Karnataka High Court
The Oriental Insurance Co. Ltd. vs Mahesh, S/O.Nagaraj on 14 August, 2019
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH R
DATED THIS THE 14TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.22013/2009 (MV)
C/w.
MISCELLANEOUS FIRST APPEAL NO.22012/2009 (MV) &
MISCELLANEOUS FIRST APPEAL NO.21122/2009 (MV)
IN MFA NO.22013/2009
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.
REPTD., BY THE BRANCH MANAGER
KALPANA COMPLEX 1ST FLOOR RAILWAY
FEEDER ROAD ANANTHPUR (A.P)
REPTD. BY ITS CHIEF REGIONAL MANAGER
ORIENTAL INSURANCE COMPANY LTD.,
REGIONAL OFFICE, SUMANGALA COMPLEX,
LAMINGTON ROAD, HUBBALLI
... APPELLANT
(BY SRI. G N RAICHUR, ADVOCATE)
AND:
1. MAHESH, S/O.NAGARAJ
AGE: 27 YEARS
OCC:PROPRIETOR SAPTGIRI ENTERPRISES
R/O TAPCMS OFFICE R.G.ROAD
GANGAVATHI, DT. KOPPAL
2. S.MADHSUDHAN RAO S/O MOHAN RAO
AGE: 24 YEARS, OCC: DRIVER
R/O. 3/279
TAPOVANAM ANANTHHPUR (A.P)
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3. C.VENKETESH S/O C. NARAYANAPPA
AGE: 40 YEARS, OCC:OWNER OF VEHICLE
R/O FORT BEHIND SUPRABHATA TALKIES
CHIKKABALLAPUR DIST KOLAR
... RESPONDENTS
(R1 & R3 - NOTICE HELD SUFFICIENT; R2 - SD.)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 10/2/2009 PASSED IN MVC NO.
637/07 ON THE FILE OF THE CIVIL JUDGE (SD) & MACT,
GANGAVATHI, AWARDING A COMPENSATION OF RS.6,24,347/-
WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
IN MFA NO. 22012 OF 2009
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.
REPTD., BY THE BRANCH MANAGER
KALPANA COMPLEX 1ST FLOOR RAILWAY
FEEDER ROAD ANANTHPUR (A.P)
REPTD. BY ITS CHIEF REGIONAL MANAGER
ORIENTAL INSURANCE COMPANY LTD.,
REGIONAL OFFICE, SUMANGALA COMPLEX,
LAMINGTON ROAD, HUBBALLI
... APPELLANT
(BY SRI. G. N. RAICHUR, ADVOCATE)
AND:
1. SMT. SHARADA, W/O.LATE SIDDRAMESHWAR
HIREMATH, AGE: 52 YEARS, OCC:HOUSEHOLD
R/O BANDRAVADI VALMIKI CIRCLE
GANGAVATHI DT KOPPAL
2. KUMARSWAMI S/O LATE SIDDRAMESWAR
HIREMATH, AGE: 32 YEARS, OCC:STUDENT
R/O BANDRAVADI VALMIKI CIRCLE
GANGAVATHI DT KOPPAL
3. SHASHIDHAR S/O LATE SIDDRAMSWAMI
HIREMATH, AGE: 30 YEARS, OCC:STUDENT
R/O BANDRAVADI VALMIKI CIRCLE
GANGAVATHI DT KOPPAL
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4. VIDHYADHAR S/O LATE SIDDRAMSWAMI
HIREMATH, AGE: 28 YEARS OCC:STUDENT
R/O BANDRAVADI VALMIKI CIRCLE
GANGAVATHI DT KOPPAL
5. S. MADHSUDHAN RAO S/O MOHAN RAO
AGE: 26 YEARS, OCC:DRIVER R/O 3/279
TAPOVANAM ANANTHPUR (A.P)
6. C.VENKETESH S/O C. NARAYANAPPA
AGE: 42 YEARS, OCC:OWNER OF VEHICLE
R/O FORT BEHIND SUPRABHATA TALKIES
CHIKKABALLAPUR DIST KOLAR
7. Y. SHIVPRASAD S/O Y TIMMAPPA
AGE: 42 YEARS, OCC:OWNER TATA MOBILE
R/O KRISHNA NAGAR SANDUR
DT BELLARY
8. THE ORIENTAL INSURANCE CO., LTD
REPTED BY ITS BRANCH MANAGER
2ND FLOOR HOTEL PRIYADARSHINI COMPLEX
STATION ROAD, HOSEPETH DT BELLARY
... RESPONDENTS
(BY SRI. K. ANANDKUMAR, ADVOCATE FOR R1-R4;
R5, R7 & R8 - SERVED; R6 - NOTICE HELD SUFFICIENT)
---
THIS MFA IS FILED U/S 173 OF MV ACT, 1988 AGAINST THE
JUDGMENT AND AWARD DTD: 02/01/2009 PASSED IN
MVC.NO.418/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN)
AND M.A.C.T. GANGAVATHI, AWARDING COMPENSATION OF
RS.12,98,070/- ALONG WITH INTEREST OF @ 8% P.A. FROM THE
DATE OF PETITION TILL DEPOSIT.
