Hemavathi v. New India Assurance Co. Ltd. , Regional Office
2008-09-12
K.N.KESHAVANARAYANA, MANJULA CHELLUR
body2008
DigiLaw.ai
JUDGMENT Keshavanarayana, J Though this matter is listed for admission on 1.8.2008, by the consent of both sides, the same was heard on merits. 2. Being dissatisfied with the quantum of compensation awarded by the Tribunal in MVC.No.5340/2002 on the file of MACT5, Bangalore City, the petitioner-claimant has filed this appeal seeking enhancement of compensation. The appellant filed claim petition seeking compensation from the respondents for the death of her husband Lokesh who died in the motor vehicle accident that occurred on 10-8-2002 at about 10.30 p.m. 3. The case of the appellant in brief is as under: On 10.8.2002 at about 10.30 p.m. when her husband lokesh was proceeding on motor cycle bearing No. KA-1-S-726 as rider on Hosur Road, near Balaji Medical Stores, Tata Sumo bearing No. 090 F-9266 driven by its driver at high speed in rash and negligent manner, came from behind and dashed against the motor cycle as a result, her husband Lokesh fell down along with motor cycle and sustained severe injuries. Immediately, he was shifted to St. John Medical Hospital. But in spite of best treatment, he succumbed to injuries on 14.8.2002. In respect of this aspect, Madivala Police registered a case in Crime No.894/2002 against driver of the Tata Sumo. That her husband was a Police Constable drawing gross salary of Rs.5,273/- and he was only bread earner of the family. 4. The claim petition was filed against the insurer and the owner of the Tata Sumo impleading them as respondent Nos. 1 and 2, respectively. The mother and father of the deceased got themselves impleaded as respondent Nos. 3 and 4, respectively. But they did not contest the petition. Upon service of notice of claim petition, respondent No.1-the insurer appeared and contested the petition and filed the written statement admitting the issuance of policy in respect of the vehicle in question and its validity as on the date of the accident. However, the first respondent denied all the petition averments. 5. In the light of the pleadings of the parties, the Tribunal framed two issues, one on the question of actionable negligence and other regarding the entitlement of compensation. During the trial, the claimant examined herself as P.W.1 and got marked Exs.P.1 to P.12. On the other hand, respondent did not lead any evidence either oral or documentary.
5. In the light of the pleadings of the parties, the Tribunal framed two issues, one on the question of actionable negligence and other regarding the entitlement of compensation. During the trial, the claimant examined herself as P.W.1 and got marked Exs.P.1 to P.12. On the other hand, respondent did not lead any evidence either oral or documentary. After hearing both sides, learned Member of the Tribunal by the judgment under appeal held that the accident was on account of rash and negligent driving of the Tata Sumo by its driver. On the question of entitlement of compensation, the Tribunal held that the claimant as well as the parents of deceased who are respondent Nos. 3 and 4 are entitled for total compensation of Rs.5,85,040/- together with interest at 6% per annum from the date of the petition till the date of payment. 6. Being dissatisfied by the quantum of compensation, the claimants have presented this appeal interalia contending that compensation awarded by the Tribunal is too low and deserves to be enhanced. In this regard, it is their contention that the Tribunal failed to take note of the fact that deceased worked as Police Constable and he had long service ahead of him and therefore, he had bright prospect of getting promotion and hike in salary. Therefore, the Tribunal ought to have taken higher amount than mentioned in salary certificate EX.P.9 for the purpose of assessing the loss of dependency. It is also her grievance that though EX.P.9 shows that deceased was drawing a gross salary of Rs. 5473/- the Tribunal, has erroneously deducted contribution made by the deceased towards GPF etc., has taken the net salary of Rs.3,878/- only for the purpose of finding out the loss of dependency. Therefore, the method adopted by the Tribunal for assessing the loss of dependency is erroneous. 7. Upon service of notice of this appeal, respondent appeared through their learned counsel. We have heard both sides. 8. The learned counsel for the appellant during the course of arguments reiterating the grounds urged in the appeal memo further sought to place reliance on the decision of the Supreme Court in the case of Oriental Insurance Company Limited vs Jashubenl and contended that the loss of dependency has to be assessed as per the methodology evolved by the Hon'ble Supreme Court in Jashuben s case referred to supra. 9.
