Research › Search › Judgment

Karnataka High Court · body

2009 DIGILAW 45 (KAR)

New India Assurance Co. Ltd. v. Nilambika

2009-01-20

D.V.SHYLENDRA KUMAR, K.N.KESHAVANARAYANA

body2009
JUDGMENT D.V. Shylendra Kumar, J: This appeal is by the insurance company who by issuing a policy of insurance had agreed to indemnify the owner of motor vehicle i.e., Tata Sumo with registration No.KA-28-N-1453, against the claim for compensation arising out of use of said motor vehicle. 2. Respondent Nos. 1 to 8 being the wife, children and mother of deceased Siddaiah, filed claim petition before Motor Accidents Claims Tribunal, Gulbarga seeking compensation for the death of said Siddaiah who was working as a High School teacher and who died in an accident that occurred on 6.6.2005 at about 6.30 in the evening when said Siddaiah was proceeding as a pillion-rider of a two-wheeler bearing registration No.KA-28-L-3791, the Tata Sumo dashed against the motor-cycle and as a consequence of the ghastly accident, the bread winner of the claimants died on the spot and the dependents were deprived of his assistance. 3. The Tribunal had in the wake of a contest by the appellant Insurance Company framed as many as 3 issues as under: (1) Whether the petitioners prove that on 6.6.2006 at 6.30 p.m. the deceased Siddayya was proceeding on motor-cycle bearing No. KA-28-L-3791 as pillion-rider and near Nedalagi village a Tata Sumo bearing No.KA-28-N-1453 came in a rash and negligent manner from Jewargi side and dashed against Motor Cycle bearing No.KA-32-L-3774 and thereby the said Motor Cycle dashed to vehicle motor-cycle No. KA-28-L-3791 in reverse direction due to which deceased sustained multiple injuries and died on the spot as alleged? (2) Whether the respondent No.2 proves that the driver of the offending vehicle was not holding valid driving licence at the time of accident? (3) Whether the petitioners are entitled for compensation? If so, what is the quantum of compensation? The Tribunal answered the issues in favour of the claimants and against the Insurance Company. 4. The only ground on which the present appeal is filed against the judgment and award of the Tribunal whereunder the claimants have been given a total compensation of Rs. 13,03,172/- under different heads as under: 1. Towards Loss of Dependency Rs. 12,83,172/ 2. Towards Loss of consortium Rs. 5,000/ 3. Towards loss of estate Rs. 5,000/ 4. Towards love and affection Rs. 5,000/ 5. Towards funeral expenses Rs. 5,000/- --------------------- Total Rs. 13,03,172/- under different heads as under: 1. Towards Loss of Dependency Rs. 12,83,172/ 2. Towards Loss of consortium Rs. 5,000/ 3. Towards loss of estate Rs. 5,000/ 4. Towards love and affection Rs. 5,000/ 5. Towards funeral expenses Rs. 5,000/- --------------------- Total Rs. 13,03,172/- is that the award is on the higher side, particularly under the head of loss of dependency as the deceased was a Government servant, and was clue to retire in about 3 years time from the date of the accident. 5. The grievance of the Insurance Company is that the Tribunal has failed to notice that the deceased who was aged 55 years at the time of the accident being a Government employee, would have retired at the age of 58 years i.e., within 3 years from the date of the accident; that after retirement, the income of the deceased by way of salary would have stopped and the same would have been substituted by pension which would be not more than 50% of the salary and such a situation having been examined by the Division Bench of this High Court in the case of Union of India Vs. K.S. Lakshmi Kumar reported in 2001 (1) Kar. L.J. 91, the Tribunal should have applied the ratio of this case in quantifying the possible compensation payable to the claimants; that the judgment and award of the Tribunal is vitiated fur not following the ratio of this judgment. 6. The appeal was admitted and the respondents had been put on notice. The respondents are represented by Sri.Sanjay Kulkarni, Advocate. We have heard Sri.Sudarshan, learned Counsel appearing for the appellant-Insurance Company and Sri Sanjay Kulkarni, learned Counsel for the "respondent-claimants. 7. What is very vehemently urged by Sri. 6. The appeal was admitted and the respondents had been put on notice. The respondents are represented by Sri.Sanjay Kulkarni, Advocate. We have heard Sri.Sudarshan, learned Counsel appearing for the appellant-Insurance Company and Sri Sanjay Kulkarni, learned Counsel for the "respondent-claimants. 