IN MFA NO. 21122 OF 2009
BETWEEN:
1. SMT SHARADA
W/O SIDDARAMESHWAR HIREMATH
AGED ABOUT 51 YEARS, OCC: HOUSEHOLD WORK
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2. KUMARASWAMY
S/O SIDDAREMESHWAR HIREMATH
AGED ABOUT 31 YEARS, OCC: STUDENT
3. SHASHIDHAR
S/O SIDDARAMESHWAR HIREMATH
AGED ABOUT 29 YEARS, OCC: STUDENT
4. VIDYADHAR
S/O SIDDARAMESHWAR HIREMATH
AGED ABOUT 2, YEARS, OCC STUDENT
ALL ARE R/O BENDRAVADI NEAR VALMIKI CIRCLE
GAMGAVATHI, TQ: GANGAVATHI, DIST. KOPPAL
... APPELLANTS
(BY SRI. K. ANANDKUMAR, ADVOCATE)
AND:
1. C VENKATESH S/O NARAYANAPPA C
AGED MAJOR, OCC: BUSINESS
R/O FORT BEHIND SUPRABHATHA TALKIES
TQ CHIKKABALLAPUR, DIST. KOLAR
2. THE ORIENTAL INSURANCE CO LTD
THROUGH ITS BRANCH MANAGER
KALPANA COMPLEX, 1ST FLOOR
RAILWAY FLOOR ROAD,
ANANTAPUR, DIST A.P.STATE
3. Y. SHIVAPRASAD, S/O Y. THIMAPPA
AGED ABOUT 41 YEARS, OCC: BUSINESS
R/O KRISHNA NAGAR, SANDUR
TQ. SANDUR, DIST. BELLARY
4. THE ORIENTAL INSURANCE CO. LTD
REPT. BY ITS BRANCH MANAGER
2ND FLOOR, HOTEL PRIYADARSHINI COMPLEX,
STATION ROAD, HOSPET
TQ. HOSPET, DIST. BELLARY
... RESPONDENTS
(BY SRI. G. N. RAICHUR, ADVOCATE FOR R4;
R1 - NOTICE HELD SUFFICIENT; R2 & R3 - SERVED)
---
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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:2/1/2009 PASSED IN MVC NO.
418/07 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & MACT,
GANGAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT FOR
COMPENSATION.
THESE APPEALS COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals came up for admission, with the consent of the learned counsel for both the parties, they are heard finally.
2. MFA Nos.22013/2009 and 22012/2009 are filed by the Insurer assailing the judgment and award passed by the Civil Judge (Sr.Dn.) and MACT, Gangavathi (hereinafter referred to as 'the Tribunal', for short) in MVC Nos.637/2007 and 418/2007 respectively, whereas MFA No.21122/2009 is filed by the claimants in MVC No.418/2007 passed by the same Tribunal for enhancement of compensation.
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3. I have heard the arguments of learned counsel Sri. G. N. Raichur, appearing for the Insurance Company and learned counsel Sri. K. Anandkumar, appearing for the claimants.
