IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2045 OF 2015 (MV) BETWEEN:
1. PALAIAH, S/O MARIBOMMAIAH, AGED ABOUT 49 YEARS, 2. SMT. PADDAMMA @ MALLAMMA, W/O PALAIAH, AGED ABOUT 45 YEARS, BOTH ARE R/AT GIDDAPURA VILLAGE, CHALKERE TALUK, CHITRADURGA DISTRICT.
AND:
... APPELLANTS (BY SRI MANJUNATH N.D., ADVOCATE) 1. LOHITH, S/O RAMAPPA, AGED ABOUT 29 YEARS, R/AT DODDAPATANAGERE VILLAGE AND POST, KADUR TALUK, CHIKKAMANGALURU DISTRICT – 577 101.
2. LAKKANNA, S/O MALLAPPA, AGED ABOUT 29 YEARS, DODDAPATANAGERE VILLAGE AND POST, KADUR TALUK, CHIKKAMANGALURU DISTRICT – 577 101.
3. THE MANAGER, THE CHOLAMANDALAM M.S.GENERAL INSURANCE CO. LTD., HEAD OFFICE, 2ND FLOOR, NSC, BOSE ROAD, CHENNAI – 600 001.
... RESPONDENTS (BY SRI B.PRADEEP, ADVOCATE FOR R3; R1 AND R2 NOTICE DISPENSED WITH VIDE ORDER DATED 16.07.2015) *** THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.08.2014 PASSED IN MVC NO.47/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, KADUR, CHIKMAGALUR DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The Claimants are in an appeal for enhancement of the compensation not being satisfied with the quantum of compensation awarded by the Tribunal under the Judgment and Award dated 27.08.2014 passed in MVC No.47/2011 on the file of the Senior Civil Judge & MACT, Kadur, Chikmagalur District (hereinafter referred to as 'the Tribunal' for short). The Claimants are parents of one Thippeswamy, who died in an accident and they filed the claim petition under Section 166 of the Motor Vehicle Act (hereinafter referred to as 'the Act’ for short) claiming compensation for the death of their son in a road accident.
2. It is stated that on 26.01.2011 when the deceased was proceeding in a Motorcycle bearing registration No.KA-18 / S-2080, Ape goods Autorickshaw bearing registration No.KA-18 / A5435 driven in a rash and negligent manner dashed against the motorcycle, due to which the deceased fell down and sustained grievous injuries. Immediately, he was shifted to Government Hospital at Kadur. Subsequently, he succumbed to injuries. It is stated that the deceased was working as Lineman at MESCOM, Sakharayapatna and was earning Rs.16,073/- per month as salary. He was aged about 26 years as on the date of accident.
3. On issuance of notice, the respondents appeared before the Tribunal and filed their statement.
Respondents No.1 and 2 in their statement stated that the accident is due to negligent act of the deceased – Thippeswamy. It is also stated that vehicle is insured with the respondent No.3. Respondent No.3 filed its statement denying the claim petition averments. Further, the insurer also denied the involvement of the vehicle in the road traffic accident as there is discrepancies in the complaint and the final report. It is stated that claimants are not entitled for the compensation as claimed in the petition.
4. The claimant No.1 examined himself as PW1 and also examined PW2 to PW5 in support of their case, apart from marking the documents as Ex.P1 to Ex.P28. On behalf of the respondents the documents at Ex.R1 to R3 were marked.
5. The Tribunal on appreciation of the material on record awarded total compensation of Rs.13,73,416/- on the following heads:
Amount in (Rs.) Loss of dependency 13,33,416 Transportation/Conveyance 10,000 Funeral & Obsequies Ceremony 20,000 Loss of Estate/Expectancy 10,000 Total : 13,73,416 While awarding the above compensation the Tribunal assessed the income of the deceased at Rs.15,873/- and applied multiplier of 14, taking the age of the younger parent. The Claimants not being satisfied with the award of compensation are before this Court in this appeal praying for enhancement of the compensation.
6. Heard the learned counsel for the parties and perused the material on record including the lower court record.
7. The learned counsel for appellants would submit that the Tribunal rightly assessed the income of the deceased at Rs.15,873/- after deducting Rs.200/- towards Professional Tax. He submits that the Tribunal committed an error in adopting the multiplier 14 taking the age of the younger parent. It is stated that Tribunal ought to have taken the age of the deceased for adopting correct multiplier. The learned counsel for Claimants submit that the Tribunal failed to award compensation on future prospects since the deceased was aged about 26 years and Claimants would be entitled to add 40% of the assessed income towards future prospects. It is also submitted that the Claimants are parents of deceased who lost love and affection and care of their son. Hence they are entitled to total compensation at Rs.40,000/- each and prays for enhancement of the compensation.
