Bangalore District Court
N.K.Vishwanath S/O Late N.Krishnaiah vs N.Dharmappa S/O Late N.Narasimhaiah ... on 31 January, 2017
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated, this the 31st day of January 2017.
PRESENT
Sri.Ravi M. Naik,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S.No.6434/2005
PLAINTIFFs 1. N.K.Vishwanath s/o late N.Krishnaiah
setty, aged about 49 years, r/a first
floor of premises no.293, Kanakapura
road, 7th block, Jayanagar, Bangalore
-560 082.
2. Smt.B.P.Thayaramma D/o late
N.Krishnaiah setty, w/o
BV.Pandurangaiah setty, aged about 60
years, r/a no.1, Uttarahalli,
Bangalore.
3. Smt.D.Bharatha Lakshmi D/o late
N.Krishnaiah setty, w/o Sri.
D.Pandurangaiah Setty, aged about 58
years, r/a Doddapete,Kolar.
4. Smt.P.M.Annapoorna D/o late
N.Krishnaiah setty, w/o P.Manohara
Gupta, aged about 55 years, r/a
no.105A, 29th A cross, 7th block,
Jayanagar, Bangalore -560 082.
5. Smt.P.R.Ramaratna, D/o late
N.Krishnaiah setty, w/o P.S.Rajendra
Babu, aged about 48 years, r/a 1st
floor, no.293,Kanakapura main road,
Jayanagar 7th block, Bangalore -82.
2 O.S.No.6434/2005
(By M/s Law Associates - Advocates)
- V E R S U S -
DEFENDANTs N.Dharmappa s/o late N.Narasimhaiah setty
since deceased by his LRs:
1(a) SMt.N.Sharadamma w/o late
Sri.N.Dharmappa, aged about 73 years,
1(b). N.D.Venakta subramanya s/o late
N.Dharmappa, aged about 55 years,
1(c). N.D.Venkata Narasimha s/o late
N.Dharmappa, aged about 37 years,
1(a) to 1(c) are r/a no.293, 7th block,
Jayanagar, Kanakapura main road,
Bangalore -560 082.
1(d). S.N.Lakshmi d/o late N.Dharmappa,
w/o S.N.Narayana murthy, aged about 47
years, r/a no.27, Chandra reddy building,
Anjaneya temple road, Banasawadi, Bangalore
-560 043.
1(e). Smt. E.S.Nagamani d/o late
Sri.N.Dharmappa, w/o E.Sainath, aged about
44 years, Master quarters, Subramanyapura,
Bangalore -560 061.
1(f). Smt.Uma Rani.G. D/o late
Sri.N.Dharmappa, w/o Krishnamurthy.G.,
aged about 41 years, r/a no.17/185 E-10,
Subbareddy layout, Madanapalli-517 375.
Andhra Pradesh.
(Sri.Ravishankar-Advocate)
Date of institution of the suit : 25.8.2005
Nature of the suit (suit on Suit for partition and separate
pronote, suit for declaration and possession & permanent
3 O.S.No.6434/2005
possession suit for injunction,etc) : injunction
Date of the commencement of 8.8.2011
recording of the evidence :
Date on which the Judgment was 31.1.2017
pronounced :
Total duration Year/s Month/s Day/s
11 05 06
(Ravi M. Naik)
I Addl.City Civil & Sessions Judge,
Bangalore.
J U D G M E N T
The plaintiffs have filed a suit against the defendant with a prayer to pass judgment and decree for partition and also consequential relief of permanent injunction, mesne profits, cost of the suit and such other reliefs.
2. The brief averments of the plaint are that the plaintiffs are the children of one Krishnaiah Setty. Krishnaiah Setty is the brother of the deceased defendant and the said Krishnaiah Setty and the deceased defendant constituted a joint Hindu family along with their father N.Narasimha Setty-Karta of the family. The other son of Narasimha setty is already released from the joint family by executing a release deed dated 14.2.1952. 4 O.S.No.6434/2005 After the said release deed, the father of the plaintiffs continued to live in the joint family. It is further stated that the joint family was running a business in the name and style of M/s Narasimha setty & sons. Out of the said joint family funds in the year 1960 the joint family had purchased the suit schedule property in the name of deceased defendant from the then City improvement trust board. It is further stated that thereafter a residential building was constructed on the said site by utilizing the joint family funds and by raising loan from Vysya co-operative bank twice by mortgaging the joint family property. The said property was also mortgaged in favour of one Smt.Nagarathnamma in order to augment resources to repay the debt of construction of the house in the suit schedule property. The father of the plaintiff also raised loan from his employer and he liquidated various loans availed by the defendant for construction of the house. It is further stated that in the year 1971, Krishnaiah Setty died intestate. Thereafter the plaintiffs 5 O.S.No.6434/2005 and defendants enjoyed the suit schedule property jointly. It is further stated that Krishnaiah setty was the owner of the property bearing sy.no.169, 33 & 39 situated at Ramasamudra village, Kengeri hobli, Bangalore north taluk, which was gifted to him by his employer by a registered gift deed dated 5.8.1959. The said property was also put into the common hotchpot of the joint family. In the year 1993 that property was disposed off and the sale consideration realized therefrom came to be utilized by the joint family. It is further stated that the father of the 1st plaintiff expired on 26.2.1983. The 1st plaintiff succeeded to his estate and he being the sole male member in the coparcenary is entitled for a share in the suit schedule property. The deceased defendant was the karta of the joint family. The mother of the plaintiffs also died intestate on 18.10.2003. All the sisters of the 1st plaintiff are married prior to 1994.
3. It is further stated that on 5.10.1995, due to the differences among the family members, a partition of the 6 O.S.No.6434/2005 joint family took place. The 1st plaintiff was allotted the first floor portion of the suit schedule property and the ground floor was retained by the deceased defendant. Since then the 1st plaintiff is residing separately from the joint family. But, however, he continued to assist the business of M/s Narasimha setty & sons under the supervision of the deceased defendant. It is further stated that during March 2004, the difference of opinion arose with regard to the running of the business of the family. The deceased defendant unilaterally and arbitrarily decided to close down the family business by name and style 'Narasimha setty & sons'. The deceased defendant started asserting that he is having right over the entire suit schedule property. It is further stated that the 1st plaintiff issued a legal notice calling upon the deceased defendant to execute the partition deed and allot the share of the 1st plaintiff. The deceased defendant took up a false contention that the 1st plaintiff is tenant under him instead of partitioning the suit 7 O.S.No.6434/2005 schedule property. It is further stated that the deceased defendant started interfering with the peaceful possession and enjoyment of the 1st plaintiff over the first floor portion of the suit schedule property. The 1st plaintiff lodged a complaint before the jurisdictional police and constrained to file the present suit.
4. In pursuance of the suit summons, the deceased defendant appeared through his counsel and filed written statement. The sum and substance of the contention of the deceased defendant is that the suit is not properly valued, the court fee paid is not proper. He has denied the averments made in para -3 to 12 of the plaint. It is contended that there is no cause of action to file the suit. It is further contended that the suit schedule property is the self-acquired property of the deceased defendant. During the year 1960, the CITB allotted the suit schedule property in favour of the deceased defendant. Out of his savings, he has put up structure over the suit schedule property during the year 1965 and the deceased 8 O.S.No.6434/2005 defendant discharged the debts which he had availed. It is further contended that the deceased defendant was a businessman by profession. He was running a proprietary business by name and style M/s Narasimha Setty & Sons. Neither the 1st plaintiff nor his father had any interest in the business established by the deceased defendant. The father of the 1st plaintiff was employed in M/s Sri Krishna Spinning and Weaving Mills, Subramanyapura, Bangalore. He was getting a very meager salary and his earning was not sufficient for his livelihood. The property said to have been acquired by the deceased defendant had never constituted the property of the family of the deceased defendant. The funds realized from the disposal of the said property was never put into the hands of the deceased defendant. There is no joint family in existence during the lifetime of Krishnaiah Setty and after his death neither the 1st plaintiff nor his father had invested any amount for the 9 O.S.No.6434/2005 purpose of acquisition and improvement of the suit schedule property.