7. What is very vehemently urged by Sri. Sudarshan, learned Counsel appealing for the appellant-Insurance Company is that the Tribunal totally glossed fiver the fact that the deceased was aged 55 years and a Government servant, who would have retired at 58 years and the salary income would have been available only for 3 more years and thereafter if at all only pension is payable to the retired person, the same would have been at about 50% of the actual salary; that such a situation has been elaborately examined by this Court in Lakshmi Kumar's case and it has been held that where the multiplier applicable is higher than the number of years of service which the deceased had before superannuation, the contribution to the family for the entire period of multiplier cannot be with reference to the salary income of the deceased and in such circumstances, the loss of dependence should be worked out on the basis of the amount being calculated in two portions by applying what is known as split multiplier" method; that for the period of remaining years of service, the multiplier will be as many as the number of years of service and the salary income to be taken as the basis, and thereafter for the subsequent period, the multiplier to be adopted will be actual multiplier minus the number of years of service and the income to be taken for this period will be half the salary amount 8. Further submission of Sri.Sudarshan, learned Counsel appearing for the appellant - Insurance Company is that if such method is adopted, the loss of dependency during post retirement period, will get reduced by not less than about Rs.3,500/- per month and as such compensation awarded in favour of the claimants under the judgment and award of the Tribunal calls for suitable modification. 9. 9. On the other hand, Sri.Sanjay Kulkarni, learned Counsel for the respondents - claimants before the Tribunal submits that while it is true that split multiplier system may have to be applied in the case of employees who are on the verge of retirement who have only a few years of service left in the wake of the judgment of this Court in Lakshmi Kumar's case, in the present case the deceased person was a proficient teacher and that the age of retirement had been enhanced by the State Government from 58 to 60 years from 1.7.2008 and that the deceased would not have attained the superannuation within three years from the date of the accident and he would have retired only after attaining the age of 60 years and that he would have had 5 more years of salary income and therefore, the first multiplier of five, the salary income of Rs. 14,581/- has to be applied and even assuming that for the remaining period i.e., for the balance six multiplier, the income by way of pension should be taken at half the salary, what is submitted is that the reduction in the amount is not warranted as the deceased would have earned by private avocation during post retirement period, particularly being a teacher and proficient in his avocation could have given private tuition or even could have been employed in private institutions for a salary of Rs. 8,000/- to Rs. 10,000/- per month and if this is taken into account the difference being not much and though the respondents have not preferred any counter claim, he submitted that to the extent of the award it could be sustained and it is also pointed out that the compensation awarded under the other heads is on the lower side and calls for commensurate revision so that the respondents can sustain the award made by the Tribunal. 10. We have perused the judgment and record of the case and bestowed our attention to the submissions made by the learned Counsel at the bar and also perused the judgment of this Court in Lakshmi Kumar's case. 11. The basic facts being not in dispute and the liability having not been disputed, the only question is as to "whether the judgment and award of the Tribunal in awarding the total compensation of Rs. 11. The basic facts being not in dispute and the liability having not been disputed, the only question is as to "whether the judgment and award of the Tribunal in awarding the total compensation of Rs. 13,03,172/- calls for any revision by applying the ratio as laid down in Lahshmi Kumar's case and whether that should be applied in total to the case on hand On the basis of the arguments addressed on behalf of the appellant ?" 12. The first thing we would like to notice is this defence was not set up by the Insurance Company before the Tribunal and therefore, perhaps the Tribunal did not consider this aspect. Nevertheless, if an error of law has occurred in the course of the judgment and the award of the Tribunal and if the error is so apparent as to amounting to an illegality, it can definitely be corrected if a ground is raised in the appeal and therefore we are examining the question. 