IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.6358/2013 [MV] BETWEEN:
NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE NO.144, SUBHARAM COMPLEX M.G.ROAD, BANGALORE -560001. REP.BY ITS DY.MANAGER R.RAVI.
(BY SRI.B.C.SEETHA RAMA RAO, ADV.) AND:
1. SMT. N V MOHAN KUMARI AGED ABOUT 52 YEARS W/O LATE H.ESHWARAN 2. SMT.BHARATHI PRASAD W/O LATE G.S.PRASAD AGED ABOUT 37 YEARS BOTH ARE RESIDING AT NO.44 KARISHMA HILLS, GUBBALALA SUBRAMANYAPURA POST BANGALORE-560 061.
PERMANENTLY R/OF MULLAKATTE NAGAMANGALA TALUK MANDYA DISTRICT.
...APPELLANT 3. SRI.P.VENKATRAMAN MAJOR S/O PERIYASAMY RESIDING AT NO.134-G-2 SALEM ROAD NAMALLKAL, (TN)-600 001.
4. CHOLAMANDALAM M.S.GEN.INS.CO., LTD., DARE HOUSE, 2ND FLOOR NSC BOSE ROAD CHENNAI-600 001.
5. SRI.K.MURALI MAJOR RESIDING AT NO.233 SANJAY NAGAR, 6TH CROSS MARATHAHALLI POST BANGALORE-560 037.
…RESPONDENTS (BY SRI.B BOPANNA, ADV. FOR R1 & R2 SRI O. MAHESH, ADV. FOR R4 R3 – NOTICE D/W V/O DT:10/09/2015 R5 – SERVED & UNREPRESENTED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.03.2013 PASSED IN MVC NO.4873/2011 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.6,01,600/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The Insurer is in appeal against the judgment and award dated 21.03.2013 passed in MVC No.4837/2011 on the file of III Additional Senior Civil Judge and MACT, Bengalure, on the ground that the Tribunal has awarded excess compensation.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the accidental death of one E. Premnath in a Road Traffic Accident. It is stated that on 20.11.2010 when the deceased was proceeding in a Canter bearing Reg.No.KA-03-D-5396, near Nice Road, the driver of the Canter drove the vehicle in a rash and negligent manner and dashed to the right side of the lorry bearing Reg.No.TN-28-AE-3816 which was parked without signal light, due to which the deceased sustained grievous injuries and succumbed to the injuries.
3. On issuance of summons the 1st respondent - Insurance Company appeared and filed its written statement and denied the claim petition averments. Further it denied the negligent driving of the lorry bearing Reg.No.TN-28-AE-3816 and further averred that accident took place due to the negligent driving by the driver of the Canter, but admitted issuance of insurance policy to the lorry bearing Reg.No.TN-28-AE-3816. Further it is stated that the driver of the lorry had no valid and effective driving licence as on the date of accident. Hence there is violation of policy conditions. The claimant No.1 - Mother of the deceased examined herself as PW.1 and marked the documents Exs.P1 to P13. Respondents examined Rw.1 apart from marking the documents Exs.R1 and R2. The Tribunal on appreciating the material on record awarded total compensation of Rs.6,01,600/- along with interest at 8% p.a. from the date of petition till the date of realization on the following heads :-
a. Towards loss of dependency 5,61,600/-
b. Towards loss of love and affection 20,000/-
c. Towards loss of estate 10,000/-
d. Towards funeral expenses 10,000/-
Total Rs.6,01,600/-
While assessing the above compensation the Tribunal applied the multiplier '16' taking the age of the deceased and added 30% of the assessed income towards future prospects. The insurer aggrieved by the quantum of compensation awarded by the Tribunal, is in appeal before this Court.
4. Heard the learned counsel for the appellant - Insurer and learned counsel for the respondents - claimants. Perused the entire material on record.
5. Learned counsel for the appellant - Insurer would submit that the Tribunal committed an error in awarding excess compensation to the claimants. It is his submission that 1st claimant, who is the mother of the deceased is aged 50 years. In the usual course, the multiplier adopted would be based on the age of the younger parent and not the age of the deceased. Further he submits the claimants were not entitled to adding 30% of the assessed income towards future prospects as the deceased was a coolie and he was not having fixed income. Learned counsel further contends that the Tribunal also committed an error in awarding interest at 8% p.a. whereas the claimants would be entitled to interest at 6% p.a. on the compensation as held by this Court in catena of decisions. Thus prays for reduction of the compensation.