9. On the other hand, the learned counsel for the insurer respondent No.1 contended that the Hon'ble Supreme Court in Jashuben s case has adopted the methodology of doubling the basic pay and the permissible DA for assessment of loss of dependency having regard to the peculiar facts and circumstances of the said case and therefore, the methodology adopted in the said decision cannot be followed as a president. Placing reliance on the decision of the Supreme Court in the case of Sarala Dixit Vs. Balwant Yadav, the learned counsel respondent contended that the compensation awarded by the Tribunal is just and proper having regard to the facts and circumstances of the case. 10. As noticed above, the Tribunal has recorded a finding that the accident was on account of rash and negligent driving of the Tata Sumo by its driver and there was no negligence or contributory negligence on the part of the deceased. The said finding of the Tribunal has become final as neither the insured nor the insurer have questioned the correctness of the said finding. Therefore, in this appeal filed by the claimant seeking enhancement of compensation, there is no need for this Court to deal with the said issue. 11. In view of the above, the only point required to be considered in this appeal is whether the compensation awarded by the Tribunal deserves to be enhanced? 12. During the course of evidence, it is brought on record that the deceased was working as a Police Constable at the time of his death. This fact is not seriously disputed by the contesting respondent. Thus, it is clear that the deceased was a Government servant. EX.P.9 is a pay slip issued in respect of deceased for the month of June 2002. The accident occurred on 10.8.2002 while said Lokesh died on 14.8.2002. Therefore, EX.P.9 can be safely relied upon for the purpose of finding out the earnings of the deceased. As per the contents of Ex.P.9, the basic pay of Rs.3,300/- and DA of Rs.1,616/- which works out to 49% of the basic. The gross salary as per Ex.P. 9 was Rs.5,473-00. The only statutory deduction as noticed in EX.P.9 was Rs.50/- towards professional tax. The other deductions are towards contribution of the deceased for GPF, KGID, LIC, GIS and repayment of Festival Advance. 13.
The gross salary as per Ex.P. 9 was Rs.5,473-00. The only statutory deduction as noticed in EX.P.9 was Rs.50/- towards professional tax. The other deductions are towards contribution of the deceased for GPF, KGID, LIC, GIS and repayment of Festival Advance. 13. The Tribunal while assessing the loss of dependency though noticed that as per EX.P.9 gross salary of the deceased was Rs.5,473/ it has deducted Rs. 1,595/- towards GPF etc. and has taken into consideration the net salary of Rs.3,878/- as the monthly income of the deceased. From this amount of Rs.3,878/-, the Tribunal has further deducted 1/3" towards personal expenses of the deceased and remaining 2/3'" amounting to Rs.2,620/- is taken as contribution of the deceased to the family. On that basis, by applying multiplier of 16 as the deceased was aged about 28 years, the Tribunal has assessed total loss of dependency at Rs.5,03,040/-. 14. In several decisions of the Apex Court, it has been observed that the assessment of damages to compensate the dependents is beset from difficulties in the case of State of Tami/ Nadu vs Rajapriya at para 8 and 9, the Apex Court has observed thus: "8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct there from such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants.
Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase." In Kerala Road Transport vs Susama Thomas, the Hon'ble Supreme Court has ruled that the multiplier method is most scientific method and it should be uniformly applied while assessing just compensation payable to the victims or dependents of the victims of the motor vehicle accident. 15. The next aspect requires to be considered is whether the loss of dependency has to be worked out on the basis of the monthly salary of the deceased as on the date of his death or the said monthly earning is required to be enhanced or increased for the purpose of finding out the loss of dependency if the deceased had a bright prospect of promotion and hike in salary, if he had not met with the untimely accidental death. No doubt, the view taken by the courts earlier was that for the purpose of finding out of loss of dependency, the income of the deceased as on the date of death alone should be taken into consideration. However, the Apex Court in later decisions in the light of the convincing evidence regarding the future prospect of the deceased getting promotions and hike in salary, has evolved deferent methodology in finding out probable income of the deceased for assessing the loss of dependency. However, consistent view is that if there is convincing evidence to show that the deceased person had a long service ahead of him. But for the accidental death and there are chances of his getting promotions to higher positions pay scale, it is improper to take the income of the deceased as on the date of his death for the purpose of assessing loss of dependency. 16. In Susamma Thomas's case referred to supra, the deceased was aged 39 years. His monthly income was Rs. 1,032/- per month and he was more or less in a stable job and considering the prospectus of advancement in future career, his monthly income was assessed at Rs.2,000/- per month and on that basis, the loss of dependency was assessed. Thus in Susamma Thomas's case, the Court almost doubled the income derived by the deceased as on the date of his death as the proper higher estimate of monthly income for the purpose of assessing loss of dependency. (Supra) 17.
