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2009 DIGILAW 547 (KAR)

Muniyappa v. P. Nagaraj

2009-07-24

A.N.VENUGOPALA GOWDA

body2009
Judgment :- A.N. Venugopala Gowda, J. One Ganesh (deceased), sons of the appellant/petitioner, while traveling as a pillion rider on TVS 50 bearing registered No.CAT 1296, sustained fatal injuries and later succumbed, on account of an accident caused to said vehicle, by the driver of goods tempo bearing registration No. KA.07/1546, which belonged to the 1st respondent. The said goods temp vehicle was insured by the 2nd respondent. Ganesh was unmarried. He left behind him, his parents as his only heirs and legal representatives. A claim petition was filed under Section 163-A of the Indian Motor Vehicles Act, 1988 (‘the Act’ for shot) stating loss of dependency. The petition was contested by the respondents. Based on the pleadings, issues were framed. Father of the deceased, while deposing as PW1 has stated that his deceased son was aged 25 years as on the date of accident; was employed and was earning Rs.3000/- P.m. and was maintaining the family. PW2 was examined to prove employment and the earning of deceased Ganesh. 10 documents produced by the petitioners were marked as Exs.P1 to P10. Respondent did not lead any evidence. After appreciating the evidence on record with reference to the rival contentions, Motor Accident Claims Tribunal held, deceased Ganesh succumbed to the injuries sustained in the accident, which took place on 01/04/2004 due to rash and negligent driving by driver of goods tempt bearing registration No.KA 07/1546 and parents of the deceased, are entitled to be awarded compensation of Rs.2,02,000/- with interest at 6% P.a. from the date of petition till payment. The tribunal took income of the deceased at Rs.3,000/-p.m., and determined the loss of dependency at Rs.1,92,000/-, by applying the multiplier of ‘8’.1/3rd was deducted from the said amount towards the personal expenses of the deceased. Feeling aggrieved, the parents of the deceased filed this appeal, for increase of compensation amount to Rs.5,00,000/-with interest. 2. The tribunal took income of the deceased at Rs.3,000/-p.m., and determined the loss of dependency at Rs.1,92,000/-, by applying the multiplier of ‘8’.1/3rd was deducted from the said amount towards the personal expenses of the deceased. Feeling aggrieved, the parents of the deceased filed this appeal, for increase of compensation amount to Rs.5,00,000/-with interest. 2. Sri A. Sreenivasaiah, Learned Counsel appearing for the appellant would contend: (a) Tribunal has grossly erred in considering the age of the parent, instead of the age of the deceased, in the matter of choice of multiplier and assessment of loss of dependency; (b) Tribunal has erred in calculation of annual wages with relevant multiplier and in determining the loss of dependency at Rs.1,92,000/- instead of Rs.4,32,000/-; (c) Reliance is placed on the decision of the Apex Court in the case of Sarala Verma And Others Vs. Delhi Transport Corporation And Another 2009 ACJ 1298 to contend that, compensation should be awarded with reference to, the age and income of deceased. 3. Sri S. Srishaila, Learned Counsel appearing for the respondent/Insurance Company, on the other hand, would contend that: (a) Keeping in view the fact that, appellant lost her son, age of the parent is the relevant factor and choice of multiplier is to be determined by the age of the deceased or the claimants, whichever is higher; (b) Tribunal has rightly taken the age of mother of deceased, to apply the multiplier and determine the loss of dependency; (c) In the matter of selection of multiplier, in all cases cannot be solely dependent on the age of the deceased. If a young person is killed in the accident leaving behind aged parents, who may not survive long enough to match with the higher multiplier provided by the second Schedule, the Court has to off set such high multiplier and balance the same with short life expectancy of the claimants and that precisely has happened in the instant case and consequently, the Tribunal has not committed any error in choosing multiplier of ‘8’ by considering age of the mother and not the deceased; (d) Reliance was placed on the decision of Apex Court in the case of Ramesh Singh And Another Vs. Satbir Singh And Another AIR 2008 SC 1233 in support of the findings and conclusion of the Tribunal. 4. Satbir Singh And Another AIR 2008 SC 1233 in support of the findings and conclusion of the Tribunal. 4. In the cases wherein Section 163-A of the Act is invoked, it is not necessary for the claimants to establish any act of negligence on the part of the driver of the vehicle. It is not necessary even to plead that, death occurred owing to any wrongful act or negligence of the driver and owner of the vehicle. Compensation is to be determined in such cases, in terms of Second Schedule appended thereto, in the Act. It also provides for awarding of general damages towards, funeral expenses, loss of estate, loss of consortium where the beneficiary is spouse and medical expenses-actual expenses incurred before death, not exceeding the amount indicated therein. 5. Second Schedule is structured formula and itself stipulates, deduction of income of the deceased by 1/3rd, in consideration of the expenses which he would have incurred towards maintaining himself, had been alive. 6. Keeping in view the rival contentions, the short point for consideration is: When the claim is by a dependent/beneficiary, whether the selection of multiplier should be with reference to the age of the deceased or the surviving beneficiary? 7. Indisputably, deceased was aged 25 years as on the date of accident. The claimants, father and mother respectively of the deceased, did not produce proof of their age. However, they produced the ration casrd/Ex.P9, which shows age of the father to be 70 years and that of the mother to be 58 years. Hence, the Tribunal has taken the age of the mother of the deceased as 58 years and applied the multiplier of ‘8’ provided in Second Schedule to the Act. It is choice of this multiplier, which is being found fault with, by the Learned Counsel for the appellant. 