5. The 1st plaintiff is in occupation of a portion of the first floor of the suit schedule property under the deceased defendant on a rental of Rs.4,000/- per month excluding of electricity and water charges. The rear portion of the first floor of the suit schedule property is let out by the deceased defendant to a tenant by name Rajendra Babu on a rental of Rs.3,000/- per month. The claim of the 1st plaintiff is immoral, unethical and illegal. The father of the deceased defendant had no avocation. He was involved in religious activities. Krishnaiah Setty was in no way connected with the business concern of the deceased defendant. He was employed in M/s Krishna Spinning and Weaving Mills. The 1st plaintiff and his mother have disposed off the property which was owned by Krishnaiah Setty and utilized the entire sale consideration. It is further contended that Krishnaiah Setty has own income from his employment. He might 10 O.S.No.6434/2005 have acquired the properties from his income. After the death of Krishnaiah Setty, the 1st plaintiff and his mother have succeeded to the estate of Krishnaiah Setty and they have disposed off the properties that were acquired by Krishnaiah Setty. The 1st plaintiff never had any right, title or interest over the suit schedule property. Therefore, the question of allotting the first floor portion of the suit schedule property to the 1st plaintiff does not arise. The 1st plaintiff has no manner of right, title or interest over the suit schedule property. It is further contended that the suit is bad for non-joinder of necessary parties. The property bearing plot no.25 measuring 39.40 x 40ft. acquired by Krishnaiah Setty under a registered sale deed dated 14.4.1969. Another property situated at Jayanagar was also acquired by Krishnaiah Setty. It is further contended that the 1st plaintiff has not chosen to pay the court fee on the plaint. For above all reasons, the de defendant has prayed for dismissal of the suit.
11 O.S.No.6434/2005
6. The learned Counsel appearing for the Plaintiffs has relied on the following decisions:
1. (2013)4 SCC 97 - Lakshmibai (dead through her LRs and another vs. Bhagvant Bua (dead through LRs and others) - Head note-C.
7. The learned Counsel appearing for the legal representatives of the deceased defendant has relied on the following decisions:
1. AIR 2016 NOC 730(Orissa)-Ramachandra prusty(since dead)by his LRs vs. Vidhyadhar Prusty and others.
2. AIR 2016 Delhi 120 - Surendrakumar Vs. Dhaniram and others.
3. ILR 1993 KAR 1865-Ramappa Basappa Palled vs. Smt.Basava.
4. AIR 1987 SC 558 - Yudhishter vs. Ashok kumar
5. ILR 1990 KAR 2303 - M.R.Rajashekharappa Vs. H.N.Siddaananjappa.
8. On the pleadings available on record this court has framed the following issues:
1. Whether the 1st plaintiff proves that suit schedule property is the joint family property of his and defendants ?12 O.S.No.6434/2005
2. Whether the defendants prove that the suit schedule property is their self-
acquired property?
3. Whether the plaintiffs prove that they have got share in the suit schedule property? If so, to what share?
4. Whether the court fee paid by plaintiffs is not proper and correct?
5. Whether the suit of the plaintiffs is bad for non-joinder of necessary parties to the suit?
6. Whether the plaintiffs prove that the defendants have tried to alienate suit schedule property?
7. Whether the plaintiffs prove that there arose a cause of action to file this suit against the defendants?
8. Whether the plaintiffs are entitled to the relief of partition and separate possession in the suit schedule property?
9. Whether the 1st plaintiff is entitled to the relief of permanent injunction as prayed ?
10. Whether the 1st plaintiff is entitled to the relief of mesne profits ?
11. What decree or order?
9. The plaintiffs in order to prove their case, have got examined the first plaintiff as PW.1 and the attesting 13 O.S.No.6434/2005 witness to the partition deed dated 5.10.1995 Mr. Manohar Gupta was examined as PW.2 and got marked Exs.P.1 to P.52 & 52(a) documents. On the other hand, the defendant no.1(b) was examined as DW.1 and Exs.D.1 to D.17 documents came to be marked on behalf of the defendants.
10. Heard the learned Counsel appearing for the plaintiffs and defendants.
11. My findings on the above issues are as follows: -
Issue no.1 : In the affirmative Issue no.2 : In the negative Issue no.3 : Partly in the affirmative Issue no.4 : In the negative Issue no.5 : In the negative Issue no.6 : In the negative Issue no.7 : In the affirmative Issue no.8 : Partly in the affirmative Issue no.9 : In the affirmative Issue no.10 : In the negative Issue no.11 : As per final order REASONS
12. Before answering the issues, I would like to state the undisputed facts of this case. One N.Narasimhaiah Setty is the propositus of the family of 14 O.S.No.6434/2005 the plaintiffs and defendants. He had three sons and a daughter i.e., N.Krishnaiah Setty-father of the plaintiffs, Anjaneyalu Setty and Dharmappa i.e., the deceased defendant and one Achamma who is no more.
Anjaneyalu Setty got released from the family on 14.2.1952 by executing Ex.P.1 release deed. The sole defendant died during the pendency of the suit. The defendant nos.1(a) to 1(f) are the legal heirs of deceased defendant.
13. ISSUE NO.5: In the written statement of the then sole defendant at para-16 page-10, it is contended that the suit is bad for non-joinder of necessary parties. Initially the suit came to be filed by the son of Krishnaiah Setty i.e., first plaintiff. This court by its order dated 16.9.2008 permitted the 1st plaintiff to implead the other legal heirs of deceased Krishnaiah Setty i.e., the daughters of deceased Krishnaiah Setty. Accordingly they have been impleaded as plaintiff nos.2 to 5. Under these circumstances, the contention of the defendants 15 O.S.No.6434/2005 that the suit is bad for non-joinder of necessary parties holds no water. Hence, I answer Issue no.5 in the negative.
14. Issue nos.1 & 2 : Since these two issues are interlinked, in order to avoid repetition, I would like to answer them together.
