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2014 DIGILAW 330 (KAR)

Managing Director v. Pattu

2014-03-07

A.S.Pachhapure

body2014
JUDGMENT A.S. Pachhapure, J. 1. In MFA No. 30891/2012, the owner and insurer of the vehicle has challenged the findings of negligence and quantum of compensation granted to the respondents for the death of Sanjeev in a motor vehicle accident, whereas the respondents herein (claimants) have filed the other appeal seeking enhancement of the compensation. 2. The facts reveal that on 19.03.2011 Sanjeev (the deceased) was riding his motorcycle bearing registration No. KA.32/X-9664 on the way to Kamalapur village from Gulbarga and at that time the bus bearing registration No. KA-32/F-403 came from the opposite direction driven in a rash and negligent manner and hit the motorcycle. Thereby the deceased fell down. His body was struck to the wheel and he was dragged. Consequently he suffered severe crush injuries and was shifted to the hospital at Gulbarga and referred to higher treatment to Solapur and on the way he succumbed to the injuries. The claimants being his parents and brothers made a claim for compensation for loss of dependency and other conventional heads including the damages to their vehicle. 3. The Appellant owner and insurer of the vehicle appeared before the Tribunal and filed its statement of objections denying the rash and negligent driving on the part of the driver of the bus and attributing negligence on the deceased. They also denied the quantum of compensation claimed as highly exorbitant, arbitrary and unreasonable. 4. During the enquiry the mother of the deceased is examined as PW 1 and in her evidence the documents Ex. P-1 to P-13 were marked. On behalf of the owner RW 1 is examined. 5. The Tribunal after hearing the counsel and on appreciation of evidence on record held, the driver of the bus negligent and responsible for the accident and granted compensation of Rs. 4,65,000/- with interest at 6% as compensation on all the heads. Aggrieved by the judgment and award, the NEKRTC has filed MFA No. 30891/2012 whereas the other appeal is filed by the claimants seeking enhancement. 6. With the consent of both the counsel, the matter is taken up for final disposal. 7. I have heard the learned counsel for both the parties. The points that arise for my consideration are: (1) Whether the accident was due to negligence of Sanjeev (the deceased), the rider of the motorcycle? (2) Whether the compensation awarded is just and reasonable? With the consent of both the counsel, the matter is taken up for final disposal. 7. I have heard the learned counsel for both the parties. The points that arise for my consideration are: (1) Whether the accident was due to negligence of Sanjeev (the deceased), the rider of the motorcycle? (2) Whether the compensation awarded is just and reasonable? (3) Whether the claimants are entitled for enhanced compensation? If so, to what extent? 8. Learned counsel for the owner of the bus submits that there was no negligence on the part of the driver of the bus and accident in question has occurred solely due to the negligence of the Sanjeev (the deceased). He also submits that the quantum of compensation awarded by the Tribunal is on the higher side and 50% the deduction is not considered for the reason that the claimant Nos. 1 and 2 are the parents, whereas other claimants are the brothers and the deceased was bachelor. Therefore, he would submit that the Tribunal committed an error in deducting 1/3rd of the income towards personal expenses of the deceased. 9. On the other hand the learned counsel for the claimants would submit that the income assessed by the Tribunal is on the lower side and as Sanjeev (the deceased) holding driving licence was working as a driver and the income of a skilled employee could have been considered. It is also his submission that the Tribunal committed an error in not considering the age of the deceased in choosing the multiplier and therefore, the compensation needs to be enhanced. He has also filed memo with the copy of the driving licence held by Sanjeev (the deceased). The original licence was also shown to the parties. 10. Scrutiny of the evidence reveals that the complaint of this incident has been produced at Ex. P-1 and it is stated in the complaint that the accident was solely due to the rash and negligent driving by the bus driver. It was the bus driver who was prosecuted for the offence of rash and negligent driving and causing the death of Sanjeev in the accident. Certified copy of the spot mahazar is produced at Ex. P-4 of which a copy is made available and it would reveal that the accident occurred on Humnabad Gulbarga road and the spot of the accident is on the left side of the road. Certified copy of the spot mahazar is produced at Ex. P-4 of which a copy is made available and it would reveal that the accident occurred on Humnabad Gulbarga road and the spot of the accident is on the left side of the road. So this circumstance which is brought on record in the spot mahazar Ex. P-4 would clearly indicate that the deceased was on the proper side of the road and he was hit by the bus by taking the vehicle on extreme wrong side. So this fact mentioned in the spot mahazar added with complaint having been lodged against the driver of the bus and he having been prosecuted for the offence of rash and negligent driving clearly indicate that the accident was due to the negligence of the driver of the bus. 11. Though the owner of the bus examined its driver as RW 1, the affidavit in lieu of the chief examination, the relevant portion in para 3 reveals "It is respectfully submitted that this accident is occurred due to the rash and negligent rider of the motorcycle bearing registration No. KA.32/X-9664 by its rider." Except this sentence there is nothing mentioned in his evidence as to the manner in which there was a rash and negligent act on the part of the rider of the motorcycle. Though he states that he was driving the bus slowly, cautiously by observing the traffic rules, as to on what side of the road he was proceeding is not stated by RW 1. His evidence does not reveal the facts relating to the manner of the accident. Therefore, this evidence is of no help to prove the rash and negligent riding of the motorcycle and circumstance which is brought on record in the spot mahazar cannot be brushed aside by such a vague evidence. Therefore, I am of the opinion that the Tribunal was justified in holding the bus driver rash and negligent in driving the bus. 12. Learned counsel for the claimant placed reliance on a Division Bench decision reported in 2014 SAR (Civil) 107 [M. Mansoor & Anr. Versus United India Insurance Co. Ltd.]