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2018 DIGILAW 572 (AP)

G. Sujatha v. K. Venkateswarlu

2018-08-07

C.PRAVEEN KUMAR, T.RAJANI

body2018
JUDGMENT : T. RAJANI, J. 1. Though the impugned order is a common order passed in MVOP Nos. 650 and 707 of 2003, the appellants-claimants have preferred this appeal assailing the order in MVOP No. 650 of 2003 dated 22.1.2013, passed by the Principal District Judge, Kurnool, on the grounds that the Court below erred in applying the multiplier 11, even though the deceased was aged 36 years at the time of the accident; it erred in not granting any amount under the head pecuniary damages viz., loss of consortium, loss of love and affection etc., it erred in taking the income of the deceased Rs. 17,58,960/- per annum, though the deceased was working as Senior Software Engineer in Agrim Technologies Inc., Sam Jose, C.A., USA and was getting $ 91517 which comes to Rs. 42,09,782/-; it erred in not granting any amounts under the head future prospects, though the law is well settled that 50% is to be added to the actual salary; it erred in deducting 1/3rd towards personal expenses of the deceased, though dependants are four in number and it erred in not granting any amount towards medical expenses though the deceased while undergoing treatment. On the above grounds, the appellants seek to set aside the impugned order. Heard both sides. 2. The facts of the case, briefly, are that the deceased was a postgraduate in Technology and was working as a software engineer in USA. On 18.7.2003, the deceased was coming in a jeep along with others from Chennai to Kurnool and when they reached near Venkatapuram Village on Allagadda - Nandyal Road, at about 10.30 a.m., the lorry bearing No. AP 16 T 4477 came from opposite direction in a rash and negligent manner and dashed against the jeep. The deceased sustained injuries and was shifted to Government Hospital, Nandyal, where he succumbed to injuries while undergoing treatment. The deceased was drawing a salary of $7500 per month and annual income of $91,517, which amounts to Rs. 42,09,782/- approximately. The accident occurred while the deceased was returning from USA via Chennai to Kurnool, where his wife and children were residing. 3. The deceased was drawing a salary of $7500 per month and annual income of $91,517, which amounts to Rs. 42,09,782/- approximately. The accident occurred while the deceased was returning from USA via Chennai to Kurnool, where his wife and children were residing. 3. The Court below, considering the pay-stub details (electronic record) of the deceased from January, 2003 to June, 2003, showing the net pay of the deceased as i.e., $5361.25, $5361.25, $4601.87, $4596.88, $4621.87 and $4776.88 respectively, took the average net pay of the deceased as $4886 per month and annual pay of the deceased as $58362 and after deducing 1/3rd towards personal expenses of the deceased, arrived at $39088/- as the annual pay of the deceased. Thereafter, the prevailing dollar rate was applied as 45' to convert the amount into Indian currency, and the Court below arrived at $39088 x Rs. 45A = Rs. 17,58,960/- as the income of the deceased. To determine the multiplier with respect to the age of the deceased at 36 years, the Court below relied on a decision of the Supreme Court, which is extracted hereunder: "...... In United India Insurance Co. Ltd. v. Patrica Jean Mahanan and others, AIR 2002 SC 2607 , a medical graduate went to America and established himself and became an American. His annual income was 9 lakhs U.S. dollars. He died in India in an accident. He is 48. The multiplier was fixed at "10" by the Hon'ble Supreme Court. In the above case, it is held at Paras 20 and 21 as follows: The purpose to compensate the dependants of the victims is that they may not be suddenly deprived of source of their maintenance and as far as possible they may be provided with the means as were available to them before the accident took place. It will be just and fair compensation. But in cases where the amount of compensation may go much higher than the amount providing the same amenities, comforts and facilities and also the way of life, in such circumstances also it may be a case where, while applying the multiplier system, the lesser multiplier may be applied In such cases amount of multiplicand becomes relevant. The intention is not to over compensate. The intention is not to over compensate. We therefore, hold that ordinarily while awarding compensation, the provisions contained in the Second Schedule may be taken as a guide including the multiplier, but there may arise some cases, as one in hand, which may fall in the category having special feature or facts calling for deviation from the multiplier usually applicable. The Court below, relying on the aforesaid decision reduced the multiplier to 11' instead of 15' considering that the multiplicand is large and arrived at the total loss of income to the dependants at Rs. 1,93,48,560/- (Rs. 17,58,960 x 11), which was rounded off to Rs. 1,93,48,600/-." 