8. In the case of Tamil Nadu State Transport Corporation Ltd., Vs. S. Rajapriya And Others AIR 2005 SC 2985 , widow and minor sons of a deceased, who lost his life in an automobile accident, filed claim petition against the appellant – Corporation. An award was passed by Motor Accident Claims Tribunal, which was upheld in appeal. When the matter was carried to the Apex Court, it was held as follows; “12. An award was passed by Motor Accident Claims Tribunal, which was upheld in appeal. When the matter was carried to the Apex Court, it was held as follows; “12. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The Choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand byway of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last”. 9. In the case of Ramesh Singh, (Supra), parent of deceased, filed a claim petition to award compensation, on account of death of his sons in a motor vehicle accident. The claimant/parent, was aged about 41 years and deceased was aged about 22 years at the time of said accident. MACT passed an award, by assessing loss of dependency by taking the age of parent into consideration. In an appeal for enhancement/increase of award amount, by placing heavy reliance on second schedule to the Act, it was contended that, since the claim made was under S.163-A of the Act, the age of the deceased should be taken into consideration, to apply the multiplier. The contention was not accepted and it was held as follows; “4. We have given anxious consideration to these contentions and are of the opinion that the same are devoid of any merits. Considering the law laid down in New India Assurance Co. Ltd., Vs. Charlie (2005) 10 SCC 720 , it is clear that the choice of multiplier is determined by the age of the deceased or claimants whichever is higher. Admittedly, the age of he father was 55 years. The questions of mother’s age never cropped up because that was not the contention raised eves before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the Courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life”. 10. The questions of mother’s age never cropped up because that was not the contention raised eves before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the Courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life”. 10. In the case of Sarla Verma (Supra), one Rajinder prakesh, died on account of injuries sustained in the motor vehicle accident. At the time of the accident and the untimely death, the deceased was aged 38 years. His widow, 3 minor children’s, parents and grandfather filed a claim before the MACT. The Tribunal passed an award allowing the claim in part. The deceased prior to this death as a Scientist in Indian Council of Agricultural Research. The Tribunal calculated the compensation by taking the monthly salary of the decreased. It deducted 1/3rd towards personal and living expenses of the deceased and the contribution to the family being the remaining 2/3rd. Since age of retirement was 60 years, it was held that the period of service lost on account of untimely death is 22 years and therefore, applied the multiplier of 22 and arrived at the loss of dependency to the family and passed the consequential award. Dissatisfied with the quantum of compensation, appeal was filed, a which was allowed in part. Not being satisfied with the increase, the matter was taken up to the Apex Court. Considering the contentions with regard to the Selection of multiplier and taking into consideration the amended Act 54 of 1994, inter alia inserting S.163-A and the second schedule with effect from 14.11.1994, it was observed as follows; “The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs.3,000 to Rs.40,000. It does not specify the quantum of compensation in case of the annual income of the deceased is more than Rs.40,000. But it provides the multiplier to be applied with reference to the age of the deceased”. As is evident from the facts of the case, the claim was under Section 166 of the Act, by the widow, 3 minor children, parents and grandfather of the deceased. But it provides the multiplier to be applied with reference to the age of the deceased”. As is evident from the facts of the case, the claim was under Section 166 of the Act, by the widow, 3 minor children, parents and grandfather of the deceased. Widow and children of the deceased were younger in age than the deceased and in the normal course of events they would have survived the deceased. Hence, in the facts of the said case, the choice of multiplier, that is, with reference to the age of the deceased or the dependents, did not arise for consideration. No finding on the said aspect has been recoded therein. Hence, the aforesaid decision has no application, for deciding the point, which has arisen for consideration herein. 11. It is well settled that, life expectancy of the deceased or the beneficiaries, whichever is shorter, is an importance factor in the matter of determination of loss and awarding of compensation. In the case of National Insurance Company Limited Vs. M/s Swarnalatha Das 1993 Suppl (2) SCC 743, it has been observed that “the appropriate method of assessment of compensation is the method of capitalization of net income choosing a multiplier appropriate to the age of the deceased or the dependents whichever is lower.” 12. Hence, the choice of multiplier should be either with reference to the age of the deceased or the surviving beneficiary, which ever is higher. On facts, the deceased was aged 25 years and his mother, the beneficiary is aged 58 years. Life expectancy of beneficiary being lower, the Tribunal is justified in applying the multiplier of ‘8’ in terms of the Second Schedule to the Act. Consequently, assessment of loss of dependency and award passed by the Tribunal is flawless. In the result, the appeal fails and shall stand dismissed. No costs.