. The facts reveal that the deceased was a bachelor and while awarding the compensation the Apex Court adopted the age of the deceased in choosing the multiplier. In para 15 it is stated 15. Versus United India Insurance Co. Ltd.]. The facts reveal that the deceased was a bachelor and while awarding the compensation the Apex Court adopted the age of the deceased in choosing the multiplier. In para 15 it is stated 15. The Tribunal adopted the multiplier of 17 and the High Court determined the multiplier as 12 on the basis of the age of the parents/claimant. This Court in the decision in Amrit Bhanu Shali & Ors. Vs. National Insurance Company Limited and Ors., (2012) 11 SCC 738 held as follows: 15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation. (Emphasis supplied) In para 16 of the aforesaid judgment the Apex Court, has made a reference to Sarala Verma's case wherein the broad principles were laid down by the Apex Court relating to multiplier to be adopted by considering the age of the deceased and therefore, the Apex Court held that it is the age of the deceased which has to be considered and not the parents. 13. In another decision reported in 2007(4) T.A.C. 17 (S.C.) [New India Assurance Company Ltd. Versus Smt. Shanti Pathak and others] The Apex Court has held that it is the age of the parents which has to be considered and the judgment impugned in the appeal adopting the multiplier depending on the age of the deceased was set aside. It is a full bench judgment of the Apex Court and was not brought to the notice of the Apex Court in the subsequent judgments. That apart as could be seen from para 15 of the judgment of the Apex Court in M. Mansoor and others, there is specific mention of the fact "There may be number of dependents of the deceased whose age may be different and therefore the age of the dependent has no nexus with the computation of compensation." Ultimately it is the question of dependency which is of utmost importance and grant compensation under the provisions of Motor Vehicles Act, is a concept based on the dependency. That apart the Apex Court had also an occasion to consider grant of compensation in respect of a bachelor (the deceased) (2011) SLT 313[National Insurance Co. Ltd., versus Shyam Singh and others wherein the dependents were the parents, the Tribunal had chosen multiplier of 9 to award total compensation of Rs. 1,72,000/- with interest at 6%. The High Court enhanced it by applying multiplier of 18. The Apex Court held that it is the average age of the parents for arriving at the multiplier and not the age of the deceased. It held that the Tribunal had rightly adopted the multiplier of 8 by taking the average age of parents who were 55 and 56 years. The award of the Tribunal was restored by the Apex Court. It is true that this court in an unreported decision in MFA No. 30635/2013 (MV) dated 31st day of October 2013(SJ) held that it is the age of the deceased which is to be taken into consideration. But it is relevant to note that the Apex Court while adopting the multiplier has taken into consideration the life expectancy of the parents and the benefit that they would get in their lifetime if the deceased was alive. So when the concept of compensation under the social welfare legislation is the dependency, it is the extent of the dependency of the parents that would weigh much to grant the benefit of the income of deceased and that is most relevant. That apart a Full Bench Judgment of the Apex Court has to be preferred to the judgment of Division Bench. In the aforesaid facts and circumstances I am of the view that it is the age of the parents which has to be considered in choosing the multiplier and not the age of the deceased. Therefore, the Tribunal was justified in choosing the multiplier on the basis of the age of the youngest amongst the parents. 14. Sanjeev (the deceased) was holding driving licence and in the records which have been produced and exhibited there is a mention that his avocation is driver. That apart the copy of the driving licence has been produced in this appeal. Therefore, he is a skilled employee. It appears to be just and proper to assess his income at Rs. 6,000/- per month as the wages of a driver is considered at Rs. That apart the copy of the driving licence has been produced in this appeal. Therefore, he is a skilled employee. It appears to be just and proper to assess his income at Rs. 6,000/- per month as the wages of a driver is considered at Rs. 6,000/- in respect of the accidents of the year 2011, in the Lok-Adalats held. 15. Though PW 1 in her evidence states that claimant No. 1 her husband has suffered paralysis, in the cause title his occupation is mentioned coolie. Perusal of the contents of the application of the claimants does not have any reference about the paralytic condition. Therefore, interested version of PW 1 that he is not able to do any work cannot be accepted. The claimant Nos. 3 to 5 are the brothers of the deceased and they have attained the age of majority. They cannot claim the dependency on the income of the deceased as claimant No. 1 is their father and it is for him to look after his sons till they get some avocation. In the aforesaid circumstance I am of the opinion that personal deductions of the deceased will have to be taken at 50%. The net loss of dependency thereby would be Rs. 3,000/- (Rs. 6,000/2) x 12 x 15 = Rs. 5,40,000/-. A sum of Rs. 15,000/- has-been granted towards the loss of damages to the vehicle. A sum of Rs. 30,000/- has been granted on other heads. I think they are entitled to an additional sum of Rs. 10,000/- towards the conventional heads. Thus the claimants are entitled to Rs. 5,40,000/- + Rs. 55,000/- = Rs. 5,95,000/- with interest at 6%. A sum of Rs. 1,30,000/- in excess of the amount of compensation is enhanced with interest at 6%. Hence the point Nos. 1 and 2 are answered in the negative and point No. 3 in the affirmative. Consequently MFA No. 30819/2012 is dismissed to FA No. 32476/2012 is allowed in part. The claimants (appellants in MFA No. 32476/2012) are entitled to Rs. 1,30,000/- with interest at 6% from the date of petition till its payment in addition to the compensation awarded by the Tribunal. The amount in deposit be transmitted to the jurisdictional Tribunal.