4. The ranking of the parties before the Tribunal is retained for brevity.
5. Respondent No.1 in MFA No.22013/2009 - Mahesh filed a claim petition in MVC No.637/2007 under Section 166 of the Motor Vehicles Act (hereinafter referred to as 'the Act'), claiming compensation of Rs.24,76,500/- for the injuries sustained by him in the road traffic accident that was occurred on 05.01.2007, whereas the respondents/appellants in MFA No.21122/2009 filed claim petition in MVC NO.418/2007 under Section 166 of the Act claiming compensation of Rs.25,45,000/- for the death of late Siddarameshwar Hiremath, who died in the same accident. Inter alia both the claimants contended that, on 05.01.2007 at about 12.15 a.m on Koppal- Gangavathi road, one Mahesh, claimant in MVC -7- No.637/2007 and Siddarameshwar Hiremath, husband of the 1st claimant in MVC No.418/207, while traveling in Tata Mobile vehicle bearing registration No.KA-35/M-936 from Koppal to Gangavathi, when they came near Jabbalagudda, near the land of Ayyappa Karatagi, at that time, the driver of the Ashok Leyland lorry bearing registration No.KA-40/1092, driven the lorry in a rash and negligent manner with high speed and dashed to the Tata Mobile Vehicle, due to which Siddarameshwar died on the spot whereas Mahesh sustained injuries. He was shifted to Danamma Super Specialty Hospital, Bellary and he was treated as inpatient and due to the injuries he is suffering from disabilities and lost the working capacity. The claimants in MVC No.418/2007 have contended that the deceased Siddarameshwar was Librarian-cum-Assistant working at HRSM Junior college, Gangavathi and due to untimely death, the claimants have lost their dependency. They spent amount towards transportation and funeral -8- obsequies and therefore prayed for claiming compensation as stated supra.
6. In pursuant to the notice issued by the Tribunal, respondent No.1-driver of one of the vehicle appeared but not filed any objection and respondent No.2- driver of another vehicle not appeared and placed ex- parte. The 3rd respondent-Insurer appeared through counsel and filed separate statement of objections denying the rash and negligent driving of the offending vehicle and contended that the accident in question was occurred due to head on collision of both vehicle i.e. Tata Mobile Vehicle and lorry. Therefore, driver, owner and insurer of the Tata Mobile Vehicle are also necessary parties. As such, the petition is bad for non-joinder of necessary parties. Denying the injuries sustained by the claimant/Mahesh, his age, occupation, loss of income, and medical expenses as false, the learned counsel has further contended that the driver of the lorry was not holding valid and effective driving licence at the time of accident. There is a violation -9- of terms and conditions of the policy and also contended that the claim of the claimant was excessive and exorbitant and hence prayed for dismissal of the petition.
7. Similarly, the insurer filed objection in claim petition, MVC No.418/2007, by denying the age, occupation and income of the deceased as false, and taken a similar contention in respect of not holding valid driving licence by the driver of the lorry and prayed for dismissal of the claim petition. Based upon the pleadings, the Tribunal framed the issues in both cases as under: ISSUES IN MVC No.637/2007
1) Whether petitioner proves that on:5-1-2007 at about 12-15 a.m. at Gangavathi Koppal road neare Jabbalagudda perhaps near the land of Ayyappa Karatagi he has sustained grievous injuries in a motor vehicle accident i.e., on account of rash and negligent driving of the lorry bearing No.KA/40/1092 by the respondent No.1?
2) Whether the petitioner proves that he is entitled for the compensation? From whom, to what extent?-10-
3) What order?ISSUES IN MVC NO. 418/2007
1) Whether the petitioners prove that on 5-1-2007 at about 12-15 a.m., on Koppal-Gangavathi road near Jabbalagudda, Siddarameshwar Hiremath was died in the motor vehicle accident i.e., on account of the rash and negligent driving of the lorry bearing No.K.A.35/M-936 by the respondent No.1 and the vehicle bearing No.KA-
35/M-936 Tata mobile by the respondent No.4?
2) Whether the petitioners prove that they are entitled for the compensation? From whom, to what extent?
3) What order?
