R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.5659 OF 2013 (MV) C/W MFA NO.8220 OF 2013 (MV) IN MFA NO.5659 OF 2013: BETWEEN UNITED INDIA INSURANCE CO. LTD., DIVISINAL OFFICE, III PARTY HUB, 5TH FLOOR, KRISHI BHAVAN, BANGALORE.
REP. BY ITS MANAGER MR. K. CHANDRASHEKAR.
... APPELLANT (BY SMT. B.C. SEETHARAMA RAO, ADVOCATE) AND 1. SMT. NOORUSH SHAMA @ NURUSH SAMA, AGED ABOUT 52 YEARS, 2. MASTER. MOHAMMED SADEN @ SYED SADATH, AGED ABOUT 18 YEARS, S/O. LATE H/ES RASUL @ SYED ETHESHYAM RASOOL, BOTH ARE RESIDENTS OF JAYARAMAPURA VILLAGE, PHAGOL TOWN, SALIPUR P.S., CUTTACK DISTRICT, ORISSA STATE.
3. SRI. A. SANJEEV KUMAR, MAJOR, S/O. A. ARUMUGAM, NO.278, L.R. NAGAR, KORAMANGALA, BANGALORE-560 047. (OWNER OF TIPPER LORRY NO.KA.51/8575) 4. SRI. DENNYS GEORGE, MAJOR, S/O. P.K. GEORGE, R/A. MANNAR SILVER SHADOWS 2/1A, FLAT NO.GO1, ACER BLOCK, KASASAVANAHALLI POST, BANGALORE-560 035.
(INSURED OF TIPPER LORRY NO.KA.51/8575) ... RESPONDENTS (BY SRI. SHRIPAD V. SHASTRI, ADVOCATE FOR R1 & R2 NOTICE TO R-3 AND R-4 IS DISPENSED WITH VIDE COURT ORDER DATED 09.09.2015 ) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2013 PASSED IN M.V.C NO.6459/2011 ON THE FILE OF THE 9TH ADDITIONAL SMALL CAUSES JUDGE, 34TH ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BANGALORE, AWARDING A COMPENSATION OF RS.3,88,500/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
IN MFA NO.8220 OF 2013 BETWEEN:
1. SMT. NOORUSH SHAMA @ NURUSH SAMA, AGED ABOUT 52 YEARS, W/O. LATE H-ES RASUL @ SYED ETHESHYAM RASOOL.
2. MASTER MOHAMMED SADEN @ SYED SADATH, AGED ABOUT 18 YEARS, S/O. LATE H-ES RASUL @ SYED ETHESHYAM RASOOL, R/AT JAYARAMAPURA VILLAGE, PHAGOL TOWN, SALIPUR P.S., CUTTACK DISTRICT, ORISSA STATE.
NOW R/AT C/O. A.SYED GHOUSE, NO.7/4, SOUTH CROSS STREET, NEELASANDRA, BANGALORE-47.
(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE ) AND 1. SRI. A SANJEEV KUMAR, MAJOR IN AGE, S/O. M.ARUMUGAM, NO.278, L.R.NAGAR, KORAMANGALA, BANGALORE-560 047.
2. SRI. DENNYS GEORGE, MAJOR IN AGE, S/O. P.K.GEORGE, MANNAR SILVER SHADOWS, ... APPELLANTS 2/1A, FLAT NO.GO1, ACER BLOCK, KASAVANAHALLI, POST SA, BANGALORE-560 035.
3. THE DIVISIONAL MANAGER, M/S.UNITED INDIA INSURANCE CO.LTD., THIRD PARTY HUBB, 5TH FLOOR, KRUSHI BHAVAN BUILDING, CORPOATION CIRCLE, BANGALORE-560 007.
... RESPONDENTS [BY SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R-3 NOTICE TO R-1 & R-2 IS DISPENSED WITH AS PER VIDE COURT ORDER DATED 05.11.2014] THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.04.2013 PASSED IN MVC NO.6459/2011 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE, & XXXIV ACMM, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’S COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER Though these matters are posted for admission, at the consent of both the learned counsel, it is taken up for final disposal.
MFA No.5659/2013 has been preferred by the appellant – Insurance Company, challenging the quantum of compensation awarded by the Tribunal in MVC No.6459/2011, wherein a sum of Rs.3,88,500/- with interest at 6% per annum was awarded to the respondents/claimants for the death of one Syed Imtiyaz, on account of a road traffic accident which occurred on 24.04.2011.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
3. The claimants are the mother and the younger brother of the deceased Syed Imtiyaz. The case of the claimants is that on 24.04.2011 at about 10.45 a.m., the deceased Syed Imtiaz was riding his bicycle near NGV, Adugodi Main Road and at a place near Adiparashakti Temple, Lakshmanarao Nagar, the tipper lorry bearing Registration No.KA-51-8575 driven by its driver in a rash and negligent manner, dashed against the bicycle and in the said accident, Syed Imtiyaz suffered serious injuries and he was shifted to St. Philomina’s Hospital, wherein he was declared dead.