15. According to the plaintiffs, the suit schedule property i.e., property bearing no.293, situated at 7th Block, Jayanagar, is the joint family property of the plaintiffs and the defendants. To substantiate the contention of the plaintiffs, the learned Counsel appearing for the plaintiffs drew the attention of this court to Ex.P.2 i.e., letter dated 16.11.1965 written by father of the plaintiffs to one M/s Yeadalam Brothers Pvt.Ltd., and contended that the plaintiffs' father had availed loan of Rs.3,000/- for construction of house and he further drew the attention of this court to Ex.P.3 to show that said amount is received from the said M/s Yeadalam Brothers Pvt. Ltd., by way of a cheque. He 16 O.S.No.6434/2005 further drew the attention of this court to Ex.P.4 i.e., on demand promissory note executed by the plaintiff's father and deceased defendant Dharmappa jointly. Thus, his bone of contention is that to construct a house in the suit schedule property both plaintiffs' father and deceased defendant borrowed the loan and discharged the same jointly. Ex.P.5 & P.7 are the pronotes dated 29.3.1971 & 8.1.1971. The recitals of the said documents discloses that Dharmappa i.e., deceased defendant availed a sum of Rs.5,250/- & Rs.2,000/- on 29.3.1971 and 8.1.1971 and discharged the said amount. Ex.P.6 is another pronote dated 29.3.1971. The recitals of the said document disclose that Anjaneyalu & Dharamappa availed loan of Rs.4,000/- and discharged the same. Ex.P.8 is the mortgage deed dated 11.4.1965. Ex.P.8(a) is the typed copy of the said mortgage deed. The recitals of the said document disclose that both the father of the plaintiffs and deceased defendant executed a mortgage deed and mortgaged the suit schedule property 17 O.S.No.6434/2005 in favour of Vysya Co-operative Bank Ltd., Avenue road branch, Bangalore. The learned Counsel appearing for the plaintiffs contended that in order to construct a building in the suit schedule property, the said property was mortgaged by Krishnaiah Setty-father of the plaintiffs and the deceased defendant Dharmappa and availed loan of Rs.5,000/-. Ex.P.9 is another mortgage deed dated 7.1.1972. Ex.P.9(a) is the typed copy. The learned Counsel appearing for the defendants drew the attention of this court to the recitals of the said document and contended that the recitals of the said mortgage deed itself discloses that CITB allotted the suit property in favour of the deceased defendant Dharmappa. He further argued that it is the self- acquired property of the deceased defendant Dharmappa. The learned Counsel appearing for plaintiffs further drew the attention of this court to the recitals of Ex.P.10 lease deed and argued that said document also discloses that both the sons of Narasimhaiah Setty i.e., 18 O.S.No.6434/2005 father of the plaintiffs and the deceased defendant were residing in the suit property jointly and that is clear from the address mentioned in the said lease deed. He further drew the attention of this court to the recitals of Ex.P.11 i.e., Death Certificate pertaining to the father of the plaintiffs and contended that in col.no.8 of Ex.P.11, the permanent address of Krishnaiah Setty is shown as the suit schedule property. He further drew the attention of this court to the recitals of Ex.P.12 i.e., carbon copy of the statement of estate duty returns and he further contended that in col.no.I of the said document, it is shown as 'HUF' property. He further drew the attention of this court to page 2, 3 of Ex.P.12 and contended that the suit schedule property is a joint family property. The father of the plaintiffs and deceased defendant were coparceners in the Narasimhaiah Setty Hindu Undivided Family. He further drew the attention of this court to recitals of Ex.P.13 to P.15 and contended that in the said documents the name of wife of Krishnaiah Setty i.e., 19 O.S.No.6434/2005 mother of the plaintiffs is shown as she is residing in 7th block, Jayanagar, Bangalore i.e., in the suit schedule property. That itself shows that the suit schedule property is the joint family property of the plaintiffs and defendants. He further drew the attention of this court to the recitals of Ex.P.16 to P.22 and contended that in the said documents, Narasimhaiah Setty and sons have disclosed the statements of income. He further drew the attention of this court to the recitals of Exs.P.24 to P.31 and argued that in all the said documents the status is shown as 'Narasimhaiah Setty and Sons-HUF'. He further drew the attention of this court to the recitals of Ex.P.47 i.e., letter written by Narasimhaiah Setty & Sons to the Income tax officer dated 7.2.1967 wherein in the status column, it is shown as 'Narasimhaiah Setty & Sons' is shown as 'HUF'. He further drew the attention of this court to Ex.P.48 and the typed copy of the said document at Ex.P.48(a) i.e., Mortgage Deed dated 3.8.1970 and contended that the recitals of said 20 O.S.No.6434/2005 document is clear that in order to repay the loan, said suit property is mortgaged. Ex.P.49 is the sale deed dated 5.4.1971 and the learned Counsel appearing for the plaintiff contended that in the said document also it is stated that in order to repay the loan sale deed dated 5.4.1971 came to be executed by Krishnaiah Setty-father of the plaintiffs in favour of one Ramakrishna. He further drew the attention of this court to the recitals of Ex.P.51 and argued that the first plaintiff paid the tax of Rs.4,320/- to the BBMP. He further drew the attention of this court to Ex.P.52 receipt and Ex.P.52(a) is the typed copy of Ex.P.52 wherein both father of the plaintiffs and deceased defendant Dharmappa executed the said receipt in favour of one Ramanappa for having received Rs.10,000/- for construction of house.
16. As against the said argument, the learned Counsel appearing for the legal heirs of the deceased defendant, contended that the suit property is the self- acquired property of deceased defendant Dharmappa. He 21 O.S.No.6434/2005 drew the attention of this court to the recitals of Ex.D.1 i.e., the certified copy of the sale deed dated 17.12.1999 executed by BDA in favour of Dharmappa-the deceased defendant. Ex.D.2 is the memo issued by the CITB dated 10.3.1966 for having received the value of the site and for granting the possession certificate in favour of the deceased defendant Dharmappa. Ex.D.3 and D.4 are the tax paid receipts in the name of Dharmappa. Ex.D.4 is the endorsement issued by Asst. Revenue Officer, Corporation of City of Bangalore for change of khata in the name of Dharmappa. Ex.D.5 is the letter issued by Chairman, CITB dated 17.11.1960 to transfer site no.293 i.e., suit schedule property in the name of deceased defendant. Ex.D.6 is the 'nil' encumbrance certificate in respect of the suit schedule property in the name of deceased defendant. Exs.D.6 to D.8 are also the Encumbrance certificate in the name of the deceased defendant Dharamappa pertaining to the suit schedule property. Ex.D.9 is the memo issued by the CITB dated 22 O.S.No.6434/2005 18.2.1961 for having handed over the possession of the suit schedule property in favour of Dharmappa. Ex.D.10 is the application moved by Dharmappa to the Commissioner, BBMP dated 11.1.1999 requesting him to execute the sale deed pertaining to the schedule property. Ex.D.11(a) is the sketch. The learned Counsel appearing for the defendants drew the attention of this court to the recitals of Ex.D.12 at col.no.4 and argued that in the said document, the status of the Narasimhaiah Setty & deceased defendant is shown as 'individual' and not as 'HUF'. He further drew the attention of this court to the recitals of Ex.D.13 ration card and argued that in the said document, the address of the suit property is found and Dharmappa and his children are residing in the said property. There is no mention in Ex.D.13 regarding family of Krishnaiah Setty i.e., plaintiffs. He further drew the attention of this court to the recitals of Ex.D.14, a suit filed by the deceased defendant against the plaintiffs herein claiming arrears of 23 O.S.No.6434/2005 rent and damages contending that the plaintiffs are the tenants under the deceased defendant in respect of the first floor of the suit property. He further drew the attention of this court to the cross-examination of PW.1 i.e., defendant no.1(b) herein and argued that the deceased Dharmappa was running a cloth business in the name of M/s Narasimhaiah Setty & Sons from 1954. He further drew the attention of this court to the recitals of Ex.D.17 col.no.7 wherein deceased Dharmappa is shown as the owner of the suit schedule property.
17. The learned Counsel appearing for the plaintiffs drew the attention of this court to the cross-examination of PW.1 at page-8 para-3 and contended that PW.1 has clearly stated that Narasimhaiah setty, Krishnaiah setty and Dharmappa are the owners of the business. He further drew the attention of this court to the cross- examination of PW.1 at page-27 and contended that PW.1 i.e., first plaintiff has categorically stated that his father was serving in Krishna Spinning and Weaving Mill 24 O.S.No.6434/2005 and out of his salary, the suit schedule property was purchased. He further drew the attention of this court to the very same para and argued that PW.1 has further stated that his father has constructed the house by borrowing loan and to repay the said loan and maintenance of the family, the property was sold. He drew the attention of this court to page-28 of the cross- examination of PW.1 and contended that PW.1 has categorically denied the suggestion that first defendant had alone constructed the house in the suit schedule property and the father of the plaintiff did not give any money. He further drew the attention of this court to cross-examination of PW.1 at page-39 and contended that PW.1 has categorically denied the suggestion that the suit schedule property is the self-acquired property of the deceased defendant. He further contended that in order to prove the contents of Ex.P.36, the plaintiffs have got examined the attesting witness to the said document PW.2 and further drew the attention of this court to the 25 O.S.No.6434/2005 cross-examination of DW.1 at page-14 wherein DW.1 has stated that no document is produced to show that the firm was run by the own funds of his father Dharmappa. He further drew the attention of this court to the cross- examination of DW.1 at page-16 wherein DW.1 has stated that other than the allotment letter issued by CITB, no document to show that the suit schedule property is the self-acquired property of his father. He further drew the attention of this court to page-17 para- 8 of cross-examination of DW.1 wherein he has stated that no document is produced to show that the suit schedule property was purchased by the own funds of his father and he further admitted that to purchase the suit schedule property the only source was the income from the firm.