8. To substantiate the contentions, the claimant in MVC No.637/2007 examined himself as P.W.1 and got marked 21 documents as per Ex.P-1 to Ex.P-21. On behalf of the insurer, one K. Shyamsundar got examined as R.W.1 but no documents were marked. After considering the evidence on record, the Tribunal answered Issue No.1 in affirmative, Issue No.2 partly in affirmative and -11- awarded the compensation of Rs.6,24,347/- with interest at the rate of 8% per annum as under:
a) Injury pain & sufferings Rs. 20,000/-
b) Loss of earnings during
medical treatment Rs. 17,010/-
c) Medical expenses Rs. 2,37,333/-
d) Loss of future earnings Rs. 3,47,004/-
e) Conveyance & Nourishment Rs. 3,000/-
Total Rs. 6,24,347/-
9. Assailing the judgment and award passed in MVC No.637/2007, the insurer filed MFA No.22013/2009.
10. To substantiate the contentions, the 1st claimant/Sharada in MVC No.418/2007 got examined herself as P.W.1 and also examined three more witnesses as P.W.2 to P.W.4 and got marked 20 documents as Ex.P-
1 to Ex.P-20. On behalf of the insurer, one Shyam Sundar got examined as R.W.1 but no documents were marked. After considering the evidence on record, the Tribunal answered Issue No.1 in affirmative, Issue No.2 partly in affirmative and awarded the compensation of -12- Rs.12,98,070/- with interest at the rate of 8% per annum as under:-
1) Loss of dependency Rs. 12,69,070/-
2) Loss of estate Rs. 10,000/-
3) Loss of love and affection Rs. 9,000/-
4) Loss of consortium Rs. 5,000/-
5) Funeral expenses Rs. 5,000/-
Total Rs. 12,98,070/-
11. Assailing the judgment and award, the insurer filed MFA No. 22012/2009 whereas the claimants filed MFA No.21122/09 for enhancement of the compensation.
12. The learned counsel Sri. G. N. Raichur, has contended that though two vehicles were involved in the accident due to head on collision between Tata Mobile vehicle as well as lorry, but the claimants have not impleaded the driver, owner and insurer of the Tata Mobile vehicle and further contended that the Tribunal ought to have considered the contributory negligence on the part of both drivers, but fastened the liability only on -13- the insurer of the lorry, which is not correct and further taken a plea in MVC No.637/2007 that the insurance Company's appeal MFA No.22013/2009 the respondent No.1/Mahesh, the claimant has suffered only fracture of temporary bone and there is no much disability, the medical bills are also very less, but the Tribunal has awarded a huge amount towards pain and agony and medical expenses. He has further contended that the claimant/Mahesh has stated that he is a businessman, but no document has been produced to show what was the loss due to the disability sustained by him on account of injuries. When there is no document produced by the claimant, the loss of dependency cannot be granted. The disability considered by the Tribunal is also on the higher side and hence, prayed to allow the appeal filed by the insurer.
13. Though notice has been served on the respondents including owner and claimant, but there is no representation. Having heard the learned counsel for the -14- insurer and on perusal of the records the points that arise for my consideration are as under:-
i) Whether the Tribunal is not justified in fastening the liability on the insurer of the lorry alone?
ii) Whether the petition is bad for non-joinder of necessary parties?
iii) Whether the compensation awarded by the Tribunal is excessive and exorbitant which call for interference?
iv) What order?
14. The claimant, in MVC No.637/2007, has established the factum of accident that was occurred on 05.01.2007 at about 12.15 a.m. when he along with Siddarameshwar Hiremath were proceeding in a Tata Mobile Vehicle bearing No.KA-35/M-936 from Koppal to Gangavati and when they reached near Jabbalgudda, near the land of one Ayyappa Karatagi, a lorry bearing No.KA-
40/1092 driven by its driver/1st respondent in a rash and negligent manner, came with a high speed and dashed to -15- the Tata Mobile Vehicle, due to which, he sustained injuries and another person Siddarameshwar Hiremath was died. To support his contention, he has got marked Ex.P-1/CC of FIR, Ex.P-2/CC of Charge sheet, Ex.P-3/CC of spot panchanama, Ex.P-4/CC of IMV report, Ex.P-5/CC of wound certificate and he has categorically deposed before the Court by oral evidence that the accident was occurred due to the rash and negligent driving of the driver of lorry i.e. respondent No.1. The police have registered a case against the driver of the lorry/respondent No.1 and filed a charge-sheet. The same was not disputed by respondent No.1 and 2/the driver and the owner of the lorry, respectively. They remained exparte. Said documents would clearly suggest that the accident in question was occurred purely due to rash and negligent driving of respondent No.1, the driver of the lorry, but not the driver of Tata Mobile Vehicle. Therefore, the claimant has successfully proved that the negligence is solely on the part of the driver of the lorry but not on -16- the part of the driver of the Tata Mobile vehicle. Such being the case, the Tribunal, after considering the evidence has rightly held that the accident was occurred due to the rash and negligent driving of the lorry by its driver. Even though the insurer got examined its legal officer one K. Shyamsundar, but no other evidence is forthcoming before the Court to show that there was contributory negligence on the part the drivers of both vehicles. Therefore, the findings of the Tribunal, fastening the liability only on the driver of the lorry, calls for no interference. Hence, I answer Point No.1 as against the insurer and in favour of the claimant.
