IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MFA No.1904/2015(MV) c/w MFA No.3771/2015 (MV) IN MFA No.1904/2015 BETWEEN 1. SMT.PUTTAMMA W/o RAMEGOWDA AGED ABOUT 46 YEARS 2. RAMEGOWDA S/o LATE THIMMEGOWDA AGED ABOUT 51 YEARS BOTH ARE RESIDENTS OF THOPEGOWDANA KOPPALU VILLAGE, MELUKOTE HOBLI PANDAVAPURA TALUK MANDYA DISTRICT – 571 434.
…APPELLANTS (By Sri V N MADHAVA REDDY, ADVOCATE) AND 1. CHIKKANNA S/o CHIKKEGOWDA No. 153, JAKKANAHALLI VILLAGE MELUKOTE HOBLI PANDAVAPURA TALUK MANDYA DISTRICT – 571 434.
2. THE MANAGER (MANAGER) SRIRAM GENERAL INSURANCE CO.LTD., 2ND FLOOR, MONARCH CHAMBERS OPP. INFANTRY HALL, INFANTRY ROAD BENGALURU – 560 001.
(By Sri O MAHESH, ADVOCATE FOR R2 R1 SERVED & UNREPRESENTED) …RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:6.9.2014 PASSED IN MVC No.1547/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, PANDAVAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPESNATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.3771/2015 BETWEEN THE MANAGER (LEGAL) SHRIRAM GENERAL INSURANCE CO.,LTD., 2ND FLOOR, MONARCH CHAMBERS OPP. INFANTRY HALL, INFANTRY ROAD BENGALURU – 560 001.
BY SHRIRAM GENERAL INSURANCE CO. LTD., 5/4 3RD CROSS, S V ARCADE BELAKANAHALLI MAIN ROAD OPP: BANNERAGHATTA MAIN ROAD II M.B.POST, BENGALURU – 560 076. BY IT’S MANAGER (By Sri O MAHESH, ADVOCATE) …APPELLANT AND 1. SMT. PUTTAMMA W/o RAMEGOWDA AGED ABOUT 46 YEARS 2. RAMEGOWDA S/o LATE THIMMEGOWDA AGED ABOUT 51 YEARS R/O THOPEGOWDANA KOPPALU VILLAGE, MELUKOTE HOBLI PANDAVAPURA TALUK MANDYA DISTRICT – 571 401.
3. CHIKKANNA S/o CHIKKEGOWDA MAJOR, No.153 JAKKANAHALLI VILLAGE MELUKOTE HOBLI PANDAVAPURA TALUK – 571 434.
…RESPONDENTS (By Sri V N MADHAVA REDDY, ADVOCATE FOR R1 & R2 R3 SERVED & UNREPRESENTED V/O DATED 06.04.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:6.9.2014 PASSED IN MVC No.1547/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, PANDAVAPURA, AWARDING A COMPENSATION OF RS.5,54,500/- WITH INTEREST AT 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE MFAs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both these appeals are directed against the judgment and award dated 6.9.2014 wherein the claim petition in MVC No.1547/2012 on the file of Senior Civil Judge & MACT, Pandavapura, came to be partly allowed in granting compensation of Rs.54,500/- to the claimants.
2. MFA No.1904/2015 is preferred by the claimants- petitioners for enhancement of the compensation amount of Rs.5,54,500/- together with interest at the rate of 6% p.a from the date of the petition till the date of deposit being the liabilities on respondent Nos.1 and 2.
MFA No.3771/2015 is preferred by the Shriram General Insurance Co.Ltd. seeking for setting aside the judgment and award dated 06.09.2014 passed by the MACT, Pandavapura, in MVC No.1547/2012.
3. Since both the appeals are against the judgment and award in MVC No.1547/2012 dated 06.09.2014, they are disposed of in common.
4. To avoid overlappings and confusions, the parties are referred with reference to their respective status before the Tribunal.