18. According to the defendants, the suit schedule property is the self-acquired property of the deceased defendant Dharmappa. The learned Counsel appearing for the defendants contended that the plaintiffs have not 26 O.S.No.6434/2005 produced any material or adduced any evidence to show that the joint family had sufficient source of income to purchase the suit schedule property. None of the independent witnesses are examined to establish the source of income to the family to purchase the suit schedule property. He further drew the attention of this court to the recitals of Ex.P.36 (typed copy at Ex.P.36(a)). Said document is not a partition deed, but it is a memorandum of understanding of family partition. Para- 2 of the said document reads as under:
"The house property standing in the name of Mr.N.Dharmappa being a residential house, situated at no.293, Kanakapura main road, 7th block, Jayangar, Bangalore, where both the parties have been residing till now, consists of ground floor and first floor.
The ground floor portion of the above property has been allotted to Mr.N.Dharmappa and first floor portion of the property has been allotted to Mr. M.K.Vishwanath and both parties shall have equal rights over the land."
PW.2 who is none other than the attesting witness to Ex.P.36, on oath has stated that after discussion, 27 O.S.No.6434/2005 Ex.P.36 came to be executed and signed by deceased Dharmappa i.e., deceased defendant and the first plaintiff and PW.2 and one B.V.Narayanamurthy signed the said document as attesting witness. He identified his signature on the said document at Ex.P.36(a) and identified the signature of another attesting witness B.V.Narayanamurthy at Ex.P.36(b). He further stated that said B.V.Narayanamurthy is no more and he died about six years prior to his deposition. He identified the signature of Dharmappa at Ex.P.36(c) and signature of Vishwanath at Ex.P.36(d). Undisputedly PW.2 is the relative of both plaintiffs and defendants. In his cross-
examination he has categorically stated that he had participated in the negotiation prior to the execution of Ex.P.36 and he further stated that the said document was written in his house as per the instructions given by Dharmappa. The signature of Dharmappa i.e., Ex.P.36(c) is not denied on Ex.P.36. Nothing is elicited in the cross-
examination of PW.2 to disbelieve the contents of the said 28 O.S.No.6434/2005 document. Thus, the version of PW.2 is clear that Dharmappa and first plaintiff both voluntarily entered into the said document and ground floor of the suit schedule property has been allotted to Dharmappa and first floor is allotted to Vishwanath. Thus, the recitals of Ex.P.36 are proved as contemplated under Sec.68 of the Indian Evidence Act. Undisputedly said document came to be executed at an undisputed period of time, i.e., on 5.10.1995. Deceased defendant Dharmappa is a party to the said document. Now, his legal heirs cannot go against the recitals of the said document. Thus, the recitals of Ex.P.36 is binding on the defendants i.e., defendant no.1(a) to 1(f) as well as the legal heirs of Krishnaiah Shetty i.e. plaintiffs. Both are estopped from contending anything against the said document by virtue of Sec.115 of Evidence Act. Merely because in pursuance of Ex.P.36 partition deed is not executed and no revenue record has been entered on the strength of Ex.P.36 itself is not a 29 O.S.No.6434/2005 ground to come to a conclusion that said document is not binding on the aforesaid parties.
19. The learned Counsel appearing for the plaintiffs has relied on a decision reported in (2013)4 SCC 97- page 98 head note-C and argued that as per Sec.80 and 74 of the Indian Evidence Act, the contents of the document when proved by examining the witness, it is to be considered as evidence. In the instant case, Ex.P.36 is marked through the plaintiffs and the attesting witness in the said document has also been examined. Therefore, in the light of the ratio laid down in the aforesaid decision of the Hon'ble Apex Court the contents of the said document are considered to be true and correct.
20. Both the learned counsel for the plaintiffs and defendants argued with regard to the HUF property and the learned Counsel appearing for the defendants contended that the suit property is acquired by Dharmappa out of his self earned income. As against the said argument, the learned Counsel appearing for the 30 O.S.No.6434/2005 plaintiffs contended that it is the property of the joint family. It is pertinent to note that during the lifetime of Dharmappa himself, he allotted first floor portion of the suit schedule property to the first plaintiff in unequivocal terms which is stated in Ex.P.36. Under these circumstances, now the legal heirs of Dharmappa cannot contend that said property still is in the form of self-
acquired property of the first defendant. The learned Counsel appearing for the legal representatives of the deceased defendant relied on a decision reported in AIR 2016 NOC 730-Head note A & B wherein the Hon'ble High Court of Orissa has held as under:
"(A)- Partition Act(4 of 1893), S.4 -
Evidence Act (1 of 1872), S.101 - Suit for partition - Burden of proof - Plaintiff claimed that defendant had purchased suit property from joint family nucleus-
Burden lies on plaintiff to prove such facts - When initial burden of proof discharged by plaintiffs, onus shifts to defendants to rebut the same - Witnesses had no direct knowledge regarding source of purchase of suit property - No material on record to show that suit property was acquired from joint family nucleus - Plaintiff failed to discharge 31 O.S.No.6434/2005 initial burden of proof cast on him to bring home his contention - Hence, suit property is self-acquired property of defendant .
(B) Hindu Law - Joint family property -
Doctrine of blending - Applicability -
Mere allowing members family to use property jointly by owner of property -
Not sufficient to hold that he waived his right of property and has put such property in joint stock - Without satisfying ingredients of doctrine of blending, property cannot be considered as joint family property."
21. He further relied on a decision reported in ILR 1993 KAR 1865-Head note-A and in the light of the ratio laid down in the said decision of the Hon'ble High Court of Karnataka, he contended that there is no evidence as to availability of any joint family nucleus. Therefore, the acquisition of the suit property is to be held as self- acquired property. He further relied on a decision reported in AIR 1987 SC 558-Head note-C and the observation made in para-10 of the said judgment and in the light of the said observation; he argued that the sons of Dharmappa inherited the suit property. Therefore, by 32 O.S.No.6434/2005 virtue of Sec.8 of the Hindu Succession Act, they are the absolute owners of the suit schedule property. He further relied on a decision reported in ILR 1993 KAR 2303 and in the light of the ratio laid down in the said decision of the Hon'ble High Court of Karnataka, he argued that merely because the family residing jointly and joint in estate and also food and worship. That does not mean that the property is the joint family property and in the instant case no benefit is available to the plaintiffs on that ground.
22. No doubt, the plaintiffs have not adduced any cogent evidence to show that out of the joint family nucleus the suit schedule property was purchased. But, the recitals of Ex.P.36 itself is clear that the desire of Dharmappa was to allot the first floor of the suit property to first plaintiff. If really he had no such intention, he would not have executed Ex.P.36 during his lifetime. Therefore, the ratios laid down in the aforesaid decisions relied by the learned Counsel appearing for the legal 33 O.S.No.6434/2005 representatives of the deceased defendant are not applicable to the facts of the case on hand.
23. On careful perusal of the recitals of Ex.P.36, there is no whisper with respect to the self-acquisition of suit property by any members of the family. That is clear from the wordings used in the said document. That document came to be executed by mutual agreement between Dharmappa-deceased defendant and Vishwanath i.e., first plaintiff. In the suit property there is a house. It is not disputed by either of the parties. It is also stated in Ex.P.36 that said property is standing in the name of Mr.Dharmappa. It is not stated that it is exclusively owned by Mr.Dharmappa. In that house, the first floor is allotted to first plaintiff and ground floor is allotted to Dharmappa-deceased defendant who are representing two branches of the family. It is also stated in the said document that both parties shall have equal rights on the land. Under these circumstances, the first floor portion along with equal ownership over the land, 34 O.S.No.6434/2005 which is allotted to first plaintiff in Ex.P.36 is constrained to be held that it is joint family property and that portion allotted to the first plaintiff cannot be considered as the self-acquired property of the deceased defendant Dharmappa. Hence, with regard to the first floor portion of the suit schedule property, it is the joint family property of the first plaintiff along with equal ownership over the property it is the joint family property of the 1st plaintiff and deceased defendant Dharmappa and not the self-acquired property of Dharmappa alone. Accordingly I answer Issue no.1 in the partly affirmative and Issue no.2 in the negative
24. Issue nos.3, 8 & 9 : As these issues are interlinked with each other, in order to avoid repetition, I would like to answer them together.