13. In the present case, we notice that the deceased was a teacher and had put in long years of service and accepting the submission of Sri. Sanjay Kulkarni that the deceased would have retired at the age of 60 years having regard to the development of enhancing the age of retirement of Government servants by the Government of Karnataka, the question is as to post-retirement. What is the possibility? 14. While it is true that this aspect has not been discussed in Lakshmi Kumar's case, we notice in the present case on facts the deceased bring a teacher and a person with a large family to support particularly with 3 daughters who were still students at the time of the accident and to be married and two sons who are minors and could not have supported the family but should have been educated and to take care of an aged mother, 'the deceased person undoubtedly would have been compelled not to sit idle but to use his skills, experience and ability to earn an additional income to the family apart from the pension he would have received. In the present scenario, the deceased, if should have been alive going in for any private employment or even the private tuition to earn an income to supplement the pension, was a very likely possibility. 15. In the present scenario, the deceased, if should have been alive going in for any private employment or even the private tuition to earn an income to supplement the pension, was a very likely possibility. 15. If such is the need and requirement, the deceased would have easily earned not less than Rs. 8,000/- to 10,000/- per month by using his, skill and experience as a teacher. It would definitely be comparable to the salary that he was earning. If the income of Rs. 8,000/- Rs. 10,000/- is added to the pension that would take total income post retirement much above the income while in service. 16. This apart, we notice that the amount of compensation awarded under the head loss of consortium at Rs. 5,000/- is on the meager side and should have been at least Rs. ,15,000/ - having regard to the age of the first claimant and the deceased. The compensation towards loss of love and affection to the five children and also to the mother could have been placed at Rs. 5,000/- each and that should work out to Rs.,35,000/-. Under the other heads, compensation towards loss of estate, it should have been Rs.25,000/- and funeral expenses not less than Rs. 10,000/-. 17. If the compensation as awarded by the Tribunal should be revised on such premise, the amount arrived at will be more than the amount as awarded by the Tribunal. 18. Sri.Sudarshan, learned Counsel for the appellant would point out that the respondents having not preferred any cross appeal, cannot seek for any enhancement of compensation under any of the heads and we are quite aware of this position. We are also equally aware of the legal position that a non-appealing respondent can sustain the decree in terms of the judgment even by supporting the judgment with reasons other than the reasons given in the judgment. 19. On applying such legal principle, even though we may not embark on allowing any enhancement of compensation under any of the heads as awarded by the Tribunal, we notice that the amount of compensation as awarded by the Tribunal is sustainable if the respondents should have appealed for enhancement under different heads. If so, there is no need for disturbing such a judgment and award. 20. If so, there is no need for disturbing such a judgment and award. 20. On calculation, we notice that if the claim should have been compensated properly and suitably under the other heads and under head of loss of dependency if compensation should have been worked out not only on the basis of applying the ratio laid down in Lakshmi Kumar's case but also supplementing that in the facts and circumstances of the case by total potential income, the deceased would have earned more during post retirement period, then we find that the amount that will be arrived finally will be little higher than the amount awarded by the Tribunal. It is for this reason we are not inclined to disturb the award of the Tribunal though perhaps if the ratio of Lakshmi Kumar's case alone should have been the guiding factor, there would have been a downward revision of, the compensation as awarded by the Tribunal under the impugned judgment. 21. In the result, the appeal is dismissed. The judgment and award passed by the Tribunal is affirmed. 22. The amount deposited, if any before this Court is directed to be transferred to the Tribunal. If the appellant has not deposited any part of the award amount, balance of the award amount should be deposited with interest before the Tribunal, within 8 weeks from the date of receipt of the certified copy of this judgment.