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1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 23RD DAY OF DECEMBER, 2020 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MR. JUSTICE RAVI V.HOSMANI M.F.A.NO.103377/2016 BETWEEN
Smt. Girijadevi W/o Maniram Jatav Age: 47 years, Occ:Household work, R/o Nashik Then Goa, Now at Dharwad 580 008
Sri Chandrakant S/o Maniram Jatav Age: 28years. Occ: Nil R/o Nashik Then Goa, Now at Dharwad 580 008
….APPELLANTS
(By Sri. B.S. SANGATI, ADVOCATE )
AND 1. Dr. Shridhar R Pai, Owner of the vehicle No.GA-06/D-5382 Vasco da Gama Goa- 02
2 2. Bajaj Alliaz General Insurance Co., Ltd., Vasco Divisonal Office, Hubli, 4th floor, Kalaburgi Mension Lamington road, Opp: HDMC Hubli 580 021
Mayur S/o Shridhar Pai Age: 30years Occ: driver R/o Pai Hospital Vaddem Vasco da agama Goa -02 …RESPONDENTS (BY SRI. S.K.KAYAKMATH, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 30.07.2016 PASSED IN MVC NO.39/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL BEING RESERVED FOR JUDGMENT ON 17.12.2020, THIS DAY, RAVI V HOSMANI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by appellants challenging the judgment and award dated 30.07.2016 in MVC No.39/20014 passed by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, (hereinafter referred to as ‘Tribunal’ for short) Dharwad, seeking enhancement of compensation.
Brief facts of the case are that on 22.09.2013 at about 8.00 p.m. when Maniram Jatav was going by the side of road near Dobalim junction, driver of Maruthi Swift car bearing registration No.GA-06-D/5382, came in high speed and zigzag manner, lost control over it and dashed against pedestrian-Maniram. As a result, Maniram sustained fatal injuries. Though, he was shifted to Cottage hospital, Vadam and thereafter to Chicalim cottage hospital, but died during treatment. At that time, he was working in Indian Navy INS HANS Dobalim, Goa and getting salary of Rs.31,020/- p.m. It was also claimed that during evening time, he was working in M/s Om Sai furniture and earning additional income of Rs.9,000/- p.m. His wife and son filed claim petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs.60,55,000/- against owner and insurer of offending vehicle.
After receipt of notice, respondent No.2 – insurer entered appearance and filed written statement alleging that accident occurred when deceased suddenly in an inebriated condition tried to cross the road and due to his own negligence. Even age, occupation and income of deceased were denied. Respondent No.1-owner and
4 respondent No.3 driver of offending vehicle also filed written statement alleging sole negligence on the part of deceased, besides opposing the claim as excessive by denying entire claim averments.
Based on the above pleadings, tribunal framed following issues for its consideration: 1) Whether the Petitioners prove that on 22-09-2013 at about 8-00 p.m., when the deceased Maniram Jatav was going by walk by the side of the road near Dobolim junction, Vasco, Goa, the driver of the Maruthi Swift car bearing Regn. No.GA-06-D-5382 came driving the same in a rash and negligent manner and lost control over the vehicle and dashed against the same Maniram Jatav and caused accident and that on account of the said accident the said Maniram Jatav sustained grievous injuries and later died due to the injuries sustained by him in the accident?
2) Whether the Respondent No.2 proves that the accident has occurred due to the negligence on the part of the deceased?
3) Whether the Respondent No.2 proves that the driver of the offending vehicle was not holding valid and effective Driving Licence as on the date of the accident to drive the said class of vehicle?
4) Whether the Petitioners are entitled for compensation? If so, what is the quantum of compensation to which the Petitioners are entitled and from whom the compensation amount is recoverable?
5) What Award or Order?
After answering issue No.1 in affirmative; Issue Nos.2, 3; Addl. Issue Nos.1 and 2 in negative and Issue No.4 partly in affirmative, tribunal proceeded to award a total compensation of Rs.12,96,126/- with interest @ 8% per annum. The tribunal held that accident occurred due to the sole negligence of respondent No.3-driver of offending vehicle and directed respondent No.2 - insurer to pay the compensation. Being dissatisfied with meager compensation awarded by the tribunal, claimants are in appeal.
Learned counsel Shri. B.S. Sangati, for appellants submitted that tribunal has not properly considered gross salary from Navy and additional income of deceased from his employment with M/s Om Sai furniture; it did not add future prospects and further, without any specific reasons applied split multiplier/income method and awarded meager compensation.
