National Insurance Company Limited, Davanagere v. Sunandamma
2017-11-08
ARAVIND KUMAR, B.S.PATIL
body2017
DigiLaw.ai
JUDGMENT : Aravind Kumar, J. 1. These two appeals are directed against judgment and award passed in MVC No. 4 of 2013 by Senior Civil Judge and Additional Motor Accidents Claims Tribunal, Holalkere on 21-1-2014. MFA No. 3456 of 2014 has been preferred by the insurer and MFA No. 4192 of 2014 has been filed by the claimants seeking for reduction/enhancement of the compensation respectively. 2. By consent of learned Advocates appearing for parties, these appeals are taken up for final disposal since the accident is of the year 2012 and the records from the Tribunal having been secured. 3. Claimants sought for payment of compensation of Rs. 47 lakhs by filing a claim petition under Section 166 of Motor Vehicles Act, 1988 contending inter alia that deceased Sri Jayaprakash (son of the claimants) along with four other persons was proceeding to his village near Hiriyur on 17-9-2012 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 Tribunal, after considering the pleadings and evidence tendered by the claimants, by its judgment and award in question has awarded a sum of Rs. 22,25,000/- under the following heads: 5. We have heard the learned Advocates appearing for parties and perused the records. 6. Learned Advocate appearing for insurer has contended that Tribunal committed an error in deducting 1/3rd as personal and living expenses of the deceased though he was a bachelor and as such, compensation requires to be recomputed by deducting 50% towards personal and living expenses from out of the income of the deceased. 7. Learned Advocate appearing for the claimants has contended that income of the deceased ought to have been construed at Rs. 50,000/- per month and Tribunal should have added 50% of his income towards future prospects and thereafter Tribunal ought to have determined Toss of dependency'. Hence, he contends that compensation awarded by the Tribunal has to be recomputed. 8. Having heard the learned Advocates appearing for parties and on perusal of the records, it would emerge therefrom that deceased Sri Jayaprakash was the son of claimants and he died on account of the injuries sustained in the road traffic accident that occurred on 17-9-2012.
Hence, he contends that compensation awarded by the Tribunal has to be recomputed. 8. Having heard the learned Advocates appearing for parties and on perusal of the records, it would emerge therefrom that deceased Sri Jayaprakash was the son of claimants and he died on account of the injuries sustained in the road traffic accident that occurred on 17-9-2012. The records would also disclose that offending vehicle had been insured with the appellant in M.F.A. No. 3456 of 2014 and as on the date of accident, the policy issued to offending vehicle was in force. These facts are not in dispute. 9. Records of the Tribunal would also disclose that deceased was working as an Assistant Manager in MTS Mobile Company as per letter of appointment-Ex. P. 39 and for the year 2011, he was drawing salary of Rs. 4,62,000/- p.a. vide Ex. P. 38. In the year 2012, he changed his job and came to be appointed as Assistant Manager - Prepaid (sales function) at Level R1 in a Multi National Company known and called as 'Idea Cellular Limited' vide appointment letter dated 22-8-2012-Ex. P. 40 with gross salary of Rs. 5,14,800/- p.a. Tribunal while assessing the compensation towards Toss of dependency', has taken into consideration Ex. P. 41-Bank Pass Sheet of ICICI Bank relating to the account of the deceased maintained at the Bank and held that sum of Rs. 15,096/- had been credited to the account of the deceased which reflects the salary of the deceased for 13 days. However, it has construed the income of the deceased at Rs. 25,000/- per month by holding that it was not a permanent employment. Tribunal has deducted 1/3rd towards his personal expenses and held that contribution to the family was Rs. 16,666/- per month and annual contribution to the family being Rs. 1,99,992/-. Taking into consideration that mother of the deceased being 52 years, the multiplier as applicable to her age namely, 11' has been taken into consideration to determine the Toss of dependency' and thereby it has awarded the total compensation of Rs. 21,99,912/- towards Toss of dependency'. 10. There is no dispute to the fact that deceased was working in Idea Cellular Limited as per appointment letter dated 22-8-2012-Ex. P. 40.
21,99,912/- towards Toss of dependency'. 10. There is no dispute to the fact that deceased was working in Idea Cellular Limited as per appointment letter dated 22-8-2012-Ex. P. 40. A bare perusal of the said letter of appointment would disclose that deceased had been appointed as Assistant Manager - Prepaid in the sales function at LEVEL-R1 and the salary structure which has been appended to the said appointment letter as Annexure-R1 at Rs. 42,900/- per month or Rs. 5,14,800/- per annum. However, author of the said document has not been examined. On the said ground itself, the document-Ex. C. 1 (original and the copy of it has been marked as Ex. P. 40) could not have been ignored by the Tribunal or not considered for the purposes of determining the compensation towards 'loss of dependency' to the claimants. The Bank statement - Pass Sheet-Ex. P. 41 relied upon by the Tribunal would clearly disclose that salary of Rs. 15,096/- has been credited for 13 days or in other words, Ex. P. 41 would clearly disclose that deceased was working at Idea Cellular Limited and he had been paid a sum of Rs. 15,096/- towards his salary for the said period. In that view of the matter, Tribunal committed a serious error in construing the income of the deceased at Rs. 25,000/- per month. 11. In the light of clear documentary evidence available on record namely, Ex. P. 40 or Ex. C. 1 clearly disclosing the gross salary of the deceased per month being Rs. 42,900/-, the same requires to be adopted. Hence, we are of the considered view that compensation to the claimants towards Toss of dependency' requires to be re-determined by construing the income of deceased at Rs. 42,900/- per month. 12. In the light of authoritative pronouncement of the Apex Court in the case of National Insurance Company Limited v Pranay Sethi and Others AIR 2017 SC 5157 : VII (2017) SLT 707 : 2017 (180) AIC 45 (SC), 2017 SCC Online SC 1270, 50% of the actual salary of the deceased towards 'future prospects' less tax deserves to be added to the income of the deceased, which the claimants/dependents would be deprived of. Accordingly, compensation towards Toss of dependency' is being re-determined. 13. In the instant case, as already noticed hereinabove, income of the deceased was Rs.
