Karnataka High Court
Smt.Geeta W/O. Ashok Doddamani vs Smt.Rajeshwari W/O. Parasuram ... on 18 February, 2019
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
M.F.A. No.100513 OF 2019 (MV)
BETWEEN:
1. SMT.GEETA W/O. ASHOK DODDAMANI,
AGE: 52 YEARS, OCC: HOUSEHOLD.
2. KUMARI SHWETA D/O ASHOK DODDAMANI,
AGE: 27 YEARS, OCC: STUDENT.
3. KUMAR SHIVAPRASAD,
S/O. ASHOK DODDAMANI,
AGE: 22 YEARS, OCC: STUDENT.
ALL ARE R/O. JADHAV NAGAR,
WARD NO.41, DIST:BELAGAVI. ... APPELLANTS
(BY SRI SOURABH A.SONDUR AND
SRI L.S.SULLAD, ADVOCATES)
AND:
1. SMT. RAJESHWARI,
W/O. PARASURAM BAJANTRI,
AGE: MAJOR (NOT KNOWN),
OCC: HOUSEWIFE,
R/O. LIG-97,ASHOK NAGAR,
BELAGAVI.
OWNER OF TATA BOLT CAR
BEARING NO.KA 22/Z 9491.
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2. THE SENIOR DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
HAVING ITS DIVISIONAL OFFICE AT II FLOOR,
PRABHU BUILDING 1732, RAMDEV GALLI,
BELAGAVI.
INSURER OF TATA BOLT CAR
BEARING NO.KA 22/Z9491. ... RESPONDENTS
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
26.06.2018 PASSED IN MVC NO.1300/2017 ON THE FILE OF
THE III ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though there is a delay of 122 days in filing the appeal, we have nevertheless heard Sri Saurabh A. Sondur, learned counsel for the appellants and perused the material on record.
2. The appeal is preferred by the legal representatives of Ashok Doddamani assailing the judgment and award passed by the III Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, 3 Belagavi, (hereinafter referred as 'the Tribunal', for the sake of convenience) dated 26.06.2018 in MVC No.1300 of 2017 seeking enhancement of compensation.
3. For the sake of convenience, the parties would be referred to in terms of their status before the Tribunal.
4. The appellants/claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.1,05,00,000/- on account of the death of Sri.Ashok who died in a road traffic accident that occurred on 09.06.2017 at 4.30 p.m. On the fateful day, Ashok was traveling in Tata Bolt car bearing No.KA- 22/Z-9491 from Belagavi towards Bengaluru and when the said car reached near Belagavi-Bengaluru, P.B. road near Mammigatti under bridge, Dharwad taluk, Dharwad district, the driver of the car drove the same in a rash and negligent manner and in a high speed and as a result, dashed against the road divider. The car turned turtle and Ashok sustained grievous injuries. He was shifted to Government Hospital, Dharwad. He died due to the fatal 4 injuries. The Garag Police Station registered a case in Crime No.831 of 2017. After postmortem, the dead body of Ashok was handed over to the family members to be taken to Ammingad, Bagalkot district for funeral rites to be performed. Contending that Ashok was hale and healthy and was aged 57 years at the time of the accident and was serving as a Chief Planning Officer in Government of Karnataka in the Office of the Chief Executive Officer, Zilla Pnachayat, Belagavi, and was earning Rs.82,088/- per month, his legal representatives filed the claim petition seeking compensation on various heads against the owner and insurer of the car which had been hired by Ashok.
5. In response to the notice issued by the Tribunal, the respondents appeared and filed their separate statement of objections. The owner of the car- respondent No.1 in her statement of objections admitted her ownership of the car but denied that accident had occurred on account of the rash and negligent driving by the driver of the car. She also contended that the car was 5 insured and that respondent No.2-insurer alone was liable to satisfy the award.
6. Second respondent-insurance company while denying the averments in the claim petition contended that the driver of the car was not holding a valid and effective driving licence on the date of the accident and that the owner of the car had violated the terms and conditions of the insurance policy; that the insurer was not liable to pay any compensation to the claimants and further that the claim made by the claimants was exorbitant. Therefore, the insurer sought dismissal of the claim petition.