On the other hand, learned counsel Shri. S.K. Kayakmath, for respondent No.2 submitted that tribunal rightly rejected additional income from employment with M/s Om Sai furniture, as it was without adequate proof. He further submitted that award under conventional heads was excessive and contrary to the decision in
6 National Insurance Company Ltd., Vs. Pranay Sethi & Ors. reported in AIR 2017 SC 5157 and rate of interest @ 8% awarded by the tribunal was also excessive. It was specifically submitted that deceased Maniram was aged about 59 years on the date of accident and he barely had few months of service left before attaining age of superannuation. After retirement, his income would reduce to only pension amount. Therefore, tribunal was justified in applying split multiplier/income method while computing compensation by reducing income to an extent of pension receivable post retirement.
In support of his submission, learned counsel relied upon decision of Hon’ble Supreme Court in Puttamma & Ors. Vs. K.L. Narayana Reddy & Another, reported in 2014 ACJ 526 ; Union of India & Other Vs. K.S. Lakshmi Kumar and Others reported in ILR 2000 Kar. 3809 and decisions of co-ordinate Benches of this Court in M.F.A.No.25007/2012 C/w M.F.A. No.25650/2012 disposed of on 20.01.2014; M.F.A. No.101620/2018 disposed of on 25.09.2020 and M.F.A. Crob. 100087/2019 disposed of on 18.03.2020 on the question of
7 proposition of law that split multiplier/income method was applicable in respect of claims in respect of death of persons in pensionable service.
We have heard learned counsel for both parties and perused impugned judgment and record.
From the above, it is not in dispute that deceased Maniram died in the accident that occurred on 22.09.2013 involving Maruthi Swift car of respondent No.1 insured with respondent No.2, and due to rash and negligent driving by respondent No.3. The liability of respondent No.2 to pay compensation is also not in dispute. The age, occupation and income of deceased Maniram from employment with Indian Navy is also not in dispute. The dispute is only with regard to additional income of deceased from employment with M/s Om Sai furniture, entitlement for addition of future prospects, applicability of split multiplier/income method and rate of interest on the award amount. 11. Insofar as income of deceased is concerned, on perusal of Ex.P.19 and Ex.P.20 – salary certificates issued by Naval authorities indicate gross monthly salary of deceased at Rs.31,020/-. Referring
8 to Ex.P.13, tribunal determined income tax payable at Rs.6,357/-. The deceased would also required to pay professional tax of Rs.200/-. Therefore, net income of deceased after deducting income tax would be Rs.24,463/-. The tribunal has determined age of deceased as 59 years referring to Pan card –Ex.P.12. As per decision in Pranay Sethi (supra), proper multiplier applicable would be ‘9’ and as deceased was a defence employee, future prospects applicable would be 15%. The deceased was married and having family consisting of wife and son. Considering same, tribunal held personal expenses at 1/3, which is not under challenge.
But, after taking into consideration above factors, tribunal proceeded to adopt split multiplier/income method to determine the total compensation. Since, applicability of said method to this case is in question, a reference to decision of this Court in Lakshmi Kumar’s case (supra) would be necessary. In para No.16, it is held as under:
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 referenced 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
9 accident, leaving behind him his surviving wife and two children, how should the total loss of dependency be calculated? Le us assume that his salary was Rs.6,000.00 and after retirement, his pension would be Rs.3,000/-. 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 et 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.”
In the instant case, deceased was having one year of service left and proper multiplier applicable is ‘9’. Applying the method evolved in Lakshmi Kumar’s case (supra) Rs.24,463/- + 15% - 1/3 = Rs.18,754.96 rounded off to Rs.18,755/-. Therefore, for one year of remaining service, loss of dependency would be Rs.18,755 X 12 = Rs.2,25,060/-. For the remainder period 50% of the salary would be received as pension. Therefore, loss of
10 dependency for this period would be 50% of the salary i.e., Rs.9,377.50/- (Rs.18,755/ 2). Rs.9,377.50 X 12 X 8 = Rs.9,00,240/-. Therefore, total loss of dependency would be Rs.2,25,060 + Rs.9,00,240 = Rs.11,25,300/-.
But, learned counsel for claimants has referred to Puttamma’s case (supra) in support of his submission that tribunal was not justified in applying split multiplier/income method to this case. Hon’ble Supreme Court in Puttamma’s case (supra) has held that in the absence of any specific reason and evidence on record, tribunal or the Court should not apply split multiplier method in routine course and should apply multiplier as per decision in the case of Sarla Varma & Ors. Vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121.