25. It is the specific case of the first plaintiff that his father Krishnaiah Setty and deceased defendant Dharmappa are brothers and they were in joint family. During the year 1995, after the demise of his father 35 O.S.No.6434/2005 Krishnaiah Setty, 1st plaintiff moved to the first floor of the house situated in the suit schedule property and in respect of said property, Ex.P.36 a memorandum of understanding of family partition took place and in the said Ex.P.36, first floor was allotted to the share of the first plaintiff and he continued to stay in the said first floor. That is clear from the version of PW.1 and the recitals of Ex.P.36 and also the recitals of Ex.P.41 i.e., legal notice issued by the first plaintiff through his counsel to the deceased defendant Dharmappa. No doubt, deceased defendant Dharmappa and his legal heirs have contended that Dharmappa was graciously looked after the first plaintiff both in shelter and financial help and first floor was given to the first plaintiff as a tenant, but the first plaintiff is falsely claiming the right over the first floor. It is pertinent to note that except the bare contention in Ex.P.42, there is no supporting material to show that first plaintiff is residing in the first floor of the house situated in the suit schedule property 36 O.S.No.6434/2005 as a tenant whereas the recitals of Ex.P.36 as well as the version of PWs.1 & 2 clearly discloses that the first plaintiff is residing in the first floor of the house situated in the suit property which was allotted to him by Dharmappa under Ex.P.36 at an undisputed period of time on 5.10.1995. Now, the legal heirs of Dharmappa cannot contend against the recitals of Ex.P.36. Therefore, this court is of the opinion that the 1st plaintiff is entitled for first floor portion of the suit schedule property along with equal right over the suit schedule land which has been allotted to him under Ex.P.36.
26. No doubt, the sisters of the 1st plaintiff i.e., daughters of deceased Krishnaiah Setty are arrayed as plaintiff nos.2 to 5. But, subsequent to impleading them as parties, no amendment is carried out with regard to the recitals of the plaint, except arraying them as parties in the cause title. None of the aforesaid plaintiffs have adduced any evidence. There is no whisper in Ex.P.36 about allotting any share to the sisters of the first 37 O.S.No.6434/2005 plaintiff. It is clear from the material placed before this court that plaintiff nos.2 to 5 were already married. The first plaintiff who is representing the branch of Krishnaiah Setty is residing in the first floor of the suit schedule property. Therefore, in the interest of justice and equity, it is just and proper to allot the said first floor in the suit schedule property to the first plaintiff alone. Hence the plaintiff nos.2 to 5 are not entitle for any share in the suit schedule property.
27. On careful perusal of the relief column-15(a) of the plaint, the plaintiffs more particularly the first plaintiff has sought for partition by metes and bounds and separate possession of one half share in the suit schedule property. It is pertinent to note that as per Ex.P.36, the first floor of the house situated in the suit schedule property has been allotted to the share of the first plaintiff and both the first plaintiff and legal heirs of deceased Dharmappa shall have equal rights over the land in respect of the suit schedule property. When the 38 O.S.No.6434/2005 first floor is allotted to him and he is in possession and enjoyment of the same, there is no question of partitioning the suit property by metes and bounds allotting half share to the first plaintiff. Therefore, by invoking order 7 rule 7 of CPC, to meet the ends of justice, it is just and proper to reaffirm the contents of Ex.P.36 by allotting first floor portion of the suit schedule property and equal rights over the land in respect of the suit schedule property to the first plaintiff with the legal heirs of deceased defendant Dharmappa.
28. On careful perusal of the version of PW.1 coupled with the recitals of Ex.P.44 i.e., complaint lodged by the first plaintiff to the Inspector of Police, Banashankari II stage police station, Bangalore, discloses that after the demise of Krishnaiah setty i.e., Father of plaintiffs, the first plaintiff moved to the first floor of the house in the suit schedule property which was allotted to him under Ex.P.36, his junior uncle Dharmappa started to take extreme steps like disconnecting the water supply 39 O.S.No.6434/2005 connection and other amenities to the first floor. No doubt the defendants have contended that the first plaintiff is a tenant in respect of the first floor portion of the suit schedule property. But, the material placed before this court is crystal clear that on the basis of Ex.P.36, 1st plaintiff is residing in the first floor of the house situated in the suit schedule property and defendants tried to interfere with the possession of the first plaintiff over the first floor of the suit schedule property. Hence, the first plaintiff is entitled for the relief of permanent injunction in respect of the first floor portion of the suit schedule property and equal rights over the suit land. Accordingly I answer issue no.3 & 8 partly in the affirmative and Issue no.9 in the affirmative.
29. Issue no.4: The contention of the defendants that the court fee paid by the plaintiffs is not proper and correct. The valuation slip furnished by the first plaintiff coupled with para-14 of the plaint averments disclose that the first plaintiff has paid the court fee under 40 O.S.No.6434/2005 sec.35(2) of the Karnataka Court Fee & Suit Valuation Act. In the cause title of the plaint itself, the first plaintiff has shown his address as residing at first floor premises at no.293, Kanakapura road, 7th block, Jayanagar, Bangalore. All the documents produced by the plaintiffs also disclose the same address. Even Ex.P.41 legal notice came to be issued by the first plaintiff through his counsel from the same address. Said address is not disputed by the defendants. Thus, it is crystal clear that the first plaintiff is in possession of the first floor of the house situated in the suit property. Thus, he is in joint possession of the suit schedule property and he has not been excluded from the suit schedule property. Therefore, the contention taken by the defendants that the court fee paid by the first plaintiff under sec.35(2) of the Karnataka Court Fee & Suit Valuation Act is not proper and correct holds no water. Accordingly I answer Issue no.4 in the negative.
41 O.S.No.6434/2005
30. Issue no.6 : According to the plaintiffs the defendants tried to alienate the suit schedule property. Except the bare contention in the plaint, there is no corroborating material to show that the defendants tried to alienate the suit property. There is no whisper in the plaint to whom the defendants tried to alienate the suit schedule property, what is the proposed sale consideration etc. Added to that, there is no whisper in Ex.P.44 or in the Ex.P.41 legal notice that the defendants tried to alienate the suit schedule property. Under these circumstances, the contention taken by the plaintiffs that the defendants tried to alienate the suit schedule property is clearly an after thought. The plaintiffs have failed to establish that the defendants tried to alienate the suit schedule property. Hence, I answer Issue no.6 in the negative.
31. Issue no.7 : In para-12 of the plaint the plaintiffs have clearly stated with respect to the cause of action for the suit. In the legal notice Ex.P.41 and 42 O.S.No.6434/2005 Ex.P.44 i.e., the complaint filed before the Inspector of police, BSK 2nd stage, Bangalore, the first plaintiff in unequivocal terms has narrated the details of cause of action arose for filing the suit. In Ex.P.36 the share was allotted in the first floor of the suit schedule property to the first plaintiff along with the equal right over the suit schedule property and till the demise of the father of the 1st plaintiff, his father was residing in the said premises and thereafter the 1st plaintiff continued to reside in the said premises and his junior uncle Dharmappa started interfering with the possession of the first plaintiff over the first floor of the suit schedule property and there is clear recitals in Ex.P.44 that the defendants tried to disconnect the water supply and other amenities to the first floor of the suit property. Hence, in my opinion, the first plaintiff has established that there arose a cause of action for filing the suit. Hence, I answer Issue no.7 in the affirmative.
