Karnataka High Court
Shantha @ Shantabai Annappa Gadivaddar ... vs Channabasappa Dyamappa Gadidavar And ... on 22 April, 1993
Equivalent citations: 2(1993)ACC536
JUDGMENT Venkataraman, J.
1. By consent of the parties concerned, this appeal is taken up for disposal on merits.
This is an appeal filed by the petitioners in M.V.C. 1548 of 1989, on the file of the II Additional District Judge and Motor Accidents Claims Tribunal-III, Belgaum against his judgment and award dated 20th April, 1992, awarding a total compensation of Rs. 2,46,400/- over and above a sum of Rs. 25,000/- awarded under Section 140 of the Motor Vehicles Act, for the death of one Annappa in an accident which took place on 21.12.1989.
2. The facts giving rise to this appeal may briefly be stated as hereunder:
Annappa, the husband of the 1st petitioner and the father of petitioners 2 to 6, who was an employee in Karnataka Electricity Board, Chikodi was returning to Ghataprabha on 21.12.1989 on his scooter. On the way a delivery van bearing No. CRA 5167 driven by the 1st respondent, who is also the owner of the vehicle came at a high speed and in a rash and negligent manner from the opposite direction and dashed against Annappa's scooter. Annappa sustained serious injuries and died on the spot. The appellants filed a claim petition before the Tribunal seeking compensation of Rs. 10,00,000/-.
3. The 1st respondent denied that the accident took place due to rash or negligent driving of the van by him. He also contended that the compensation claimed was excessive.
4. The 2nd respondent, Insurer of the vehicle admitted that the vehicle in question was insured with them and that they also questioned the petitioners' case regarding rash or negligent driving of the vehicle by the 1st respondent.
5. After assessing the evidence on record, the Tribunal held that the accident had taken place due to rash or negligent driving of the van by the 1st respondent. With regard to the compensation payable to the petitioners the Tribunal found that the deceased was drawing a salary of Rs. 3,531/- per month. Deducting half of the salary towards personal expenses of the deceased, the Tribunal has taken the loss of dependency suffered by the petitioners at Rs. 1765/- per month. As the deceased was aged about 38 1/2 years at the time of his death the Tribunal adopted the multiplier '12' and fixed the total loss of dependency suffered by the petitioners at Rs. 2,54,160/-. In addition to this the Tribunal has awarded a sum of Rs. 2,000/- towards funeral expenses and taxi charges; Rs. 5,000/- towards mental agony, pain and suffering; Rs. 5,000/- towards loss of expectation of life and Rs. 5,000/-towards loss of consortium suffered by the 1 st petitioner. Thus the Tribunal fixed a global compensation payable to the petitioners at Rs. 2,71,400/-. After deducting Rs. 25,000/- paid earlier, the net compensation payable is fixed at Rs. 2,46,400/-.
6. The learned Counsel for the appellants contended that the Tribunal erred in deducting half of the salary towards the personal expenses of the deceased; that the Tribunal also erred in taking the income of the deceased only as Rs. 3,531/-, that the Tribunal ought to have taken note of the fact that the deceased would have got promotion in due course and he would have drawn a salary of Rs. 4,5617- if he had continued in service; and that on the material on record the appellants are entitled to enhancement of the compensation.
7. During the course of arguments, it was noticed that the appellants are entitled to family pension and the Tribunal had not taken that family pension amount into account while determining the loss of dependency.
8. Arguments were heard on the question as to whether the family pension due to the petitioners should or should not have been taken into account while determining the compensation payable to the petitioners?
9. The learned Counsel for the appellants contended that the family pension due to the petitioners should not be taken into account.
10. We have to see whether the Tribunal has committed any error in taking the income of the deceased only as Rs. 3,531/- P.M.
11. It is undisputed that at the time of the accident, the deceased was drawing a gross salary of Rs. 3,531/-. The petitioners have examined P.W. 3 - Baburao, who is the Accounts Officer of K.E.B. and he has stated that with effect from 1.4.1989 the pay scale of deceased Annappa had been fixed at Rs. 3,531/-. He has also produced a certificate issued by his office in that regard. The contention of the learned Counsel for the appellants is that though at the time of accident the salary of the deceased was Rs. 3,531/-, Ex. P.4 shows that the deceased had been promoted and that only posting had to be given and that consequent upon his promotion his salary would have been Rs. 4,561/- and that the Tribunal ought to have taken into account the increase in his salary which was due to him while fixing the loss of dependency.
