Royal Sundaram Aliance Insurance Company Limited v. Dorairaj Pillay
2017-01-03
ANAND BYRAREDDY, B.A.PATIL
body2017
DigiLaw.ai
JUDGMENT : These appeals are disposed of by this common judgment, as the issues of law that arise for consideration are the same. 2. The facts of the case in each of these appeals are as follows:- In the appeal in MFA 8039/2015, the appellants were the claimants before the Motor Accidents Claims Tribunal seeking compensation in respect of the death of the son of Appellants no.1 & 2. Appellants no.3 & 4 are the sister and brother, respectively, of the deceased. It was claimed that on 15-8-2010, Adarsh, the son of appellants no.1 & 2, was riding pillion on a motorcycle ridden by one Ankith, and that they were proceeding from Mangalore to Ullal, on National Highway no.17, the time was said to be 5:30AM, when a tempo coming from the opposite direction had dashed head-on into the motorcycle. It is claimed that the tempo had moved to the right side lane and was clearly responsible for the accident. As a result of the impact, the motorcycle and the riders were thrown off the road. Adarsh is said to have suffered multiple injuries and was rendered unconscious. Though he was rushed to a hospital, he was declared as brought dead. He was said to be aged about 25 at the time of accident, he had graduated from the Manjunatha College of Arts & Commerce, Dombivili, Mumbai. He had completed a one year computer course from the Keerthi Computer Institute, Mumbai. As on the date of the accident he was said to be as an Executive Tele-confirmation, with Suvasu Solutions, Mangalore and was earning a salary of Rs.14,000/- per month. All the appellants were said to be dependant on his income. The insurer of the offending vehicle had resisted the claim petition and had denied every single assertion of the claimants. It was alleged that the claimants were acting in connivance with the police in making the claim. It was contended that the driver of the insured vehicle was not holding a valid driving licence and hence the respondent was not liable to indemnify the insured. The tribunal having negated the contention of the insurer and having awarded compensation, the claimants are in appeal seeking enhancement of compensation in the appeal in MFA 8039/2015 and the Insurer is in appeal denying liability in the appeal in MFA 8384/2012. 3. Heard Ms. Sandhya Rao, Counsel for the appellants in MFA 8039/2015.
The tribunal having negated the contention of the insurer and having awarded compensation, the claimants are in appeal seeking enhancement of compensation in the appeal in MFA 8039/2015 and the Insurer is in appeal denying liability in the appeal in MFA 8384/2012. 3. Heard Ms. Sandhya Rao, Counsel for the appellants in MFA 8039/2015. The appellants are the parents, sister and a brother of the deceased who was said to be riding pillion on a motorcycle that had collided with a tempo. The deceased was aged about 25 at the time of the accident, as on 15-8-2010. He had died immediately after the accident. He was a graduate in Commerce and had completed a one year computer course and had secured employment and was on probation with a private outfit at Mangalore, he was on a starting salary of Rs.14000/-. The appellants claimed that they were very much dependant on the earnings of the deceased. It is contended that the Tribunal in awarding compensation under the head of 'loss of dependency ' has applied the ratio laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 , and has opined that the mother of the deceased was the only dependant and has proceeded to adopt 50% of the income of the deceased as his contribution to the family. The future prospect of further contribution is assumed at Rs.3000/-and the notional contribution is taken at Rs.10000/-. (50% = Rs.7000 + 3000). The Tribunal has applied ‘18’ as the multiplier having regard to the age of the deceased and has awarded Rs.21,60,000/- towards loss of dependency. (Rs.10000 x 12 x 18) The Tribunal has awarded a sum of Rs.5000/- to each of the appellants towards loss of estate, Rs.20000, in all. A sum of Rs.5000/- is awarded towards loss of love and affection, to each of the appellants, Rs.20000, in all. The Tribunal has awarded a sum of Rs.12000/- towards funeral and other expenses. It is contended that the Tribunal ought to have deducted 1/3rd of the salary towards the personal expenses of the deceased and not 50%. It is further pointed out that the amounts awarded under the other heads of compensation is negligible and requires to be enhanced in a substantial measure, keeping in line with the settled principles. 4.