43 O.S.No.6434/2005
32. Issue no.10 : It is the specific contention of the first plaintiff that he is residing in the first floor and his uncle i.e., deceased defendant Dharmappa along with his children are residing in the ground floor of the suit premises. Thus, it is clear that the first plaintiff is in joint possession of the suit schedule property. Therefore, the first plaintiff is not entitled for the relief of mesne profits. Hence, I answer Issue no.10 in the negative.
33. Issue no.11: On careful perusal of the relief column-15(a) of the plaint, the plaintiffs more particularly the first plaintiff has sought for partition by metes and bounds and separate possession of one half share in the suit schedule property. It is pertinent to note that as per Ex.P.36, the first floor of the house situated in the suit schedule property has been allotted to the share of the first plaintiff. When the first floor is allotted to him and he is in possession and enjoyment of the same, there is no question of partitioning the suit property by metes and bounds allotting half share to the 44 O.S.No.6434/2005 first plaintiff. Therefore, by invoking order 7 rule 7 of CPC, to meet the ends of justice, it is just and proper to reaffirm the contents of Ex.P.36 by allotting first floor portion of the suit schedule property to the first plaintiff along with equal rights over the suit property. In the result of the foregoing discussion on all the above issues, I proceed to pass the following:
ORDER The suit of the plaintiffs is decreed in part.
The first plaintiff is entitled for first floor portion of the house situated in the suit schedule property with equal right over the land in respect of the suit schedule property with the legal heirs of deceased defendant Dharmappa.
The legal heirs of deceased defendant Dharmappa, their agents, servants or anybody claiming through them are hereby restrained by way of permanent injunction from interfering with the peaceful possession and enjoyment of the plaintiff over the first floor portion of the 45 O.S.No.6434/2005 suit schedule property and from alienating, encumbering, leasing, mortgaging, creating any charge, lien in respect of the property allotted to the share of the first plaintiff.
The prayer of the plaintiff nos.2 to 5 seeking share in the suit schedule property is dismissed.
The reliefs sought by the plaintiffs in respect of mesne profits is dismissed.
Considering the relationship between the parties, no order as to costs.
Draw final decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 31st day of January 2017).
(Ravi M. Naik), I Addl. City Civil & Sessions Judge, Bangalore.
46 O.S.No.6434/2005 ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 N.K.Vishwanath PW.2 P.Manohara Gupta LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 Release deed " P-1(A) Typed copy " P-2 Carbon copy of letter " P-3 Acknowledgement " P-4 Carbon copy of D.P.note " P-5 to 7 Original promotes " p.8 Certified copy of mortgage " p.8(a) Typed copy " p.9 Mortgage deed " p.9(a) Typed copy of Ex.P.9 " p.10 Certified copy of lease deed " p.11 Death Certificate " p.12 Carbon copy of statement of estate duty returns " p.13 Sec.852(2) under Estate Duty Act " p.14 & 15 Demand notice " p.16 to 19 Copies of statement of income " p.20 Demand notice " p.21 & 22 Income tax returns " p.23 Acknowledgement " p.24 to 31 Tax paid receipt " p.32 Certified copy of gift deed " p.33 Copy of acknowledgement " p.34 Certified copy of general power of attorney " p.35 Indemnity bond " p.36 Memorandum " p.37 Copy of ration card " p.38 Death Certificate " p.39 & 40 Encumbrance certificates
" p.41 to 43 Copy of legal notice & reply notice " p.44 Copy of letter " p.45 Certified copy of sale deed 47 O.S.No.6434/2005 " p.45(a) Typed copy of Ex.P.45 " p.46 Certified copy of agreement " p.47 Letter " p.48 Certified copy of mortgage " p.48(a) Typed copy of Ex.P.48 " p.49 Certified copy of sale deed dated 5.4.1971 " p.49(a) Typed copy of Ex.P.49 " p.50 Khata extract " p.51 Bank statement " p.52 Promissory note " p.52(a) Typed copy of Ex.P.52 LIST OF WITNESSES EXAMINED FOR DEFENDANTS DW.1 N.D.Venkata subramanya LIST OF DOCUMENTS MARKED FOR DEFENDANTS Ex.D.1 Certified copy of sale deed dated 17.12.1999 "D-2 Possession certificate " D-3 30 tax paid receipts " D-4 Endorsement " D-5 Certificate " D-6 to 8 Three Encumbrance certificate "D-9 Memo " D-10 Application " D-10(a) Acknowledgement " D-11 Survey sketch " D-12 Copy of assessment order " D-13 Original ration card " D-14 to 16 Certified copy of plaint, written statement & deposition " D-17 Assessment register (Ravi M. Naik), I Addl. City Civil & Sessions Judge, Bangalore.48 O.S.No.6434/2005
t 49 O.S.No.6434/2005 Main Search Premium Members Advanced Search Disclaimer Cites 13 docs - [View All] Section 163A in The Motor Vehicles Act, 1988 The Motor Vehicles Act, 1988 Section 166 in The Motor Vehicles Act, 1988 Section 24 in The Motor Vehicles Act, 1988 Fakeerappa And Anr vs Karnataka Cement Pipe Factory And ... on 13 February, 2004 Citedby 3409 docs - [View All] Sapna Talwar vs Sh.Raj Singh @ Nasir Ali on 16 July, 2016 Smt. Sushila Pandey vs Ms. Pooja Mehta on 21 July, 2014 Smt.Jhabara vs Sh.Krishan Yadav on 3 March, 2015 Friday vs Sobhana Ramakrishnan on 30 April, 2007 Friday vs Sobhana Ramakrishnan on 30 April, 2007 User Queries multiplier thomas susamma thomas section 163a 163a income of the deceased future prospects trilok chandra annual income' section 166 loss of dependency time of death motor vehicles act 1988 multiplier method r. v. raveendran davies method compensation cases section 163a of mv act motor vehicles act section 163a state road transport corporation Try out the Virtual Legal Assistant to take your notes as you use the website, build your case briefs and professionally manage your legal research. Also try out our Query Alert Service and enjoy an ad-free 50 O.S.No.6434/2005 experience. Become a Premium Member for free for three months and pay only if you like it.
Supreme Court of India Sarla Verma & Ors vs Delhi Transport Corp.& Anr on 15 April, 2009 Author: R.V.Raveendran Bench: R.V. Raveendran, Lokeshwar Singh Panta 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO 3483 OF 2008 (Arising out of SLP [C] No.8648 of 2007) Smt. Sarla Verma & Ors. ... Appellants Vs. Delhi Transport Corporation & Anr. ... Respondents ORDER R.V.RAVEENDRAN, J.
The claimants in a motor accident claim have filed this appeal by special leave seeking increase in compensation.
2. One Rajinder Prakash died on account of injuries sustained in a motor accident which occurred on 18.4.1988 involving a bus bearing No.DLP 829 belonging to the Delhi Transport Corporation. At the time of the accident and untimely death, the deceased was aged 38 years, and was working as a Scientist in the Indian Council of Agricultural Research (ICAR) on a 51 O.S.No.6434/2005 monthly salary of Rs.3402/- and other benefits. His widow, three minor children, parents and grandfather (who is no more) filed a claim for Rs.16 lakhs before the Motor Accidents Claims Tribunal, New Delhi. An officer of ICAR, examined as PW-4, gave evidence that the age of retirement in the service of ICAR was 60 years and the salary received by the deceased at the time of his death was Rs.4004/- per month.