4. The Counsel for the appellant assails the approach of the Court below in relying on the said decision and reducing the multiplier to 11, which, in fact, is 15. The Counsel contends that in the case dealt with by the Supreme Court, the annual income of the deceased was 9 lakhs U.S. dollars and in the light of the said fact, the multiplier was reduced to 10. The Counsel contends that in the present case the income of the deceased is not exorbitant and hence, reducing the multiplier is not justiciable. The Counsel also contends that future prospects of the deceased were also not considered. He, however, does not dispute the salary that was taken by the Court below. The Counsel for the claimants relied on a decision of the Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, 2017 (6) ALD 170 (SC) : 2017 ACJ 2700 , to contend that 40% has to be the future prospects of the deceased. The Counsel also requests the Court to adopt suitable multiplier to the age of the deceased. 5. The Counsel for the respondent counters the said argument on the contention that the employment of the deceased cannot be taken as permanent, as the deceased had VISA only upto the year 2004 and contends that the future prospects cannot be taken at 40% and it requires reduction. 6. But we are not convinced with the said argument, since by the date of accident the deceased was holding a VISA, he was having employment and he was making good money. In the above background, the probabilities of the case would lean in favour of the opinion that the VISA of the deceased would be extended in future. 6. But we are not convinced with the said argument, since by the date of accident the deceased was holding a VISA, he was having employment and he was making good money. In the above background, the probabilities of the case would lean in favour of the opinion that the VISA of the deceased would be extended in future. Hence, the submission of the Counsel for the respondent, that the future prospects have to be reduced, cannot be considered. 7. The salary of the deceased, as assessed by the Court below, is $4886 per month and $58632 per annum. When the same is multiplied with Rs. 45/-, (the prevailing dollar rate at the time of incident), the annual income of the deceased would come to $58632 x Rs. 45/- = Rs. 26,38,440/-. Since the claimants are four in number, 1/4th has to be deducted towards the personal expenditure of the deceased as per the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, 2009 (3) ALD 83 (SC) : (2009) 6 SCC 121 . Hence, after deducting 1/4th, the annual income would come to D63s. 26,38,440/- (Rs. 26,38,440/- x ¼ = Rs. 6,59,610/-) = Rs. 19,78,830/-. If the future hike at 40% is added, the annual income would come to Rs. 19,78,830/- + (Rs. 19,78,830/- x 40% = Rs. 7,89,932/-) = Rs. 27,68,762/-. The age of the deceased, being 36 years, considering the submissions of the respondent's Counsel, we feel that adopting multiplier 13' instead of 15, would meet the ends of justice and as such, the loss of future income to the claimants would come to Rs. 27,68,762/- x 13 = Rs. 3,59,93,906/-. Apart from the above, following the decision of the Supreme Court in Pranay Sethi's case (supra), Rs. 40,000/- is awarded to the first claimant towards loss of consortium, Rs. 15,000/- is awarded towards loss of estate and Rs. 15,000/- is awarded towards funeral expenses. Hence, in all, the claimants are entitled to total compensation of Rs. 3,59,93,906/- + Rs. 40,000/- + Rs. 15,000/- = Rs. 3,60,63,906/- rounded off to Rs. 3,60,64,000/-. Though the compensation awarded exceeds the claim, now the law is well settled by virtue of the decision of the Supreme Court in Rajesh v. Rajbir Singh, (2013) 9 SCC 54 , wherein it was held that the compensation has to be just and it can exceed the claimed amount. 15,000/- = Rs. 3,60,63,906/- rounded off to Rs. 3,60,64,000/-. Though the compensation awarded exceeds the claim, now the law is well settled by virtue of the decision of the Supreme Court in Rajesh v. Rajbir Singh, (2013) 9 SCC 54 , wherein it was held that the compensation has to be just and it can exceed the claimed amount. This Court also in Adam Induar Mutemma v. Rathod Reddia and others, 2015 (4) ALD 585 (LB), held that the compensation amount can exceed claimed amount, subject to payment of Court-fee. 8. Hence, the award of the Court below is modified as indicated above with proportionate costs. The claimants shall pay the differential Court-fee. The apportionment of compensation shall be made in the same proportion as made by the Court below. The award shall relate back to the date of decree and the enhanced compensation shall carry the interest at the rate 7.5% per annum from the date of petition till realization. In the result, the civil miscellaneous appeal is allowed in part. As a sequel, the miscellaneous applications, if any pending, shall stand closed.