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2023 DIGILAW 992 (KAR)

Naajukama v. Subaschandra

2023-08-18

MOHAMMAD NAWAZ, RAJESH RAI K.

body2023
JUDGMENT MOHAMMAD NAWAZ, J. - This appeal is preferred by the claimants, seeking enhancement of compensation awarded to them by the Tribunal in MVC.No.1735/2015 by its judgment and award dtd. 21/7/2017, for the death of one Babulal Jainapur who died in a road traffic accident which took place on 13/11/2015, involving a motorcycle bearing Reg.No.KA28-W-8653 and Car bearing Reg.No.KA-28-N-3979. 2. The claimants are the mother, wife and two children of deceased Babulal Jainapur. Before the Tribunal, compensation of Rs.66, 80, 000.00 was claimed with interest. The Tribunal was pleased to award a total compensation of Rs.17, 31, 100.00 with interest at the rate of 9% per annum from the date of petition till the date of depositing the amount. 3. According to the claimants, the accident occurred near Mulawad Cross, when the deceased was going to Mulawad on a Motorcycle bearing Reg.No.KA-28- W-8653. It is stated, the driver of the Car bearing Reg.No.KA-28-N-3979 came in a high speed and in a rash and negligent manner and hit against the motorcycle of the deceased and due to the impact, deceased fell on the road side ditch and sustained injuries to his head, both legs and other parts of the body and died while being shifted to the hospital. 4. The insurer of the offending vehicle, refuted the claim on various grounds and it was also contended that the driver of the motorcycle as well as the Car were not possessing a valid and effective driving licence as on the date of accident. 5. On behalf of the claimants, three witnesses were examined and Ex.P1 to Ex.P18 were marked. The respondents got marked Ex.R1-DL extract and Ex.R2-copy of the policy. No witness was examined on behalf of the respondents. 6. The following issues were framed by the Tribunal : 1. Whether the petitioners prove that on 13/11/2015 at about 2.30 p.m. on Vijayapur-Kolhar road, (NH-218), near Mulawad cross, when the deceased Babulal Jainapur was going in a Motorcycle bearing No.KA-28/W-8653, the driver of Car bearing No.KA-28/N3979 drove the same in a rash and negligent manner from Vijayapur side and dashed against the said Motorcycle and in the said accident the said Babulal had sustained fatal injuries and later succumbed to the injuries as alleged? 2. 2. Whether the respondent No.2 prove that the driver of Car bearing No.KA-28/N3979 did not possess valid and effective driving licence to drive the said vehicle at the time of accident as alleged? 3. Whether the respondent No.2 prove that the petition is bad for non-joinder of necessary parties? 4. Whether the petitioners are entitled for compensation? If so, what is the quantum and from whom? 5. What order or award? 7. The Tribunal having appreciated the oral and documentary evidence on record, answered issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and issue Nos.4 and 5 as per the final order. 8. It is rightly observed by the Tribunal that in order to substantiate its case, the insurance company has not led any evidence or given complaint against the rider of the motorcycle stating that false complaint was given against the driver of the Car. Charge sheet was filed after a detailed investigation against the driver of the Car. Hence, the contention raised by the insurance company that the driver of the offending Car was not negligent in causing the accident was negated by the Tribunal. Further, considering the evidence given by PW1 and PW2 coupled with the documents Ex.P1 and Ex.P2, it was held that the accident occurred due to rash and negligent driving of the offending Car, which resulted in the death of the deceased. Further, considering Ex.D1-DL extract of the driver of the offending vehicle and in the absence of any contrary evidence, the contention of the insurance company that there was no valid and effective driving licence was rightly rejected. It is not in dispute that the insurance company has not preferred any appeal against the judgment and award passed by the Tribunal. 9. The learned counsel for the appellants contended that the deceased was working in one Nandi Co-operative Sugar Factory as a Supervisor with a monthly salary of Rs.30, 000.00 and he was aged about 50 years as per the PM report and therefore, the Tribunal was not justified in not taking the said income and also applying a multiplier of 11 instead of 13. He would also contend that no amount has been awarded towards future prospects. He further contended that the multiplier method adopted by the Tribunal in computing the loss of dependency, in the facts and circumstances of the case was not proper. He would also contend that no amount has been awarded towards future prospects. He further contended that the multiplier method adopted by the Tribunal in computing the loss of dependency, in the facts and circumstances of the case was not proper. Therefore, he sought to modify the judgment and award by enhancing the compensation. 