3. The Tribunal by its judgment and award dated 6.8.1993 allowed the claim in part. The Tribunal calculated the compensation by taking the monthly salary of the deceased as Rs.3402. It deducted one-third towards the personal and living expenses of the deceased, and arrived at the contribution to the family as Rs.2250 per month (or Rs.27,000/- per annum). In view of the evidence that the age of retirement was 60 years, it held that the period of service lost on account of the untimely death was 22 years. Therefore it applied the multiplier of 22 and arrived at the loss of dependency to the family as Rs.5,94,000/-. It awarded the said amount with interest at the rate of 9% per annum from the date of petition till the date of realization. After deducting Rs.15000/- paid as interim compensation, it apportioned the balance compensation among the claimants, that is, Rs.3,00,000/- to the widow, Rs.75000/- to each of the two daughters, Rs.50000/- to the son, Rs.19000/- to the grandfather and Rs.30000/- to each of the parents.
4. Dissatisfied with the quantum of compensation, the appellants filed an appeal. The Delhi High Court by its judgment dated 15.2.2007 allowed the said appeal in part. The High Court was of the view that though in the claim petition the pay was mentioned as Rs.3,402 plus other benefits, the pay should be taken as Rs.4,004/- per month as per the evidence of PW-4. Having regard to the fact that the deceased had 22 years of service left at the time of death and would have earned annual increments and pay revisions during that period, it held that the salary would have at least doubled (Rs.8008/- per month) by the time he retired. It therefore determined the income of the deceased as Rs.6006/- per month, being the average of Rs.4,004/- (salary which he was getting at the time of death) and Rs.8,008/- (salary which he would have received at the time of retirement). Having regard to the large number of members in the family, the High Court was of the view that only one fourth should be deducted towards personal and living expenses of the deceased, instead of the standard one- third deduction. After such deduction, it arrived at the contribution to the family as Rs.4,504/- per month or Rs.54,048/- per annum. Having regard to the age of the deceased, the High Court chose the multiplier of 13. Thus it arrived at the loss of dependency as Rs.702,624/-. By adding Rs.15,000/- 52 O.S.No.6434/2005 towards loss of consortium and Rs.2,000/- as funeral expenses, the total compensation was determined as Rs.7,19,624/-. Thus it disposed of the appeal by increasing the compensation by Rs.1,25,624/- with interest at the rate of 6% P.A. from the date of claim petition.
5. Not being satisfied with the said increase, the appellants have filed this appeal. They contend that the High Court erred in holding that there was no evidence in regard to future prospects; and that though there is no error in the method adopted for calculations, the High Court ought to have taken a higher amount as the income of the deceased. They submit that two applications were filed before the High Court on 2.6.2000 and 5.5.2005 bringing to the notice of the High Court that having regard to the pay revisions, the pay of the deceased would have been Rs.20,890/- per month as on 31.12.1999 and Rs.32,678/- as on 1.10.2005, had he been alive. To establish the revisions in pay scales and consequential re-fixation, the appellants produced letters of confirmation dated 7.12.1998 and 28.10.2005 issued by the employer (ICAR). Their grievance is that the High Court did not take note of those indisputable documents to calculate the income and the loss of dependency. They contend that the monthly income of the deceased should be taken as Rs.18341/- being the average of Rs.32,678/- (income shown as on 1.10.2005) and Rs.4,004/- (income at the time of death). They submit that only one-eighth should have been deducted towards personal and living expenses of the deceased. They point out that even if only one fourth (Rs.4585/-) was deducted therefrom towards personal and living expenses of the deceased, the contribution to the family would have been Rs.13,756/- per month or Rs.1,65,072/- per annum. They submit that having regard to the Second Schedule to the Motor Vehicles Act, 1988 (`Act' for short), the appropriate multiplier for a person dying at the age of 38 years would be 16 and therefore the total loss of dependency would be Rs.26,41,152/-. They also contend that Rs.1,00,000/- should be added towards pain and suffering undergone by the claimants. They therefore submit that Rs.27,47,152/- should be determined as the compensation payable to them.
6. The contentions urged by the parties give rise to the following questions:
(i) Whether the future prospects can be taken into account for determining the income of the deceased ? If so, whether pay revisions that occurred during the pendency of the claim proceedings or appeals therefrom should be taken into account ?53 O.S.No.6434/2005
(ii) Whether the deduction towards personal and living expenses of the deceased should be less than one-fourth (1/4th) as contended by the appellants, or should be one-third (1/3rd) as contended by the respondents ?
(iii) Whether the High Court erred in taking the multiplier as 13 ?
(iv) What should be the compensation ?
The general principles
7. Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of courts Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. [1951 AC 601] and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601]. The difference between the two methods was considered and explained by this Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, this Court preferred the Davies method to Nance method. We extract below the principles laid down in Susamma Thomas:
"In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether."
"The matter of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed 54 O.S.No.6434/2005 to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase."
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
"It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years - virtually adopting a multiplier of 45 - and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible."
In UP State Road Transport Corporation vs. Trilok Chandra [1996 (4) SCC 362], this Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus :
"In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, remarriage, accelerated payment and increased earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very 55 O.S.No.6434/2005 often as a rough and ready measure, one-third to one-half of the dependency was reduced, depending on the life-span taken. That is the reason why courts in India as well as England preferred the Davies' formula as being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas' case, usually English courts rarely exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/Courts began to use a hybrid method of using Nance's method without making deduction for imponderables........Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier."
[emphasis supplied]
8. The lack of uniformity and consistency in awarding compensation has been a matter of grave concern. Every district has one or more Motor Accident Claims Tribunal/s. If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system. We may refer to the following observations in Trilok Chandra :
"We thought it necessary to reiterate the method of working out `just' compensation because, of late, we have noticed from the awards made by Tribunals and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realized that the Tribunal/Court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused."
Compensation awarded does not become `just compensation' merely because the Tribunal considers it to be just. For example, if on the same or similar facts (say deceased aged 40 years having annual income of 45,000/- leaving him surviving wife and child), one Tribunal awards Rs.10,00,000/- another awards Rs.5,00,000/-, and yet another awards Rs.1,00,000/-, all 56 O.S.No.6434/2005 believing that the amount is just, it cannot be said that what is awarded in the first case and last case, is just compensation. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated :
"So the proper method of computation is the multiplier method. Any departure, except in exceptional and extra-ordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation."
9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is 57 O.S.No.6434/2005 considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.
Question (i) - addition to income for future prospects
10. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects. In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1032/- per month. Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2000/- as gross income before deducting the personal living expenses. 58 O.S.No.6434/2005 The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996 (3) SCC 179], where the deceased was getting a gross salary of Rs.1543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2200/- per month. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/- per annum, (Rs.3500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.
11. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. Re :
Question (ii) - deduction for personal and living expenses
12. We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one. It is also very difficult for the respondents 59 O.S.No.6434/2005 in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was a married, and one-half (50%) of the income if the deceased was a bachelor. This practice was evolved out of experience, logic and convenience. In fact one-third deduction, got statutory recognition under Second Schedule to the Act, in respect of claims under Section 163A of the Motor Vehicles Act, 1988 (`MV Act' for short).
13. But, such percentage of deduction is not an inflexible rule and offers merely a guideline. In Susamma Thomas, it was observed that in the absence of evidence, it is not unusual to deduct one-third of the gross income towards the personal living expenses of the deceased and treat the balance as the amount likely to have been spent on the members of the family/dependants. In UPSRTC v. Trilok Chandra [1996 (4) SCC 362], this Court held that if the number of dependents in the family of the deceased was large, in the absence of specific evidence in regard to contribution to the family, the Court may adopt the unit method for arriving at the contribution of the deceased to his family. By this method, two units is allotted to each adult and one unit is allotted to each minor, and total number of units are determined. Then the income is divided by the total number of units. The quotient is multiplied by two to arrive at the personal living expenses of the deceased. This Court gave the following illustration:
"X, male, aged about 35 years, dies in an accident. He leaves behind his widow and 3 minor children. His monthly income was Rs. 3500. First, deduct the amount spent on X every month. The rough and ready method hitherto adopted where no definite evidence was forthcoming, was to break up the family into units, taking two units for and adult and one unit for a minor. Thus X and his wire make 2+2=4 units and each minor one unit i.e. 3 units in all, totaling 7 units. Thus the share per unit works out to Rs. 3500/7=Rs. 500 per month. It can thus be assumed that Rs. 1000 was spent on X. Since he was a working member some provision for his transport and out-of-pocket expenses has to be estimated. In the present case we estimate the out-of-pocket expense at Rs. 250. Thus the amount spent on the deceased X works out to Rs. 1250 per month per month leaving a balance of Rs. 3500-1250=Rs.2250 per month. This amount can be taken as the monthly loss of X's dependents."60 O.S.No.6434/2005
In Fakeerappa vs Karnataka Cement Pipe Factory - 2004 (2) SCC 473, while considering the appropriateness of 50% deduction towards personal and living expenses of the deceased made by the High Court, this Court observed:
"What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction."
