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2020 DIGILAW 937 (KAR)

Kolarappa v. K. Mahabhadrappa

2020-06-01

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G.Pandit, J. - The claimants are before this Court in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 12.09.2013 passed in M.V.C. No.962/2012 on the file of the III Motor Accident Claims Tribunal at Bellary (for short 'the Tribunal'), and praying for enhancement of the compensation. 2. The claimants are the parents and the sister of the deceased Umesh. The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation for the accidental death of deceased Umesh. It is stated that on 20.08.2012, at about 12.10 p.m., while Umesh was proceeding on his motor cycle bearing registration No.KA- 16/W-1271, a bus bearing registration No.KA-16/B-7777 came in a rash and negligent manner and dashed to the motor cycle, as a result of which, Umesh sustained grievous injuries and died on the spot. The deceased was aged 22 years as on the date of the accident and he was working as an Electrician earning a sum of Rs.8,000/- per month. 3. On issuance of notice, respondent Nos.1 and 2 appeared and filed their written statement denying the claim averments. The insurer contended that the accident occurred due to negligent driving of the offending vehicle and also due to the negligence of the rider of the motorcycle. The insurer further contended that the liability, if any, is subject to the terms and conditions of the insurance policy. 4. The claimants, in support of their case, got examined claimant No.1 as P.W.1 and another witness as P.W.2 apart from marking documents as Exs.P.1 to Ex.P.11. The respondents did not lead any oral evidence. However, copy of insurance policy was marked as Ex.R.1. 5. The Tribunal, on scrutiny of the material on record, awarded a total compensation of Rs.3,13,000/- on the following heads: 1. Loss of dependency Rs.2,43,000/- 2. Transportation of dead body & funeral expenses Rs. 20,000/- 3. Loss of estate Rs. 25,000/- 4. Loss of love and affection Rs. 25,000/- Total Rs.3,13,000/- While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.4,500/- per month, applied the multiplier 9' having regard to the age of the younger parent i.e. mother. 6. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal. 7. 25,000/- Total Rs.3,13,000/- While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.4,500/- per month, applied the multiplier 9' having regard to the age of the younger parent i.e. mother. 6. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal. 7. Heard the learned counsel for the appellants and the learned counsel for respondent No.2-insurance company. 8. The learned counsel for the appellants would submit that the compensation awarded by the Tribunal is on the lower side since the assessment of income of the deceased by the Tribunal at Rs.4,500/- per month is on the lower side. He submits that the deceased was working as an Electrician and was earning Rs.8,000/- per month. Further, he submits that the claimants examined P.W.2, the employer and also produced Ex.P.7, the certificate issued by the employer, which indicates the salary of the deceased at Rs.8,000/- per month, but the Tribunal committed an error in assessing the income of the deceased at Rs.4,500/- per month ignoring Ex.P.8 and evidence of P.W.2. Therefore, he submits that the income of the deceased be assessed at Rs.8,000/- per month taking note the evidence of P.W.2 and Ex.P.7. 9. Further, learned counsel for the appellants submits that the Tribunal failed to award compensation towards future prospects. The learned counsel relying upon the decisions of the Hon'ble Apex Court in National Insurance Company Ltd. Vs. Pranay Sethi, (2017) ACJ 2700 , and Hemraj Vs. Oriental Insurance Company Ltd., (2018) ACJ 5 submits that the claimants would be entitled for addition of 40% of the assessed income of the deceased towards future prospects since the deceased was aged 22 years as on the date of the accident. Learned counsel also submits that the Tribunal committed an error in applying multiplier 9' by taking the age of the mother. He further submits that it is settled law that while calculating compensation, an appropriate multiplier has to be adopted by taking the age of the deceased and as such, he submits that since the deceased was aged 22 years, the appropriate multiplier would be 18' and not 9'. Thus, he prays for allowing the appeal. 10. He further submits that it is settled law that while calculating compensation, an appropriate multiplier has to be adopted by taking the age of the deceased and as such, he submits that since the deceased was aged 22 years, the appropriate multiplier would be 18' and not 9'. Thus, he prays for allowing the appeal. 10. Per contra, learned counsel for the 2nd respondent-insurance company would submit that the Tribunal has rightly assessed the income of the deceased at Rs.4,500/- The learned counsel submits that even though the claimants have placed on record Ex.P.7, the certificate issued by the employer, and examined the employer as P.W.2, no material is placed to demonstrate the payment made or received. It is the submission of the learned counsel for the 2nd respondent-insurance company that there is no piece of material on record to indicate that the employer was paying the deceased a sum of Rs.8,000/- as salary and the deceased was receiving the said sum. He submits that in the absence of any material to indicate the exact amount paid by the employer to the deceased, the Tribunal has assessed the notional income of the deceased at Rs.4,500/- per month which is just and proper. Learned counsel further submits that as the deceased did not have any fixed income, the claimants would not be entitled for compensation towards future prospects as claimed by the learned counsel for the appellants. It is also the submission of the learned counsel that the multiplier applied by the Tribunal is proper and correct. Thus, she prays for dismissal of the appeal. 11. Having heard the learned counsels for the parties and on perusal of the trial court records, the following points would arise for our consideration: i) Whether the income of the deceased assessed by the Tribunal at Rs.4,500/- per month is proper and correct? ii) Whether the claimants would be entitled for future prospects at the rate of 40% of the assessed income? iii) Whether the Tribunal is justified in adopting multiplier 9' by taking into consideration the age of the younger of the parents? 