Karnataka High Court
Sunita W/O. Kumar Doddamani vs Laxman Sidram Sutar on 17 November, 2021
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
MFA NO.23888/2013 (MV)
C/W.
MFA CROB. NO.100014/2014 (MV)
IN MFA NO.23888/2013
BETWEEN:
THE NEW INDIA ASSURANCE
COMPANY LIMITED,
SHARADA CENTER 2ND FLOOR,
BEHIND NAL STOP, KAVARE ROAD,
PUNE.
...APPELLANT.
(BY SHRI G N RAICHUR, ADVOCATE.)
AND:
1. SUNITA W/O. KUMAR DODDAMANI
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SATTI, TQ: ATHANI
NOW R/AT: ATHANI, DIST: BELAGAVI.
2. CHETAN KUMAR DODDAMANI
AGE: 24 YEARS, OCC: EDUCATION
R/O. SATTI, TQ: ATHANI,
NOW R/AT : ATHANI, TQ: ATHANI
DIST: BELAGAVI.
2
3. VISHA KUMAR DODDAMANI
AGE: 21 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SATTI, TQ: ATHANI,
NOW R/AT : ATHANI, DIST: BELAGAVI.
4. LAXMAN SIDRAM SUTAR
AGE: MAJOR, OCC: AGRICULTURE
R/O.NILJI, TQ: RAIBHAG,
DIST: BELAGAVI.
...RESPONDENTS.
(BY SHRI LOKESH MALAVALLI, ADVOCATE, FOR R1 TO R3;
R.4 - NOTICE SERVED.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 14.05.2013, PASSED IN
MVC NO.2355/2011, ON THE FILE OF PRL.SENIOR CIVIL JUDGE AND
ADDL. MACT, ATHANI, ETC.,.
IN MFA CROB NO.100014/2014
BETWEEN:
1 . SUNITA W/O. KUMAR DODDAMANI
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SATTI, TQ: ATHANI
NOW R/AT: ATHANI, DIST: BELAGAVI.
2 . CHETAN KUMAR DODDAMANI
AGE: 24 YEARS, OCC: EDUCATION
R/O. SATTI, TQ: ATHANI,
NOW R/AT : ATHANI, TQ: ATHANI
DIST: BELAGAVI
3
3 . VISHAL KUMAR DODDAMANI
AGE: 21 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SATTI, TQ: ATHANI,
NOW R/AT : ATHANI, TQ: ATHANI
DIST: BELAGAVI
...CROSS OBJECTORS.
(BY SHRI LOKESH MALAVALLI, ADVOCATE.)
AND:
1 . LAXMAN SIDRAM SUTAR
AEG: MAJOR
OCC: AGRICULTURE
R/O. NILJI TQ: RAIBAG
DIST: BELAGAVI.
2 . THE NEW INDIA ASSURANCE
COMPANY LIMITED,
SHARADA CENTER 2ND FLOOR,
BEHIND NAL STOP, KAVARE ROAD,
PUNE,
BY ITS BRANCH MANAGER
...RESPONDENTS.
(BY SHRI G N RAICHUR, ADVOCATE, FOR R.2;
R.1 - NOTICE DISPENSED WITH.)
THIS CROSS OBJECTION IN MISCELLANEOUS FIRST APPEAL IS
FILED UNDER ORDER 41 RULE 22 OF CODE OF CIVIL PROCEDURE,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
14.05.2013, PASSED IN MVC NO.2355/2011, ON THE FILE OF
PRL.SENIOR CIVIL JUDGE AND ADDL. MACT, ATHANI, BY ENHANCING
COMPENSATION, ETC.,.
4
THESE APPEAL AND CROSS OBJECTION COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the judgment and award dated 14.5.2013, passed by Prl. Senior Civil Judge and Addl.MACT, Athani, in MVC No.2355/2011, this appeal and cross objection are filed.
2. Brief facts as stated are that, on 2.3.2011 at about 5.00 p.m., Kumar Kamanna Doddamani, aged about 57 years, working as Assistant in LIC died in an accident that occurred between two motorcycles due to rash and negligent riding of motorcycle bearing registration No.KA-23/Y-6495. Claim petition was filed by his wife and two children against owner and insurer of offending motorcycle.
3. Respondents opposed claim petition on negligence, non joinder of necessary parties and also as being exorbitant. Age, occupation and income of deceased was disputed as also dependency of claimants.
4. Claimants examined claimant no.1 as PW.1. Copies of complaint, FIR, spot panchanama, spot sketch, P.M. report, 5 MVI report, statements given in criminal case, charge sheet, and salary certificate were marked as Exhibits P.1 to P.11. No evidence was led by respondents.
