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2003 DIGILAW 500 (KAR)

AJEET v. SANNABASAPPA

2003-06-25

MOHAN M.SHANTANAGOUDAR, T.S.THAKUR

body2003
THAKUR, J. ( 1 ) THESE appeals arise out of an award made by the Motor Accidents claims Tribunal, Hubli, whereby M. V. C. Nos. 72 and 73 of 1995 have been allowed in part and a sum of Rs. 13,27,000 awarded in M. V. C. No. 72 of 1995 for the death of late Dr. Venkatesh Kanakaraddi and a sum of Rs. 1,36,400 awarded in the connected M. V. C. No. 73 of 1995 as compensation for the death of late Rajeshwari w/o venkatesh Kanakaraddi both of whom died in a road accident. While M. F. A. Nos. 4085 and 4086 of 1997 filed by the claimants against the owner of the offending vehicle and the insurance company seek enhancement of the amount of compensation, M. F. A. No. 3740 of 1997 filed by the insurance company with which the vehicle was insured seeks reduction of the amount already awarded. ( 2 ) ON 5. 8. 1991 at around 7. 30 a. m. , the deceased Venkatesh Kanakaraddi and his wife accompanied by four other persons were travelling on the Poona-Bangalore road on their way to Mudhol. When the car reached a place called Tadas Cross nearly 30 km. short of Hubli, it met with accident with a mini lorry bearing registration No. KA 25-1040 which was coming from the opposite direction and was being driven rashly and negligently by its driver. As a result of the accident Dr. Ven-katesh Kanakaraddi died on the spot. His wife Rajeshwari Raddi who was occupying the front seat with him received serious injuries and died on her way to the hospital. Out of the occupants on the back seat of the car, Akkubai also died on her way to the hospital while Krithika succumbed to the injuries sustained by her after reaching the hospital for treatment. The other two occupants in the car, namely, Veena and moulasab, however, escaped with minor injuries. The sons of the deceased couple who are appellants in M. F. A. Nos. 4085 and 4086 of 1997 in due course filed two claim petitions for payment of compensation before the M. A. C. T. at Hubli. In m. V. C. No. 72 of 1995 the claimants have sought an amount of Rs. 1,00,00,000 as compensation on account of the death of their father Dr. 4085 and 4086 of 1997 in due course filed two claim petitions for payment of compensation before the M. A. C. T. at Hubli. In m. V. C. No. 72 of 1995 the claimants have sought an amount of Rs. 1,00,00,000 as compensation on account of the death of their father Dr. Venkatesh Kanakaraddi, whereas in M. V. C. No. 73 of 1995, they claimed an amount of Rs. 25,00,000 as compensation on account of the death of their mother Rajeshwari. ( 3 ) THE case of the claimants as set out in the claim petitions was that the accident in question had taken place entirely on account of the rash and negligent driving of the offending mini lorry which entitled the claimants to a suitable amount towards compensation. The deceased Dr. Kanakaraddi was according to the claimants running a nursing home in Mahalingapur in the name and style of Venkatesh Nursing home and earning a sum of Rs. 45,000 per month. In the second claim petition arising out of the death of Rajeshwari, the mother of the claimants, the case of the claimants was that she was assisting her husband in running the nursing home and earning a sum of Rs. 2,000 per month. Both these claim petitions were contested by the respondents on several grounds, giving rise to several issues which the Tribunal framed and eventually decided in favour of the claimants. The Tribunal held that the accident in question had in fact taken place on account of the rash and negligent driving of the mini lorry by its driver. While doing so, the Tribunal relied upon the testimony of the witnesses produced by the claimants including one of the passengers travelling in the car and held that the driver of the lorry not having been examined, there was no option but to hold that the accident was on account of the negligence of the lorry driver alone. On the question of compensation awardable to the claimants, Claims tribunal upon appreciation of the evidence adduced before it came to the conclusion that the same did not satisfactorily establish that deceased was running a nursing home as alleged. The assertions made to that effect in the statements made by the claimants and the witnesses produced by them were held to be self-serving. The assertions made to that effect in the statements made by the claimants and the witnesses produced by them were held to be self-serving. The Tribunal all the same found that the material placed on record sufficiently established that the income of the deceased Dr. Raddi was not less than Rs. 1,50,000 per annum. Out of the said amount, Tribunal deducted 1/3rd representing personal expenses of the deceased taking the balance of Rs. 1,00,000 as his contribution to the family. Relying upon the decision of the Apex Court in u. P. State Road Trans. Corpn. v. Trilok chandra, 1996 0 ACJ 831 (SC), the Tribunal chose a multiplier of 13 and quantified the total amount of compensation on account of loss of dependency at Rs. 13,00,000. To that amount was added Rs. 2,000 towards funeral expenses, Rs. 5,000 to each of the petitioners under the head loss of love and affection and Rs. 10,000 towards loss to the estate. Thus taking the total amount to rs. 13,27,000 made