12. ii) Whether the claimants would be entitled for future prospects at the rate of 40% of the assessed income? iii) Whether the Tribunal is justified in adopting multiplier 9' by taking into consideration the age of the younger of the parents? 12. The answer to point Nos.(i) and (iii) would be in the negative and to point No.(ii) in the affirmative, for the following reasons: (a) The accident that had taken place on 20.08.2012 involving the motorcycle bearing No.KA10 16/W-1271 and the bus bearing No.KA-16/B-7777 and the death of Umesh is not in dispute. It is the claim of the claimants that the deceased was working as an Electrician under one Sri.Sheshadri, contractor of BESCOM, Sri. Kaleshwara Industries, Thalak, Chitradurga district and the deceased was paid salary of Rs.8,000/- per month. P.W.2 is the employer. Ex.P.7 is the letter/certificate issued by P.W.2 stating that he was paying Rs.8,000/- per month to the deceased. However, no material is placed on record to indicate the payment of Rs.8,000/- made to the deceased. In the absence of any material i.e. employees' payment register to indicate the payment of Rs.8,000/- made to the deceased, Ex.P.7 cannot be taken into account for arriving at or determining the income of the deceased. The accident is of the year 2012. This Court and the Lok Adalats, while settling the accidental claims of the year 2012, would normally assess the notional income of a person at Rs.6,500/- per month. In the absence of any cogent material to indicate the exact income of the deceased, we deem it appropriate to assess the notional income of the deceased at Rs.6,500/- per month. (b) The deceased was aged 22 years as on the date of the accident. The Hon'ble Supreme Court in the case of Pranay Sethi and Hemaraj supra, has held that the claimants would be entitled for addition of 40% of the income towards future prospects where the deceased was below the age of 40 years. Accordingly, in view of the above decisions, the claimants would be entitled for addition of 40% of the assessed income of the deceased towards future prospects. (c) It is settled law as on this date that while applying multiplier for determination of the compensation, the age of the deceased will have to be taken. Accordingly, in view of the above decisions, the claimants would be entitled for addition of 40% of the assessed income of the deceased towards future prospects. (c) It is settled law as on this date that while applying multiplier for determination of the compensation, the age of the deceased will have to be taken. The Hon'ble Apex Court in the case of Sube Singh and another v. Shyam Singh (Dead) and others, (2018) AIR SC 1195 , while considering similar contention, at paragraph 4, has held as follows: "4. On the basis of the finding recorded by the Tribunal and affirmed by the High Court, it is evident that the deceased was 23 years of age on the date of accident i.e. 22.09.2009. He was unmarried and his parents who filed the petition for compensation were in the age group of 40 to 45 years. The High Court, relying on the decision in the case of Ashvinbhai Jayantilal Modi, (2014) AIRSCW 6507 (supra), held that multiplier 14 will be applicable in the present case, keeping in mind the age of the parents of the deceased. The legal position, however, is no more res integra. In the case of Munna Lal Jain, (2015) AIRSCW 3105 (supra) decided by a three Judge Bench of this Court, it is held that multiplier should depend on the age of the deceased and not on the age of the dependants. We may usefully refer to the exposition in paragraph Nos. 11 and 12 of the reported decision, which read thus: "11. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependents or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three Judge Bench decision in Reshma Kumar (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc. is to be taken. To quote "36. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependents is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average etc. is to be taken. To quote "36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased. (b) income of the deceased; and (c) the number of dependents. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma." 12. In Sarla Verma (supra), at paragraph-19 a two- Judge Bench dealt with this aspect in Step 2. To quote: "19.xxxx xxxxxx xxxx Step 2 (ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked out for the accident having regard to several imponderables in life and economic factors, a table of multipliers with reference to be age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased." Considering the aforementioned principle expounded in Sarla Verma, (2009) AIR SC 3104 (supra), which has been affirmed by the Constitution Bench of this Court in National Insurance Company Ltd. Vs. Pranay Sethi and Ors., the appellants are justified in insisting for applying multiplier 18." The Tribunal committed an error in taking the age of the younger parent for adopting the appropriate multiplier. The deceased, as stated above, was aged 22 years and was unmarried, the appropriate multiplier applicable would be 18'. 13. Pranay Sethi and Ors., the appellants are justified in insisting for applying multiplier 18." The Tribunal committed an error in taking the age of the younger parent for adopting the appropriate multiplier. The deceased, as stated above, was aged 22 years and was unmarried, the appropriate multiplier applicable would be 18'. 13. Thus, taking the income of the deceased at Rs.6,500/- per month and adding 40% to the said income, deducting 50% towards personal expenses of the deceased and adopting the multiplier 18', the claimants would be entitled to a sum of Rs.9,82,800 (Rs.6500 + Rs.2600 = Rs.9100 less (50%) Rs.4550 = Rs.4550 x 12 x 18) towards loss of dependency. The modified compensation to which the claimants are entitled to is as under: 1. Loss of dependency Rs.9,82,800/- 2. Transportation of dead body & funeral expenses Rs. 20,000/- 3. Loss of estate Rs. 25,000/- 4. Loss of love and affection Rs. 25,000/- Total Rs.10,52,800/- Thus, on reassessment, the claimants are entitled to a total compensation of Rs.10,52,800/- as against Rs.3,13,000/- with interest at 6% per annum from the date of claim petition till realization. Accordingly, the appeal is allowed in part. The judgment and award dated 12.09.2013 passed in M.V.C. No.962/2012 passed by the Tribunal is hereby modified. The claimants are entitled for a total compensation of Rs.10,52,800/- as against Rs.3,13,000/- with interest at 6% per annum from the date of claim petition till realization. The apportionment and deposit of the compensation among the claimants shall be as ordered by the Tribunal.