IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR.JUSTICE P.B. BAJANTHRI M.F.A. NO.3238/2015 C/W M.F.A. CROB. NO.33/2016 (MV) IN MFA NO.3238/2015 BETWEEN:
THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD., VINAYAKA COMPLEX, I FLOOR I CROSS, GARDEN AREA SHIMOGA CITY BY THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, 2ND FLOOR SUMANGALA COMPLEX LAMINGTON ROAD, HUBLI- 580 020 BY ITS MANAGER …APPELLANT (BY SRI.O.MAHESH, ADV.) AND:
1. T.NAGARATHNA, AGE 51 YEARS W/O LATE SHANKERAPPA B H 2. SHASHWATH B S S/O LATE SHANKERAPPA B H AGED 24 YEARS, B.E. STUDENT 3. SAHITHYA B S D/O LATE SHANKERAPPA B H AGED 21 YEARS, II PUC STUDENT 4. B V HOOVAPPA GOWDA, AGED 78 YEARS ALL ARE R/O MYLARESHWARA NILAYA 7TH CROSS, SHARAVATHI NAGAR SHIMOGA CITY – 577201 5. G.R.RAVINDRA AGE 39 YEARS, R/O BOMMANAKATTE OPP. KENCHAPPA COMPLEX VINOBANAGARA, SHIMOGA CITY- 577 201 6. MURUGENDRA PATIL, MAJOR S/O J.GURUBASAPPA SHETTY PATEL R/A “ATHANI METALS”, I MAIN, III CROSS,BASAVESHWARANAGARA SHIMOGA- 577 201 …RESPONDENTS (BY SRI.GURUDEVA PRASAD K T, ADV FOR R-1 TO R-4 SRI.B.S.PRASAD, ADV FOR R-5 & R-6) THIS MFA FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 03.01.2015 PASSED IN MVC NO. 658/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-VII, SHIMOGA, AWARDING COMPENSATION OF RS.25,78,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA CROB. NO.33/2016 BETWEEN 1. SMT. T.NAGARATHNA W/O LATE SHANKERAPPA B H AGED 52 YEARS, HOUSEWIFE 2. SHASHWATH B S S/O LATE SHANKERAPPA B H AGED 24 YEARS, B.E. STUDENT 3. SAHITHYA B S D/O LATE SHANKERAPPA B H AGED 21 YEARS, II PUC STUDENT 4. B V HOOVAPPA GOWDA AGED 78 YEARS ALL ARE R/O MYLARESHWARA NILAYA 7TH CROSS, SHARAVATHI NAGAR SHIMOGA CITY – 577201 … CROSS OBJECTORS (BY SRI. K.T.GURUDEV PRASAD, ADV) AND:
1. BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD., VINAYAKA COMPLEX, 1ST FLOOR 1ST CROSS, GARDEN AREA SHIMOGA CITY- 577201 2. G R RAVINDRA S/O RAMANAIKA, AGED 40 YEARS R/O BOMMANAKATTE OPP: KENCHAPPA COMPLEX VINOBANAGARA SHIMOGA CITY- 577201 3. MURUGENDRA PATIL S/O J GURUBASAPPA SHETTY PATEL MAJOR, R/O ATHANI METALS, 1ST MAIN 3RD CROSS, BASAVESHWARANAGARA SHIMOGA- 577 201 …RESPONDENTS (BY SRI.O.MAHESH, ADVOCATE FOR R-1) THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 03.01.2015 PASSED IN MVC NO. 658/2013 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT-7, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA CROB HAVING BEEN HEARD AND RESERVED ON 14.12.2018 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, BAJANTHRI J., DELIVERED THE FOLLOWING:
JUDGMENT MFA No.3238/2015 and MFA Crob No.33/2016 are filed by the insurance company and the claimants seeking reduction and enhancement respectively against the judgment and award dated 3.1.2015 passed in MVC No.658/2013 by the 1st Addl. Senior Civil Judge and Addl. MACT., VII at Shivamogga (for short ‘the Tribunal’).