In view of the special features of the case, this Court however restricted the deduction towards personal and living expenses to one-third of the income.
14. 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 standardized 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 dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and 61 O.S.No.6434/2005 large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
Re :Question (iii) - selection of multiplier
16. In Susamma Thomas, this Court stated the principle relating to multiplier thus:
"The multiplier represents the number of years' purchase on which the loss of dependency is capitalized. Take for instance a case where annual loss of dependency is Rs.10,000. If a sum of Rs.1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually, the multiplier in this case work out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalize the loss of the annual dependency at Rupees 10,000 would be 20. Then the multiplier, i.e. the number of years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lumpsum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc., Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up."
17. The Motor Vehicle Act, 1988 was amended by Act 54 of 1994, inter alia inserting Section 163A and the Second Schedule with effect from 14.11.1994. Section 163A of the MV Act contains a special provision as to payment of compensation on structured formula basis, as indicated in the Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs.3,000/- to Rs.40,000/-. It does not specify the quantum of compensation in case the annual income of the deceased is more than Rs.40,000/-. But it provides the multiplier to be applied with reference to the age of the deceased. The table starts with a multiplier of 15, goes upto 18, and then steadily comes down to 5. It also provides the standard deduction as one-third on account of personal living expenses of the deceased. Therefore, where the application is under section 163A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is 62 O.S.No.6434/2005 not specified with reference to the annual income of the deceased, or is more than Rs.40,000/-, by applying the formula : (2/3 x AI x M), that is two-thirds of the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation. Several principles of tortious liability are excluded when the claim is under section 163A of MV Act. There are however discrepancies/errors in the multiplier scale given in the Second Schedule Table. It prescribes a lesser compensation for cases where a higher multiplier of 18 is applicable and a larger compensation with reference to cases where a lesser multiplier of 15, 16, or 17 is applicable. From the quantum of compensation specified in the table, it is possible to infer that a clerical error has crept in the Schedule and the `multiplier' figures got wrongly typed as 15, 16, 17, 18, 17, 16, 15, 13, 11, 8, 5 & 5 instead of 20, 19, 18, 17, 16, 15, 14, 12, 10, 8, 6 and 5. Another noticeable incongruity is, having prescribed the notional minimum income of non-earning persons as Rs.15,000/- per annum, the table prescribes the compensation payable even in cases where the annual income ranges between Rs.3000/- and Rs.12000/-. This leads to an anomalous position in regard to applications under Section 163A of MV Act, as the compensation will be higher in cases where the deceased was idle and not having any income, than in cases where the deceased was honestly earning an income ranging between Rs.3000/- and Rs.12,000/- per annum. Be that as it may.
18. The principles relating to determination of liability and quantum of compensation are different for claims made under section 163A of MV Act and claims under section 166 of MV Act. (See : Oriental Insurance Co. Ltd. vs. Meena Variyal - 2007 (5) SCC 428). Section 163A and Second Schedule in terms do not apply to determination of compensation in applications under Section 166. In Trilok Chandra, this Court, after reiterating the principles stated in Susamma Thomas, however, held that the operative (maximum) multiplier, should be increased as 18 (instead of 16 indicated in Susamma Thomas), even in cases under section 166 of MV Act, by borrowing the principle underlying section 163A and the Second Schedule. This Court observed:
"Section 163-A begins with a non obstante clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or injured, as the case may be. Now if we turn to the Second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims arising out of fatal accidents. The first column gives the age group of the victims of accident, the second column indicates the multiplier and the subsequent horizontal figures indicate the quantum of compensation in thousand payable to the 63 O.S.No.6434/2005 heirs of the deceased victim. According to this table the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Thus, under this Schedule the maximum multiplier can be up to 18 and not 16 as was held in Susamma Thomas case..... Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier......What we propose to emphasise is that the multiplier cannot exceed 18 years' purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16..."
19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years) :
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier actually deceased scale as scale as scale in Trilok specified in used in Second envisaged in adopted Chandra as second column in Schedule to MV Act Susamma by Trilok clarified in the Table in II (as seen from the Thomas Chandra Charlie Schedule to MV quantum of Act compensation) (1) (2) (3) (4) (5) (6) 64 O.S.No.6434/2005 yrs.
20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
Question (iv) - Computation of compensation 65 O.S.No.6434/2005
22. In this case as noticed above the salary of the deceased at the time of death was Rs.4,004. By applying the principles enunciated by this Court to the evidence, the High Court concluded that the salary would have at least doubled (Rs.8008/-) by the time of his retirement and consequently, determined the monthly income as an average of Rs.4004/- and Rs.8008/- that is Rs.6006/- per month or Rs.72072/- per annum. We find that the said conclusion is in conformity with the legal principle that about 50% can be added to the actual salary, by taking note of future prospects.
23. Learned counsel for the appellants contended that when actual figures as to what would be the income in future, are available it is not proper to take a nominal hypothetical increase of only 50% for calculating the income. He submitted that though the deceased was receiving Rs.4004/- per month at the time of death, as per the certificates issued by the employer (produced before High Court), on the basis of pay revisions and increases, his salary would have been Rs.32,678/- in the year 2005 and there is no reason why the said amount should not be considered as the income at the time of retirement. It was contended that the income which is to form the basis for calculation should not therefore be the average of Rs.4004/- and Rs.8008/-, but the average of Rs.4004/- and Rs.32,678/-.
24. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could rely upon the pay scales in force at the time of the accident, if they are prompt in 66 O.S.No.6434/2005 conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation.
25. The appellants next contended that having regard to the fact that the family of deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one- third, nor one-fourth as assessed by the High Court, but one-eighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one-third in all cases (unless the calculation is under section 163A read with Second Schedule to the MV Act). The percentage of deduction on account personal and living expenses can certainly vary with reference to the number of dependant members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependants. As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on travelling/transportation and other needs. Therefore we are of the view that interest of justice would be met if one-fifth is deducted as the personal and living expenses of the deceased. After such deduction, the contribution to the family (dependants) is determined as Rs.57,658/- per annum. The multiplier will be 15 having regard to the age of the deceased at the time of death (38 years). Therefore the total loss of dependency would be Rs.57,658 x 15 = Rs.8,64,870/-.
26. In addition, the claimants will be entitled to a sum of Rs.5,000/- under the head of `loss of estate' and Rs.5000/- towards funeral expenses. The widow will be entitled to Rs.10,000/- as loss of consortium. Thus, the total compensation will be Rs.8,84,870/-. After deducting Rs.7,19,624/- awarded by the High Court, the enhancement would be Rs.1,65,246/-.
27. We allow the appeal in part accordingly. The appellants will be entitled to the said sum of Rs.165,246/- in addition to what is already awarded, with interest at the rate of 6% per annum from the date of petition till the date of realization. The increase in compensation awarded by us shall be taken by the widow exclusively.
Parties to bear respective costs.
67 O.S.No.6434/2005 ............................J. (R V Raveendran) New Delhi; ............................J. April 15, 2009 (Lokeshwar Singh Panta) 68 O.S.No.6434/2005