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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JUNE 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MFA No.1812/2016 (MV)
BETWEEN
ASLAM SHARIFF S/O ABDUL LATHEEF AGED ABOUT 42 YEARS R/O BEHIND SANTHEPETE SCHOOL HUNSINAKERE LAYOUT, VALLABHAI ROAD HASSAN CITY, HASSAN PINCODE – 573 201. …APPELLANT
(By Sri BYRA REDDY, ADVOCATE Smt. KAVITHA H.C, ADVOCATE)
AND
ASLAM
S/O MUNEER AHMMED MAJOR
R/O AMBEDKAR NAGARA
BEHIND KPTCL HASSAN CITY
HASSAN DISTRICT – 573 201.
THE MANAGER
NATIONAL INSURANCE CO. LTD.,
MANJUNATHA COMPLEX
OLD BUS STAND ROAD
HASSAN – 573 201. …RESPONDENTS
(By Sri S.V HEGDE MULKHAND, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 5.12.2015 PASSED IN MVC No.654/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED ON 05.04.2017 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
This appeal is directed against the judgment and award passed in MVC No.654/2014 dated 5/12/2015 by the learned Addl .Senior Civil Judge and Addl. MACT Hassan. The appellant who is the petitioner-claimant before the Tribunal seeks enhancement of compensation of Rs.2,96,000/- granted by the Tribunal. Originally, the petitioner-claimant had claimed compensation of Rs.10 lacs together with interest at the rate of 18% p.a. because of the disability suffered due to the injuries sustained by him in the road traffic accident.
To avoid overlappings and confusions, the parties are hereafter referred with reference to their status before the Tribunal.
That on 18.01.2014 at about 11.30 a.m. when the petitioner was proceeding as a pillion rider on a motorcycle bearing registration No.KA.13-S-1993, which was ridden by his relative towards chicken shop at Amir Mohalla besides Muslims burial ground, Hassan, another motorcycle bearing registration No.KA.13-EB-1171 was approaching from the opposite direction being driven in a rash and negligent manner and dashed against the motorcycle, on which the claimant was a pillion rider. As a result, the petitioner-claimant sustained injuries and was admitted to Janapriya Hospital, Hassan, wherein he underwent medical treatment as in-patient for a period of two months and even on the date of filing of the petition he was said to be under medical treatment. He also claims that he has spent more than Rs.2,00,000/- towards medical treatment and attendant charges. He was hale and
healthy at the time of the accident and was earning Rs.20,000/- per month by doing coolie work and Ginger business. But because of the accident, he suffered injuries and laboured disabilities and
claimed compensation of Rs.10 lacs.
Respondent No.1 therein is the owner of the said vehicle and respondent No.2 is the Insurance Company of the offending vehicle. Respondent No.2-Insurance Company denied the liability and further asserts that there was no negligence on the part of driver of the vehicle KA.13-S-1993. Further stated that the age of the claimant mentioned as 40 years mentioned in the cause-title is wrong. According to Insurance Company, the petitioner- claimant volunteered the risk and sustained injuries because of his own negligence.
Learned Member of the Tribunal framed issues on rash and negligent riding of the vehicle by the rider of the bike bearing registration No.KA.13-EB-1171, the accident and cause of injuries to the petitioner-claimant. The
claimant got examined himself as PW.1 and Dr.Abdul Basheer as PW.2. The document filed on behalf of the claimant petitioner is Exs.P.1 to P.12 including the FIR, complaint, IMV Report, wound certificate. Respondent No.1 filed the document marked at Ex.R1, which is the copy insurance policy.
Heard learned counsel for both the parties and perused the LCR.
Learned counsel for the petitioner-appellant would submit that the petitioner was a coolie and was also doing ginger business. He is also a family holder and has obligation to look after his family and the injury due to the accident dated 18.01.2014 disabled him.
Learned counsel for respondent No.2 would submit that the petitioner is not having capacity to earn and the claim for compensation only shows his greedy nature.
On going through the materials available on record, the dispute is only regarding the claim and there is no
denial of accident dated 18.03.2014 and the injuries sustained by the petitioner-claimant. In the circumstances it is the quantum which the petitioner claims insufficient and respondent No.2-Insurance Company contends that the compensation is exorbitant. That is very clear from the fact that the Insurance Company has not preferred cross appeal.
PW.2-Dr. Abdul Basheer states that the injuries were four in numbers they are; 1) Fracture tibia right 2) Tenderness right knee 3) Tenderness in Chest 4) Tenderness TL Spine. Injury No.1 stated to be a grievous one (the Tribunal assigns its reasons as injury No.1 grievous for which the petitioner is entitled for compensation of Rs.15,000/-) and injuries Nos.2 to 4 are simple in nature and together entitled for Rs.9,000/-, on medical expenses the amount of Rs.1,14,000/- is granted. The claim of the petitioner is that he was earning of Rs.20,000/- per month by doing coolie work and ginger business. However, not provided document in support of
his claim and learned Member of the Tribunal opines to fix Rs.6000/- as monthly income. The Tribunal does not specify the rationale for considering monthly income at Rs.6,000/-
On the ground of petitioner being laid down Rs.6000/- is granted, on loss of amenities Rs.10,000/-, food and nourishment Rs.3000/- and transportation charges as Rs.5000/-. The Tribunal has also observed that it has relied on the reported judgment in Sarla Varma and others vs. Delhi Transport Corporation and another, 2009 ACJ 1293. The age of the claimant stated to be 40 years and applicable multiplier is considered at 14. The medical evidence given by PW2 suggests that the disability is 30% to the claimant in respect of the right lower limb and other injuries. Thus, the disability applicable to the total body is at 10%. The break-up of compensation awarded by the Tribunal is the disability being 1/3rd of the functional disability, monthly income is considered at
Rs.6000/-, multiplier applicable with reference to the age of the claimant as 42 years is 14.