payable with interest at 9 per cent per annum from the date of claim petition till the date of payment. ( 4 ) IN the connected M. V. C. No. 73 of 1995, the Tribunal held that the evidence on record did not establish that any contribution was made by the deceased towards running the nursing home the existence whereof was in any case not proved. The services rendered by the deceased Rajeshwari to the claimants in the case were all the same assessed at the rate of Rs. 40 per day or Rs. 1,200 per month. The Tribunal has strangely deducted 1/3rd out of the said amount also to bring the loss of dependency to Rs. 800 per month or Rs. 9,600 per annum. That amount was capitalised by applying the multiple of 14 having regard to the age of the deceased and keeping in view the decision of Apex Court in Trilok chandra's case, 1996 0 ACJ 831 (SC ). The total amount thus awarded in the second case was Rs. 1,34,400 towards loss of dependency apart from Rs. 2,000 towards funeral expenses. The Tribunal declined to award any amount towards loss of love and affection on the ground that the award of a similar amount in the other case had already been made. The total amount thus awarded in the second case was Rs. 1,34,400 towards loss of dependency apart from Rs. 2,000 towards funeral expenses. The Tribunal declined to award any amount towards loss of love and affection on the ground that the award of a similar amount in the other case had already been made. The award amount was made payable with interest at the rate of 9 per cent per annum. The claimants have, as already noticed earlier, sought enhancement of the said amount in M. F. A. Nos. 4085 and 4086 of 1997 while the connected Appeal No. 3740 of 1997 seeks its reduction. ( 5 ) WE have heard Mr. Desai, counsel appearing for the claimants and Mr. S. P. Shankar, learned counsel for the insurance company. ( 6 ) THE finding recorded by the Tribunal in regard to the genesis of the accident in both the cases has not been assailed before us. The claimants were in any case not required to do so as the finding had gone in their favour. Mr. Shankar, counsel appearing for the insurance company, also fairly conceded that the finding of the Tribunal as regards the reasons for the accident has not been assailed. In that view therefore, we do not consider it necessary to examine in detail the correctness of that finding. All that we need to say is that the reasoning advanced by the Tribunal for holding that the accident had taken place on account of the rash and negligent driving of the lorry appears to us to be fairly convincing and is supported by the material on record. The absence of any evidence in rebuttal including the non-production of the driver of the lorry indeed left no option for the tribunal except to hold that the accident had taken place on account of the rash and negligent driving of the lorry. That finding therefore, stands affirmed. ( 7 ) THE only question that was debated at some length by the learned counsel for the parties was as to the quantum of compensation awarded by the Tribunal. While the claimants prayed for enhancement of the said amount, the insurance company assailed the view taken by the Tribunal on the ground that the amount awarded by the tribunal was excessive. While the claimants prayed for enhancement of the said amount, the insurance company assailed the view taken by the Tribunal on the ground that the amount awarded by the tribunal was excessive. Before we examine whether there is any room for enhancement of the amount awarded by the Claims tribunal, we deem it proper to deal with a preliminary objection raised by claimants regarding the maintainability of the appeal filed jointly by the insurance company and the insured. It was argued by Mr. Desai that the insured had neither filed any written statement before the Tribunal nor led any evidence in rebuttal to that led by the claimants. Even in this court, the insured had not taken any steps for deletion of the name of the insurance company and for prosecuting the appeal in his own name. He contended that since the insured had not evinced any interest, the quantum of the amount of compensation could not be assailed nor its correctness examined at the instance of the insurance company who had at no stage applied to the Tribunal for permission to defend the claim on grounds other than those available to it under section 149 of the Act. The result, therefore, was the appeal filed by insurance company in its own name questioning the award made by the Tribunal as regards quantum of compensation was not maintainable. ( 8 ) IT is fairly well settled that the insurance company cannot either defend a claim or file an appeal against the award made by the Tribunal on any ground other than the ones that are stipulated under section 149 of the Act. A challenge to the quantum of compensation awarded by the Tribunal is not available to the insurance company in appeal against any such award. It is also common ground that the insurance company in the instant case had at no stage applied for permission of the Tribunal to defend the claim on grounds other than those under section 149 of the Act. Any challenge to the award on grounds other than those permissible under section 149 of the Act is, therefore, wholly untenable at the instance of the insurance company. That position was not disputed