10. Per contra, the learned counsel appearing for respondent No.2/Insurance company has vehemently contended that the Tribunal has awarded just and reasonable compensation by considering the avocation and income of the deceased and rightly adopted the multiplier method to compute the compensation. She has relied on a decision of this Court in MFA No.200165/2019 connected with MFA No.201674/2019, disposed of on 6/2/2023 to buttress her arguments that the Tribunal has rightly adopted the multiplier method for computing the compensation. Therefore, she sought dismissal of the appeal. 11. According to the claimants, deceased was aged about 50 years. The learned counsel for the appellant has relied on the document at Ex.P6 i.e., the PM report. However, it is relevant to see that the deceased was working in one Nandi Co-operative Sugar Factory, as per the evidence of PW3, Office Superintendent of the Nandi Sahakari Sakkare Karkhane Niyamit. Ex.P14 is the service register marked through PW3. Ex.P18 is the service certificate. Based on the said documents, wherein the date of birth of the deceased is mentioned as 1/6/1963, the Tribunal has rightly come to the conclusion that deceased was aged 52 years as on the date of accident. Hence, the contention of the claimants that the deceased was aged about 50 years as on the date of accident cannot be accepted. 12. Nextly, it is contended by the learned counsel for the appellants that the deceased was earning Rs.30, 000.00 per month. However, Ex.P9 and 17 are the salary certificates of the deceased. As per which, the deceased was getting a gross salary of Rs.18, 629.00. The Tribunal has deducted Rs.200.00 towards professional tax and another sum of Rs.200.00 towards income tax. The income of the deceased was rounded off up to Rs.18, 200.00. We find no error in the reasons recorded by the Tribunal in arriving at the income of the deceased. As per which, the deceased was getting a gross salary of Rs.18, 629.00. The Tribunal has deducted Rs.200.00 towards professional tax and another sum of Rs.200.00 towards income tax. The income of the deceased was rounded off up to Rs.18, 200.00. We find no error in the reasons recorded by the Tribunal in arriving at the income of the deceased. Though the claimants have contended that the deceased was also earning Rs.2, 00, 000.00 by doing agricultural work, the Tribunal has rightly rejected the said claim since no acceptable evidence was adduced to prove that the deceased was having agricultural income as claimed. 13. Appropriate multiplier being 11, for the age of 52, the Tribunal has split the multiplier as 8 and 3, as the deceased had left 8 years of service. Taking the income at Rs.18, 200.00 per month, the annual income after deducting 1/4th of the income towards personal expenses, is arrived at Rs.1, 63, 800.00 (Rs.18, 200.00 - Rs.4, 550.00 = Rs.13, 650.00x12). The said sum is multiplied by 8, which comes to Rs.13, 10, 400.00. For the remaining period, after deducting 50% of the income from Rs.18, 200.00, which comes to Rs.9, 100.00 and deducting Rs.2, 275.00 i.e., 1/4th of the said income towards personal expenses, multiplied by remaining multiplier 3, annual income is arrived at Rs.2, 45, 700.00 (Rs.9, 100.00 - Rs.2, 275.00 = 6, 825 x 12 x 3). Hence, the Tribunal awarded a sum of Rs.15, 56, 100.00 (Rs.13, 10, 400.00 + Rs.2, 45, 700.00) for the loss of dependency. Further, a sum of Rs.1, 00, 000.00 towards loss of consortium, Rs.50, 000.00 towards love and affection and Rs.25, 000.00 towards funeral expenses is awarded. Hence, the tribunal awarded a total compensation of Rs.17, 31, 100.00. 14. The claimants are the mother, wife and two children of the deceased. Considering the number of dependants, the Tribunal has rightly deducted 1/4th of the income towards personal expenses. However, no amount is awarded towards future prospects. In the case of National Insurance Company Limited V/s Pranay Sethi and others, (2017) 16 SCC 680 . it is held that, 'when a person is in a permanent job, there is always an enhancement due to one reason or other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. it is held that, 'when a person is in a permanent job, there is always an enhancement due to one reason or other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. Hence, there should be an addition of 15% if the deceased is between the age of 50 - 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The said yardstick has been fixed so that there can be consistency in approach by the Tribunals and the Courts.' 