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2020 DIGILAW 1941 (KAR)

Jayanthi v. Majamil Hussain Khan

2020-09-30

ALOK ARADHE, M.I.ARUN

body2020
JUDGMENT Alok Aradhe, J. - Mfa No.4670/2016 has been filed by the claimants whereas MFA No.3663/2016 has been filed by the Insurance Company against judgment dated 28.03.2016 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal'). Since both the appeals arise from the same accident and from the same judgment, they were heard together and are being decided by this common judgment. 2. Facts leading to the filing of these appeals briefly stated are that on 31.05.2013 at about 1.50 p.m., deceased Narasimha Sherugar was riding his motorcycle bearing registration No.KA 20 D 2006 from Byndoor side towards Kundapura side. When he reached near Mookambika Timbers, Kirimanjeshwara Village, a lorry bearing registration No.MH 04 EL 5481 which was being driven in a rash and negligent manner and in a high speed by its driver, dashed against the motorcycle of the deceased. As a result of the aforesaid accident, the deceased sustained severe injuries and succumbed to the same. 3. Thereupon, the claimants filed a petition under Section 166(1) of the Motor Vehicles Act, 1988 inter alia on the ground that at the time of accident, the deceased was aged about 53 years and was employed as a Bailiff in Kundapura Court. It was further pleaded that the accident took place on account of rash and negligent driving of the offending vehicle by its driver. 4. The respondent No.1 did not appear and was placed ex parte. Respondent Nos.2 and 3 filed written statement in which inter alia, the averments made in the petition were denied. The age, avocation and income of the deceased was also denied. It was also denied that the accident took place on account of the rash and negligent driving of the driver of the lorry. It was also pleaded that the claim of compensation by the claimants is excessive and exorbitant. 5. The Claims Tribunal, on the basis of the pleadings of the parties, framed issues and recorded the evidence. In order to prove their case, claimant No.1 got herself examined as PW1 and another witness Mr.Radhakrishna as PW2 and got exhibited documents viz., Ex.P1 to Ex.P9. The respondents did not adduce any evidence but produced documents which were marked as Ex.R1 to Ex.R5. In order to prove their case, claimant No.1 got herself examined as PW1 and another witness Mr.Radhakrishna as PW2 and got exhibited documents viz., Ex.P1 to Ex.P9. The respondents did not adduce any evidence but produced documents which were marked as Ex.R1 to Ex.R5. The Claims Tribunal, vide impugned judgment, inter alia held that the accident took place on account of rash and negligent driving of the offending lorry by its driver and as a result of which, deceased sustained severe injuries and succumbed to the same. The Claims Tribunal further held that the claimants are entitled to the compensation to the tune of 19,52,548/- along with interest @ 6% p.a. from the date of petition till realisation. Being aggrieved, these appeals have been filed before us. 6. Learned counsel for the Insurance Company has submitted that the deceased, at the time of accident, was aged about 52 years and 8 years of service was left and therefore, the Tribunal ought to have applied split multiplier. In support of the aforesaid submission, he has placed reliance on the decision of the Supreme Court in ' PUTTAMMA AND ORS. Vs. K.L.NARAYANA REDDY AND ANOTHER, (2014) AIR SC 746 . On the other hand, learned counsel for the claimants have supported the judgment passed by the Claims Tribunal. It is further submitted that the Claims Tribunal has rightly not applied the split multiplier in the fact situation of the case. It is also urged that the sister of the deceased is also entitled to a sum of 40,000/- on account of loss of love and affection. 7. We have considered the submissions made by the learned counsel for the parties and have perused the record. The only question which arises for consideration in these appeals is with regard to the quantum of compensation. The Supreme Court in PUTTAMMA & ORS, supra, has held that in the absence of any specific reason and evidence on record, the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per the decision of the Supreme Court in ' SARLA VERMA AND OTHERS VS. DELHI CORPORATION AND ANOTHER, (2009) 6 SCC 121 as affirmed in ' RESHMAKUMARI AND OTHERS VS. MADAN MOHAN AND ANOTHER, (2013) 9 SCC 65 . The aforesaid decision was considered by the Division Bench of this Court in the case of 'SMT.GEETHA AND OTHERS VS. DELHI CORPORATION AND ANOTHER, (2009) 6 SCC 121 as affirmed in ' RESHMAKUMARI AND OTHERS VS. MADAN MOHAN AND ANOTHER, (2013) 9 SCC 65 . The aforesaid decision was considered by the Division Bench of this Court in the case of 'SMT.GEETHA AND OTHERS VS. SMT.RAJESHWARI' in MFA No.100513/2019, wherein the Division Bench of this Court has held that in case where the deceased would have retired from service on attaining the age of superannuation, the split multiplier should be applied. Another Division Bench of this Court has also taken a similar view in the case of 'THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD. VS. SMT.SUSHEELAMMA AND OTHERS' in MFA No.6934/2016 c/w MFA No.6988/2017. 8. Admittedly, the deceased at the time of accident was aged about 52 years. He would have retired on attaining the age of superannuation of 60 years. The income of the deceased has been assessed by the Tribunal after deduction of professional tax at Rs. 16,184/-. In view of the law laid down by the Constitution Bench of the Supreme Court in ' NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 , 15% of the amount is required to be added to the aforesaid amount on account of future prospects. Thus, the monthly income of the deceased comes to Rs. 18,611/-. Out of the aforesaid amount, taking into account the fact that the number of dependants are 4, 1/4th of the amount has to be deducted on account of personal expenses. Thus, the monthly dependency of the claimants comes to Rs. 13,958/-. Taking into account the age of the deceased which is 52 years at the time of accident, multiplier of 11 will have to be applied in a split manner. The claimants are entitled to the aforesaid amount for a period of 8 years i.e. till the deceased would have remained in service. Thus, the claimants are entitled to a sum of Rs. 13,958 x 12 x 8 = Rs. 13,39,968/-. For the remaining period of 3 years, 50% of the income of the deceased after deduction of professional tax would be Rs. 8,092/- and after addition of future prospects at the rate of 15%, the monthly income of the deceased would be Rs. 9,305/- and the claimants are entitled to Rs. 9,305 x 12 x 3 = Rs. 3,34,980/- towards loss of dependency. 8,092/- and after addition of future prospects at the rate of 15%, the monthly income of the deceased would be Rs. 9,305/- and the claimants are entitled to Rs. 9,305 x 12 x 3 = Rs. 3,34,980/- towards loss of dependency. In view of the law laid down by the Supreme Court in Rs. MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM, (2018) ACJ 2782 , which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020, the claimants are entitled to Rs. 40,000/- each towards loss of consortium and loss of love and affection. Thus, the claimants are entitled to Rs. 2,00,000/- under this head. In addition, in view of the law laid down by the Constitution Bench of the Supreme Court in PRANAY SETHI , supra, the claimants are entitled to Rs. 30,000/- on account of loss of estate and funeral expenses. Thus, the claimants are entitled to total compensation of Rs. 19,04,948/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeals are disposed of.