In this case, there is no dispute about service of deceased being pensionable. The question is, whether pension receivable by dependants of deceased would be deductable from compensation payable in a claim petition under the M.V. Act. In this regard, a three Judges’ Bench of Hon’ble Supreme Court in the case of
11 Reliance General Insurance Company limited Vs. Shashi Sharma and Others reported in (2016) 9 SCC 627, referring to earlier decision in the case of Helen Rebello and Patricia Jean Mahajan, held as under: (para No.26): “… similarly, other benefits extended to the dependants of the deceased government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, life insurance, provident fund, etc., that must remain unaffected and cannot be allowed to be deducted, which any way would be paid to the dependants of the deceased government employee, applying the principle expounded in Helen Rebello and Patricia Jean Mahajan.”
Even in the case of National Insurance Co., Ltd., Vs. Indira Srivastava and Others reported in (2008) 2 SCC 763, Hon’ble Supreme Court in para 10 held as under: “10. Section 168 of the Act uses the word “just compensation” which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lost sight of the fact that the private sector companies in place of introducing a pension scheme take recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income of the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined.”
12 17. Firstly, in none of the decisions of co-ordinate Benches of this Court, relied upon by insurer, a specific issue - whether pension can be deducted from compensation payable to claimants of the deceased was framed and answered. Secondly, Hon’ble Supreme Court in the case of Helen C Rebello and Patricia Jean Mahajan; Shashi Sharma and Ors. and also Indira Srivastava’s case (supra), consistently held that pension receivable cannot be deducted from compensation payable to claimants. It was observed that deceased and his dependants would have received the same regardless of death of employee and not as an additional amount on account of his death. Thirdly, tribunal while applying split multiplier method in this case has not assigned any specific reasons or referred to specific evidence available on record to show that deceased was incapable of earning income apart from pension.
For the foregoing reasons, we are of the considered view that the tribunal has committed a gross error in applying split multiplier method, same has led to miscarriage of justice, as claimants are deprived of ‘just compensation’. The loss of
13 dependency ought to have been calculated as per principles approved in Pranay Sethi’s case (supra). Therefore, compensation towards loss of dependency would be: Rs.18,755/-(Rs.24,463/- + 15% - 1/3 = Rs.18,754.96) X 12 X 9 = Rs.20,25,540/-, which is awarded to claimants. The tribunal has awarded a sum of Rs.1,00,000/- towards ‘love and affection’; Rs.50,000/- towards ‘loss of consortium’; Rs.50,000/- towards ‘loss of estate’ and Rs.25,000/- towards ‘funeral expenses’, which is clearly contrary to law laid down in Pranay Sethi case (supra). Before determining the award under conventional heads, a brief reference to the penultimate paragraph of the decision in Pranaya Sethi’ s case (supra)is necessary. “ … The aforesaid amounts should be enhanced at the rate of 10% in every three years”.
Since Pranay Sethi’s case (supra) was decided on 31.10.2017, we propose to add 10% to the conventional heads of compensation and award the same as follows: Claimant No.1 would be entitled to a sum of Rs.44,000/- towards ‘loss of consortium’; claimant No.2 would be entitled to
14 Rs.44,000/- towards ‘parental consortium’; claimants together would be entitled to a further sum of Rs.16,500/- towards ‘loss of estate’ and Rs.16,500/- towards ‘funeral expenses’.
Insofar as the rate of interest awarded by the tribunal at 8% per annum, it is seen that tribunal has not assigned any specific or special reasons for the same. This Court has consistently awarding interest @ 6% per annum on the compensation payable to victims in accident claim cases.
Therefore, as against the total award of Rs.12,96,126/- by the tribunal, reassessed compensation payable to claimants would be Rs.21,46,540/- with interest @ 6% per annum from date of petition till deposit under the following heads:
Loss of dependency Rs.20,25,540.00 2. Loss of consortium Rs. 44,000.00 3. Parental consortium Rs. 44,000.00 4. Loss of estate Rs. 16,500.00 5. Funeral expenses Rs. 16,500.00
TOTAL Rs.21,46,540.00
There is enhancement of compensation by Rs.8,50,414/-. Appeal is allowed in part. No order as to costs.
15 The direction issued by tribunal insofar as apportionment of compensation between claimant No.1 and 2, deposit and release is maintained with regard to the entire compensation. Registry is directed to draw decree in terms of the above award. The insurer is directed to deposit the balance compensation within a period of six weeks from the date of receipt of a copy of the award.
Sd/- JUDGE
Sd/- JUDGE
Psg*