4. The claim petition was filed under Section 163-A of the M.V. Act before the Tribunal claiming a total compensation of Rs.10 Lakhs. Before the Tribunal, the mother of the deceased was examined as PW-1 and Exs.P-1 to P-14 were got marked. On behalf of the respondents, no evidence was led. The Tribunal by its judgment and award dated 25.04.2013, awarded a total compensation of Rs.3,88,500/- with interest at 6% per annum from the date of petition till payment.
5. Assailing the aforesaid judgment and award passed by the Tribunal, the appellant-Insurance Company has preferred this appeal.
6. It is the contention of the learned counsel for the appellant that the Tribunal has committed an error in assessing the compensation for the death of a bachelor by adopting the multiplier of 16 applicable to the age of the deceased as against the multiplier applicable to the age of the mother of the deceased. The learned counsel placing reliance on the judgment of the Hon’ble Apex Court in the case of National Insurance Company vs. Shyam Sing and others reported in 2011 AIR SCW 4126, contended that in a claim petition filed under Section 163-A of the M.V. Act, the age of the dependant has to be considered and not the age of the deceased. Accordingly, he submits that the quantum of compensation arrived at by the Tribunal is on the higher side and seeks to allow the appeal.
6. Per contra, the learned counsel appearing for the respondents would contend that the claim petition having been filed under Section 163-A of the M.V. Act, the schedule appended to the Section has to be taken into consideration, whrerein for the age group between 15-20 years, the multiplier which is applicable is 16 and therefore, the Tribunal has rightly calculated the multiplier, taking the age of the deceased. His further contention is that when a claim petition is filed under Section 163-A of the M.V. Act by a person other than the wife and children, the Tribunal cannot apply the multiplier lower than one permitted in the second schedule. In support of the said contention, he places reliance on a full bench decision of this Court reported in ILR 2001 KAR 2879 in the case of ‘Guruanna vadi and Another Vs. General Manager, KSRTC and another’.
The question which arises for consideration in this appeal is :
“Whether the Tribunal was proper in taking the multiplier with regard to the age of the deceased and as to whether the compensation awarded is on the higher side or not?”
7. The case of the claimants is that the deceased while riding his bicycle on 24.04.2011 at about 10.45 a.m., met with an accident near Adiparashakthi Temple, Lakshmanarao Nagar involving a tipper lorry bearing Registration No.KA-51-8575. The negligence on the part of the driver of the said lorry is not disputed. Even otherwise the Tribunal after considering the FIR, complaint, spot panchanama which are marked at Exs.P-1 to P-3 has come to the conclusion that the accident has occurred on account of the rash and negligent driving by the driver of the lorry.
8. It is the contention of the learned counsel for the appellant that the Tribunal erred in taking the age of the deceased for computing the compensation under the head ‘Loss of dependency’. Learned counsel for the appellant has placed reliance on the judgment of the Hon’ble Supreme Court in the case of National Insurance Company vs/ Shyam Singh and others reported in 2011 AIR SCW 4126, wherein the Hon’ble Apex Court at Para – 9 has observed as under ;
“Para 9 - This Court in the case of Vijay Shankar Shinde and Ors. v. State of Maharashtra (2008) 2 SCC 670, after referring to the earlier judgments of this Court, in detail, dealt with the law with regard to determination of the multiplier in a similar situation as in the present case. The said findings of this Court are as under:
"6. We have given anxious consideration to these contentions and are of the opinion that the same are devoid of any merits. Considering the law laid down in New India Assurance Co. Ltd. v. Charlie AIR 2005 SC 2157, it is clear that the choice of multiplier is determined by the age of the deceased or claimants whichever is higher. Admittedly, the age of the father was 55 years. The question of mother's age never cropped up because that was not the contention raised even before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life.
7. The learned Counsel relying on the 2nd Schedule of the Act contended that the deceased being about 16 or 17 years of age, a multiplier of 16 or 17 should have been granted. It is undoubtedly true that Section 163A was brought on the Statute book to shorten the period of litigation. The burden to prove the negligence or fault on the part of driver and other allied burdens u/s 140 or 166 were really cumbersome and time consuming. Therefore as a part of social justice, a system was introduced via Section 163A wherein such burden was avoided and thereby a speedy remedy was provided. The relief u/s 163-A has been held not to be additional but alternate. The Schedule provided has been threadbare discussed in various pronouncements including Deepal Girishbhai Soni v. United India Insurance Co. Ltd. AIR 2004 SC 2107. 2nd Schedule is to be used not only referring to age of victim but also other factors relevant therefore.
Complicated questions of facts and law arising in accident cases cannot be answered all times by relying on mathematical equations. In fact in U.P.