5. On consideration of evidence, tribunal held that accident occurred due to rash and negligent riding of insured motorcycle. Referring to salary certificate, tribunal held that deceased was aged between 51 - 55 years and his gross salary for January 2011 was Rs.30,161-73 of which a sum of Rs.200/- was professional tax. By taking net salary, deducting 10% towards income tax and deducting professional tax, applying multiplier of 11 and deducting 1/3rd towards personal expenses, tribunal awarded Rs.23,83,000/- towards loss of dependency. It also awarded Rs.35,000/- towards conventional heads and held insurer liable to pay the same with interest at 6% p.a.
6. Challenging said award, insurer is in appeal in MFA No.23888/2013 wherein claimants have filed MFA CROB No.100014/2014.
7. Sole ground of challenge urged by Shri G.N.Raichur, learned counsel for appellant insurer was that deceased was in a 6 pensionable service with about 5 years and 2 months of service left at the time of his death. Therefore, tribunal erred in not applying split multiplier method evolved by this Court in Union of India and others vs. K.S.Lakshmi Kumar and others, reported in ILR 2000 KAR 3809. It was submitted that split multiplier method also received approval of Apex Court in Puttamma and others vs. K.L.Narayana Reddy and another, reported in 2014 ACJ 526 and was followed by a Division Bench of this Court in the case of New India Assurance Co. Ltd., and another vs. Pruthviraj and others, in MFA No.20727/2010, disposed of on 8.12.2016. Learned counsel therefore sought for reduction of compensation by applying split multiplier method.
8. On the other hand, Shri G.N.Narasammanavar, advocate appearing for Shri Lokesh Malavalli, learned counsel for claimants-cross objectors submitted that insurer in instant case did not lead evidence and therefore this was not a fit case to invoke split multiplier principle. Relying upon Division Bench decision of this Court in Smt.K.Yashodha and others vs. 7 Smt.S.Maheswari and another, in MFA No.7025/2015 disposed of on 4.2.2020, submitted that in absence of any reasons and evidence on record, split multiplier method cannot be applied. On the other hand, it was submitted that tribunal erred in not adding future prospects and in taking net income, instead of gross monthly income and also awarded inadequate compensation under conventional heads.
9. From above submission, points that arise for my consideration are as under:
i) Whether tribunal erred in not applying split multiplier method for calculation of compensation?
ii) Whether claimants are entitled for enhancement of compensation as prayed?
POINT No.1:
10. The issue whether split multiplier method has to be applied for determination of compensation in cases where deceased was in a pensionable service and number of years of 8 service remaining is less than the multiplier applicable has received consideration of Hon'ble Supreme Court in several cases. In Puttamma's case (supra), Hon'ble Supreme Court has held that said principle cannot be applied without specific reasons and evidence on record, which is followed/referred in Shri Pruthviraj's case and Smt.K.Yashodha's case (supra). The issue also received consideration by a Division Bench of this Court, more recently in the case of Smt.Girijadevi and another vs. Dr.Shridhar R. Pai and others, in MFA No.103377/2016 disposed of on 23.12.2020, wherein it was held as follows:
"17. Firstly, in none of the decisions of co- ordinate Benches of this Court, relied upon by insurer, a specific issue - whether pension can be deducted from compensation payable to claimants of the deceased was framed and answered.
Secondly, Hon'ble Supreme Court in the case of Helen C Rebello and Patricia Jean Mahajan; Shashi Sharma and Ors. and also Indira Srivastava's case (supra), consistently held that pension receivable cannot be deducted from compensation payable to claimants. It was observed that deceased and his dependents would have received the same regardless of death of employee and not as an additional amount on account of his death.9
Thirdly, tribunal while applying split multiplier method in this case has not assigned any specific reasons or referred to specific evidence available on record to show that deceased was incapable of earning income apart from pension."
11. Therefore, merely on ground that deceased was in a pensionable service, split multiplier method cannot be applied. In its recent decision, Hon'ble Supreme Court in the case of N.Jayasree and others vs. Cholamandalam MS General Insurance Company Ltd, in Civil Appeal No.6451/2021 disposed of on 25.10.2021, has held as under:
22. The deceased was aged 52 years at the time of the accident. He was working as an Assistant Professor and getting a monthly salary of Rs.83,831/- (Rupees eighty-three thousand eight hundred thirty-one only). The evidence on record shows that he was a meritorious man having the qualifications of M.Sc, M.Phil. He was a first-class holder in M.Sc. He was a Selection Grade Lecturer in Mathematics and was a subject expert. He was also included in the panel of Mahatma Gandhi University and was appointed as Examiner in the Board of Examiners for CBCCSS Programme in Mathematics.
Subsequently, he was appointed as Deputy Chairman of the Examiners Board. Evidence on record also shows 10 that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are appointed in so many colleges. It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement.
23. In Sarla Verma, this Court has held that while calculating the compensation, the courts should take into consideration not only the actual income at the time of the death but should also make additions by taking note of future prospects. It was further held that though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid disparate yardsticks being applied or disparate methods of calculation being adopted.