2. Brief facts of the case are that on 01.12.2012 at about 11.20 p.m., the Forest Department officials and the deceased-Shankarappa B.H. who was the Head Constable No.1956 of Aagumbe Police Station were on duty at Aagumbe Forest Check Post to check the vehicles plying. When they were checking a car, a Tipper Lorry bearing No.KA 14A 6378 driven by the 1st respondent - G.R. Ravindra in a high speed and rash and negligent manner came behind the car. On seeing the said Tipper Lorry, the deceased – Head Constable and other officials gave a signal to the Tipper Lorry to stop, but the 1st respondent driver of the tipper lorry disobeyed the signal in order to escape from the clutches of the inspecting officials the tipper lorry ran over the deceased which has resulted in his death on the spot. MACT., awarded compensation of a sum of Rs.25,78,000/- along with interest @ 6% per annum from the date of petition till its realization from the respondent Nos.1 to 3 jointly and severally. Further, respondent No.3 being the insurer of the offending vehicle was directed to deposit the entire compensation amount along with interest accrued thereon within a period of two months, failing which award amount shall carry interest @ 9% per annum. It was also directed, compensation amount be shared among petitioner No.1 to 4 in the ratio of 5:2:2:1 as against claim of the claimants a sum of Rs.83,90,000/-.
3. Oriental Insurance Company-appellant in their appeal has contended as under:-
(i) That the Tribunal has failed to determine the negligence or contributory negligence of the deceased with reference to the material on record. The Tribunal has failed to appraise the action of the deceased in checking the vehicles in a negligent manner which has resulted in running of the Tipper Lorry over him.
(ii) It was further contended that allowing a sum of Rs.24,22,630/- under the head of total ‘loss of dependency’ with reference to income of the deceased at Rs.25,160/- per month (Ex.P9) and adding being 15% to it based on the Hon’ble Supreme Court decision in the case of RAJESH AND OTHERS v/s RAJBIR SINGH AND OTHERS reported in 2013 ACJ 1403 while ignoring the RESHMA KUMARI vs MADAN MOHAN reported in (2013)9 SCC 65. Reshma Kumari’s decision has been taken into consideration in relation to Sarla Verma and others Vs Delhi Transport Corporation and another reported in (2009) 6 SCC 121, as such, addition of any compensation towards future prospects was not warranted when deceased had admittedly crossed the age of 50 years.
(iii) It was further submitted that split multiplier method is required to be taken into consideration in view of the judgment of Division Bench of this Court passed in MFA Nos.25077 and 25650/2012 at Dharwad Bench on 20.01.2014. The Tribunal has erred in deducting 1/4th towards self expenses of the deceased instead of 1/3rd at the most since two major children could not be considered to be dependents for the next 11 years as they would in due course as well as in the near future be gainfully employed. In support of this contention, learned counsel for the appellant relied on a decision of the Hon’ble Supreme Court in the case of United India Insurance Co. v/s K.I. Bindu and others reported in 2009(3) SCC 705.
(vi) Even the Tribunal unnecessarily allowed amounts under conventional heads are on higher side.
4. Per contra, learned counsel for the cross objector claims in support of enhancement of compensation. The submissions of the Cross Objector are as under:
(i) It was submitted that Tribunal erred in not considering the income of the deceased appropriately. Evidence of PW.1 who has specifically stated that deceased was a police Head Constable and he had a bright future in his career and would have become Sub Inspector of Police has not been taken note of.
(ii) Similarly Tribunal erred in coming to the conclusion claimants are entitled only for 15% towards future prospects in the earnings of the deceased, multiplier ‘11’ should have been applied instead of applying split multiplier. Such mode is contrary to the Supreme Court decision.
(iii) Further, it was contended that the Tribunal failed to award proper compensation under conventional heads so also, award of interest @ 6% per annum is unfair having regard to the fact that it is a case of death claimants are entitled to 12% interest.
5. Insurance Company’s contention stated supra is countered by the learned counsel for the claimants stating that the Tribunal has not appreciated evidence of PW.1 and other documents for the purpose of claim made by the claimants in the claim petition seeking award of compensation of Rs.83,90,000/-. On the other hand, learned counsel for the Insurance Company submitted that cross objectors claim for enhancement is highly impermissible having regard to the contributory negligence on the part of the deceased is required to be taken into consideration. Further, Tribunal has failed to appreciate ratio decided by the Supreme Court in the case of Reshma Kumari r/w Sarla Verma. Further decision in MFA Nos.25077- 25650/2012 and K.I. Bindu’s case cited supra. Thus, cross objectors have not made out a case for enhancement.
