IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.3686/2015 (MV) BETWEEN:
1. MRS. SAVITHRI DEVI W/O MR. RAVINDRA SINGH @ RABINDRA SINGH AGED ABOUT 53 YEARS 2. MUNNA KUMAR SINGH S/O MR. RAVINDRA SINGH @ RABINDRA SINGH AGED ABOUT 33 YEARS 3. PINT KUMAR SINGH S/O MR. RAVINDRA SINGH @ RABINDRA SINGH AGED ABOUT 31 YEARS 4. SATHYAPAL SINGH @ SATHPAL SINGH @ BANTI SINGH S/O MR. RAVINDRA SINGH @ RABINDRA SINGH AGED ABOUT 29 YEARS 5. MAMATHA KUMARI D/O MR. RAVINDRA SINGH @ RABINDRA SINGH AGED ABOUT 28 YEARS 6. CINTHU KUMAR SINGH S/O MR. RAVINDRA SINGH @ RABINDRA SINGH AGED ABOUT 26 YEARS 7. SAMTA KUMARI D/O MR. RAVINDRA SINGH @ RABINDRA SINGH AGED ABOUT 20 YEARS ALL ARE RESIDING AT SINAHGHAT HOUSE AND POST BHOJAPURA TALUK AND DISTRICT BIHAR STATE, PIN-841301.
...APPELLANTS (BY SRI.RAVISHANKAR SHASTRY G, ADV.) AND:
1. MR. SUNIL KUMAR S/O LATE JAYANTHA SUVARNA AGED ABOUT 37 YEARS R/AT NANDAPPA NIVAS NO.3-89, MOGAVEERA PATNA ULLAL, MANGALORE TALUK D.K., PIN-575018.
2. RELIANCE GENERAL INSURANCE CO. LTD., MAXIMUS COMMERCIAL COMPLEX 4TH FLOOR, LIGHT HOUSE HILL ROAD HAMPANKATTA, MANGALORE D.K., PIN-575001. REPRESENTED BY ITS BRANCH MANAGER …RESPONDENTS (BY SRI.H N KESHAVA PRASHANTH, ADV. FOR R2 R1- NOTICE D/W V/O DT:14.07.2016) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.10.2014 PASSED IN MVC NO.481/2010 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALORE, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimants are in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 18.10.2014 passed in MVC No.481/2010 on the file of III Additional Senior Civil Judge and MACT, Mangaluru, D.K.
2. The claimants are parents, brothers and sister of the deceased Rintu Kumar Singh. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the accidental death of one Rintu Kumar Singh in a Road Traffic Accident. It is stated that on 11.12.2009 when the deceased was proceeding in a Motor Cycle bearing No.KA-20-H-4700 he lost control over the Motor Cycle and fell down on the road, at that time a Tourist Car bearing Reg.KA-19-B-
8887 came in a rash, negligent manner and dashed to the deceased, due to which the deceased sustained grievous injuries. Immediately he was shifted to Government Wenlock District Hospital, Mangalore, where he was declared brought dead. It is stated that the deceased was aged 18 years as on the date of accident, he was earning monthly salary of Rs.12,000/- by doing tile fixing work under PW.2 – one Mr. Joginder Singh.
3. On issuance of summons the 1st respondent remained absent. Respondent No.2 - Insurance Company appeared and filed its written statement and denied the claim petition averments. It is stated that the accident occurred solely due to the rash, negligent driving of the Motor Cycle by the deceased himself and not due to the negligence on the part of the driver of the Car. It is also contended that the drivers of both the vehicles had no valid and effective driving licence as on the date of accident. Further the Insurer stated that the compensation claimed is exorbitant and excessive. In support of their case the claimant No.1 - Father of the deceased examined himself as PW.1 and also examined PWs.2 and 3 apart from marking the documents as Exs.P1 to P10. Insurer marked Ex.R1 – the Insurance Policy. The Tribunal based on the material on record awarded total compensation of Rs.7,94,000/- with interest at 6% p.a. from the date of petition till the date
While awarding the above compensation the Tribunal assessed the monthly income of the deceased at Rs.6,000/- per month and adopted the multiplier of '13' taking the age of the mother of the deceased. The claimants aggrieved by the quantum of compensation awarded by the Tribunal, are in appeal before this Court, praying for enhancement of compensation.
4. Heard the learned counsel for the appellants and learned counsel for the respondent - insurer. Perused the entire material on record.
5. Learned counsel for the appellants/claimants would submit that the income assessed by the Tribunal at Rs.6,000/- is on the lower side. It is submitted that the claimants examined PW.2 - the employer of the deceased and also produced Ex.P.10 - the salary certificate, which clearly states that the deceased received salary of Rs.12,000/- per month. But the Tribunal without there being any reason rejected the same and assessed the notional income at Rs.6,000/- per month, which is on the lower side. Further he submitted that the Tribunal committed an error in adopting the multiplier of '13' taking the age of the mother. It is his submission that as on this date it is settled position of law that while adopting the appropriate multiplier, the age of the deceased will have to be taken. It is his further submission that the Tribunal failed to award any compensation on the head of future prospects. The deceased was aged 18 years as on the date of accident and the claimants would be entitled for adding 40% of the assessed income towards future prospects. Further it is his submission that the claimants 1 and 2, who are the parents of the deceased would be entitled to Rs.40,000/- each on the head filial consortium. Thus he prays for enhancement of compensation.