by Mr. Shankar, learned counsel for the insurance company. Any challenge to the award on grounds other than those permissible under section 149 of the Act is, therefore, wholly untenable at the instance of the insurance company. That position was not disputed by Mr. Shankar, learned counsel for the insurance company. What he pointed out was that in the light of the decision of the Apex Court in Narendra Kumar v. Yarenissa, 1998 acj 244 (SC), in the case of a joint appeal filed by the insured and the insurance company both, the name of the insurance company could be deleted and the appeal proceeded with on merits. He, however, fairly conceded that the insured had in this case made no attempt to seek the deletion of the insurance company to pursue the appeal in his own name. If that be so, it is difficult to see how the present appeal can be proceeded with in the form in which it has been filed. The decisions of the Apex court in Narendra Kumar v. Yarenissa, 1998 0 ACJ 244 (SC); Chinnama George v. N. K. Raju, 2000 0 ACJ 777 (SC); Rita Devi v. New India Assurance Co. Ltd. , 2000 acj 801 (SC) and the latest decision of the Supreme Court in National Insurance co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC), clearly declare that an appeal at the instance of the insurance company on an issue or a defence other than the one permitted under section 149 of the Act is not maintainable. No steps having been taken by the insured for the deletion of the insurance company as an appellant and the insured having himself evinced no interest either before the Tribunal or in this court, we are of the view that the appeal filed by him and the insurance company shall have to be dismissed. We may add that the question of reduction of the amount of compensation may not even otherwise arise if the appeals preferred by the claimants seeking enhancement are allowed even in part. The success of the connected appeals filed by the claimants would on merits seal the fate of M. F. A. No. 3740 of 1997 filed by the insurance company and the insured. ( 9 ) LET us then examine whether there is any scope for enhancement of the amount of compensation claimed by appellants in m. F. A. Nos. 4085 and 4086 of 1997. ( 9 ) LET us then examine whether there is any scope for enhancement of the amount of compensation claimed by appellants in m. F. A. Nos. 4085 and 4086 of 1997. The tribunal has while assessing the income of the deceased Dr. Kanakaraddi disbelieved the evidence adduced by the claimants to the effect that the deceased was running a nursing home in the name and style of venkatesh Nursing Home at Mahalinga-pur. In the opinion of the Tribunal, the oral testimony of the witnesses was no more than self-serving deposition which could not in the absence of any corroborative evidence be accepted. The claimants had in support of the version called in aid certain documents which too have been disbelieved by the Tribunal. The Tribunal was of the view that the manner in which the record was prepared was clearly suggestive of the fact that the same was a subsequent creation. We entirely agree with the view taken by the Tribunal. The record which the claimants have produced in support of their version regarding the existence of the nursing home does not inspire confidence. If a nursing home was in fact established and functional, the claimants could easily have proved its existence by overwhelming evidence. They could have produced the relevant documents including the licences issued by the statutory authorities for the establishment of the nursing home apart from the record to show that the nursing home had employed medical and paramedical staff on a permanent or part-time basis. The revenue receipts on account of fees and charges could also be shown by reference to the account books, if any, maintained by the nursing home and the counterfoils of the receipts issued to the patients. It is surprising that although the claimants had specifically asserted that the deceased was running a nursing home, no attempt whatsoever was made to satisfactorily establish the existence of the nursing home on a question of fact. Apart from certain record which does not even appear to be in original and which the Tribunal has rightly turned down as an afterthought meant to support the claim made by the claimants, there is no other cogent or acceptable material to support the claim of the appellants that the deceased was in fact running a nursing home. Apart from certain record which does not even appear to be in original and which the Tribunal has rightly turned down as an afterthought meant to support the claim made by the claimants, there is no other cogent or acceptable material to support the claim of the appellants that the deceased was in fact running a nursing home. The version that the said nursing home was fetching income to the deceased over and above what transpires from his bank accounts and those in the name of his son and wife also remains unsubstantiated. Suffice it to say that there is on record not even an iota of evidence except the oral testimony of the claimants to prove that the nursing home allegedly established by the deceased was generating any income for either the deceased or any one of his family members. We, therefore, have no option but to affirm the finding recorded by the Tribunal that the existence of any such nursing home has not been proved. ( 10 ) THAT is not however the end of the matter. The deceased was admittedly a qualified medical practitioner. He had done his postgraduation in medicine as early as 1974. On the date of the accident, he had already put in a private practice of nearly 17 years. The evidence shows that the deceased had professional income from his private medical practice. This is evident, inter alia, from the three bank accounts which the deceased had opened, one of which was in his own name and one each in the name of his deceased wife and the eldest son PW 1. A closer scrutiny of the entries made in the passbooks issued by the bank in connection with the accounts would show that deceased had deposited a sum of Rs. 98,426. 