In the facts and circumstances of the case, respondent No.2-Insurance Company has not filed cross objection nor has filed separate appeal against judgment and award passed by the Tribunal dated 05.12.2015.
The, core issue here is whether the petitioner- claimant is entitled for enhancement of compensation.
On considering the present day cost of living and the contingencies which a family in rural side faces, assessing the salary at Rs.6,000/- as monthly income appears to be on the lower side. Thus, the probable coolie amount which a person gets even for coolie work would not be less than Rs.8,000/-. More particularly the petitioner is said to be doing business of ginger as well. Thus the just and reasonable monthly income is to be assessed at Rs.8,000/- per month. Further, learned counsel for the petitioner- claimant submits the disability suffered by the petitioner-
claimant also hampers the prospective income to a considerable extent.
Learned counsel for the respondent No.2 –Insurance Company submits that the petitioner-claimant had no assured income and he is trying to find fortune out of misfortune.
The disability on the total body is stated to be 10%. Thus, the monthly income of the petitioner-claimant aged 42 years is considered at Rs.8000/- for which applicable multiplier is 14.
Thus, in the circumstances and in the context of legal and factual situation, the Tribunal ought to have looked the factor of cost of living coupled with earning capacity of the petitioner-appellant being the claimant therein. Insofar as the compensation awarded on other heads by the Tribunal as of now is as under: 1. Pain and sufferings Rs. 24,000/- 2. Medical expenses
Rs. 1,14,000/- 3. Loss of income during the treatment period Rs. 6,000/-
For food and nourishment Rs. 3,000/- 5. Attendant charges
Rs. 3,000/- 6. Loss of amenities
Rs. 10,000/- 7. Transportation and Incidental charges
Rs. 5,000/- 8. Loss of future income Rs. 1,01,000/- 9. For future medical expense Rs. 30,000/-
Total
Rs. 2,96,000/-
Considering the monthly income at Rs.6,000/- per month as stated above is very low so also the medical expenses. In the facts and circumstances of the case, the Tribunal ought to have considered the fact that even an unskilled labour earns about Rs.300/- per day, further the cost of medicines incurred on medical expenses are higher than the normal proportion. Thus award Rs.8,000/- as monthly income and medical expenses Rs.4,000/- appear just and proper towards just compensation.
In the context of the matter, it is to be realised that a family of Lower Income Groups struggle very hard for existence, more particularly that a person who has to maintain family. In the context of circumstances, reckoning of monthly income of the injured-claimant ought
to have been considered as Rs.8,000/-. Considering the injuries sustained as per the police report, it cannot be found for a while that the accident took place due to the negligence of the claimant in the context of the case. At the same time, it should be noted that the collie or labourer mainly depends on fitness level, any injury to such person more particularly, a ‘fracture’ would definitely hamper the fitness level to a substantial extent leading to reduction of working capacity which invariably decreased the earning capacity and the actual income. In the circumstances, considering the nature of accident, age, health, cost of living and the responsibility of maintaining a family by a labourer, who also claims of doing ginger business. Any assessment considering the notional monthly income at Rs.6,000/- is on a too lower side and requires to be enhanced by Rs.2,000/-. Insofar as other heads are considered, the amounts granted by the Tribunal be maintained.
The judgment and award of the Tribunal in MVC No.654/2014 is not a complete and well reasoned one inasmuch as material factors connecting casting of liability or conferring benefits relevant to the matter or left out.
In the context and circumstances of the matter, the compensation under loss of future income due to his disability requires to be modified by way of enhancement as under;
8,000 x 12 = 96,000/-
96,000 x 10% = 9,600 – disability
9,600X14= 1,34,400
The judgment and award of the Tribunal lost the sight of assuming notional monthly income to Rs.8,000/- which is taken care of under this appeal otherwise no infirmities are there to call for interference. But the judgment and award is erroneous in reckoning notional monthly income. To the said extent, the judgment and award of the Tribunal passed in MVC No.654/2014 is modified.
Thus, in the interest of justice and equity, the modified award will be as under; 1. Pain and sufferings Rs. 24,000/- 2. Medical expenses
Rs. 1,14,000/- 3. Loss of income during the treatment period Rs. 6,000/- 4. For food and nourishment Rs. 3,000/- 5. Attendant charges
Rs. 3,000/- 6. Loss of amenities
Rs. 10,000/- 7. Transportation and Incidental charges
Rs. 5,000/- 8. Loss of future income Rs. 1,34,400/- 9. For future medical expense Rs. 30,000/-
Total
Rs. 3,29,400/-
The following decisions are relied upon;
Sarla Verma (Smt) 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.
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 reported in (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.
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 (Rs.9,520+Rs.4,760=Rs.14, 280 per month (iii) 1/4th of (ii) deducted as personal expenses of the deceased (Rs.14,280- Rs.3,570=Rs.10,710 per month (iv) Compensation after multiplier of 16 is applied (Rs.10,710X12X16)=Rs.20,5 6,320/- (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 Compesnation 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 for the purpose of guidance.
The appeal is partly allowed. The judgment and award passed by the Tribunal in MVC No.654/2014 dated 5.12.2015 is set aside in part, thus, modified to the extent that the notional monthly income of Rs.6,000/- per month is enhanced to Rs.8,000/- per month. Respondents are liable to pay the enhanced compensation amount of Rs.33,400/- with proportionate interest at 6% p.a. within an outer limit of four weeks from the date of receipt of certified copy of the order. However, the Insurance Company shall be entitled for deduction in respect of payment already made or deposited.
Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
Sd/- JUDGE