Thus in Susamma Thomas's case, the Court almost doubled the income derived by the deceased as on the date of his death as the proper higher estimate of monthly income for the purpose of assessing loss of dependency. (Supra) 17. In the case of Sarala Dixit vs Balwant Yadav the Hon'ble Supreme Court while dealing with the cases of death of a salaried person, who was working in military service has adopted a different methodology in assessing the proper monthly income of the deceased for the purpose of assessing loss of dependency. In this reported decision, the gross salary of the deceased at the time of death was Rs.1,543/- in the time scale of Rs.1000-50-1550. He had large number of military service ahead of him, which would have certainly taken him into a higher echolons. The evidence also disclosed that the deceased was a teetotaler and he did not smoke or drink. He had a brilliant academic record and performance in the military service. In the background of these facts and circumstances, the Supreme Court held that in the light of the brilliant academic record and military service and keeping in view other imponderable factors, it would not be unreasonable to predicate that the gross income would have shot up to at least double than what he was earning at the time of his death had he successfully completed his future military career till the time of superannuation. The Apex Court further observed that the average gross future monthly income at the time of death at Rs.1,500/- per month, to the maximum which he would have otherwise got had he not died premature death i.e., Rs. 3,000/- per month and dividing the figure by two, the average gross monthly income spread over his entire future carrier was arrived at Rs. 2,200/- per month. 18. In the case of Rajapriya referred to supra and in the case of Managing Director, T.S.T.C. Limited vs K.I. Bindu reported in relied upon by the Learned Counsel for respondent the Apex Court has only considered as to what would be the appropriate multiplier applicable to the facts and circumstances of the case.
2,200/- per month. 18. In the case of Rajapriya referred to supra and in the case of Managing Director, T.S.T.C. Limited vs K.I. Bindu reported in relied upon by the Learned Counsel for respondent the Apex Court has only considered as to what would be the appropriate multiplier applicable to the facts and circumstances of the case. However, the Apex Court in Jashuben's case referred to above after referring to all earlier decisions in Susamma Thomas, Sarla Dixit, Rathi Memon, Shivammal, Rajapriya, Charlie, Kalpana, Bidya Dhar Dutra, Krishna Bala, Sripriya and Indira Srivastava has evolved another methodology for finding out the proper, income that would have been earned by the deceased had he not died on account of accident. 19. In Jashuben's case, the deceased was an employee of ONGC and his gross salary as on the date of his death was Rs. 6,419/- and he had a long service ahead of him. Under these circumstances, the Apex Court has observed thus: "13. The amount of compensation indisputably should be determined having regard to the pecuniary loss caused to the dependents by reasons of the death of the victim. It was necessary to consider the earnings of the deceased at the time of the accident. Of course, further prospect is not out of bound for such consideration. But the same should be founded on some legal principle" Thereafter, the Apex Court, having regard to the facts and circumstances of the case, worked out the loss of dependency at paras 26 and 27 as under: "26. The loss of dependency, in our opinion, should be calculated on the basis as if the pay of the deceased was Rs. 3295x2 = Rs. 6590, thereto should be added 18.5% dearness allowances which comes to Rs. 1219, child education allowance for two children @Rs. 240x2=Rs. 480 and child bus fare Rs. 160x2= Rs. 320 should have been added which comes to Rs. 8609. 27. From the aforementioned figure 1/3 should be deducted. After deduction, the amount of income comes to Rs. 5738 per months (Rs. 8609- Rs. 2871) and the amount of compensation should be determined by adopting the multiplier of 13, which comes to Rs.8,95,128". Thus from the above, it is noticed that the Apex Court has assessed the loss of dependency by doubling the basic pay of the deceased and thereafter has added permissible DA to such doubled basic pay.