7. On the basis of the aforesaid rival pleadings, the Tribunal framed the following issues for its consideration:
"1. Whether the petitioners prove that on 09.06.2017 at 4.30 p.m. Sri Ashok S/o Drugappa Doddamani was traveling from Belagvi to Bengaluru in a Tata Bolt Car bearing No.KA-22/Z-9491 and when it reached near Belagavi-Dharwad P.B. Road, 6 near Mummigatti under Bridge, Dharwad Taluk at that time the driver of the said car drove the same in a rash and negligent manner with high speed and as a result the car dashed to divider and got turtled and thereby the accident was occurred?
2. Whether the petitioners prove that Sri Ashok S/o Durgappa Doddamani succumbed to the injuries sustained in the accident?
3. Whether the petitioners prove that they are the only legal heirs of deceased Shri Ashok S/o Durgappa Doddamani?
4. Whether the respondent No.2 proves that the driver of KA-22/Z9491 Bolt car was not holding a valid and effective driving licence to drive the said vehicle?
5. Whether the respondent No.2 proves that deceased Sri. Ashok s/o Durgappa Doddamani was traveling as a gratuitous passenger in the vehicle and as such the insurance company is not liable to pay the compensation to the petitioner?7
6. Whether the petitioners are entitled for compensation? If so, what is the quantum and from whom?
7. What order or award?
8. In support of their case, the widow-first claimant examined herself as PW-1 and another witness was examined as PW-2. They produced ten documents which were marked as Exs.P-1 to P-10. No witness on behalf of the respondents was examined but four documents were produced and marked by consent namely Exs.R-1 to R-4.
9. On the basis of the evidence on record, the Tribunal answered issue Nos.1 to 3 in the affirmative, issue Nos.4 and 5 in the negative and issue No.6 partly in the affirmative and awarded compensation of Rs.40,03,104/- with interest at the rate of 6% per annum from the date of the petition till realization. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred this appeal.8
10. We have heard learned counsel for the appellants.
11. At the outset, he contended that the Tribunal was not justified in applying split multiplier while calculating the compensation on the head of loss of dependency and thereby awarded only a sum of Rs.38,83,104/- on the head of loss of dependency. He contended that no doubt the appropriate multiplier applicable is 9 as the deceased was 57 years 11 months at the time of the accident; being a Government Servant, he would have retired at the age of 60 years. But while calculating loss of dependency, 50% of the salary could not have been reckoned for the period of his retirement by splitting the multiplier and thereby reducing the award of compensation on the head of loss of dependency. He contended that the Tribunal applying multiplier 9 has observed that since in 3 years time, the deceased would have retired, therefore, multiplier 3 has been applied by reckoning the entire salary for the purpose of calculating 9 compensation on the head of loss of dependency and multiplier 6 has been applied by reckoning salary at 50% by considering the fact that the deceased would have retired at 60 years as the retirement would fall within 9 multiplier i.e., construed as 9 years. He contended that such a formula has not been accepted by the Hon'ble Supreme Court in any of the judgments and hence, the split multiplier formula taking into consideration the pre-
retirement salary and the post retirement pension could not have been adopted by the Tribunal while awarding compensation on the head of loss of dependency. He submitted that if the entire salary had been taken into consideration rather than only 50% of the said salary while applying 6 multiplier then the award of compensation would be much higher and that the appellants have been put to financial prejudice and loss on account of the approach of the Tribunal. He contended that the award of compensation on the other heads are also on the lower side and therefore the appeal may be heard on merits after condoning the delay of 122 days in filing the appeal.10
12. Having heard learned counsel for the appellant and on perusal of the material on record, we find that the controversy in this appeal lies on a very narrow compass i.e. on the quantum of compensation awarded by the Tribunal. The Tribunal has awarded a sum of Rs.40,03,104/- with interest at the rate of 6% per annum on the following heads:
1 Loss of dependency 38,83,104/-
2 Loss of love and 50,000/-
affection 3 Loss of estate 15,000/-
4 Funeral, obsequies and 15,000/-
misc. expenses 5 Loss of consortium 40,000/-
Total Rs.40,03,104/-
13. The Tribunal has noted that the deceased Sri Ashok was earning a gross salary of Rs.84,047/- and that his basic salary was Rs.51,300/-. The Dearness Allowance was Rs.22,187/-, the House Rent Allowance was Rs.10,260/- and City Compensatory Allowance was Rs.300/-, totaling Rs.84,047/-. The Tribunal has deducted a sum of Rs.3,150/- towards income tax and professional 11 tax from the said monthly salary and has arrived at Rs.80,897/- after the said deductions. 1/3rd of the said salary has been deducted towards personal and living expenses of the deceased. 2/3rd salary has been reckoned as 53,932. The appropriate multiplier applicable is '9' as the deceased was aged 57 years in view of the judgment of the Hon'ble Apex Court in the case of Sarla Verma and others V/s Delhi Transport Corporation and another reported in 2009 ACJ 1298 (Sarla Verma). Since the deceased had less than three years of service, the net salary of Rs.53,932/- per month has been computed and towards the annual salary multiplier '3' had been applied and consequently Rs.19,41,552/- has been awarded. For the balance multiplier of '6' (9-3 = 6), 50% of Rs.53,932/-
has been reckoned as the basis i.e. Rs.26,966/- and the same has been multiplied by '12' which is the annual income and the balance multiplier of '6' has been applied to amount of Rs.19,41,552/-. Consequently, the total award on the head of loss of dependency is Rs.19,41,552 + Rs.19,41,552 = Rs.38,83,104/-.
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14. The aforesaid approach of the Tribunal is having regard to the judgment of the Division Bench of this Court in the case of Union of India and others V/s K.S.Lakshmi Kumar and others reported in ILR 2000 KAR 3809, wherein his Lordship R.V.Raveendran J., writing the judgment for the Division Bench of this court at Paragraphs 16 and 17 has held as under:-
"16. Where the multiplier applicable is higher than the number of years of service which the deceased had before superannuation, the contribution to the family (or loss of dependency) cannot obviously be calculated with the reference to the salary income, for the entire period of multiplier. Let us illustrate. If a person aged 56 years (whose age of superannuation is 60 years) dies in an accident, leaving behind him surviving his wife and two children, how should the total loss of dependency be calculated? Let us assume that his salary was Rs.6,000.00 and after retirement, his pension would be Rs.3,000.00.
Under the Davies method accepted and adopted by the Supreme Court, the applicable 13 multiplier will be '9'. But, deceased would have got salary income for only 4 years and then he would get only pension. If the deduction towards personal and living expenses of the deceased is one-third, the contribution to the family during the period of service (4 years period) would have been Rs.4,000/- (that is Rs.6000-2000). But, obviously the contribution to the family would not have been Rs.4,000/- after his retirement, that is from the 5th year onwards. When the pension is Rs.3,000/- per month, after deducting one-third as personal and living expenses, the contribution to the family will only to be Rs.2,000/- per month. Therefore, the loss of dependency cannot be taken as Rs.4,000/- per month for the entire period of 9 years representing the multiplier. It has to be taken as Rs.4,000/- per month for the first four years (when he would have been in service) and Rs.2,000/- per month for the remaining five years (when he would have received pension). The method adopted in the above illustration will have to be applied in this case.
17. In this case the deceased was aged 53 years at the time of death and she would 14 have attained the age of superannuation in about 7 years. The multiplier period is 9 years. After 7 years, the income would not have been Rs.16,852.00 per month, but only roughly 50% of it as pension, and consequently the loss of dependency would have been 50% of Rs.1,20,000.00 per annum. Thus, loss of dependency will have to be calculated with reference to the salary income for a period of 7 years and pension income for the remaining period of 2 years, as the multiplier period is '9 years'. The loss of dependency would therefore be Rs.1,20,000.00 x 7 plus Rs.60,000.00 x 2 i.e., Rs.9,60,000.00."
