R 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY M.F.A.NO.6934/2016(MV-D) C/W M.F.A.NO.6988/2017 (MV-D) M.F.A.NO.6934/2016 BETWEEN THE MANAGER RELIANCE GENERAL INSURANCE CO. LTD., SRI BALAJI ENCLAVE, NO. 782, 16TH MAIN, B.T.M.LAYOUT, 2ND STAGE, BENGALURU - 560 075 NOW REP. BY ITS LEGAL MANAGER, RELIANCE GENERAL INSURANCE CO LTD., REGIONAL OFFICE, 5TH FLOOR, CENTENARY BUILDING, NO. 28, M.G.ROAD, BANGALORE - 560 001. ...APPELLANT (BY SRI PRADEEP B, ADVOCATE) AND 1. SMT SUSHEELAMMA W/O LATE SURESH, NOW AGED ABOUT 52 YEARS, 2. SRINIVASA S/O LATE SURESH, NOW AGED ABOUT 31 YEARS 3. HARISHA S/O LATE SURESH, NOW AGED ABOUT 27 YEARS, 4. SHILPA S D/O LATE SURESH, NOW AGED ABOUT 24 YEARS, ALL ARE R/AT KOMAHALLI VILLAGE, KASABA HOBLI, CHANNAPATNA TALUK, RAMNAGARA DISTRICT - 562 160.
5. R J PRASHANTH S/O GANGADHARAIAH, NOW AGED ABOUT 47 YEARS, R/AT SHIVAGANGA NILAYA, SHIRAGATE, TUMKUR TOWN, TUMKUR - 585 202. …RESPONDENTS (BY SRI S.RAJU, ADVOCATE FOR R1 TO R4 SRI K.S.SHANTHARAJ, ADVOCATE FOR R5) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 21.07.2016 PASSED IN MVC NO.147/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGAR DISTRICT, AWARDING COMPENSATION OF RS.20,94,680/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
MFA NO.6988/2017 BETWEEN:
1. SMT SUSHEELAMMA W/O LATE SURESH, AGED 53 YEARS, 2. SRI SRINIVASA S/O LATE SURESH, AGED 32 YEARS 3. SRI HARISHA S/O LATE SURESH, AGED 28 YEARS, 4. SRI SHILPA S D/O LATE SURESH, AGED 25 YEARS, ALL ARE RESIDING AT KOMAHALLI VILLAGE, KASABA HOBLI, CHANNAPATTANA TALUK, RAMANAGARA DISTRICT - 562 160 … APPELLANTS (BY SRI.RAJU S., ADVOCATE) AND:
1. SRI R J PRASHANTH S/O GANGADHARAIAH, AGED 48 YEARS, R/AT SHIVAGANGA NILAYA, SHIRAGATTE, TUMKUR TOWN, TUMKUR - 585 202.
2. THE MANAGER RELIANCE GENERAL INSURANCE CO. LTD., SRI BALAJI ENCLAVE, NO. 782, 16TH MAIN, B.T.M.LAYOUT, 2ND STAGE, BENGALURU - 560 075 NOW REP. BY ITS LEGAL MANAGER, RELIANCE GENERAL INSURANCE CO LTD., REGIONAL OFFICE, 5TH FLOOR, CENTENARY BUILDING, NO.28,M.G.ROAD, BANGALORE - 560 001. … RESPONDENTS (BY SRI.B.PRADEEP, ADVOCATE FOR R2, R1 – SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 21.07.2016 PASSED IN MVC NO.147/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGAR DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMEPSANTION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT Claimants 1 to 4 and 2nd respondent – insurer in MVC.No.147/2014 on the file of the Senior Civil Judge and JMFC, Additional MACT, Channapattana, Ramanagar, (for short ‘Tribunal’) have come up in these two appeals.
(a) The appeal in MFA.No.6934/2016 is by the 2nd respondent – insurer in challenge to the judgment and award dated 21.7.2016 in MVC.No.147/2014 on the ground that the judgment and award passed therein is erroneous inasmuch as the liability to pay compensation by the insurer does not arise for the reason that the vehicle in question was not having valid permit as on the date of accident. Therefore, the said finding of the Tribunal is required to be set-aside in directing the compensation to be paid by the owner of the bus in question. The insurer is also challenging the quantum of compensation on the ground that the Tribunal has committed a serious error in quantifying the compensation payable by taking 1/4th of the income of the deceased towards his personal expenses and remaining 3/4th as loss of dependency instead of taking 1/3rd of his income as that would have been spent by the deceased towards his personal upkeep and remaining 2/3rd as that would have been available to the family. Consequently, the loss of dependency should be re-calculated by taking 2/3rd of his income as loss of dependency available to the family.
