards loss of consortium to the 4 t h petitioner. Compensation awarded on the head of funeral expenses is also excessive. Therefore appellant - insurance company has sought for allowing the appeal.
12. Claimants filed MFA.CROB.No. 100161/2016 challenging the quantum of compensation awarded by tribunal on following grounds.
13. Judgment and award under this cross objection rejecting claim petition in part is, illegal on the basis of facts and evidence of the case.
Tribunal has committed an error in applying split multiplier and same is contrary to law declared by this Court and Hon'ble Apex Court.
14. It is also contended that compensation awarded by the tribunal is on the lower side; : 10 : against decisions of Hon'ble the Apex Court; tribunal ought to have awarded interest @ 12% p.a. Hence cross objectors - claimants prayed for allowing the cross objection and have prayed for modifying the judgment and award by enhancing compensation awarded by the tribunal.
15. Learned counsel Sri R.R.Mane appearing for appellant - insurance company in MFA No.101590/2015 relying on certain decisions of this Court and Hon'ble Supreme Court, submitted that tribunal ought to have applied split multiplier while calculating the loss of dependency on account of death of Maruti Dalavi. Learned counsel would further submit that compensation awarded towards future prospects by tribunal is also erroneous.
16. Though learned counsel disputed the finding of tribunal with regard to assessment of income of the deceased, but submitted that : 11 : income of deceased has to be assessed on salary certificate last drawn by deceased.
17. Learned counsel for cross objector - claimants in MFA.Crob.No.100161/2016 have challenged the judgment and award contending compensation awarded by the tribunal is not just and proper and it is inadequate. Therefore, learned counsel for cross-objectors - claimants have prayed for modification of the award and have sought for enhancement of the compensation.
18. Having heard the arguments of learned Advocates appearing for parties at length, we find that dispute lies in a narrow compass and following points would arise for our consideration.
1. Whether appellant - insurer in MFA.No.101590/2015 proves that tribunal ought to have applied split multiplier while assessing the income of deceased to decide loss of : 12 : dependency on account of death of Maruti Dalavi?
2. What is just compensation payable to the claimants?
3. Whether judgment and award of tribunal is liable to be modified?
19. Findings of this Court on the following points are as under.
1 : In the affirmative 2 : Partly in the affirmative 3 : Partly in the affirmative
20. Fact of accident and death of Maruti Dalavi on account of injuries sustained in the accident are not in dispute. So far as rash and negligent act of driver of the lorry is concerned, finding of the tribunal that has not been challenged by the appellant - insurance company. It has also not led any rebuttal evidence. Based on material documents like Complaint, Inquest Panchanama, Charge Sheet, Postmortem Report : 13 : and etc., which are marked at Exs.P.1 to 7 along with translated copies it would clearly establish that accident was on account of rash and negligent act of lorry driver.
21. At Paragraph No.10 of its judgment, tribunal has narrated that, on account of impact of collision of vehicles, the motorcycle had been broken into two pieces and dead body was dragged for some distance from spot of accident. Therefore applying principle of res ipsa loquitor, tribunal found that accident was caused only on account of rash and negligent act of driver of lorry in question. Therefore finding of tribunal in this behalf would not call for any interference.
22. As per the salary certificate, income of deceased Maruti Dalavi is held to be at Rs.19,214/-. PAN card and Service Book are also produced. Date of birth of the deceased Maruti Dalavi is found to be 01.06.1955 and age of the deceased was 57 years 10 months as on date of : 14 : accident. The deceased Maruti Dalavi had two years two months service as on the date of his death. Tribunal has deducted 1/4 t h towards his personal expenses having regard to the number of dependents of the deceased. The tribunal has rightly applied multiplier of "9" which is applicable to the age group persons 56 to 60 years, based on the decision of Hon'ble Apex Court reported in (2009) 6 Supreme Court Cases 121 (Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another.
23. Tribunal has also rightly applied 15% as future prospects on the income of the deceased. However, we find that finding of the tribunal awarding compensation on the head of loss of love and affection at Rs.1,00,000/- to each of the petitioners is against law laid down by Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in 2017 ACJ 2700 SC. : 15 : Appellant insurance company had relied on the following authorities.
1. (2011) 4 Supreme Court Cases 689 (K.R.Madhusudhan and others Vs. Administrative officer and another
2. M.F.A.No.20727/2010 (MV) & Connected matters (The New India Assurance Company Limited and others Vs. Prithviraj and others.)
3. M.F.A.No.100513/2019 (MV) (Smt.Geeta W/o Ashok Doddamani Vs. Smt.Rajeshwari and another)
24. The law laid down in the above said authorities is well settled with regard to application of split multiplier is concerned. However, the Court is required to give reasons in the event of split multiplier being adopted. Admittedly deceased was about to retire and he had only two years two months service left. After retirement he would not earn the income as he was earning earlier to his retirement.
25. Learned Counsel for claimants has relied on the following authorities. : 16 : 1. (2011) 4 Supreme Court Cases 689
(K.R.Madhusudhan And others Vs. Administrative Officer and Another
2. (2013) 15 Supreme Court Cases 45 (Puttamma and Others Vs. K.L.Narayana Reddy and another.
3. (2013) 15 Supreme Court Cases 85) Balwantrai Saluja and Another Vs. AIR India Limited and others.