The Division Bench has also referred to the earlier judgments of the Hon'ble Supreme Court in the case of General Manager, Kerala S.R.T.C. V/s Susamma Thomas reported in AIR 1994 SC 1631 and the case of U.P. State Road Transport Corporation V/s Trilok Chandra and others reported in ILR 1996 KAR 2127, wherein the Davies method (Davies vs Powell Duffryn Associated Collieries Ltd.) (1942 AC 601) has been adopted in calculating general damages i.e. pecuniary loss 15 suffered by the dependant members of the family on account of death of the deceased. This involved determining the total loss of dependency by multiplying the annual contribution to the family of the deceased, which is annual loss of deceased. 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 a capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest.
15. His Lordship thereafter as a Hon'ble Judge of Supreme Court in the case of Sarla Verma in detail analyzed as to how the multiplier had to be chosen and for a deceased who was between 56 to 60 years, the appropriate multiplier is '9'. Since the deceased Sri Ashok 16 in the instant case would have retired in less than three years and having regard to the fact that on his retirement he would not receive entire salary but only a pensionery amount which would normally be about 50% of the last drawn salary, 50% of the salary is reckoned as multiplicand for the purpose of calculating the compensation.
16. Though there is no express reference to the case of K.S.Lakshmi Kumar made by the Tribunal in the instant case, the split multiplier formula has indeed been adopted by the Tribunal. The same is having regard to the factual reality as no government servant or any other person who retires from a pensionery job would be receiving pension at the same rate as his/her salary. Therefore, 50% of the salary is reckoned where deceased would have retired within a short period, but for the unfortunate death in the accident. We have not come across any judgment of this Court or of the Hon'ble Apex 17 Court, which has deprecated upon the applicability of the split multiplier formula.
17. Learned counsel for appellants drew our attention to the recent judgment of this Court in the case of Oriental Insurance Company Limited V/s Mallikarjun disposed off by a coordinate bench on 07.02.2018. In the said case, in Paragraph 14, it has been observed that the deceased in the said case was at the age of about 58 years at the time of the accident and she had two years of service. While considering the question as to whether the split multiplier formula was applicable to the facts of the case, reference has been made to a judgment of Hon'ble Supreme Court in Puttamma and others V/s K.L.Narayana Reddy reported in AIR 2014 SC 706, wherein it has been held that the Hon'ble Supreme Court in Sarla Verma does not envisage application of split multiplier and that in the absence of any specific reason and evidence on record the Tribunal ought not to apply split multiplier in routine course and should apply 18 multiplier as per decision of the Hon'ble Supreme Court in Sarla Verma as affirmed in Reshma Kumari.
18. The reason for the application of the split multiplier formula is that once the deceased would have retired from service on attaining the age of superannuation, his pension would not be equivalent to that of the salary income. His income would be in the nature of pension which would be only 50% of the salary that he would have received. Therefore, in the instant case, the Tribunal was right in applying the split multiplier formula. Further in the case of Sarla Verma, the discussion was more on the appropriate multiplier to be applied rather than as to whether a split multiplier formula was applicable. While answering Question No.3, their Lordships have discussed on the choice of the multiplier and analyzed as to how the appropriate multiplier ought to apply starting from '18' for the death of a person between 15 to 20 years up to '5' for death of a person aged about 19 65 years. In Paragraph 9, the Hon'ble Supreme Court has held as under:-
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 standardised, there will be uniformity and consistency in the decisions.
There will be 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:
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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 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 21 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 to estate. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000 to Rs.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 be added.
19. Thereafter there is a discussion on each of the aforesaid aspects namely, additions/deductions to be made for arriving at the income "deductions to be made towards personal living expenses of the deceased and the multiplier to be applied with reference to the age of the deceased."
