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2017 DIGILAW 1472 (KAR)

National Insurance Co. Ltd. v. S. Shashikala

2017-11-08

ARAVIND KUMAR, B.S.PATIL

body2017
JUDGMENT : This appeal is preferred by the insurer being aggrieved by the quantum of compensation awarded under the judgment and award dated 21.01.2014 passed by the Senior Civil Judge and Additional Motor Accidents Claims Tribunal, Holalkere in MVC No.73/2013. 2. By consent of learned Advocates appearing for parties, this appeal is taken up for final disposal since the accident is of the year 2012 and the records from the Tribunal have been secured. 3. The claimants sought for payment of compensation of Rs. 50 lakhs by filing a claim petition under Section 166 of Motor Vehicles Act, 1988 contending interalia that deceased Sri S Dharmaraju (husband of first claimant) along with four other persons was proceeding to his village near Hiriyur on 17.09.2012 in a car and at about 12.00 p.m. near Nandihalli, Tumkur Taluk, driver of the Scorpio bearing registration No.KA-02-MA-4662 coming from opposite direction, dashed against the car resulting in death of four inmates of the car. Hence, compensation was sought for. 4. The insurer contested the claim and the Tribunal, on considering the pleadings and evidence tendered by the claimants, by its judgment and award in question has awarded a sum of Rs. 30,46,700/- under the following heads: Sl. No. Heads Amount Rs. 1 Loss of dependency 26,95,680/- 2 Loss of consortium in favour of 1st petitioner 1,00,000/- 3 loss of love and affection 1,00,000/- 4 Funeral expenses 25,000/- 5 Vehicle damages 1,26,000/- Total Rounded off to 30,46,680/- 30,46,700/- 5. We have heard the learned Advocates appearing for the parties and perused the records. 6. It is the contention of learned Advocate appearing for appellant that tribunal has awarded excess compensation since entire salary of the deceased has been construed by adding 30% to the same without deducting tax component. He would also submit that wife of the deceased namely, first claimant is receiving family pension which would be enhanced from time to time and as such, entire salary ought not to have been taken into consideration for determining the compensation payable to the wife and children of the deceased towards ‘loss of dependency’. Hence, he prays for modifying the award by reducing the compensation. 7. Per contra, learned Advocate appearing for claimants would support the judgment and award in question and submits that compensation awarded by tribunal is just and reasonable. Hence, he prays for dismissal of the appeal. 8. Hence, he prays for modifying the award by reducing the compensation. 7. Per contra, learned Advocate appearing for claimants would support the judgment and award in question and submits that compensation awarded by tribunal is just and reasonable. Hence, he prays for dismissal of the appeal. 8. Having heard the learned Advocates appearing for parties and on perusal of the records, we are of the considered view that following point would arise for our consideration: “Whether compensation awarded by tribunal is just and reasonable or does it require interference? 9. Occurrence of the accident on 17.09.2012, death of Sri. Dharmaraj, issuance of policy to the offending vehicle and same being in force as on the date of the accident are all undisputed facts. Hence, they are not delved upon. 10. The tribunal while determining the compensation payable to the claimants namely, wife, daughter and mother of the deceased has taken into consideration the salary of the deceased who was working as a teacher and receiving gross salary of Rs. 20,149/- and sum of Rs. 210/- which was being deducted towards professional tax, has arrived at the income of Rs. 19,939/- and has deducted 1/3rd towards personal expenses of the deceased and has held that contribution to the family was Rs. 17,280/- and accordingly has computed the compensation under the head ‘loss of dependency’ by awarding a sum of Rs. 26,95,680/-. The income that has been taken into consideration, multiplier adopted and the addition of 30% towards future prospects made cannot be held as contrary to the principles of law enunciated by this Court and Apex Court. 11. Hon’ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi reported in 2017 SCC Online SC 1270, has held that where the deceased was drawing salary, it is this component which will have to be taken into consideration for computing the compensation towards ‘loss of dependency’ and as such, question of deducting the family pension amount from out of the income of the deceased, as canvassed by learned Advocate appearing for appellant cannot be accepted. it has been specifically held by Hon’ble Apex Court to the following effect: “64. it has been specifically held by Hon’ble Apex Court to the following effect: “64. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) xxx (ii) xxx (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) to (vii) xxx (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” In the light of the aforesaid authoritative pronouncement of Hon’ble Apex Court, we are of the considered view that compensation determined by the tribunal towards ‘loss of dependency’ by taking into consideration actual salary of the deceased less professional tax cannot be found fault with. 12. However, tribunal, as rightly contended by learned counsel for the insurer was in error in awarding compensation of Rs. 1,00,000/- each under the head ‘loss of consortium to first claimant’ and ‘loss of love and affection to second claimant’. Likewise, compensation awarded by tribunal under the head ‘funeral expenses’ is marginally on the higher side. In the light of PRANAY SETHI’s case referred to supra, claimants would be entitled to compensation of Rs. 40,000/- and Rs. 15,000/- towards ‘loss of consortium’ and ‘funeral expenses’ in all, a sum of Rs. 55,000/- and thus excess compensation of Rs. 1,55,000/- awarded under these three heads requires to be reduced. In view of the fact that tribunal has not awarded any compensation towards ‘loss of estate’, same deserves to be awarded in a sum of Rs. 15,000/- and accordingly, it is hereby awarded. 13. For the reasons aforestated, we proceed to pass the following: JUDGMENT (1) Appeal is hereby allowed in part. (2) Judgment and award dated 21.01.2014 passed by Additional Motor Accidents Claims Tribunal, Holalkere in MVC No.73/2013 is hereby modified and a sum of Rs. 1,55,000/- is hereby reduced from the compensation awarded. 15,000/- and accordingly, it is hereby awarded. 13. For the reasons aforestated, we proceed to pass the following: JUDGMENT (1) Appeal is hereby allowed in part. (2) Judgment and award dated 21.01.2014 passed by Additional Motor Accidents Claims Tribunal, Holalkere in MVC No.73/2013 is hereby modified and a sum of Rs. 1,55,000/- is hereby reduced from the compensation awarded. Award passed by Tribunal under the heads ‘loss of dependency’, ‘vehicle damages’ is not disturbed. (3) Amount in deposit is ordered to be transmitted to the jurisdictional Tribunal forthwith. (4) Registry is directed to draw the decree accordingly.