It is contended that the Tribunal ought to have deducted 1/3rd of the salary towards the personal expenses of the deceased and not 50%. It is further pointed out that the amounts awarded under the other heads of compensation is negligible and requires to be enhanced in a substantial measure, keeping in line with the settled principles. 4. Per contra, the learned counsel for the insurer of the tempo, also in appeal, would contend that the Tribunal had failed to consider the contributory negligence on the part of the deceased motor cyclist. It is contended that the Tribunal was in error in accepting the alleged income of the deceased, in the absence of acceptable evidence as to the certainty of such income. It is further contended that since the Tribunal had concluded that the mother of the deceased was the only dependant, her age had to be taken into account in applying the multiplier and not that of the age of the deceased. 5. In the light of the above primary contentions and from a perusal of the record, it is evident that the age of the deceased and his income has been established with reference to material evidence. In so far as the contention of Shri Mahesh, as regards the alleged contributory negligence of the motor cycle rider is concerned, the controversy has been dealt with by the Tribunal in paragraph 9 and 10 of the judgment in some detail. There is a categorical finding that the tempo was on the wrong side of the road and that there was no fault to be found with the motor cyclist. Hence, the contention that the Tribunal had overlooked the said aspect is not tenable. On the question of deduction towards personal and living expenses, it was held in Sarla Verma’s case, supra, that in regard to bachelors, normally 50% is deducted as personal and living expenses, as he would tend to spend more on himself. There was also a possibility of marriage of the bachelor and that would result in his contribution to the parents and siblings would be cut drastically. This proposition has been recently approved in two three judge bench decisions of the Apex Court, namely, Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 and Munnalal Jain v. Vipin Kumar Sharma, (2015)6 SCC 347 .
This proposition has been recently approved in two three judge bench decisions of the Apex Court, namely, Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 and Munnalal Jain v. Vipin Kumar Sharma, (2015)6 SCC 347 . Hence, the deduction of 50% of the income of the deceased for purposes of computation of the loss of dependency, cannot be faulted. In so far as the assessment of future prospects is concerned, a three judge Bench of the Apex Court in Rajesh v. Rajbir Singh, (2013) 9 SCC 54 , which has been referred to with approval in Munnalal Jain's case, supra, and while distinguishing the dictum in Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 , it is clarified that the increase in the case of self employed and persons on fixed wages, is not always 30%; it will have reference to the age. In other words, in the case of self employed or persons with fixed wages, if the deceased victim was below 40, there must be an addition of 50% to the actual income of the deceased while computing future prospects, subject to payment of tax. And that in the case of the age group of the victim being between 40 and 50 years, the addition would be 30%. Hence, in the instant case, as the victim was 25, the addition towards future prospect should be 50%. As regards the question of the appropriate multiplier to be adopted is concerned, whether the multiplier should depend on the age of the dependants or that of the deceased, is no longer res integra. A three Judge Bench of the Apex Court, in the case of Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 has held that the multiplier is to be used with reference to the age of the deceased. For the reason that there is certainty with regard to the age of the deceased, but as far as the dependants are concerned, there would always be room for dispute as to the age of the eldest or the youngest or even the average, etc., is to be taken. In the instant case, though the Tribunal has found that the mother of the deceased was the only dependant, the prospect of the father aging soon and becoming dependant on the earnings of the deceased as well, had been overlooked.
In the instant case, though the Tribunal has found that the mother of the deceased was the only dependant, the prospect of the father aging soon and becoming dependant on the earnings of the deceased as well, had been overlooked. The age of the deceased being 25 at the time of his death, the multiplier taken at 18, is in accordance with the consistent view of the Apex Court. As regards the award of compensation towards loss of love and affection, the award of Rs.20000/-, in all is a paltry sum and ought to be substantially enhanced. Similarly, the award of Rs.12000/- towards funeral expenses and transportation is also liable to be enhanced. Thus, the appellants are entitled to compensation of Rs.22,68,000/-, towards loss of dependency, which is calculated as follows :- I. 1. Rs. 14000 (Monthly income) add 50% of Rs. 14000, towards future prospects = Rs. 21000/- 2. 50% of Rs. 21000 (deduction) = Rs.10500/- 3. Rs.10500 multiplied by 12 (annual income) = Rs.1,26,000/- 4. Rs. 1,26,000 multiplied by 18 (multiplier) = 22,68,000/- II. The loss of love and affection of the parents is assessed at Rs.1 lakh each and that of the siblings at Rs.50000/- each and hence compensation payable under this head shall be Rs.300000/-. III. The appellants are entitled to Rs.50000/-towards funeral expenses and transportation. The appellants are thus entitled a total compensation of Rs.26,76,000/- including Rs.20000/- granted by the Tribunal towards loss of estate. The additional compensation awarded shall carry interest at the rate of 6% per annum from the date of petition till the date of payment. The additional compensation shall be released in favour of the appellants in the same percentage as apportioned by the Tribunal, to each of the appellants. In the result, the appeal in MFA 8039/2015 is allowed in part and the appeal in MFA 8384/2012 is dismissed. The amount in deposit may be withdrawn by the appellants in terms of the award.