15. In view of the findings above, once the Tribunal has held that the accident was occurred purely due to the rash and negligent driving of lorry driver, the question of impleading the driver, owner and insurer of the Tata Mobile Vehicle does not arise at all. Hence, I answer Point No.2 in favour of the claimant and against the insurer. -17-
16. Now the next controversy is in respect of quantum of compensation awarded by the Tribunal in MVC No.637/2007. Here, in this case, the claimant/ Mahesh has suffered injuries as per Ex.P-5 i.e. abrasion over the forehead on the left side measuring 2cm x 2cm, abrasion measuring 2cm x 2cm at left cheek, abrasion over the nose measuring 4cm x 1 cm and while he was subjected to X-ray, it was noticed that the fracture of right squamons temporal and fracture of greater wing of spheroid, fracture of left temporal bone and middle and lateral walls of right maxilla. Ex.P-20 and Ex.P-21 X-ray films corroborate the wound certificate in respect of claimant sustaining fractural injuries. Though the claimant has not examined any doctor, but he has produced Ex.P-19, the disability certificate. By considering the evidence on record, though the doctor has opined 50% to 55% disability, the Tribunal has considered 20% disability to the whole body, which is not at higher side and it is retained.
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17. The Tribunal has awarded Rs.20,000/- towards pain and agony for the injuries sustained by the injured. The claimant has suffered fractural injuries on his head and other parts of the body. Such being the case, Rs.20,000/- awarded by the Tribunal towards pain and agony cannot be said as excessive. As regards medical expenditure, the Tribunal, by considering the Ex.P-14 and Ex.P-15/medical bills issued by Danamma Super Specialty Hospital, Bellary for Rs.77,000/- and Ex.P- 19/the hospital bill issued by the Manipal Hospital Bangalore for Rs.1,60,333/-, in total has awarded Rs.2,37,333/- towards medical expenses, which is not exorbitant but it is actual amount spent by the claimant and hence, it is retained. As regards loss of income, the learned counsel for the insurer has vehemently contended that the claimant stated that he is a businessman, but he has not produced any document to show what was his income prior to the accident and what was the loss sustained by him due to the injuries or disability. -19- Therefore, in the absence of any such documents, the question of granting any loss of earning capacity does not arise. In support of his arguments, the learned counsel has also relied upon the judgment of this Court in the case of Subhaschand Jain v. Ganapathi and another, reported in 2002 (4) Kar.L.J. 433 DB. The Hon'ble Division Bench of this Court has held as under:-
"(A) MOTOR VEHICLES ACT, 1988, Section 168 -
Loss of future earnings - Award of compensation to injured under head of - Claim made by injured businessman on ground that injuries suffered by him and consequent handicap have adversely affected management of his business - In absence of materials to prove that business income has dwindled on account of handicap, claim, held, cannot be entertained - Principle applicable in determining loss of future earnings in case of person who earns income by physical labour and whose bodily injury directly affects his earning capacity, cannot be applied in determination of same in case of businessman."