(b) Per contra, claimants 1 to 4 before the Tribunal have come up in MFA.No.6988/2017 seeking enhancement of compensation awarded by the Tribunal and also on the ground that there is a serious error committed by the Tribunal in taking the split multiplier while calculating the compensation payable towards loss of dependency, which should have been calculated taking the last drawn salary of the deceased as the basis for calculation of the compensation payable under the head of loss of dependency.
2. Since the lower court record is already received, these two appeals are taken up for final disposal in the presence of the learned counsel appearing for appellant/s in both the appeals, who are contesting respondent/s.
3. Admittedly, the claim petition filed before the Tribunal is by the widow and children of deceased - Suresh, who died in a road traffic accident on 21.1.2014 at about 5.10 pm., involving bus bearing registration No.KA-14/A- 2920. The said accident is not in dispute. So also death of Suresh as direct consequence to the injuries suffered in the said accident. It is seen that subsequently claim petition is filed by his widow and three children seeking compensation for his death. The first claimant is widow of deceased, second and third claimants are major sons, who are gainfully employed as stated in the claim petition and as well as in the evidence. Insofar as fourth claimant is concerned, she is daughter of deceased and she is said to be unmarried. However, in the evidence, there is reference to said person being married, but it does not indicate whether she was married as on the date of filing of the claim petition or subsequently.
4. In the proceedings before the Tribunal, the second claimant – Srinivasa, the eldest son of deceased – Suresh adduced evidence, wherein he would bring to the notice of the Tribunal that deceased was gainfully employed as a Meter Reader in BESCOM, earning monthly income of Rs.60,637/-. It has also come on record that as on the date of accident he was aged about 59 years and he was due to retire within one year. It is in this background the Tribunal has calculated loss of dependency to the family by applying split multiplier. While doing so, taking the last drawn salary as the income for one year and for the remaining years pensionary benefits that would accrue to his family as the basis, calculated the compensation towards loss of dependency which is said to be erroneous according to the claimants. Therefore, they are seeking modification of the same requesting this Court to apply last drawn salary of the deceased as the basis for calculating loss of dependency to the family with relevant multiplier 9 and accordingly, they seek for re-assessment of compensation by applying uniform income for all the 9 years.
5. In support of their contention, the claimants try to rely upon the judgment rendered by the Apex Court in the matter of Puttamma and others –vs- K.L.Narayana Reddy and Another, reported in (2013) 15 SCC 45, wherein at paragraph 32 to 34 the manner in which the multiplier is required to be taken is discussed, which reads as under:
“Split Multiplier 32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma prepared a table for the selection of multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier.
33. In K.R. Madhusudhan vs. Administrative Officer, this Court held as follows: (SCC p.692, paras 14-15), "14. 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 any reason there for. 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 2nd column in the Second Schedule to 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."
34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in Sarla Verma as affirmed in Reshma Kumari.”
Compliance with Sections 158(6) and 166(4) of the 1988 Act By relying upon the aforesaid judgment, the claimants would insist that the loss of dependency should be calculated taking the formula which is derived in Sarla Verma’s case and which is subsequently affirmed in Reshma Kumari’s case.
6. Per contra, learned counsel for the insurer, appellant in connected appeal would bring to the notice of this Court the judgment rendered by the Division Bench of this Court in Union of India & Others –vs- K.S.Lakshmi Kumar and Others, reported in ILR 2000 KAR 3809, where the Division Bench has explicitly stated the manner in which the multiplier is required to be calculated with reference to the persons having salaried income and whose service is likely to come to an end within the period of multiplier, which is required to be adopted. The relevant paragraph reads as under:
“16. Where the multiplier applicable is higher than the number of years of service which the deceased had before superannuation, the contribution to the family (or loss of dependency) cannot obviously be calculated with the reference to the salary income, for the entire period of multiplier. Let us illustrate. If a person aged 56 years (whose age of superannuation is 60 years) dies in an accident, leaving him surviving his wife and two children, how should the total loss of dependency be calculated? Let us assume that his salary was Rs.6,000.00 and after retirement, his pension would be Rs.3,000.00. Under the Davies method accepted and adopted by the Supreme Court, the applicable multiplier will be '9'. But, deceased would have got salary income for only 4 years and then he would get only pension. If the deduction towards personal and living expenses of the deceased is one-third, the contribution to the family during the period of service (4 years period) would have been Rs. 4,000/- (that is Rs. 6000-2000). But, obviously the contribution to the family would not have been Rs. 4,000/- after his retirement, that is from the 5th year onwards. When the pension is Rs. 3,000/- per month, after deducting one-third as personal and living expenses, the contribution to the family will only to be Rs. 2,000/- per month. Therefore, the loss of dependency cannot be taken as Rs. 4,000/- per month for the entire period of 9 years representing the multiplier. It has to be taken as Rs. 4,000/- per month for the first four years (when he would have been in service) and Rs. 2,000/- per month for the remaining five years (when he would have received pension). The method adopted in the above illustration will have to be applied in this case.