5. The brief facts are that one Raju was proceeding on a motorbike Bajaj Discovery bearing No.KA 02 HD 6032 from his village to Pandupura near Nadagowda School, Mahadeshwarapura village on Nagamangala-Mysore main road at 8.30 p.m. at that time a Tata Ace goods vehicle bearing No.KA 11 A 0852 said to have been driven in a rash and negligent manner by its driver so as to endanger human life, hit the motorbike of Raju, due to which, he sustained multiple injuries all over the body and was taken for treatment to a nearby Government Hospital Pandavapura and thereafter was shifted to Kaveri Hospital, Mysuru, and being unable to recover from the injuries, but he succumbed to injuries at 3.40 a.m on 18.08.2012. He was said to be hale and healthy prior to the accident and was carrying on agriculture and also commission agent in sale of vegetables. His income was said to be Rs.15,000/-
per month. He is said to have been spending his entire earnings for maintenance of his family consisting of himself and the petitioners, who are his parents namely, Smt.Puttamma, aged 43 years and Sri Ramegowda, aged 48 years. Thus, the parents of the deceased claimed compensation of Rs.21,90,000/- due to the death of their son Raju.
6. The respondents before the Tribunal are the owner of the Tata Ace goods vehicle Chikkanna, Shriram General Insurance Company Limited. In MFA No.1904/2015 Chikkanna-respondent No.1, the owner of Tata Ace Goods vehicle is served and not contested. Respondent No.2 Insurance Company entered appearance and contested the matter.
7. The contention of the Insurance Company is that the compensation awarded by the Tribunal is on the higher side and exorbitant and the owner of the Tata Ace goods vehicle has insured the vehicle and claims that liability is exclusively on respondent No.1 as the vehicle was insured and there was breach of terms of driving License.
8. Insofar as respondent No.2-Insurance Company is concerned, it denies the injuries sustained, period of treatment, and quantum of compensation apart from stating that the Tata Ace Goods vehicle was carefully driven at the time of accident. Further claims that rider also contributed negligence to the accident in riding the motorcycle bearing No.KA 02 HD 6032. Further respondent No.2- Insurance Company had not issued Policy to respondent No.1 and the driver had no license. Further, permit was not obtained for the vehicle, besides exorbitant claim made by the petitioners-claimants.
9. Needless to state that MFA No.1904/2015 is against MFA No.3771/2015, though the reliefs sought by them differ. Regarding appearance, in MFA No.1904/2015, Chikkanna-respondent No.1 is served and unrepresented. In MFA No.3771/2015, he is respondent No.3 and here also he chooses not to contest. Rest are contesting appellants in the former becomes contesting respondents in the latter.
10. Records in MVC No.1547/2014 are secured.
11. Heard learned counsel appearing on both the sides.
12. On the basis of material propositions asserted and denied and relevant materials, the Tribunal framed issues regarding rash and negligent driving of the goods vehicle by its driver thereby causing injuries to Raju, the rider of the Motorcycle, who succumbed to them and regarding the entitlement of compensation to the claimants-petitioners.
13. Respondent No.2-Insurance Company has taken the plea regarding not possessing of valid and effective driving license by the driver of the Tata Ace Goods Vehicle. The petitioners have examined PWs.1, 2, 3 and insofar as respondents one Santosh A.Tegur was examined. The documents that were marked during evidence are Exs.P.1 to P.17 including FIR, PM Report, medical bills and inquest mahazar from petitioners’ side and Exs.R.1 to R.3 from the respondents’ side. Respondent No.1 neither filed any document nor examined himself or any witness.
14. The Tribunal passed the judgment and award on 06.09.2014 and the petition was allowed in part and compensation of Rs.5,54,500/- was awarded together with interest at 6% p.a. from the date of petition till the date of deposit. The joint and several liability was cast on respondent Nos.1 and 2. Apportionment of compensation was made thereon between the claimants.
15. The break up of the award by the Tribunal is as under:
16. The Tribunal had held the issue No.1 regarding rash and negligent driving and causing injuries to Raju in the affirmative. However, accident, injuries to Raju and his death are not disputed. Further, insofar as the income of Raju is concerned, it was claimed at Rs.15,000/- per month by the petitioners at Exs.P.13 and 14. The monthly income of Raju was considered at Rs.4,500/- per month by reckoning it at Rs.150/- per day and the calculation by the learned Member of the Tribunal towards personal and living expenses are considered at 50%. The age of Raju at the time of his death was considered as 24 years as per the post mortem report. Thus, the monthly income of Raju was marked at Rs.2,250/- and based on the age of the petitioners and on the basis of the age of Raju at the time of his death, the Tribunal has computed the multiplier applicable to the case at 18. Thus, 2,250x12x18=Rs.486000 was assessed as loss of dependency to the petitioners.