15. In the case on hand, the claimants have proved that the deceased was working in one Nandi Co-operative Sugar Factory and his income was Rs.18, 629.00 as per the salary certificate - Ex.P.17 marked through PW.3. After deducting the professional and income tax, monthly income has been rounded off to Rs.18, 200.00. In the light of the judgment of the Hon'ble Supreme Court in Pranay Sethi's case, an addition of 15% of the established income i.e., a sum of Rs.2, 730.00 has to be added towards future prospects, considering that the deceased was aged about 52 years as on the date of accident. Hence, the monthly income of the deceased is assessed at Rs.20, 930.00. If 1/4th of the said income i.e., Rs.5, 232.00 is deducted towards personal expenses, the monthly income of the deceased will be Rs.15, 698.00. 16. The learned counsel appearing for respondent No.2 has vehemently contended relying on the judgment passed in MFA.No.200165/2019 connected with MFA.No.201674/ 2019 disposed of on 6/2/2023 that, the split multiplier is rightly adopted in the present case. She would draw the attention of the Court to Para No.15 of the said judgment to contend that the deceased should have been a highly skilled person or professor or a manager of a Bank or a professional of great demand having chances of earning post retirement, not to adopt split multiplier and in the present case, the deceased being admittedly working as a supervisor / attendar had no chances of reemployment elsewhere post retirement. 17. Admittedly, respondent No.2 has not led any evidence before the Tribunal. It was also not contended before the Tribunal that deceased had no chance of reemployment elsewhere post retirement. 18. 17. Admittedly, respondent No.2 has not led any evidence before the Tribunal. It was also not contended before the Tribunal that deceased had no chance of reemployment elsewhere post retirement. 18. In the case of Puttamma and others vs. K. L. Narayanreddy and another, (2013) 15 SCC 45 . at Para 34, the Hon'ble Supreme Court has held that in the absence of any specific reason and evidence on record, Tribunal or Court should not apply the split multiplier in routine course and multiplier should be applied as per the decision in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 . as affirmed in the case of Reshma Kumari and others vs. Madan Mohan and another, (2013) 9 SCC 65 . 19. The Motor Vehicles Act, 1988, in the matter of awarding compensation, being a beneficial legislation for the benefit of the victims and members of their family, the Courts shall have to compute compensation, in the manner which would favour them. An injured or the legal representatives of the deceased should not be deprived from getting a just compensation. In the case on hand, in the absence of any specific reason and evidence, we find that by adopting the multiplier method, claimants have been deprived from a just and reasonable compensation. Hence, the Tribunal was not proper in adopting the said method. The contention raised by the learned counsel for respondent No.2 is therefore, cannot be accepted for the above reason. 20. In the instant case, the income of the deceased is rounded off to Rs.18, 200.00. Adding 40% of the said income i.e., a sum of Rs.2, 730.00 towards future prospects, which comes to Rs.20, 930.00 and deducting 1/4th of the said income towards personal expenses of the deceased, which is Rs.5, 232.00 the monthly income is calculated at Rs.15, 698.00 (Rs.20, 930.00 - Rs.5, 232.00). The multiplier applicable is 11. Therefore, the claimants are entitled for a sum Rs.20, 72, 136.00 (Rs.15, 698.00 x 12 x 11) towards loss of dependency. 21. Considering the number of dependents and the relationship of the dependents with the deceased, we are of the view that the claimants are entitled for a sum of Rs.1, 60, 000.00 towards loss of consortium and a sum of Rs.30, 000.00 towards loss of estate and funeral expenses. 21. Considering the number of dependents and the relationship of the dependents with the deceased, we are of the view that the claimants are entitled for a sum of Rs.1, 60, 000.00 towards loss of consortium and a sum of Rs.30, 000.00 towards loss of estate and funeral expenses. Hence, the claimants are entitled for a total compensation of Rs.22, 62, 136.00, which is rounded off to Rs.22, 62, 000.00 as against Rs.17, 31, 100.00 awarded by the Tribunal. Accordingly, we pass the following; ORDER I. The appeal is allowed in part. II. The judgment and award dtd. 21/7/2017 passed by the IV Additional District Judge and MACT-XIII in M.V.C.No.1735/2015, is hereby modified. III. Appellants/claimants are entitled for a total compensation of Rs.22, 62, 000.00 as against Rs.17, 31, 100.00 awarded by the Tribunal. IV. The enhanced compensation shall carry interest @ 6% p.a. from the date of filing of the petition till deposit. V. Rest of the order passed by the Tribunal regarding interest, apportionment and the liability of respondent No.2 to pay the compensation is not disturbed. VI. The compensation amount shall be deposited by respondent No.2, before the MACT within 60 days from the date of receipt of a copy of the order.