7. When the aforesaid two judgments, one referred by claimants and another by insurer, referred to supra, are looked into, it would clearly give an indication that the Apex Court while considering the matter with reference to applicability of split multiplier has not specifically over ruled the judgment of the Division Bench of this Court in Union of India –vs- K.S.Lakshmi Kumar’s case, referred to supra. On the contrary, what is stated by the Apex Court is that, “in the absence of any specific reason and evidence on record, the Tribunal or the Court should not apply the split multiplier in routine course.” If that is looked into, the Apex Court is not averse to the application of split multiplier for calculation of compensation payable under the head loss of dependency. But, the observation of the Apex Court is, to apply such method there should be enough material and also reason to follow such method.
8. Therefore, if the case of hand is viewed from that angle, it is clearly seen that deceased – Suresh was permanent employee of BESCOM as on the date of accident and that, his salaried income was Rs.60,637/- per month, which was assured for only one year. Thereafter, for the remaining 8 years, his income is required to be calculated on the basis of income that he would have received after his retirement i.e., his pensionary benefits, particulars of which is available on record. Therefore, in the fact situation, the Tribunal was justified in taking the last drawn salary of deceased for the first year and for the remaining 8 years, 8 out of 9 multiplier, applying the pensionary income that would have derived to him appears to be just and proper and does not call for interference by this Court in view of the judgment of the Apex Court in Puttamma’s case, referred to supra.
9. In fact, we would like to clarify that it was never the intent and purport of the judgment in Puttamma’s case, where there is no specific direction by the Apex Court in holding that split multiplier should not be applied and it is only the last drawn salary at the time of death of deceased should be taken for all the years of multiplier. Therefore, the contention of the claimants that the Tribunal has erred in computing the compensation under loss of dependency by applying split multiplier method, cannot be accepted.
10. Now coming to the ground urged by the insurer that the vehicle was not having valid permit as on the date of accident, as such there is no liability on the insurer to pay compensation does not hold water in the light of judgment rendered by the Apex Court in the matter of Amrit Paul Singh & Anr., -vs- Tata AIG General Insurance Co., Ltd., & Others, reported in (2018) 7 SCC 558, where the Apex Court would observe as under:
“24. x x x x x Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.”
In that view of the matter, the contention of the insurer that there is no liability on it to pay compensation is erroneous. In any event, if the permit is not available to the vehicle as on the date of accident, it is open for the insurer to initiate appropriate proceedings and thereafter to recover the compensation, which it has paid along with interest. Further, in the event the insurer tries to recover the compensation which is ordered to be paid in this judgment, it is open for the insured to take appropriate defence of having valid permit, if it is available for the period when the accident took place.
11. Insofar as the other ground urged by the insurer with reference to quantum of compensation is concerned, it is seen that the deceased is survived by his wife and three children. Out of that as on the date of accident, his two of the sons were gainfully employed and they were not dependent on him. It is only himself, his widow and his unmarried daughter were depending on his income. In the aforesaid circumstances, what should have been taken is 2/3rd of his income as loss of dependency for the family after deducting 1/3rd towards his personal upkeep. Whereas, the Tribunal has taken the same at 3/4th which is erroneous.
12. Accordingly, if 2/3rd of income of the deceased is taken, then the compensation that the claimants would be entitled to is as under:
The monthly income of deceased which is arrived at by the Tribunal is Rs.45,437/-. In this, if 1/3rd is deducted towards the personal upkeep of deceased, what would be available to the family towards loss of dependency is Rs.30.291.33 pm., rounded off to Rs.30,291/- and per annum it is Rs.3,63,492/-. This amount is available for one year. For remaining 8 years, the monthly income would be the monthly pension of the deceased and the same is arrived at Rs.15,145/- i.e., 50% of the Rs.30,291/-. If the same is annualized and multiplied by 8, it would come to Rs.14,53,920/- and the total compensation under the head loss of dependency would come to Rs.18,17,412/-, for which another sum of Rs.70,000/- is required to be added towards compensation payable under conventional heads. Thus, the total compensation that the claimants would be entitled to is Rs.18,87,412/- and the judgment and award passed by the Tribunal is modified to that effect.
13. Accordingly, the appeal filed by the insurance company is allowed in part. Since the appeal filed by the insurance company is allowed in part, the appeal filed by the claimants seeking enhancement of compensation does not survive for consideration and the same is dismissed.
14. The amount in deposit is ordered to be sent to the Tribunal with a direction to release the same in favour of the claimants in the same proportion in which it is ordered to be released by the Tribunal in its judgment and award impugned in these appeals.
In view of the disposal of appeals, pending application does not survive for consideration, hence, it is dismissed.
Sd/- JUDGE Sd/- JUDGE nd/-