17. Insofar as the medical expenses are concerned, the Tribunal awarded Rs.18,500/-. Towards loss of expectancy an amount of Rs.20,000/-, towards love and affection Rs.20,000/-and towards funeral expenses Rs.10,000/- was awarded. Thus, an amount of Rs.5,54,500/- together with interest at 6% p.a. was awarded as compensation.
18. Learned counsel for the appellants in MFA No.1904/2015 submits that the appellants are not satisfied with the judgment and quantum of award, at the same time in MFA No.3771/2015 also the appellant-Insurance Company under the said appeal is not satisfied with the judgment and award as it is submitted that the claim ought to have been rejected.
19. The undisputed fact insofar as the accident is concerned, Sri O Mahesh, learned counsel appearing for the appellant in MFA No.3771/2015 submitted at length that the accident did not happen due to rash and negligent driving by the driver of the goods vehicle, on the other hand it was Raju, who drove the vehicle recklessly and invited his death.
Further, he also submits that the goods vehicle for which Insurance Company has been made party had no legal and effective permit and the driver had no valid and proper driving license.
Further, the vehicle in question was not in order on the date of the accident. Learned counsel further submits that there was no proper and valid fitness certificate of the goods vehicle as it is sated that between the previous expiry period and the present period there is a gap of 8 months, though the certificate was issued for the period 8.1.2012 to 8.1.2013.
Learned counsel further contended that violation of the policy means the driver not possessing valid license and without holding valid permit, the vehicle never to be driven on the road.
20. Learned counsel further submits that the non-holding of license, permit and proper fitness certificate by the driver of the vehicle ipso facto is the remedy available to the Insurance Company and does not require independent proof by the Insurance Company. He addresses on the maxim ubi jus ibi remedium.
21. Learned counsel submitted that even to lead an ordinary life with necessaries, the income is considered at Rs.7,000/- per month. He further submits that even the personal and living expenses taken at Rs.4,500/- is on the higher side.
22. Learned counsel for the Insurance Company submitted that Raju never earned for the family nor the petitioners were being maintained by him. Learned counsel for the Insurance Company submits that the Tribunal further erred in reckoning the multiplier at 18 as the proper and appropriate multiplier should have been 14 on the basis of the age of claimant No.1, the mother.
23. Learned counsel for the Insurance Company submits that the said principle of 50% for prospective income is no way applicable in case of self-employment and is applicable only in salaried cases.
24. Learned counsel for the Insurance Company submits that the issue regarding the respondent proving the driver of the Tata Ace vehicle was not holding valid and effective driving license as on the date of the accident has to be taken as proved by reading the provisions of the Motor Vehicles Act cannot be accepted.
Learned counsel further submitted that in the matter of driving license, grace period of 30 days is allowed, but is not applicable to the fitness certificate.
It was submitted by learned counsel that there can never be retrospective effect to the fitness certificate as there is a gap of eight months for renewal of the certificate. But the said factors are absent in the given case, which absolve the liability on the Insurance Company.
25. Insofar as the appellants in MFA No.1904/2015, they contend that the award is on the lower side and deserves to be enhanced. Learned counsel further submits that the parents are made to suffer as they lost their grown-up son who also was maintaining them and he was their hope.
26. Insofar as loss of dependency is concerned, notional monthly income of Rs.4,500/- as considered by the Tribunal is on the lower side. The trial Court has not considered the prospective income, keeping in mind the death of Raju aged 24 years in the accident dated 18.08.2012.
27. The Tribunal held the net monthly income at Rs.4,500/-, then 50% is reserved for living and personal expenses of Raju.
28. At this stage, it is necessary to mention the decisions relied upon by the counsel for the claimants;
“Sarla Verma and others Vs Delhi Transport Corporation and another reported in (2009) 6 SCC 121 “20. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects.
21. In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1,032/- per month. Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2,000/- as gross income before deducting the personal living expenses.
22. The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996 (3) SCC 179], where the deceased was getting a gross salary of Rs.1,543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3,000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2,200/- per month.
23. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/- per annum, (Rs.3,500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.
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 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 deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations 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.
Re : Question (ii) - deduction for personal and living expenses 25. We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. The claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one.”