18. Here, in this case, though the claimant/Mahesh stated that he is a businessman and -20- earning Rs.30,000/- per month, but except his oral evidence no document has been produced to show what was his income, what was the turnover of his business and what was the loss due to the injuries and the loss of earning capacity. In the absence of any document, as held by the Division Bench of this Court, the contention of the claimant that he has suffered loss due to the disability cannot be acceptable. However, the injuries sustained by him definitely would have caused disability of 20% to his whole body. Such being the case, the court cannot reject that there was no loss of income due to the disability. The Tribunal considered the income of the claimant for Rs.8,505/- per month based upon Ex.P-17/Capital account of the petitioner in connection with the M/s. Saptagiri Enterprises and the profit and loss account of Rs.1,02,068/-. Merely the claimant not produced any document, but it cannot be said that there was no loss at all. Due to the accidental injuries suffered by the claimant, definitely he could have not attended his -21- business or otherwise regularly. Therefore, considering the loss of income of the petitioner by the Tribunal as Rs.8,505/- per month is appropriate. After considering 20% of loss due to the disability, the Tribunal arrived at Rs.1,701/- as a loss and multiplied it by 12 months and multiplier 17 and has awarded Rs.3,47,004/- towards loss of future earning capacity. In my considered opinion, the compensation awarded by the Tribunal under the head loss of earning capacity is based on the evidence on record, which call for no interference.
19. The Tribunal has awarded only Rs.3,000/- towards food and nourishment, Rs.17,010/- towards loss of income during the treatment and in total, awarded Rs.6,24,647/-, which cannot be said to be exorbitant and excessive and it need not require to be reduced. Hence, the contention taken up by the insurer cannot be acceptable that the compensation awarded to the claimant/Mahesh is excessive. Hence, I answer point No.3 in favour of the claimant and as against the insurer. -22-
20. As regards the interest awarded by the Tribunal at the rate of 8% per annum, normally the Court use to award the interest at the rate of 6% per annum due to economical changes in the country and therefore, the interest awarded by the Tribunal is required to be reduced to 6% per annum from 8% per annum and it is reduced accordingly.
21. The learned counsel for the appellant/ insurer in MFA No.22012/2009 has contended that the deceased was aged about 56 years and he was about to retire within two years on attaining the age of superannuation. Therefore, split multiplier shall be applied to the case on hand and the deduction must be 50% towards personal expenses of the deceased as only claimant No.1 was depending on him and other claimants, who are major children of the deceased, are not dependants. He has also contended that the rate of interest awarded by the Tribunal is also on higher side and prayed for reduction of the same.
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22. Per contra, the learned counsel for the appellant/claimants in MFA No.21122/2009 has contended that though claimant No.2 to 4, who are the children of deceased are major, but there is no document or evidence in the cross-examination of the insurer for having disputed the dependency of these claimants before the Tribunal. Therefore, the insurer has no right to raise any such objection at the stage of the appeal. He has also contended that this Court has held in various cases that even the major children are also depending on their parents and also contended that the split multiplier is not applicable to the case on hand as per the decision of the Hon'ble Apex Court in the case of K. R. Madhusudhan and others v. Administrative officer and another, reported in 2011 AIAR (Civil) 393, wherein it is observed by the Hon'ble Apex Court that the split multiplier cannot be applied. It is further contended that even the Hon'ble Apex Court in the case of National Insurance Company v. Pranay Sethi and others, reported in 2017 ACJ -24- 2700, has not laid any principle for application of split multiplier and directed to consider only multiplier in respect of age of the deceased. Hence, the learned counsel for claimants has prayed for dismissal of the appeal filed by the insurer and allow the appeal filed by the claimants.
23. Having heard the arguments advanced by both counsel and on perusal of the records, the points arise for my consideration are as under:
i) Whether the Tribunal was not justified in deducting 50% of the income towards personal expenses of the deceased by considering the claimant No.2 to 4 as non-
dependants?
ii) Whether the Tribunal has committed error in not applying split multiplier, which calls for interference?
iii) Whether the claimants in MFA
No.21122/2009 are entitled for
enhancement of the compensation?
iv) What order?