24. In Reshma Kumari & Ors. vs. Madan Mohan & Anr., [(2013) 9 SCC 65] a three Judge Bench of this Court has approved the judgment in Sarla Verma.
25. In Pranay Sethi, this Court has not only approved the aforesaid observations made in Sarla Verma but also held as under:
"59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future 11 prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
26. In K.R. Madhusudhan and Ors.
vs.Administrative Officer and Anr. [(2011) 4 scc 689], this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of dependency and held as under:
"8. In Sarla Verma judgment 12 the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation.
However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances.
9. We are of the opinion that the rule of thumb evolved in Sarla Verma is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same."
27. In Puttamma and Ors. vs. K.L. Narayana Reddy and Anr. [(2013) 15 SCC 45], this Court was again considering a case where Split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus:
13
"32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma prepared a table for the selection of a multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier.
33. In K.R. Madhusudhan v.
Administrative Officer this Court held as follows: (SCC p. 692, paras 14-15) "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 14 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 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 Sarla Verma as affirmed in Reshma Kumari."
28. From the above discussion it is clear that at the time of calculation of the income, the Court has to consider the actual income of the deceased and 15 addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi, the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case.
12. Hon'ble Supreme Court took note of possibility of deceased earning income (in fact even higher income) apart from pension after retirement based upon capacity.
13. At the same time, services rendered by a retired person to household would also have to be factored in. To require claimants to lead evidence and substantiate possibility and extent of income of deceased after his retirement would be speculative and undesirable. Further applying split multiplier method only in the case of government servants would be discriminatory. On the other hand, it would be available for 16 insurer to lead evidence or to contend based on available evidence that physical condition or academic/professional skill of deceased was such that possibility of earning any income other than pension was either non existent or remote. Hon'ble Supreme Court in Mrs. Helen C Rebello Vs. MSRTC and Anr. reported in 1999(1) SCC 90 and United India Insurance Co.Ltd., vs. Patricia Jean Mahajan 2002(6) SCC 281 has held that pension cannot be deducted from income of deceased, for calculation of compensation. It is precisely to eliminate such imponderables, Hon'ble Supreme Court evolved a standardized method in Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, affirmed by Constitution Bench of Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680.
Admittedly, in the instant case respondent insurer has not led any evidence. In view of above, point No.1 is answered in the negative.
17POINT No.2:
14. Insofar as quantum of compensation, tribunal has admittedly erred on three counts, i) not taking gross salary into account; ii) not adding future prospects; and iii) awarding inadequate compensation under conventional heads.
15. As per Ex.P.11, gross salary of deceased was Rs.30,161/-. Deceased was aged between 51-55. Claimants are wife and two children. Therefore, as per Pranay Sethi's case (supra), addition of future prospects would be 15%, deduction towards personal expenses would be 1/3rd and multiplier applicable would be '11'.
16. As per award, income of deceased attracted income tax at 10% which is not in dispute. Professional tax also requires to be deducted. Therefore, calculation of loss of dependency would be as follows:
Rs.30,161/- minus 10% = Rs.27,144/-. After deducting professional tax of Rs.200/-, it would be Rs.26,944/-.
Loss of dependency = 26,944 + 15% minus 1/3rd x 12 x 11 = Rs.27,26,732/-.18
17. The claimants would be entitled to compensation under conventional heads as follows:
Claimant No.1 wife - Rs.40,000/- towards loss of consortium;
Claimant No.2 son - Rs.40,000/- towards loss of parental consortium;
Claimant No.3 son - Rs.40,000/- towards loss of parental consortium;
Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.
Since three years have lapsed after rendering of decision in Pranya Sethi (supra), there has to be addition of 10% to award under conventional heads i.e., Rs.1,50,000/- + 10% = Rs.1,65,000/-. Thus, total compensation would be Rs.28,91,732/-. Point No.2 is answered partly in affirmative as above.
18. In the result, I pass the following:
ORDER
i) Appeal in MFA No.23888/2013 filed by insurer is dismissed.19
ii) MFA CROB No.100014/2014 filed by claimants is allowed in part.
iii) Judgment and award dated 14.5.2013, passed by Prl. Senior Civil Judge and Addl.MACT, Athani, in MVC No.2355/2011 is modified by enhancing compensation from Rs.24,18,000/- to Rs.28,91,732/- with interest at 6% p.a. from the date of petition till deposit.
iv) Amount in deposit is ordered to be transmitted to tribunal for payment.
v) Appellant insurer is directed to deposit balance/enhanced compensation within six weeks from the date of receipt of a copy of this judgment.
vi) Instructions with regard to apportionment, deposit and release of compensation in favour claimants would be in terms of award of tribunal on enhanced compensation also.
Sd/-
JUDGE R Mrk/-