Accordingly, compensation towards Toss of dependency' is being re-determined. 13. In the instant case, as already noticed hereinabove, income of the deceased was Rs. 42,900/- per month and when 50% is added towards future prospects namely, Rs. 21,450/-, the sum total would be Rs. 64,350/- per month. The said income at the relevant point of time being taxable under the Income-tax Act, 1961 and also attracting levy of professional tax in the State of Karnataka, these two components of tax will have to be deducted from out of the total income of the deceased to arrive at the net income of the deceased per month. It is also needless to observe by us that an assessee would be entitled to standard deduction under Chapter VI-A of the Income-tax Act, 1961 subject to the same the total income as required under Section 288-A of the Income-tax Act, 1961 can be arrived at. 14. The accident in question occurred on 17-9-2012 namely, during the financial year 2012-13 and assessment year 2013-14, the then prevailing rate of tax was 20% (for annual income Rs.5 Lacs to Rs.10 Lacs). Thus, the tax deductable on the monthly income of Rs.64,350/- at 20% is Rs.12,870/- and when said amount is so deducted, the net income would be Rs. 51,480/- per month. 15. As rightly contended by learned Advocate appearing for Insurance Company, deceased was a bachelor and as per the dicta laid down by Hon'ble Apex Court in Smt. Sarla Verma and Others v Delhi Transport Corporation and Another AIR 2009 SC 3104 : 2009 (78) AIC 153 (SC) : 2009 AIR SCW 4992 : 2009 (4) SC 91 : VI (2009) SLT 663 : (2009)6 SCC 121 , 50% of the income of the deceased requires to be deducted towards his personal and living expenses and as such, a sum of Rs. 25,740/- from out of Rs. 51,480/- requires to be deducted from out of the income of the deceased. When so deducted, the net loss of dependency to the claimants per month would be Rs. 25,740/-. 16.
25,740/- from out of Rs. 51,480/- requires to be deducted from out of the income of the deceased. When so deducted, the net loss of dependency to the claimants per month would be Rs. 25,740/-. 16. We are of the considered view that Tribunal erred in adopting multiplier of 11' by taking into consideration age of the younger parent, in the light of the authoritative pronouncement of the Hon'ble Apex Court in the matter of Munna Lal Jain and Another v Vipin Kumar Sharma and Others IV (2015) SLT 621 : 2015 SCLT 318 (OnLine) : (2015)6 SCC 347 wherein their Lordships have clearly held that the multiplier to be adopted is on the basis of the age of the deceased and not that of the younger parent. 17. In the light of the aforestated position of law, when facts on hand are examined, it would disclose that as per the SSLC marks card-Ex. P. 66 of the deceased, his date of birth is reflected as 25-10-1982. Accident in question occurred on 17-9-2012. Thus, as on the date of the accident, deceased was aged about 30 years. The post-mortem report-Ex. P. 37 disclose the age of the deceased as 28 years. In the light of documentary evidence namely, SSLC marks card of the deceased produced by the claimants themselves disclosing the date of birth of the deceased as 25-10-1982, we are of the considered view that age of the deceased has to be held as 30 years as on the date of accident and as such, the multiplier of 17' as per the dicta laid down by Hon'ble Apex Court in Smt. Sarla Verma v Delhi Transport Corporation reported in (2009)6 SCC 121 deserves to be adopted. Thus, the compensation to which claimants would be entitled to towards Toss of dependency' would be as under: Rs. 25,740/- x 12 x 17 = Rs. 52,50,960/- In the light of judgment of Hon'ble Apex Court in Pranay Sethi's case referred to supra, under the conventional heads, namely, towards Toss of estate' and 'funeral expenses', claimants would be entitled to compensation of Rs. 15,000/- each and in all, Rs. 30,000/-. Thus, the total compensation to which claimants would be entitled to would be Rs. 52,80,960/-.
52,50,960/- In the light of judgment of Hon'ble Apex Court in Pranay Sethi's case referred to supra, under the conventional heads, namely, towards Toss of estate' and 'funeral expenses', claimants would be entitled to compensation of Rs. 15,000/- each and in all, Rs. 30,000/-. Thus, the total compensation to which claimants would be entitled to would be Rs. 52,80,960/-. Hence, we proceed to pass the following: JUDGMENT (1) MFA No. 3456 of 2014 is hereby disposed of and MFA No. 4192 of 2014 is hereby allowed in part. (2) Judgment and award dated 21-1-2014 passed by Senior Civil Judge and Additional Motor Accidents Claims Tribunal, Holalkere in MVC No. 4 of 2013 is hereby modified and compensation is determined at Rs. 52,82,960/- with interest at 6% p.a. from the date of petition till date of payment or deposit whichever is earlier. (3) Apportionment and deposit as ordered by the Tribunal will hold good for the compensation awarded in this appeal. (4) Amount in deposit along with records is ordered to be transmitted to the jurisdictional Tribunal forthwith. (5) Registry is directed to draw the decree accordingly.