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24. As regards the contention taken by the insurer, I have already held that the claimant in MVC No.637/2007 has established the accident in question, as occurred due to the rash and negligent driving of the lorry by its driver and it need not require reiteration once again. The only controversy is with regard to quantum of compensation, which is challenged by the insurer as well as the claimants. Admittedly, the deceased Siddarameshwar Hiremath was a librarian cum assistant, working in H.R.S.S. Composite Junior College, Gangavathi and the claimants have produced the service records and salary certificate of deceased Siddarameshwar Hiremath. Ex.P-12 is the service register, Ex.P-7 is the salary certificate and Ex.P-8 is the service certificate. Admittedly, he was a public servant, working in a college. The principal of the said college was examined as P.W.2. Ex.P- 8 goes to show that the deceased was getting salary of Rs.17,723/- per month and after deducting professional tax, it comes to Rs.17,523/-. The learned counsel for the -26- appellant/ insurer has vehemently argued that the claimant No.1 is the wife of deceased, claimant No.2 to 4 are the major children of the deceased and therefore, there must be 50% deduction of the income towards personal expenses of the deceased and the claimant No.2 to 4 cannot be considered as dependants on the deceased.
25. On the other hand, the learned counsel for the claimants has contended that though claimant No.2 to 4 are major children, they were depending on their father and they are students. He further contended that the insurer has not at all disputed the dependency before the Tribunal and hence, no such ground is available for the insurer before this Court to dispute the dependency thereby to deduct 50% of the income towards the personal expenses of deceased. In support of his contention, the learned counsel for the claimants has relied upon the unreported judgment of this Court in MFA No. 21589/2010 in the case of the Manager, Cholamandalam MS General Insurance Co. Ltd., v. -27- Ramu and others. He has also relied upon another judgment in the case of Uma @ Ujjinamma v. G Ramanujaiah, reported in LAWS (KAR) 2013 12 332 and also on unreported judgment in MFA No.25320/2012 c/w MFA No.25305/2012.
26. On perusal of the judgment of Division Bench of this Court in MFA No.21589/2010 in the case of Cholamandalam MS General Insurance Co. Ltd., (stated supra), it is observed that the claimants are major but the insurer not disputed the dependency before the Tribunal during the cross-examination. Therefore, the contention of the insurer was negatived and this Court held that even though the child may be self-employed or otherwise engaged in gainful, yet he may be continued to be dependant on his parents. Similarly, in the case of Uma @ Ujjinamma (stated supra) though the children are major, this Court has deducted 1/3rd of the income towards personal and living expenses of the deceased. Similarly, in the case of Dayanand v. Mallikarjun and -28- others in MFA No.25320/2012 c/w MFA No.25305/2012, the Co-ordinate bench of this Court has taken a similar view. Therefore, here in this case, though the claimant No.2 to 4 are the major children, aged about 30 years, 28 years and 26 years respectively, but it was not challenged by the insurer before the Tribunal in respect of their dependency. Therefore, the question of considering them not depending on their father cannot be acceptable. On the other hand, all the claimants are considered as dependant on the deceased. Though as per the principles laid down by the Hon'ble Apex Court in the case of Sarala Verma and others Vs. Delhi Transport Corporation and Others reported in 2009 (6) SCC 121, the deduction must be 1/4th of the income if the dependants are more than 4 to 6, but the Division Bench of this Court in the case of Uma @ Ujjinamma (stated supra) has considered that 1/3rd of the income shall be deducted towards personal and living expenses of the deceased. Therefore, in this case also, though four claimants are there, but I -29- propose to to deduct 1/3rd of the income towards personal expenses of the deceased. As per the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (stated supra), the deceased being government employee, 15% of the income has to be added towards loss of future prospects, which would be Rs.20,151/- per month (Rs.17523 + Rs.2628=Rs.20151). If 1/3rd of Rs.20151/- is deducted towards personal expenses of the deceased, it comes to Rs.13,434/- (Rs.20,151 minus Rs.6717= Rs.13,434) and for twelve months it comes to Rs.1,61,208/-.
27. The learned counsel for the insurer has also vehemently contended that the deceased was a government employee but his age was 56 years at the time of accident and as per the service certificate/ Ex.P-7, the deceased would have been retired on 30.06.2009 and only two years of his service was remaining. Therefore, the split multiplier shall have to be applied for calculating the loss of dependency and in -30- support of his contention, he has relied upon the unreported decision of the Division Bench of this Court in MFA No.20727/2010 and connected matters, dated 08.12.2016, and the judgment in MFA No.101045/2015 c/w MFA No.24473/2013, dated 13.09.2017, and also the judgment in MFA No.20630/2013 c/w MFA No.21025/2013, dated 12.06.2019.