12. Ext. P.4 only shows that the deceased would have got promotion to the post of Store Keeper Grade II in the pay scale of Rs. 1390-3535 in the normal course. There is nothing in Ex. P.4 to indicate that the deceased had already been promoted and that he was only awaiting posting. That apart, Ex. P.4 also clearly shows that the deceased had already been moved on to the next higher scale of the above cadre i.e., Rs. 1,390-3,535 and it is in that, scale he was drawing Rs. 3,531/-. It is no doubt true that in Ext. P.4 it is mentioned that he would have drawn in all Rs. 4,561/- if he had continued in the service of the Board. The evidence of P.W. 3 shows that the deceased would have drawn a sum of Rs. 4,561/- if he had continued in the same scale till his retirement. In the present case, the Tribunal has adopted the multiplier method to. arrive at the total loss of dependency. Where this method is adopted and a suitable multiplier is applied as laid down in H.D. Bhandari v. Muniyamma ILR 1985 Knt. page 2337 to fix the total loss of dependency, the multiplier adopted takes care of the probable increase in the emoluments of the deceased. In such a method the loss of dependency has to be fixed taking into account the income of the deceased at the time of his death. As such the Tribunal has not committed any error in taking the income of the deceased as Rs. 3,531/- P.M. for the purpose of determining the loss of dependency. The Tribunal has taken only half of the income of the deceased as the loss of dependency on the ground that in some cases that is the method adopted. Another reason given by the Tribunal is that the deceased was employed in Chikodi and staying in Bachelors quarters; that his family was at Ghataprabha and that he used to visit Ghataprabha twice a week and the bus-charge from Chikodi to Ghataprabha was Rs. 4 to 4.50. The latter consideration ought not to have weighed much with the Tribunal for the simple reason that the deceased might have kept his family at Ghataprabha so long as he was serving in Chikodi for various reasons and he might have taken the family with him to next station of his service. That apart, if two days in a week he was visiting his family and staying with them his personal expenses at Chikodi would have been avoided. Even if it could be said that he might have had to spend a little more than he would have spent on himself if he was staying with his family, we do not think that that could have been a ground to deduct half of the income towards his personal expenses.
13. The Tribunal appears to have been very much influenced by the Judgment of the Supreme Court in Manjushri Raha and Ors. v. B.L. Gupta and Ors. to deduct one half of the salary towards his personal expenses. In that case the Supreme Court while pointing out that the certificate from Accountant General's Office showed that the deceased would have drawn Rs. 1,88,000/- including the increments and the maximum grade drawn, has observed that:
....Even if half of that be deducted as being rightly taken to have been spent by the deceased to cover day to day domestic expenses, payment of income-tax and other charges, the actual income lost to the family including the value of the estate and the loss to the dependants would be Rs. 94,000/-....
The Tribunal has failed to note that the Supreme Court deducted half of the total income of the deceased not only towards his personal expenses but also towards the day-to-day domestic expenses and payment of income-tax and other charges. That apart, in that case the Supreme Court had not applied the multiplier method but had taken into account the income the deceased would have got if he had lived till his retirement and had earned increments and reached the maximum grade. But in the present case, the Tribunal having taken into account only the salary that the deceased was drawing at the time of his death and having adopted the multiplier method should not have deducted one half of the salary towards the personal expenses of the deceased. Generally in such cases where the dependants are wife and children l/3rd of the income is deducted towards personal expenses. 1/3rd of Rs. 3,531/- would come to Rs. 1,177/-. Even if we add some extra amount towards his personal expenses because of his visit to Ghatraprabha twice a week, the sum which he might have spent on himself cannot exceed Rs. 1,231/-. The loss of dependency suffered by the petitioners should therefore, come to Rs. 2,300/-.
14. It has come in the evidence of the Accounts Officer that the 1st petitioner is entitled to family pension of Rs. 500/- to Rs. 550/- per month. According to him, as on that date the family pension was yet to be settled. The learned Counsel for the petitioners/appellants did not dispute that the 1st petitioner is getting family pension in the range of Rs. 500/- to Rs. 550/- per month. He mainly contended that the family pension cannot be taken into account while fixing the loss of dependency.
15. The question whether the family pension payable to the widow of the deceased should be taken into account while fixing the loss of dependency, has come up for consideration before this High Court twice. First this question came up in Parvatamma v. Syed Ahmed and Ors. 1976 (2) Knt. LJ. 372 : 1977 ACJ 72 (Kant.). The Division Bench of this High Court after elaborate discussion and considering various authorities including the law as laid down by the Supreme Court in Gobald Motors Service Ltd. v. Veluswami has held that in assessing compensation in a fatal accident action for the pecuniary loss caused to the dependants, the family pension awardable to the dependants should be taken into account and deduction must be made for the benefits which would not have arisen at all but for the death. The contention raised by the learned Counsel for the appellants that family pension is sanctioned to the widow of the deceased in consideration of the past service of the deceased and that the 1st petitioner is statutorily entitled to that amount and that as such it cannot be taken into account, has been dealt with in para 17 of the above decision as hereunder:
17. The benefit of a family pension of the kind with which we are concerned in the present case, being in the nature of an entitlement, which the deceased had paid for in term s of h is past services or surrender of a part of his emoluments or both, has to be taken into account in assessing the compensation for pecuniary loss, inasmuch as, the corresponding benefit of a pension which deceased would be entitled to in the normal course would be a relevant consideration in determining the extent of the pecuniary loss.