6. Per contra, learned counsel for the respondents/ claimants submits that the Tribunal has awarded just compensation which needs no interference. He further submits that it is settled law as on this date while applying the multiplier, the age of the deceased will have to be taken. Therefore, rightly the Tribunal has taken the age of the deceased and adopted the multiplier of 18 which is just and proper. Further he submits that the deceased was aged 30 years as on the date of accident and as per the decision of NATIONAL INSURANCE COMPANY LTD. VS.PRANAY SETHI reported in 2017 (16) SCC 680 the claimants would be entitled to adding 40% of the assessed income towards future prospects. Therefore, what is awarded is just and proper, which needs no interference. It is his further submission that the Tribunal awarded interest at 8% p.a. from the date of petition till the date of realization, also needs no interference, thus prays for dismissal of the appeal.
7. Having heard the learned counsel for the parties and on perusal of the material on record, the points that arise for consideration is as to a. Whether the Tribunal is justified in taking the age of the deceased, for applying the correct multiplier ?
b. Whether the Tribunal is justified in awarding 30% of the assessed income towards future prospects ?
c. Whether the Tribunal is justified in awarding interest at 8% p.a. on the compensation amount ?
Points (a and b) are answered in the affirmative and point (c) is answered in the negative for the following reasons :-
The occurrence of the accident on 20.11.2010 involving the Canter bearing No.KA-03-D-5396 and the Lorry bearing Reg.No.TN-28-AE-3816 and the accidental death of Sri. E. Premnath is not in dispute in this appeal. The insurer is before this Court praying for reduction of compensation on the ground that the Tribunal has awarded excess compensation. The first contention urged by the learned counsel for the insurer is that while applying the multiplier, the Tribunal ought to have taken the age of the claimant and not the age of the deceased. It is well settled law as on this day that while applying the multiplier, the age of the deceased will have to be taken and not the age of the younger parent as held in the decision JOGINDER SINGH AND ANOTHER Vs. ICICI LOMBARD GENERAL INSURANCE COMPANY reported in AIR 2019 SCC 3814 as follows :-
“4. 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 & Ors., 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 (AIR 2018 SC 1195) (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 (2015 AIR SCW 3105) (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. (2013) 9 SCC 65 : (2013 AIR SCW 3120). The relevant portion of Reshma Kumari in turn has referred to Sarla Verma (AIR 2009 SC 3104) (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 (AIR 2017 SC 5157) (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.”.
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).”
Thus I am of the view, that the Tribunal has rightly applied the multiplier of ‘16’ taking the age of the deceased which needs no interference.
The next contention urged by the learned counsel for the insurer is that the Tribunal committed an error in awarding 30% of the assessed income towards future prospects. It is settled law as on this date in view of the decision in PRANAY SETHI's case cited supra that wherever the deceased is aged below 40 years the claimants would be entitled for adding 40% of the assessed income towards future prospects. In the instant case, the deceased was aged 30 years, therefore adding 30% of the assessed income towards future prospects is just and proper and needs no interference. The Hon'ble Apex Court in HEM RAJ Vs. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 15 SCC 654 has held that there cannot be distinction where there is positive evidence of income and determination of income, Hence, I find no error in adding 30% of the assessed income towards future prospects. The Tribunal has awarded interest at 8% p.a. on the compensation awarded. It is contended that the claimants would be entitled only to 6% p.a. on the compensation amount, as it is not commercial transaction. This Court in the decision in VIJAY ESHWAR JADHAV AND OTHERS V. ULRICH BELCHIOR FERNANDES AND ANOTHER reported in 2018 (3) AKR 690 has held at paragraphs 14 and 15 has held as follows :-
14. I have carefully considered the rival contentions of the counsel for the Insurance Company for the claimants. It is true that the provisions of Civil Procedure Code are not Proprio vigor applicable to the procedure and powers of claims Tribunal, except to the extent mentioned in sub-Section (2) of Section 169 of the Act. Sub- sections (1) & (2) of Section 169 read as under:
“169. Procedure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objections and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) 15. However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted under Section 169 of the M.V.Act and therefore, the provisions of Section 34 of the CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded.”
In the above circumstances, I am of the view, that the claimants would be entitled to interest at 6% p.a. on the compensation amount awarded by the Tribunal as against interest at 8% p.a.
8. Accordingly, the appeal is allowed in part in respect of reducing the interest from 8% p.a. to 6% p.a. on the compensation amount, and dismissed in all other respects.
The statutory amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE NG*CT:bms