28. On the other hand, the learned counsel for the claimants has contended that as per the judgment of the Division Bench of this Court, the split multiplier cannot be applied. He has also submitted that the Hon'ble Apex Court in the case of K. R. Madhusudhan (stated supra), the split multiplier cannot be applied. He also produced unreported judgment of the Division Bench of this Court in MFA No.101592/2014 c/w MFA No.101111/2014 dated 01.02.2016, another judgment in MFA No.21584/2011 c/w MFA Crob No.715/2013 dated 14.02.2013 and also the judgment of the -31- co-ordinate bench in MFA No.854/2008 dated 25.10.2017.
29. I have perused the judgments of the Division Bench of this Court relied by the counsel for the insurer as well as the claimants. The Hon'ble Division Bench of this Court in some of the cases applied split multiplier while calculating loss of dependency and in some of the cases, co-ordinate bench has considered that the split multiplier as not applicable. The Hon'ble in the case of K. R. Madhusudhan (stated supra), at para No.14 and 15 has held as under:-
"14. In view of this evidence the Tribunal should have considered the prospect of future income while computing compensation but the Tribunal has not done that. 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 -32- any reason therefore. 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 II Column in the II Schedule in 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."
30. Even otherwise, the Hon'ble Apex court in the case of Pranay Sethi (stated supra), while considering the calculation of loss of dependency in respect of future prospects and multiplier, has upheld the principles guided by the Hon'ble Apex Court at para No.30 to 32 of Sarla Verma's case (supra), wherein the Hon'ble Apex Court has laid down guidelines while deducting personal -33- expenses, application of multiplier and considering loss of future prospects. The Hon'ble Apex Court in the case of Pranay Sethi (stated supra) has not discussed about split multiplier but at para No.59.7, it has held the age of the deceased should be the basis for applying multiplier. The categorical observation of the Hon'ble Apex Court made in para No.59.7 shows that the age of the deceased should be considered for calculating the multiplier. Therefore, for the purpose of calculating multiplier the age of the deceased shall be considered. Admittedly, the age of the deceased at the time of the accident was at the age group of 56 to 60 years and the proper multiplier would be "9". If the income of Rs.13,434/- X 12 X 9 (appropriate multiplier) is taken, it comes to Rs.14,50,872/-, which would be the loss of dependency. Therefore, the contention taken by the insurer regarding applying split multiplier cannot be accepted and it is not applicable to this case. Hence, the contention of the insurer is rejected. -34-
31. As per the principles laid down by the Hon'ble Apex Court in the case of Magma General Insurance Co, Ltd., v. Nanuram and others reported in 2018 ACJ 2782, claimant No.1, being wife of the deceased, is entitled to Rs.40,000/- towards loss of spousal consortium and claimant No.2 to 4, being children of the deceased, are entitled to Rs.30,000/- each towards loss of parental consortium. The claimants are also entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral and transportation expenses. In all the claimants are entitled to the re-assessed compensation of Rs.16,10,872/-, as under:-
Loss of dependency Rs. 14,50,872/
Loss of Estate Rs. 15,000/-
Towards funeral expenses and Rs. 15,000/-
transportation expenses
Towards loss of consortium Rs. 1,30,000/-
(Rs.40,000/- to 1 claimant towards
st
spousal consortium & Rs. 30,000/-
to claimant No. 2 to 4 towards
parental consortium.
Total Rs.16,10,872/-
-35-
32. However the rate of interest awarded by the Tribunal i.e. 8% per annum is reduced to 6% per annum.
33. Consequently, the appeals filed by the insurer in MFA No.22013/2009 and MFA No.22012/2009 are hereby dismissed. Appeal filed by the claimants in MFA No.21122/2009 is allowed in part.
34. Appellants are entitled for reassessed compensation of Rs. 16,10,872/- as against Rs.12,98,070/- awarded by the Tribunal, together with interest at the rate of 6% per annum from the date of petition till its realisation.
35. The insurance company is directed to deposit the award amount within a period of four weeks from date of receipt of certified copy of the judgment.
36. Office is directed to transmit the amount in deposit, if any, to the Tribunal.
-36-
37. As regards apportionment, the order passed by the Tribunal with regard to apportionment is retained.
38. On the above terms, all the appeals are disposed off.
SD JUDGE gab - paras 1 to 4 yan - para 5 to end