The same question came up for consideration again in Dy. Gen. Manager K.S.R.T.C. v. Sarojamma 1981 (1) Knt. L.J. 528. In that decision also it was held that unless the law is changed as was done in England in 1959, making a specific provision for exclusion of collateral benefits received by the dependants consequent upon the death, the collateral benefits, such as family pension, must be taken into account and deduction has to be given for the amount so received in the compensation awarded.
16. The learned Counsel for the appellants relied on the decision in N. Sivammal and Ors. v. The Managing Director, Pandian Roadways Corporation and Anr. and contended that the Supreme Court has laid down that family pension cannot be deducted out of the loss of dependency suffered by the claimants. It that case the Tribunal computed the compensation payable to the claimants at Rs. 40,500/-. However, it deducted Rs. 10,000/- which the dependants of the deceased had received under the Family Benefit scheme and directed the respondents to pay the balance amount of Rs. 30,500/- to the claimants. In an appeal filed before the High Court of Madras, the High Court evaluated the pensionary benefits which the widow was entitled to and reduced the compensation by a further sum of Rs. 10,000/-. It is in this background the Supreme Court has held as hereunder:
....The High Court evaluated the monetary benefit of pension and reduced the amount of compensation by Rs. l0,000/-. We are unable to appreciate this reduction. We find no justification for it. It fact, the High Court overlooked the most obvious fact that the monthly pay packet of the deceased was Rs. 355/-. His receipt per year would be Rs. 4,260/-. Keeping in view the age of the deceased at the time of his death and taking the modicum of 10 years' purchase the amount of compensation would work out at Rs. 42,600/- to which the customary figure of Rs. 5,000/- for loss to the estate has to be added. Thus under these two heads, the Corporation would be liable to pay Rs. 47,600/- apart from pain and sufferings. Therefore, the High Court was clearly in error in further reducing the compensation as awarded by the Tribunal....
It will be seen that the Supreme Court has only demonstrated that in the circumstances of that case there was no justification for deducting any amount towards family pension out of the compensation awarded by the Tribunal. The Supreme Court has pointed out that the Corporation would have been liable to pay Rs. 47,6007- apart from the amount payable for pain and suffering and that however the Tribunal had awarded only Rs. 30,500/-. For that reason the Supreme Court has observed that there was no justification for deducting a sum of Rs. 10,000/- towards the family pension drawn by the widow. There was no occasion for the Supreme Court to go into the question as to whether the family pension received by the widow should be taken into account while fixing the loss of dependency and the Supreme Court has also not purported to lay down any legal principle in that regard. It is well settled that it is only where the Supreme Court has considered any question of law which arises before it and lays down a legal principle, that decision would act as precedent binding on the Courts. The decision of the Supreme Court in the above case does not purport to lay down any legal principle and it cannot be said to have impliedly over-ruled the two Division Bench decisions of this High Court on the point at issue.
17. The learned Counsel for the appellants also pointed out that in Union of India v. Vijay Sundari and Ors. 1991 ACJ 771 : I (1992) ACC 449 (D.B.) (M.P.) the Madhya Pradesh High Court had held that deduction on account of family pension was not admissible. In view of the two decisions of this High Court on the point, the above decision of Madhya Pradesh High Court cannot be of any help to the appellants.
18. The appellants have not placed before the Court the relevant material to show as to what exactly is the family pension that the 1st appellant is drawing. However, the evidence of P.W. 3 shows that it is ranging from Rs. 500/- to Rs. 550/- per month. When an employee dies even when he is in service, the family pension payable would be at higher rate for a period of 7 years and thereafter it tapers down. We feel that a sum of Rs. 300/-should be deducted out of the loss of dependency suffered by the petitioners towards the family pension. Thus it would be just and reasonable to take the loss of dependency suffered by the petitioners at Rs. 2,000/- per month or Rs. 24,000/- per annum. If we adopt the multiplier '12' the total loss of dependency suffered by the petitioners comes to Rs. 2,88,000/-. To this a sum of Rs. 17,240/- awarded by the Tribunal under various other heads will have to be added. The total compensation payable to the petitioners comes to Rs. 3,05,240/-. As admittedly the appellants have been awarded the interim compensation of Rs. 25,000/- the balance payable to the appellants comes to Rs. 2,80,240/-. The judgment and award of the Tribunal have to be modified only to this extent
19. For the above reasons this appeal is allowed in part and the judgment and award of the Tribunal are modified by directing the respondent to pay to the appellants a sum of Rs. 2,80,240/- in addition to the sum of Rs. 25,000/- already awarded together with costs and interest at 9% per annum from the date of the petition. The Insurer-2nd respondent shall pay the said amount in the first instance.