70 in the account of his son appellant-claimant No. 1 between 2. 3. 90 and 30. 3. 1991. Yet another amount of Rs. 1,52,936 was deposited from time to time in the account of Rajeshwari, the wife of Dr. Kanakaraddi during the period from 30. 4. 1990 to 4. 3. 1991. The Tribunal has taken these deposits into consideration, but overlooked the deposits made in the savings bank account of the deceased Dr. Kanakaraddi himself. The passbook issued to the deceased by the Karnataka Bank limited, Mahalingapur, marked Exh. Kanakaraddi during the period from 30. 4. 1990 to 4. 3. 1991. The Tribunal has taken these deposits into consideration, but overlooked the deposits made in the savings bank account of the deceased Dr. Kanakaraddi himself. The passbook issued to the deceased by the Karnataka Bank limited, Mahalingapur, marked Exh. P-13 shows that between February, 1990 and march, 1991, the deceased had deposited several amounts and made withdrawals from the said account. At the end of the year, i. e. , end of March, 1991, the passbook shows a credit balance of Rs. 15,975 in the said account. We have, therefore, evidence about the amount which the deceased had deposited during the financial year immediately preceding the date of the accident. Out of the deposits, Rs. 98,426. 70 was lying in the account of claimant-appellant no. 1. He had in addition deposited in his wife's account Rs. 1,52,936 during this period out of which he had withdrawn a sum of Rs. 1,40,000 leaving a balance of rs. 12,936. Besides, there was a credit balance of Rs. 15,000 in his own account in the Karnataka Bank Limited. All told, the amount which the deceased had deposited and saved over a period of one year immediately preceding the accident came to around Rs. 1,25,000. This amount was over and above a sum of Rs. 1,40,000 deposited but withdrawn during this period from the account of his wife and a further amount of Rs. 44,000 which was withdrawn from his own amount during this period. These withdrawals amounting to rs. 1,80,000 or so during the financial year immediately preceding the accident can be explained and accounted for, only towards the expenses incurred by the deceased on the establishment out of which he was earning his professional income and towards his personal expenses. While the version of the claimant that he was running a full-fledged nursing home may have remained unsubstantiated, the fact remains that the deceased was a qualified medical practitioner who had been engaged in his private medical practice for nearly two decades which implies that he must have provided for a suitable infrastructure, which would in turn require maintenance and expenditure to be able to generate the kind of income that is reflected in the savings account standing in the name of three members of the family. We are also of the view that looking to the extent of withdrawals made from the banks, we need not make any further deduction towards personal expenses of the deceased from out of the net savings lying in the bank. In other words, the amount of Rs. 1,25,000 that was available in the hands of the deceased in the three bank accounts opened by him in his own name and in the name of his wife and son could be treated as his net savings excluding his personal expenses and the expenses required for maintaining the establishment in which he was practising. The Tribunal has by resorting to guesswork taken the gross income of the deceased at Rs. 1,50,000 only and deducted '/3rd from the same for his personal expenses and thereby taken Rs. 1,00,000 as his contribution towards the family. We are inclined to modify that figure to the extent that instead of Rs. 1,00,000 the net accretion towards the family can be taken to Rs. 1,25,000 per annum. If that be so, the amount that would be payable to the appellants by applying a multiple of 13 would work out to Rs. 16,25,000. ( 11 ) LEARNED counsel for the claimants-appellants submitted that this court could choose a higher multiple in the light of the decision of the Supreme Court in Jyoti kaul v. State of Madhya Pradesh, 2000 acj 1368 (SC ). We see no reason to do so. The choice of multiple by reference to the age of the deceased or the claimant stands concluded by a Division Bench decision of this court in Gulam Khader v. United India Insurance Co. Ltd. , 2001 ACJ 163 (Karnataka ). That decision has been with a slight modification as regards the date from which the multiple could be applied approved by a Full Bench of this court in V. S. Gowdar v. Oriental Insurance co. Ltd. , 2002 0 ACJ 1638 (Karnataka ). The age of the deceased was admittedly