8. Per contra, learned counsel for respondent No.3 - Insurance Company would submit that the compensation awarded by the Tribunal is a just compensation, which needs no interference. Hence, it prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the materials placed before the Court, the points that would arise for consideration is :
“(1) Whether the claimants would be entitled for adding 40% of the assessed income towards future prospects?
(2) Whether the Tribunal is justified in taking the age of the younger parent while applying multiplier?
(3) Whether the claimants would be entitled for enhanced compensation under the facts and circumstances of the case?”
10. The answer to the above point is in the affirmative for Point No.(1) & (3) and negative for Point No.(2) for the following reasons:
11. The accident occurred on 26.01.2011 involving Motor Cycle bearing registration No.KA-18 / S-2080, goods Autorickshaw bearing registration No.KA-18 / A5435 and consequent death of one Thippeswamy, are not in dispute in this appeal. In this appeal the claimants seek enhancement of the compensation awarded by the Tribunal. There is no dispute with regard to the assessment of the income by the Tribunal at Rs.15,873/- of the deceased. The Claimants grievance is, for not awarding any compensation under the head future prospects of the deceased, who was aged about 26 years as on the date of accident. Since the Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs PRANAY SETHI AND OTHERS reported in (2017) 6 SCC 680, has held that Claimants are entitled to adding of 40% of the assessed income towards loss of future income wherever the deceased was aged below 40 years. Accordingly, in the instant case, the Claimants are entitled for adding 40% of the assessed income towards future prospects. The Tribunal committed an error in taking multiplier as 14 taking the age of the younger parent for calculation of loss of dependency. It is settled law as on this date that for adopting the multiplier the age of the deceased is to be taken. The Hon’ble Apex Court in the case of JOGINDER SINGH AND ANOTHER vs ICICI LOMBORD GENERAL INSURANCE COMPANY, reported in AIR 2019 SC 3814, at para-4 it is held as follows:
“We have perused the judgments of the Courts below, and find that the wrong multiplier has been applied to the facts of the present case.
The issue with respect to whether the Multiplier to be applied in the case of a bachelor, should be computed on the basis of the age of the deceased, or the age of the parents, is no longer res integra. This issue has been recently settled by a three Judge bench of this court in Royal Sundaram Alliance Insurance Co. Ltd. V. Mandala Yadagari Goud and Ors. MANU/SC/0507/2019 : (2019) 5 SCC 554, wherein it has been held that the Multiplier has to be applied on the basis on the age of the deceased. The Court held that:
“10. A reading of the judgment in Sube Singh (supra) shows that where a three Judge Bench has categorically taken the view that it is the age of the deceased and not the age of the parents that would be the factor for the purposes of taking the multiplier to be applied. This Judgment undoubtedly relied upon the case of Munna Lal Jain (supra) which is also a three Judge Bench Judgment in this behalf. The relevant portion of the judgment has also been extracted. Once again the extracted portion in turn refers to the judgment of a three Judge Bench in Reshma Kumari and Ors. V. Madan Mohan and Anr. MANU/SC/0287/2013 : (2013) 9 SCC 65.
The relevant portion of Reshma Kumari in turn has referred to Sarla Verma (supra) case and given its imprimatur to the same. The loss of dependency is thus stated to be based on: (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. It is the third aspect which is of significance and Reshma Kumari categorically states that it does not want to revisit the law settled in Sarla Verma case in this behalf.
11. Not only this, the subsequent judgment of the Constitution bench in Pranay Sethi (supra) has also been referred to in Sube Singh for the purpose of calculation of the multiplier.
12. We are convinced that there is no need to once again take up this issue settled by the aforesaid judgments of three Judge Bench and also relying upon the Constitution Bench that it is the age of the deceased which has to be taken into account and not the age of the dependents.
(emphasis supplied)”
In the present case, since the deceased was 20 years old, a Multiplier of 18 ought to have been applied as per the decision of this Court in Sarla Verma (supra).”
In the instant case the age of the deceased was 26 years and the proper multiplier would be 17. Thus, loss of dependency be calculated applying the multiplier at 17. The Claimants are parents of the deceased who have lost their very young son and have lost love, affection and care of the son. Hence, they would be entitled to a sum of Rs.40,000/- each under parental love, affection and care.
In view of the decision of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546.
Thus, the Claimants would be entitled for the following modified compensation:
Loss of dependency including future prospects (Rs.15,873/- + 40% (Rs.6,349/-) = Rs.22,222/- (-) 50% =Rs.11,111/-X12X17 =) 22,66,644 Conventional head 30,000 Parental love, affection & care 80,000 Total : 23,76,644 14. Thus, the claimant would be entitled for enhanced compensation of Rs.23,76,644/- as against Rs.13,73,416/- awarded by the Tribunal, with interest at the rate of 6% per annum from the date of petition till realization.
Accordingly, the appeal is allowed in part. The judgment and award of the Tribunal is modified to the above extent.
Sd/- JUDGE VK