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2006 DIGILAW 652 (KAR)

YASHODA K. BHAT v. C. GEETHA KAMATH

2006-08-10

CHIDANANDA ULLAL, V.JAGANNATHAN

body2006
JUDGMENT This joint appeal filed by the insured and the insurer is directed against the award passed by the Motor Accident Claims Tribunal, Udupi, allowing the claim petition filed by the wife, children and mother of deceased Ganapathi Kamath. The Tribunal awarded a sum of Rs. 16,39,880/-. The challenge in this appeal is only as regards the quantum of compensation. 2. The facts in a nutshell are to the effect that Ganapathi Kamath, who was working as an officer in the Syndicate Bank, Manipal, and drawing a salary of Rs. 10,000/- per month, met with an accident on 17-6-1994 while he was proceeding from Udupi to Manipal on his scooter No. CTA 7275. A bus bearing No. KA-20/1992, belonging to the first appellant-owner and insured with the second appellant, dashed against the scooter and then hit an electric pole and finally came to a halt. Following the injuries sustained in the accident, Ganapathi Kamath died. The wife, minor children and the mother of the deceased filed a claim petition and the Tribunal, after holding that the accident took place solely on account of the rash and negligent driving on the part of the driver of the bus in question and taking note of the evidence placed by the claimants with regard to the income of the deceased, awarded a sum of Rs. 16,39,880/- and also held that the owner and the insurer of the bus are jointly and severally liable to pay the compensation. 3. Aggrieved by the above said award of the Tribunal, this joint appeal has been filed by the owner and the insurer questioning only the quantum of compensation mainly on the ground that the income of the deceased was taken at a higher figure for the purpose of working out the loss of dependency amount. 4. During the pendency of this appeal, a memo is filed by the second appellant-Insurance Company to transpose it as R-5. To the said memo, objections are also filed by the respondents-claimants. 5. Heard the learned Counsel for the parties. 6. 4. During the pendency of this appeal, a memo is filed by the second appellant-Insurance Company to transpose it as R-5. To the said memo, objections are also filed by the respondents-claimants. 5. Heard the learned Counsel for the parties. 6. Sri P.B. Raju, the learned Counsel for the Insurance Company, referring to a Division Bench decision of this Court in the case of United India Insurance Company Limited v P.M. Zeenath1, submitted that a joint appeal by the owner and the insurer of the offending vehicle is maintainable and an appeal by the owner alone is also competent and the Insurance Company can be transposed as respondent. As regards the quantum of compensation is concerned, it is submitted by the learned Counsel that the Tribunal erred in taking the gross salary for the purpose of calculating the loss of dependency and in this regard, reliance was placed on a decision of the Hon'ble Supreme Court in the case of Asha v United India Insurance Company Limited2. 7. On the other hand, the learned Senior Counsel Sri S.P. Shankar for the claimants, referring to the objections filed to the memo, submitted that the insurer cannot ask for transposing itself as respondent and it is for the insured to make such a request and the insurer has no locus standi in the matter. Further, it was submitted that the appeal can be proceeded only after deleting the name of the Insurance Company and, therefore, the appeal itself is not maintainable and furthermore, the insured has not complied with the statutory requirement of Section 173 of the Motor Vehicles Act, 1988 by depositing a sum of Rs. 25,000/- but it is the insurer who has deposited the amount. For all the said reasons, the appeal itself is not maintainable. As regards the quantum of compensation is concerned, it is submitted by the learned Senior Counsel that there is no need to interfere with the award passed by the Tribunal and having regard to the fact that the deceased was an officer in the Syndicate Bank and died at a young age, the multiplicand taken by the Tribunal is just and proper and it is in accordance with the settled position in law and, as such, the appeal is liable to be dismissed even on merits. In support of his submissions, the learned Senior Counsel placed reliance on the following decisions: National Insurance Company Limited, Chandigarh v Nicolletta Rohtagi3; Mallett v McMonagle4; General Manager, Kerala State Road Transport Corporation, Trivandrum v Susamma Thomas5; Smt. Sarla Dixit v Balwant Yadav1 Smt. Shantha Ramamurthy v Kanika Raj2; Narendra Kumar v Yarenissa3; Wilson v Lalitha Bai Amma4; Shankarayya v United India Insurance Comp-any Limited5; V's. Gowdar v Oriental Insurance Company Limited6; Smt. Susheelamma v Nooruddin7 and Chinnama George v N.K. Raju8. 8. In the light of the contentions urged by the respective sides, the following points arise for consideration.- (1) Whether the joint appeal is maintainable? (2) Whether the quantum of compensation awarded requires interference? 9. Point No. 1.-As the joint appeal is directed mainly against the quantum of compensation, it is necessary for the Insurance Company to show that necessary permission under Section 170 of the Motor Vehicles Act, 1988 has been granted to it by the Tribunal. This prerequisite is necessary since the Insurance Company has questioned the quantum of compensation. In the instant case, as could be seen from the records as well as the judgment of the Tribunal, no such permission has been granted by the Tribunal to the Insurance Company. In this regard, it is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of R. Mannakatti v M. Subramanian9, wherein reference has been made to an earlier decision in the case of Nicolletta Rohtagi and paragraphs 25 and 26 of the said decision are as under: "25. We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tortfeasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The Legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle accidents are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied. 26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. 