6. Heard the learned counsel for the parties.
7. The contention of the insurer is that Tribunal failed to assess the contributory negligence on the part of the deceased so as to fix liability. The Income of the deceased has not been assessed properly so also in adding 15% towards future prospects. Application of Rajesh’s case supra is not attracted whereas the case of Reshma Kumari’s supra is to be applied. In other words, compensation towards future prospects was not warranted when the deceased had admittedly crossed the age of 50 and he was aged about 52 years. Split multiplier is required to be taken into consideration in view of the Division Bench decision of this Court in MFA Nos.25077-25650/2012 dated 20.01.2014 and Tribunal should have deducted 1/3 instead of 1/4.
8. For the assessment of negligence on the part of the deceased, no sufficient material has been produced before the Tribunal or in the present petition on behalf of insurer. Therefore, question of determining negligence on the part of the deceased need not be gone into. It is true that deceased is not entitled to 15% under the head of loss of dependency. So also Reshma Kumari and Rajesh’s case is not attracted. Reshma Kumari’s and Rajesh’s case is required to be implemented in the light of the Hon’ble Apex Court in Pranay Sethi’s case which has taken note of both the decisions of Rajesh and Reshma Kumari wherein it is held that Reshma Kumari’s case read with Sarla Verma is required to be applied. Undisputedly, deceased had crossed 50 years as on the date of death. Therefore, adding 15% under the head of ‘loss of dependency’ is incorrect. Hence, 10% is required to be added. There is no lacuna insofar as deducting 1/4 towards personal expenses of the deceased in view of Sarla Verma’s case supra. Therefore, decision of this Court decided in MFA Nos.25077-25650/2012 decided on 20.01.2014 to deduct 1/3 may not be correct. The other contentions of the insurance company is hereby rejected.
9. Learned counsel for the claimants submit that PW1s evidence has not been appreciated wherein he has stated that deceased had bright future prospects in service, had he been alive he would have earned promotion up to the cadre of Sub-inspector. Therefore, claimants are entitled for award of compensation as claimed by them in a sum of Rs.83,90,000/-. The said contention has been countered by the counsel for the insurer stating that principles laid down in Sarla Verma’s case and K.I.Bindu’s case supra is taken into consideration, claimants are not entitled for enhancement of compensation. On the other hand, what has been awarded by the Tribunal is on higher side which requires interference by this Court. In Sarla Verma’s case supra, it was dealt in detailed manner. Therefore, it is necessary to reproduce paras. 19, 24, 30, 31, 32 and 41 so as to decide the present case:
“19. To have uniformity and consistency, the 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 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.5000 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 5000 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 be added.
Para-24 24. 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 the 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 the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation 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.
Para-30 30. 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 standardised 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 dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
Para-31 31. 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 dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
Para-32 32. 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 the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and 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.
Para-41 41. 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 the second column of the table in the Second Schedule of the 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 the 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 163-a of the mv act. In cases falling under section 166 of the mv act, davies method is applicable.
10. Similarly in Pranay Sethi’s case supra, one of the principle laid is that in case the deceased was between the age of 50-60 years, the addition should be 10%. Actually, salary should be read as actual salary less tax. Therefore, claimants are entitled to 10% and not 15%.
11. In view of these facts and circumstances, Tribunal has erred in granting compensation on certain heads. Therefore, it requires modification in the following manner.
1. Loss of Dependency (Rs.25160+2516 (10% future Prospects – 6919 (1/4 personal Expenses) 12x11) Rs.27,39,924/-
2. Conventional Heads Rs. 70,000/- TOTAL Rs.28,09,924 Accordingly, we pass the following:
ORDER (1) MFA No.3238/2015 is dismissed.
(2) MFA Crob No.33/2016 filed by the claimants for enhancement is partly allowed by modifying the judgment and award passed by the 1st Addl. Senior Civil Judge and Addl. Motor Accident Claims Tribunal – VII Shimoga in MVC No.658/2013 dated 03.01.2015. The claimants are entitled for compensation of Rs.28,09,924/- along with interest @ 6% p.a. from the date of petition till realization after deducting the amount, if any, already paid.
(3) In all other aspects the order of the Tribunal stands.
(4) Amount in deposit if any, before this Court shall be transmitted to the tribunal for disbursement.
Sd/- JUDGE brn Sd/- JUDGE