6. Per contra, learned counsel for the respondent- insurer submits that the Tribunal awarded just compensation which needs no interference. He further submits that claimants are parents, brothers and sisters of the deceased. Only the 2nd claimant - mother is dependent and other claimants are not depending on the income of the deceased. Therefore, he submits that the Tribunal ought to have deducted 50% of the assessed income towards personal expenses. 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 emerge for consideration is as to a. Whether the Tribunal is justified in assessing the income of the deceased at Rs.6,000/- per month?
b. Whether the Tribunal is justified in taking the multiplier of 13 taking the age of the mother of the deceased, for applying the correct multiplier ?
c. Whether the claimants would be entitled for adding 40% of the assessed income towards future prospects ?
d. Whether the claimants 1 and 2 would be entitled for filial consortium ?
Points (a, c and d) are answered in the affirmative and point (b) is answered in the negative for the following reasons :-
The occurrence of the accident on 11.12.2009 involving the Motor Cycle bearing No.KA-20-H-4700 and the Tourist Car bearing Reg.No.KA-19-B-8887 and the accidental death of one Rintu Kumar Singh is not in dispute in this appeal. The claimants’ appeal is for enhancement of compensation. The Tribunal assessed the income of the deceased at Rs.6,000/- per month. Learned counsel for the appellants contends that the income assessed is on the lower side and prays for enhancing the same by relying on Ex.P.10 – the Salary Certificate and evidence of PW.2 - employer of the deceased. PW.2 - employer of the deceased states in his evidence that he was paying a sum of Rs.12,000/- to the deceased and Ex.P.10 – the Salary certificate is placed on record to show that the deceased was earning salary of Rs.12,000/- per month. But no piece of document is placed on record to establish payment of Rs.12,000/- by PW.2 to the deceased. The trial Court taking note of the evidence of PW.2 and assessing Ex.P.10 - the salary certificate was of the view that evidence of PW.2 employer cannot be acceptable. PW.2- employer without producing any document to establish the payment made by him merely could not have stated that he was paying the deceased monthly salary of Rs.12,000/-. Thus the Tribunal rightly assessed the income of the deceased at Rs.6,000/- per month, which requires no interference. Point No.1 is answered in the affirmative.
The Tribunal has adopted the multiplier of '13' taking the age of the mother i.e., claimant No.2. While applying the multiplier the Tribunal has committed an error. It is settled law as on this date that while applying the correct multiplier the age of the deceased will have to be taken. The Hon'ble Apex Court in 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).”
A reading of the above decision of the Hon'ble Apex Court makes it clear that while applying the multiplier, the age of the deceased will have to be considered. Since the age of the deceased was 18 years as on the date of accident, the appropriate multiplier would be '18'. Thus point No.2 is answered in the negative.
The Tribunal failed to award any compensation on the head ‘future prospects’. The deceased was aged 18 years. The Hon'ble Apex Court in NATIONAL INSURANCE COMPANY LTD. VS. PRANAY SETHI reported in 2017 (16) SCC 680 case has made it clear that wherever the age of the deceased was below 40 years, the claimants would be entitled for adding 40% of the assessed income towards future prospects.
Further the 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 on guess work, while awarding future prospects. I am of the view that in the case on hand, the claimants would be entitled for adding 40% of the assessed income towards future prospects. Thus point No.3 is answered in the affirmative.
Claimant Nos.1 and 2 are the parents of the deceased, who have lost the love, affection care and concern of their young son aged 18 years. Hence the parents would be entitled to Rs.40,000/- each on the head filial consortium as held in the decision of the Hon'ble Apex Court in MAGMA GENERAL INSURANCE CO. LTD. V. NANU RAM reported in 2018 ACJ 2782.
Thus point No.4 is answered in the affirmative. Learned counsel for the respondent - insurer contended that claimant No.2 is the mother of the deceased and she is the only dependent and other claimants 3 to 8 are brothers and sisters of the deceased cannot be considered as dependends on the deceased. Hence submits that the Tribunal ought to have considered the deduction at 50% towards personal expenses. The said contention, cannot be accepted in the facts and circumstances of the present case, for the reason that the insurer is not in appeal before this Court. In the present case, even though the brothers are not depending on the income of the deceased, one minor sister - who is claimant No.8 would be considered as dependent on the income of the deceased to some extent. As such the Tribunal is justified in deducting 1/3rd towards personal expenses of the deceased. Thus the claimants would be entitled for the modified compensation as follows :-
1. Loss of dependency including future prospects Rs.6,000/- + 40% = Rs.8,400/-
Rs.8,400/- less 1/3 = Rs.5,800/-
Rs.5,800/- x 12 x 18 Rs.12,09,600/-
2. Filial consortium 80,000/-
3.ConventionalHeads 30,000/-
TOTAL Rs.13,19,600/-
Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent. The claimants would be entitled to the modified compensation in a sum of Rs.13,19,600/- as against Rs.7,94,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization. The apportionment and deposit would be as ordered by the Tribunal.
Sd/- JUDGE NG*CT:bms