around 46 years on the date of the accident. As per the two decisions mentioned above, the correct multiple applicable would be 13. We do not see any compelling reason to adopt a higher multiple as prayed for by the learned counsel for the appellants. Ltd. , 2002 0 ACJ 1638 (Karnataka ). The age of the deceased was admittedly around 46 years on the date of the accident. As per the two decisions mentioned above, the correct multiple applicable would be 13. We do not see any compelling reason to adopt a higher multiple as prayed for by the learned counsel for the appellants. The decision of the Supreme Court in Jyoti kaul's case (supra), does not in our opinion have any direct application to the facts of the instant case. That was a case where the primary issue was, whether the date of superannuation of the deceased would have made any difference insofar as the choice of multiple was concerned. Besides there was considerable evidence led in that case regarding the longevity in the family. It was in the light of the said evidence that their Lordships had chosen a multiple of 15 for purposes of determining loss of dependency. There is in the instant case no such evidence or other circumstances to call for a departure from the view taken by this court in the two decisions mentioned above which have been consistently followed ever since. We do not see any reason to enhance the amount of compensation awarded to the claimants under the other heads. To sum up, the claimants shall be entitled to the following amount towards compensation in M. V. C. No. 72 of 1995: (1) Loss of dependency Rs. 16,25,000 (2) Loss of love and affection Rs. 15,000 (3) Loss to estate Rs. 10,000 (4) Funeral expenses Rs. 2,000 Total Rs. 16,52,000 ( 12 ) THAT brings us to M. V. C. No. 73 of 1995 out of which arises M. F. A. No. 4086 of 1997. The Tribunal has, as noticed earlier, awarded a sum of Rs. 1,36,400 only by taking contribution of the deceased mother of the claimants to be Rs. 800 per month or Rs. 9,600 per annum. It has disbelieved the version of the claimants that the deceased mother was working in the nursing home of the father of the claimants or having any independent income. Even if that finding of the Claims Tribunal is left undisturbed, the income of the deceased on a notional basis could be taken to be rs. 9,600 per annum. It has disbelieved the version of the claimants that the deceased mother was working in the nursing home of the father of the claimants or having any independent income. Even if that finding of the Claims Tribunal is left undisturbed, the income of the deceased on a notional basis could be taken to be rs. 15,000 per annum having regard to the fact that Parliament has by amending the act introduced the concept of notional income with effect from November, 1994 onwards in cases falling under section 163-A of the Second Schedule. If '/3rd of the said amount is deducted towards the personal expenses of the deceased, her contribution towards the family could be taken at Rs. 10,000 per annum. The correct multiple for capitalising the said amount would be 14 as per the decision of this court in Gulam Khader's case, 2001 ACJ 163 (Karnataka ). The total amount that is payable to the claimants would, therefore, be Rs. 1,40,000 towards loss of dependency. The Tribunal has denied without any good reason compensation towards loss of love and affection. The fact that an award for loss of love and affection had been made in the case relating to the death of their father did not mean that the claimants were disentitled to claim a similar amount in the case involving the death of their mother. We, therefore, award a sum of rs. 5,000 each to the three claimants for loss of love and affection of their deceased mother. To sum up, the claimants would be entitled to following amounts towards compensation on account of the death of their mother: (1) Loss of dependency Rs. 1,40,000 (2) Loss of love and affection of their mother Rs. 15,000 (3) Loss to estate Rs. 10,000 (4) Funeral expenses Rs. 2,000 Total Rs. 1,67,000 ( 13 ) IT is not in dispute that a part of the amount awarded by the Tribunal in both the cases has been deposited by the insurance company pursuant to the direction of this court. We, therefore, direct that the balance of the amount in terms of this judgment including the enhanced amount shall be payable to the claimants with interest at the rate of 8 per cent per annum from the date of the claim petition till the date of deposit. We, therefore, direct that the balance of the amount in terms of this judgment including the enhanced amount shall be payable to the claimants with interest at the rate of 8 per cent per annum from the date of the claim petition till the date of deposit. Upon deposit before the tribunal, it shall make appropriate order regarding the disbursement/investment of the amount suitably keeping in view the observations made by the Supreme Court in General Manager, Kerala State Road trans. Corpn. v. Susamma Thomas, 1994 acj 1 (SC ). ( 14 ) M. F. A. Nos. 4085 and 4086 of 1997 are accordingly allowed in part and to the extent indicated above. M. F. A. No. 3740 of 1997, however, fails and shall stand dismissed. ( 15 ) THE amount lying in deposit in this court shall stand transferred to the Tribunal. The parties are left to bear their own costs. Orders accordingly. --- *** --- .