Rajesh and others Versus Rajbir Singh and others (2013)9 SCC-54 “18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head “funeral expenses”. The “price index”, it is a fact has gone up in that regard also. The head “funeral expenses” does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of “funeral expenses”, in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000.
19. The petitioners have produced before this Court Annexure P-4, salary certificate of the deceased Bijender Singh which shows that after the revision of the salary by the Sixth Pay Commission with effect from 1-1-2006, the deceased had a monthly salary of Rs.9,520/-. It is submitted that since the Sixth Pay Commission benefits were announced only subsequently making it to operate retrospectively from 1-1-2006, the salary certificate could not be produced before the Tribunal or the High Court. Applying the principles laid down in Sarla Verma case as explained in Santhosh Devi case, and in the instant case, the compensation has to be reassessed as follows:
Sl.No. Heads Calculation (i) Salary Rs.9,520per month (ii) 50% of (i) above to be added as future of the deceased (iii) 1/4th of (ii) deducted as personal expenses of the deceased (iv) Compensation after multiplier of 16 is applied (Rs.9,520+Rs.4,760=Rs.1 4,280 per month (Rs.14,280- Rs.3,570=Rs.10,710 per month (Rs.10,710X12X16)= Rs.20,56,320/-
(v) Loss of consortium Rs.1,00,000/-
(vi) Loss of care and guidance for minor children Rs.1,00,000/-
(vii) Funeral expenses Rs.25,000/-
Total Compensation Awarded Rs.22,81,320/-
The amount will carry interest @ 7.5% as awarded by the Tribunal from the date of the filing of the petition viz. 26-11-2007 till realization.”
(Figures are culled out from the decision to maintain clarity.) 29. Raju was aged 24 years as on the date of his death and thus, the percentage applicable in the area of prospective income for the cases wherein the deceased was aged less than 40 years as on the date of the accident, is 50.
30. Considering the cost of living, way of life and the status that is going to prevail in view of the relationship between the claimants and the deceased, there should be a striking of balance keeping in view the concept of ‘just compensation’.
31. There is also demand for man power whether skilled or otherwise. Further, man power-laborers are also resourced with alternatives, more particularly, a laborer was fit and not a victim of vices. In the instant case no allegation is made against Raju.
32. The Tribunal identifies the head of ‘loss of expectancy’ and awards Rs.20,000/-. However, ‘prospective income’ is either ignored or forgotten. Both of which ought not to have been done. The death of Raju, son of the claimants, his avocation and labour, cost of living etc., the notional monthly income ought to have been considered at Rs.6,000/- p.m. Insofar as the adjudication towards living and personal expenses is concerned, this Court does not find any irregularity in reckoning the same at 50%. Learned counsel for the claimants submits that the adjudication under this head is too high. After considering both the submissions, the Court is of the finding that the deduction as provided by the Tribunal does not call for any modification. Thus, it is just and proper to confirm 50% of the salary under the head ‘personal and living expenses’. Further, the submission of learned counsel for the Insurance Company regarding future income that no addition should be made also cannot be applied considering the principles applied in Sarala Varma’s case. It is further necessary to mention that in Rajesh’s case, their Lordships have referred and accepted the principles laid down in Sarala Varma’s case.
33. The formula or the procedure to the adopted for arriving at a just compensation is mentioned in the said case. Thus, ignoring the figure of salary, as it is applicable in the case referred, but in the case under disposal, the salary is taken at Rs.6,000/-. Thus, the calculation would be as per the recognized principles. Thus, deduction under personal and living expenses is taken at 50% of Rs.4,500/- per month towards the personal and living expenses. Raju at the time of death was aged 24 years and the multiplier as held in Sarala Varma’s case by the Apex Court is 18 and it is recognized as 18 and it is followed in the present case as 18.
34. Insofar as under the heads of love and affection and transportation of dead body considered by the Tribunal at Rs.20,000/- and Rs.10,000/- respectively, they do not call for modification.
35. When the grown-up son, who is young and maintaining the family is dead, grief and loss for the parents cannot be measured. Regard being had to the fact that they have will to be alive till their call comes, at the same time, there cannot be a fortune out of misfortune from the side of the claimants. The concept of just compensation is on the salary or the income of the deceased, dependents’ life style, the nature of food, daily requirements for their existence of the injured or the dependents of a person who died because of the accident, last but not the least, the humanity.