26. For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an inquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made, or (b) the person against whom the claim has been made has failed to contest the claim, the Tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Section 170 of 1988 Act, the same would go contrary to the scheme and object of the Act". In the light of the above settled principle in law, the appeal by the Insurance Company challenging the quantum, therefore, is not maintainable. 10. The next question which arises as a corollary to the above said conclusion is whether the owner alone can maintain the appeal without the name of the Insurance Company being deleted. In the light of the above settled principle in law, the appeal by the Insurance Company challenging the quantum, therefore, is not maintainable. 10. The next question which arises as a corollary to the above said conclusion is whether the owner alone can maintain the appeal without the name of the Insurance Company being deleted. Although the learned Senior Counsel for the claimants strongly urged before us that, in the absence of deleting the name of the Insurance Company, the appeal by the owner will not be maintainable, we are unable to subscribe ourselves to the said view having regard to the settled position in law. 11. First of all, the relationship between the owner and the insurer is in the nature of indemnified and the indemnifier respectively. Both of them sail together and there can be no conflict of interest and merely because certain defences available to the owner are not available to the insured, that itself will not make much difference unless the Insurance Company is able to show that there is collusion between the claimants and the insured. No such situation has arisen in the instant case. Therefore, the appeal by the owner is maintainable notwithstanding the fact that the Insurance Company gets itself transposed as one of the respondents. 12. The Hon'ble Supreme Court, in the case of Narendra Kumar, has observed thus: "7. For the reasons stated above, we are of the opinion that even in the case of a joint appeal by the insurer and owner of offending vehicle if an award has been made against the tortfeasors as well as the insurer even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause-title is suitably amended by deleting the name of the insurer". 13. In the instant case, the Tribunal has fastened liability both on the insured as well as the insurer by holding that they are jointly and severally liable. Therefore, the owner of the vehicle can maintain the appeal. 14. As regards the deletion of the name of the Insurance Company is concerned, no doubt, in the instant case, the name of the Insurance Company has not been deleted out of the two appellants. But, the Insurance Company has sought permission to get itself transposed as R-5. Therefore, the owner of the vehicle can maintain the appeal. 14. As regards the deletion of the name of the Insurance Company is concerned, no doubt, in the instant case, the name of the Insurance Company has not been deleted out of the two appellants. But, the Insurance Company has sought permission to get itself transposed as R-5. In other words effect, the appeal survives only insofar as the owner is concerned. For all practical purposes, the appeal will have to be treated as appeal by the insured alone. Therefore, not deleting the name of the Insurance Company out of the two appellants, will not come in the way of the appeal by the owner being proceeded with. For this view of ours, we draw support from the observations of the Hon'ble Supreme Court made in the case of Asha. Their Lordships of the Apex Court have observed in paragraph 6 of the judgment thus: "6. Further the question whether the appeal was maintainable, without deleting the name of the Insurance Company, was one which should have been agitated before the High Court. This question was not agitated before the High Court at all. It is an admitted position that the award was against both the owners and the Insurance Company. To that extent the owners were also aggrieved. They definitely had a right to maintain an appeal. So long as the owner was a party to the appeal the mere fact that the name of the Insurance Company was not deleted (as no such objection was taken before the High Court) is no ground for setting aside the impugned order". 15. It is, therefore, clear from the above position in law that so long as the owner was a party, the mere fact that the name of the Insurance Company was not deleted will not come in the way of proceeding with the appeal. Hence, although the name of the Insurance Company has not been deleted, we see no infirmity in the appeal being heard as one by the owner of the offending vehicle. It is a well-settled principle of law that procedure is the handmaid of justice and mere technicalities should not be given undue importance but the concern should be to render substantial justice to the case on hand. It is a well-settled principle of law that procedure is the handmaid of justice and mere technicalities should not be given undue importance but the concern should be to render substantial justice to the case on hand. It may not be out of place to refer to the observations of Lord Penzance quoted in Sarkar's Code of Civil Procedure: "Procedure is but the machinery of law after all the channel and means whereby law is administered and justice reached. It strangely departs from its proper office where in place of facilitating, it is permitted to obstruct and even to extinguish the legal rights and is made to govern where it ought to subserve". For the aforesaid reasons, we hold that the appeal is maintainable on behalf of the owner alone. Point No. (1) is thus answered in the affirmative. 