With regard to the additions/deductions to be made after arriving at the income, it has been held that where the age 22 of the deceased is more than 50 years, they should be no addition towards future prospects. Further, a standardization has been made with regard to the percentage of income to be deducted towards personal or living expenses of the deceased and a discussion is made on the appropriate multiplier to be applied having regard to the age of the deceased which has been referred to above.
20. The Hon'ble Supreme Court in the case of Puttamma and others V/s K.L.Narayana Reddy and another reported in AIR 2014 SC 706 as at Paragraphs 32, 33 and 34 held as under on the issue of split multiplier.
Split Multiplier
32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in selection of multiplier, this Court in Sarla Verma prepared a table for selection of multiplier based on age group of the deceased/victim. Act, 1988 does not envisage application of split multiplier. 23
33. In K.R. Madhusudhan and others vs. Administrative Officer and another, (2011) 4 SCC 689 : AIR 2011 SC 979 : 2011 AIR SCW 1390), this Court held as follows:
"14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6.
15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside, for, it is perverse and clearly contrary to 24 the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method."
34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in the case of Sarla Verma (AIR 2009 SC 3104 : 2009 AIR SCW 4092) (supra) as affirmed in the case of Reshma Kumari (AIR 2013 SC (Civ) 1731: 2013 AIR SCW 3120) (supra). Compliance of Section 158(6) and 166(4) of the Act, 1988.
21. In substance, the Hon'ble Supreme Court opined that in the absence of there being any specific reason and evidence on record the Tribunal should not apply split multiplier in routine course and should apply as per decision of the Hon'ble Supreme Court in the case of Sarla Verma as affirmed in the case of Reshma Kumari.
22. Further in the aforesaid judgment, this Court reduced the compensation awarded by the Tribunal by applying the split multiplier formula when the claimants 25 had infact filed the appeals seeking enhancement of compensation. Though the Tribunal in the instant case has not referred to the decision of K.S.Lakshmi Kumar has infact applied the ratio of the said decision to the case having regard to the fact that the deceased was aged 57 years 11 months and 09 days at the time of his death on account of accident and that he would have retired shortly thereafter at the age of 60 years. That the appropriate multiplier '9' applied. That would imply that the deceased would have retired within three years from the date of the accident and therefore the multiplier of '3' is applied to reckon the compensation to the pre-retirement period by taking the net salary into consideration and the balance multiplier '6' is applied by reckoning the pension on retirement, which is about 50% of the last drawn salary. We do not find any fault with the said approach of the Tribunal as the factual reality has been noted inasmuch as the income (pension) of a retired government servant or an employee having stable income or employment would not be the same prior to his retirement (salary). Also we 26 find the Tribunal has not deducted any amount towards payment of income tax from the pension amount, which is beneficial from the claimants point of view.
23. Further, the Tribunal has rightly not added any sum towards future prospects in the instant case as the deceased was 57 years, 11 months and 09 days on the date of his death and he would have retired from service on attaining the age of superannuation, which is 60 years, but for the unfortunate accident in which he died.
24. In the absence of there being any material as to what increase the salary would have entailed by virtue of the increase to be made by the Pay Commission as the deceased employee was a government servant, future prospects at the rate of 15% of the actual salary cannot be applied blindly or as a flat rate. On the other than, the deceased serving as a government servant would have been entitled to the benefit of the dearness allowance which would have been paid on a regular basis and 27 therefore the said dearness allowance has to be construed amount towards the future prospects.
25. Further, it is noted that a sum of Rs.50,000/- is awarded under the head of loss of love and affection, a sum of Rs.15,000/- towards loss of estate, another sum of Rs.15,000/- towards funeral, obsequies and other miscellaneous expenses and a sum of Rs.40,000/- is awarded towards loss of spousal consortium. Thus, total a sum of Rs.40,03,104/- has been awarded by the Tribunal, which according to us is a reasonable compensation and cannot be termed to be meager or unjust or unreasonable. Therefore, we find no merit in the appeal. In the circumstances, by ignoring the delay of 122 days in filing the appeal, we dismiss the appeal.
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