36. The claim of the Insurance Company that the claim depends on the fitness certificate of the offending vehicle cannot be accepted. It is to be noted that there is no contention by the Insurance Company or evidence as to the vehicle which is the offending vehicle was fit upto a particular length and thereafter becomes unfit.
37. The Insurance Company advertises, publishes and offers benefits expressing their concern to render social justice. 2/3rd towards personal and living expenses and 1/3rd to the family or the dependents, the fitness expired for the previous year and 8 months after it was renewed. Regard being had to the fact that on the date of the accident, the permit for the vehicle was in force are not justifiable more particularly, when the Motor Vehicle Act is also a social legislation, besides, the Insurance Companies claim that they have also social responsibility to be fulfilled.
38. The duty bound Insurance Company while issuing the policy is expected to make sure that all is well in respect of fitness certificate at the time of issuing the policy. Thus, the Insurance Company cannot be permitted to blow both hot and cold at the same time. The fitness certificate is in force, moreover emphasizing too much on the same by the Insurance Company is not justified.
39. Thus, the stand of the Insurance company that the claimants were disentitled for any kind of compensation by virtue of the death of their son in the road traffic accident on 18.08.2012 has no legs to stand. At the same time, the stand of the claimants that their son Raju was getting the income of Rs.15,000/- per month as he was doing business of selling commercial crops are not considered to hold that his monthly income as on the date of his death at Rs.15,000/-. The claim of the parents that the award granted is on the lower side and it requires enhancement by way of modification is acceptable to a reasonable extent. At the same time, the stand of the Insurance Company that the deceased during his life time was earning and he would have taken 2/3rd for his personal expenses is also not available.
40. The contention of the Insurance Company that no multiplier is applicable in the instant case does stand the test of reasoning. Further, the contention that 2/3rd of the income should have been deducted under the head living and personal expenses, at the same time the stand that Raju prior to accident was never a earning person is not acceptable.
41. In the context of the facts and circumstances, this Court does not find infirmity or illegality or irregularity in the judgment and award of the Tribunal in the matter of holding the negligence.
42. As stated above, the award suffers from irregularities, lack of application of mind and the Tribunal ought to have fixed on the fact that the statute is a social legislation. In the circumstances, it required modification to arrive at a just compensation as under;
Loss of Dependency Notional monthly income 6000 + Add:50% of notional monthly 3000=9000 income towards future prospects Less:50% towards personal & 50% of 9000=4500 Living expenses Annual income 4500x12=54000 Applying the multiplier of 18 54,000x18=9,72,000 Add: Compensation awarded = 48,500 by Tribunal on Medical Expenses, love and affection, transportation & funeral obsequies.
Total 10,20,500
43. In the light of prospective income being the question, considering the loss of expectancy does not arise. Thus, the Court is of the finding that just compensation to the appellants-claimants of deceased Raju, who was aged 24 years as on the date of death is Rs.9,72,000/-. Medical expenses at Rs.18,500/-, love and affection at Rs.20,000/- and transportation of dead body and funeral obsequies at Rs.10,000/- as granted by the Tribunal deserves to be maintained. However, in the light of considering prospective income under this appeal, Loss of expectancy at Rs.20,000/- is not considered in the light of future prospects. Thus, the award of Rs.5,54,500/- awarded by the Tribunal is apparently insufficient for the reasons morefully assigned above which needs to be enhanced by Rs.4,65,500/-. Insofar as the interest is concerned, what is granted by the Tribunal shall prevail.
44. In the result, MFA No.1904/2015 is allowed and MFA No.3771/2015 is dismissed.
Appellant Nos.1 and 2 in MFA No.1904/2015 are entitled for the total compensation of Rs.10,20,000/- and the respondent Insurance Company and the owner are jointly and severally liable to pay the same. In the circumstances of the case, the Insurance Company is directed to deposit the enhanced compensation amount of Rs.4,65,000/-. Insofar as the apportionment between the claimants are concerned, as rightly arrived by the Tribunal shall apply.
No order as to costs in both the appeals.
Office is directed to send back the records to the Tribunal. Further, the award amount deposited in this Court also be transferred to the Tribunal.
Sd/- JUDGE mv