8609- Rs. 2871) and the amount of compensation should be determined by adopting the multiplier of 13, which comes to Rs.8,95,128". Thus from the above, it is noticed that the Apex Court has assessed the loss of dependency by doubling the basic pay of the deceased and thereafter has added permissible DA to such doubled basic pay. From the total amount, 1/3'" has been deducted towards personal expenses of the deceased and balance 2/3 has been taken as contribution to the family and the loss of dependency has been computed on that basis by adopting the multiplier of 13. No doubt, the Apex Court in Jashuben's Case has assessed the loss of dependency by adopting said methodology having regard to the facts and circumstances of the case. Therefore, it can be said that the Apex Court has not laid down the law on this aspect of the matter so as to call it a precedent. Nevertheless, the methodology adopted by the Apex Court in Jashuben's case can be safely followed in similar cases and it will not be improper for this Court to apply the methodology adopted by the Apex Court in Jashuben's case while assessing loss of dependency in respect of death of a salaried person, who had long service ahead of him and who had bright prospects of getting promotions and moving into higher pay scales. 20. In the case on hand also, the deceased was a Police Constable. He was aged about 28 years. Even if it is taken that he was due to retire at the age of 58 upon attaining the age of supper-annuation, he had 30 long years of service ahead of him. It cannot be said that during these 30 years of service, he would not have got the promotion. Judicial notice of the fact may be taken that Government servants are entitled for annual increment in addition to periodical pay revisions. It has to be noted that the deceased would have got at least one or two promotions to the higher posts may be as Head Constable or Sub- Inspector. Bearing these facts in mind, we are of the considered opinion that this it is a fit case in which the methodology evolved by the Apex Court in Jashuben's case has to be applied. 21.
Bearing these facts in mind, we are of the considered opinion that this it is a fit case in which the methodology evolved by the Apex Court in Jashuben's case has to be applied. 21. The learned counsel for the respondent insurer contended that the multiplier of 13 should be applied as applied in Jashuben's case. We see no substance in this contention. The Apex Court while confirming the multiplier of13 adopted by the High Court in that case, did not find a ground to interfere with the multiplier applied in that case. However, the multiplier in the case on hand will have to be reckoned having regard to the age of the deceased by following the table enunciated by the division bench of this Court in the case of Gulam Khader vs United India Insurance Co. Ltd., reported in case. 22. As noticed earlier, as per Ex. P.9, the basic pay was Rs. 3,300/- and admissible D.A. was at 49% of the Basic pay. The only statutory deduction was Rs. 50/- towards professional tax. Therefore, the balance basic pay would work out to Rs. 3,250/- if is doubled, the basic pay would be Rs. 6,500/- Permissible DA at 49% on this doubled basic pay works out to Rs. 3,185/-. Thus, the total would be Rs. 9,685/-. Wife and parents of deceased were dependents on him. Therefore, it is reasonable to deduct 1/3" of this amount towards his personal expenses. Therefore, loss of contribution to the monthly works out to Rs. 6,457/- and Rs. 77,484/- per annum. The evidence on record clearly establishes that deceased was aged 28 years on the date of the accident. Therefore, appropriate multiplier applicable is 16. Thus, the total loss of dependency works out to Rs. 12,39,744/-. The appellants as well as parents are together entitled for this amount under the head 'loss of dependency'. In addition to this, the claimant is entitled for Rs. 10,000/- towards loss of consortium; the parents of deceased are entitled for Rs. 10,000/- towards loss of love and affection; Rs. 10,000/- towards loss of estate and Rs. 10,000/ - towards funeral and transportation of dead body etc. The deceased was in the hospital for about 4 days after the accident up to the date of his death. Therefore, it is just and proper to award Rs. 20,000/towards medical expenses. Thus, the total compensation payable would be Rs.
10,000/- towards loss of estate and Rs. 10,000/ - towards funeral and transportation of dead body etc. The deceased was in the hospital for about 4 days after the accident up to the date of his death. Therefore, it is just and proper to award Rs. 20,000/towards medical expenses. Thus, the total compensation payable would be Rs. 12,99,764/-, which may be rounded of to Rs. 13,00,000/-. Therefore, the appeal deserves to be allowed. 23. Accordingly, the appeal is allowed enhancing the compensation to Rs. 13,00,000/- (Rupees thirteen lakhs only) as against Rs. 5,85,040/- (Rupees five lakhs eighty five thousands and forty only) awarded by the Tribunal. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of the petition till the date of deposit. Respondent No.2, the insurer of the offending vehicle is directed to pay the enhanced compensation together with interest within eight weeks from to-day. Appellant as well as respondent Nos. 3 and 4 shall share the enhanced compensation together with interest equally. Out of the amount so payable to each of the appellant and respondent Nos. 3 and 4, 75% shall be kept in FD in any Nationalised or Scheduled Bank for a period of 5 years and balance amount shall be paid to them. They are at liberty to withdraw periodical interest accrued thereon.