4. MFA.No.9661/2013 (MV-D) (Reliance General Insurance Company Ltd., Vs. M.Jayalakshmamma and others.
26. In K.R.Madhusudhan's case referred to supra age of the deceased was 53 years and he was left with 7 years of service. Therefore, under such circumstances, split multiplier method was not adopted. In Puttamma's case referred to supra split multiplier method was not adopted in the absence of any specific reasons and evidence on record. However, in the instant case, deceased was left with only 2 years 2 months of service as stated by us herein above. Therefore, split multiplier was rightly adopted by the tribunal. : 17 :
27. Keeping in mind the above position of law, we are of the view, there is no mandator y rule that in all cases split multiplier should be applied. Since future prospects is also granted and a person who is going to retire shortly in such cases split multiplier can be applied. We have also considered the increase of salary that would have been given to the deceased in a short period of two years and difference of cost of living for over a period of two years. Therefore, principle laid down by the Hon'ble Apex Court would be applicable to the facts on hand. There is no thumb rule to the effect that split multiplier should not at all be applied.
28. Even in the Jayalakshmamma's case rendered by co-ordinate bench of this Court in MFA No.9661/2013 by relying on the decision of Puttamma and others Vs. K.L.Narayanareddy, split multiplier was not adopted though deceased was aged 57 years. Further in Narayan Reddy's case insurer had not taken such a contention : 18 : regarding application of split multiplier and as such it was not adopted. The overall conclusion and the principle of law laid down by the Hon'ble Apex Court would indicate that split multiplier should not be applied as a matter of Rule. There should be specific reasons for applying the same, we have assigned reasons. Therefore, we find that argument addressed by the cross-objectors cannot be accepted that split multiplier should not be applied.
29. The multiplier applicable is undoubtedly "9" having regard to age of the deceased. Therefore for over a period of salary what would be payable to the deceased from April 2013 to May 2015 for 26 months would be Rs.4,99,564/- (26 months x 19,214 = 4,99,564/-) as per the salary certificate which shows that he was getting salary of Rs.19,214/- per month.
30. Having regard to the age of the deceased multiplier requires to be split into "7" : 19 : after retirement. Income of the deceased would reduce by 50%. Admittedly deceased had three sons, wife and mother. Hence, 1/4 t h of his income has to be deducted towards personal expenses.
31. As per Ex.P.8, deceased was drawing salary of Rs.19,214/- per month which is last pay drawn. He would retire on Many 2015. Thus, after deducting 1/4 t h petitioners would entitled Rs.3,74,673/-. After retirement he would have got 50% of the amount as pension and applying split multiplier "7", it come to Rs.9607 x 12 x 7 = 8,06,988/-. After deducting 1/4 t h from his income towards personal expenses of the deceased, it comes a sum of Rs.6,05,241/- (Rs.8,06,988 - 2,01,747 = 6,05,241). After adding both the sums and after adding 15% towards future prospects to both the sum it comes to Rs.11,26,900/- (3,74,673/- + 6,05,241=9,79,914/- + 15% = 11,26,901/-). Accordingly, we award the same. : 20 :
32. However, we find that tribunal had erred by awarding a sum of Rs.1,00,000/- to each of under petitioners under the head of 'loss of love and affection', Rs.2,00,000/- 'towards loss of consortium' to 4th petitioner; and Rs.30,000/- 'towards transportation of dead body and funeral expense'. As per the decision laid down by the Hon'ble Apex Court in Pranay Sethi's case under conventional head, wife - cross objector No.3 is entitled to compensation of Rs.40,000/- under the head of consortium, Rs.15,000/- towards transportation of dead body and funeral expenses and Rs.15,000/- towards loss of estate. Therefore on the above heads in all only Rs.70,000/- can be granted. As regards loss of love and affection to the other petitioners i.e., sons and mother of the deceased are concerned, an amount of Rs.40,000/- each is payable to them. Therefore, the cross objectors entitled compensation in all Rs.13,56,900/- under the following heads. : 21 :
Sl. Amount in
Heads
No. Rs.
1 Towards loss of dependency 11,26,900/-
2 Towards loss of consortium. 40,000/-
3 Towards loss of estate. 15,000/-
Towards transportation
4 15,000/-
of dead body.
Towards Love and affection
to cross objector Nos.1 to 3
5 1,60,000/-
and respondent No.3
(Rs.40,000x4)
TOTAL 13,56,900/-
33. Hence, judgment and award of the
tribunal to the extent above referred is liable to be modified. Tribunal has rightly awarded future interest at 8% p.a. from date of petition till date of deposit or payment whichever is earlier.
34. For the aforesaid reasons we have answered the points formulated accordingly, and as such, we proceed to pass the following order.
ORDER
1. MFA No.101590/2015 filed by the Insurance Company is allowed in part. Judgment and award dated 09.01.2015 passed by the III Additional District : 22 : Judge and IV Additional M.A.C.T, Belagavi in M.V.C.No.1822/2013 is modified. Compensation awarded to the petitioners by the tribunal is hereby reduced to Rs.13,56,900/- from Rs.18,57,000/-.
2. MFA CROB No.100161/2016 filed by the claimants is dismissed.
3. Petitioners - cross objectors in MFA CROB.No.100161/2015 are entitled to receive compensation of Rs.13,56,900/- with interest at the rate of 8% p.a., from date of petition till realization of the same.
4. Respondent No.2 - Insurance Company in Cross objection No.100161/2015 is hereby directed to deposit award amount within 6 weeks from the date of this judgment.
: 23 :
5. Amount in deposit, if any, by insurance company shall be transmitted to the tribunal concerned.
6. Apportionment, order for deposit and disbursement of compensation as awarded by the tribunal would hold good for the modified award.
Sd/-
JUDGE Sd/-
JUDGE EM