16. Point No. (2).- Since the quantum of compensation is under challenge and the main grievance of the Insurance Company being that the Tribunal erred in taking higher salary of the deceased, we have examined the evidence on record. The deceased was working as an officer in the Syndicate Bank and, at the time of his death, he was aged 44 years. The gross salary of the deceased as per Ex. P. 6-salary slip, is shown as Rs. 9,418.90 and as per the certificate-Ex. P. 5, issued by the Personnel Manager of the Bank, the gross salary of the deceased as on November 1998 would have been Rs. 17,141.34. These two documents are not in dispute. The Tribunal took the average of the said two figures to arrive at the figure of Rs. 13,280.12, which is rounded off to Rs. 13,300/- and, after deducting 1/3rd towards personal expenses of the deceased from the said figure, it arrived at the multiplicand of Rs. 8,866/- per month and taking that as the base, the loss of dependency, applying the multiplier 15, works out to Rs. 15,95,880/- and, after adding conventional sums to this figure, the total compensation was arrived at the figure of Rs. 16,39,880/-. 17. The learned Counsel Sri P.B. Raju submitted that the above procedure followed by the Tribunal is erroneous and the Tribunal ought to have taken only the loss suffered by the claimants at the time of the death of the deceased. 16,39,880/-. 17. The learned Counsel Sri P.B. Raju submitted that the above procedure followed by the Tribunal is erroneous and the Tribunal ought to have taken only the loss suffered by the claimants at the time of the death of the deceased. Our attention was drawn to paragraph 8 of the judgment of the Apex Court in Asha's case, supra. 18. In our view, the Tribunal has not committed any error in arriving at the multiplicand as above. First, it is not in controversy that the deceased was a Bank Officer and was aged 44 years at the time of his death. Obviously, the deceased would have served at least for 16 years more, taking the age of superannuation at 60 years. As there was every chance of progress in the career of the Bank Officer and added to this, in view of the certificate issued by the Bank as per Ex. P. 5 to the effect that the salary of the deceased would have been Rs. 17,141.34 as on 1998, it thus becomes clear that within a period of four years, the salary of the deceased would have gone up from Rs. 9,418.90 to Rs. 17,141.34. Obviously, the salary would have reached much higher figure if we were to take into account the date of superannuation. In this regard, we deem it proper to refer to the observations of the Hon'ble Supreme Court in the case of Susamma Thomas and in paragraph 13, it has been observed by the Apex Court thus: "13. In the present case the deceased was 39 years of age. His income was Rs. 1,032/- per month. Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant, whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. The deceased person in this case had a more or less stable job. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need not necessarily be baneful. The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1,032/per month. We think, having regard to the prospects of advancement in the future career, respecting which there is evidence on record, we will not be in error in making a higher estimate of monthly income of Rs. 2,000/- as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was Spartan or Bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependents. This loss of dependency should capitalize with the appropriate multiplier. In the present case, we can take about Rs. 1,400/- per month or Rs. 17,000/- per year as the loss of dependency and if capitalized on a multiplier of 12, which is appropriate to the age of the deceased, the compensation would work out to (Rs. 17,000/- x 12 = Rs. 2,04,000/-) to which is added the usual award for loss of consortium and loss of the estate each in the conventional sum of Rs. 15,000/-". 19. In the case of Sarla Dixit, the Hon'ble Supreme Court referring to the case of Susamma Thomas, noted that it was observed in the said case that, "future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand". It also noted that the ascertaining of the multiplicand is a more difficult exercise and indeed many factors have to be put into the scales to evaluate the contingencies of the future. 20. In the light of the observations made in the case of Susamma Thomas, the Apex Court in Sarla Dixit's case, took a higher figure as the multiplicand having regard to the career prospects of the deceased. 20. In the light of the observations made in the case of Susamma Thomas, the Apex Court in Sarla Dixit's case, took a higher figure as the multiplicand having regard to the career prospects of the deceased. The very same principle that was laid down both in the case of Susamma Thomas and in Sarla Dixit's case has been followed by the Tribunal in the instant case and, therefore, we see no error being committed in arriving at the multiplicand for the purpose of working out the loss of dependency. As such, the quantum of compensation awarded in the present case does not require any interference. Accordingly, we answer Point No. (2) in the negative. Consequently, even if the' appeal is construed as appeal by the owner alone, the same is liable to be dismissed. 21. In the result, the appeal is dismissed by confirming the award of the Tribunal. Per Chidananda Ullal, J.: Being the companion Judge in the Division Bench, I have perused the judgment by my Brother and I concur with the same.