State Road Transport Corporation v. Trilok Chandra (1996) 4 SCC 362, Ahmedi, J. (As the Chief Justice then was) has pointed out the shortcomings in the said Schedule and has held that the Schedule can only be used as a guide. It was also held that the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. If a young man is killed in the accident leaving behind aged parents who may not survive long enough to match with a high multiplier provided by the 2nd Schedule, then the Court has to offset such high multiplier and balance the same with the short life expectancy of the claimants. That precisely has happened in this case. Age of the parents was held as a relevant factor in case of minor's death in recent decision in Oriental Insurance Co. Ltd. Syed Ibrahim and Ors. AIR 2008 SC 103. In our considered opinion, the Courts below rightly struck the said balance."
9. However, in a subsequent judgment, the Hon’ble Apex Court in the case of Munnalal Jain Vs/ Vipin Kumar Singh reported in 2015 (6) SC 347 has held at Para -11 as under ;
“Para11 - The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three- Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote: (Reshma Kumari case, Para 36) “36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (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. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma”
In the above judgment, the Hon’ble Apex Court placing reliance on Reshma Kumari’s vs. Madan Mohan reported in (2013) 9 SCC 65 has observed that the multiplier is to be used with reference to the age of the deceased.
10. This Court in the case of New India Assurance Company Limited Vs. I.C. Biredar and others in MFA No.9266/2006 dated 06.11.2009, at para-16 has observed that as far as the quantum of compensation is concerned, the Tribunal has to follow the structured formula when the claim petition is filed under Section 163-A of M.V. Act.
11. In the present case, the Tribunal has rightly taken the multiplier as provided under Schedule-II which is applicable to the age of the deceased and therefore I do not see any error committed by the Tribunal. Accordingly, the appeal is dismissed. The amount in deposit be transmitted to the Tribunal.
MFA NO.8220/2013 Sri. B.C. Seetharama Rao, learned counsel takes notice for Respondent No.3 insurance company. Since he is already representing it in the connected appeal. He is permitted to file vakalath.
This appeal is preferred by the claimants seeking enhancement of compensation in MVC No.6459/2011, wherein the Tribunal has awarded a total compensation of Rs.3,88,500/- with interest at 6% per annum.
2. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents.
3. According to the claimants, the deceased was aged about 18 years and he was working as a coolie in Tandoor Hut Hotel and earning Rs.3,000/- per month. The claim petition was filed under Section 163-A of the M.V. Act claiming a total compensation of Rs.10 Lakhs. The said claim petition was opposed by respondent No.3 – Insurance Company.
4. The Tribunal after considering the evidence and material on record, came to the conclusion that the accident was on account of the rash and negligent driving by the driver of the tipper lorry and awarded a total compensation of Rs.3,88,500/- with interest at 6% per annum.
5. Learned counsel for the appellants would contend that under the structured formula, the deceased is entitled for a compensation of Rs.6,48,000/-, of which 2/3rd is Rs.3,84,000/- (Rs.2,000x12x16).
6. That in the instant case, according to the claimants, the deceased was earning Rs.3,000/- per month and he was aged about 18 years. With regard to the age and income, there is no serious dispute by the learned counsel for the respondents. The Tribunal after deducting 1/3rd of the income of the deceased, has taken the income at Rs.2,000/- per month, which is Rs.24,000/- per annum and adopted the multiplier 16 as provided under Schedule-II and computed the loss of dependency at Rs.3,84,000/-.
7. This Court in the case of K. Balan and another vs. Anish Joy and another in MFA No.6408/2009 dated 16.10.2011, in an identical situation has computed the loss of dependency considering Schedule-II to Section 163-A of the M.V. Act and held that the loss of dependency would be Rs.6,84,000/-. Even in the said case, the deceased was aged 19 years which is between the age group of 15 and 20 years. After deducting 1/3rd of his income, this Court held that the claimants were entitled to a sum of Rs.4,56,000/- towards ‘loss of dependency’. Even in the present case, the deceased was earning a sum of Rs.3,000/- per month which is Rs.36,000/- per annum. As per Schedule-II to Section 163-A of the M.V. Act, the loss of dependency would be Rs.6,84,000/- and after deducting 1/3rd, the claimants would be entitled to Rs.4,56,000/- as against Rs.3,84,000/- awarded by the Tribunal. Further, the claimants are entitled for compensation under the head ‘funeral and obsequial expenses’. The quantum indicated in Schedule-II for funeral expenses is Rs.4,500/-. Accordingly, the said amount is awarded under the head ‘funeral expenses’. The claimants are entitled for a total compensation of Rs.4,60,500/- (Rs.4,56,000/- +Rs.4,500/-).
Accordingly, I pass the following:
ORDER (i) The appeal is partly allowed.
(ii) The impugned Judgment and Award dated 25.04.2013 passed in MVC No.6459/2011 by the IX Additional Small Cause Judge and XXXIV ACMM, Court of Small Causes (SCCH- 7), Bengaluru is hereby modified by awarding Rs.4,60,500/- with interest at 6% per annum from the date of petition till realization as against Rs.3,84,000/- awarded by the Tribunal.
(iii) The respondent No.3/Insurance Company shall deposit the compensation amount within a period of four weeks from the date of the receipt of the copy of this judgment.
snc Sd/- JUDGE