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Judgment
Ram Mohan Reddy, J.—1. Though these appeals are listed for admission, since common questions of law and that of fact arise for decision making, with the consent of the learned Counsel for the parties, appeals are clubbed together, finally heard and disposed of by this order.
MFA No. 2141/2012 is filed by claimants in MVC. 980/2010 aggrieved by the quantum of compensation; MFA 2140/2012 is filed by the injured-claimant for higher compensation, while MFA 1908/2012 is preferred by the insurer of the offending motor vehicle, calling question the quantum of compensation awarded, by common judgment and award dated 15th October 2011 in MVC Nos. 979/2010 & 980/2010 of the District Judge & Additional MACT-II, Shimoga, (for short ''MACT'').
One D.A.R. Mutturamaswamy while riding his motor cycle on 30.3.2010 at 3.20 p.m. along with his wife Smt. T. Rathnamma, as pillion, the lorry bearing certificate of registration KA-16-A-9693 driven in a rash and negligent manner dashed against the motor cycle, as result of which, the rider succumbed to grievous injuries, while, the pillion suffered grievous injuries.
The injured filed MFA No. 979/2010 and also jointly along with her children filed MVC 980/2010 for compensation. In the proceedings before the MACT, it was brought on record that the deceased Mutturamaswamy was an Assistant Sub-Inspector of Police (DAR) in service of State constabulary and was paid salary of Rs. 18,096/- in the month of March 2010 as certified in the salary certificate dated 5.3.2011 Ex. P8, from out of which Rs. 200/- was deducted towards professional tax, thus, earning Rs. 17,896/- per month as salary. MACT having reckoned the said salary and from the annual income deducted 1/4th towards personal expenses of the deceased and to the annual loss, applied multiplier 9 as applicable to age 59 of the deceased to award Rs. 14,49,576/- to which was added Rs. 10,000/- towards loss to estate and Rs. 10,000/- towards loss of consortium; and Rs. 5,000/- towards funeral expenses, totaling to Rs. 14,74,576/- with interest at 6% p.a. The MACT observed that the injured widow of the deceased sustained compound fracture of right elbow (olecranon) and was hospitalized for 2 days, hence, awarded Rs. 30,000/- towards pain and suffering; Rs. 500 for attendant and conveyance charges; Rs. 3,629/- towards medical treatment and Rs. 30,000/- towards loss of amenities of life, totaling to Rs. 64,129/- with interest at 6% p.a. by the common judgment and award, impugned.
U. Panduranga Nayak, learned counsel for the appellants in MVC 2141/12, submits that the deceased Mutturamaswamy paid Rs. 18,096/- as on the date of accident, being in the services of the State, aged 59 and due for retirement on attaining 60 years of age, the MACT was not justified in not adding the agricultural in case which the deceased earned, to quantify the loss of dependency.
Per contra, learned Counsel for the respondent insurer submits that there is not a title of evidence to substantiate the fact of income from agriculture, since deceased was a full time employee of the State in the State Constabulary and further that there was no evidence of diminution in the alleged income. In addition it is submitted that the MACT was not justified in not applying the split multiplier since deceased had only one year to attain the age of superannuation and no exceptional case was made out of additions to the salary though after retirement. Lastly it is submitted that there was no justification to deduct 1/4 instead of 1/3.
In reply learned counsel for the claimants, seeks to support the judgment and award, in so far as not applying the split multiplier, as a case of exceptional circumstances, falling within the observations of the Apex Court in K.R. Madhusudan and another vs. Adm. Officer & another , (2011) 4 SCC 689 and in Sarla Verma vs. DTC , (2009) 6 SCC 121.
There is force in the submission of the learned Counsel for the insurer. The application of split multiplier is in the event of a secured employment with a fixed term, while the exclusion of such application is in exceptional cases such as incontrovertible evidence an record that the deceased was entitled to a raise of income in the future, a case made out not to apply the thumb rule laid down in Sarla Verma''s case as held in K.K. Madhusudan''s case. In the facts of this case no exceptional case is made out for such application.
In the absence of evidence of income from agriculture due to exertion of the deceased a full time servant of the State Constabulary, and as the lands continue to be in the ownership of the heirs of the deceased, the MACT was justified in not adding income from agriculture to the loss of dependency.
The deduction towards personal expenses of the deceased who left behind a widow, two major sons and a married daughter, there was no justification for the MACT to deduct 1/4 as the personal expenses of the deceased, more so, without assigning reasons.
Reckoning Rs. 18,096/- as monthly salary of the deceased, deducting Rs. 200/- towards professional tax, the monthly salary is Rs. 17,896/-. In the circumstances, deducting 1/3rd as personal expenses of the deceased, (Rs. 17,896-5,965), the monthly income is Rs. 11,931/-, the annual loss of income is Rs. 1,43,172/- for one year upto the date of retirement. The choice of multiplier is 9, which is required to be split to 1 and 8, since deceased was due to retire in one year.
Reckoning Rs. 18,096/- as the monthly salary without deducting professional tax while deducting 50% of the same, i.e. Rs. 9,048/- after attaining age of superannuation, and 1/3rd towards personal expenses of the deceased, the monthly loss of dependency is Rs. 6,032/- and to the annual loss applying split multiplier 8, the total loss of dependency is Rs. 5,79,072/-. The total loss of dependency, is Rs. 7,22,244/- (Rs. 5,79,072 + Rs. 1,43,172).
MACT awarded Rs. 14,49,576/- and after deducting of Rs. 7,27,332/- appellants are entitled to Rs. 7,22,244/- towards loss of dependency. In other words, a reduction of Rs. 7,27,332/-.
MACT awarded frugal compensation of Rs. 10,000/- each towards loss of consortium and loss to estate; Rs. 5,000/- towards funeral expenses. The 1st appellant widow is entitled to Rs. 1,00,000/- towards loss of consortium; Rs. 25,000/- towards funeral expenses and Rs. 50,000/- to the children for loss of care, guidance, love and affection etc, in all Rs. 1,75,000/-.
Thus in all, appellants are entitled to Rs. 8,72,244/- (Rs. 7,22,244 + Rs. 1,75,000) as against Rs. 14,75,576/-. Therefore, compensation is reduced by Rs. 5,77,332/-.
The claimants injured in MFA No. 979/2010 having suffered fracture of elbow, MACT fell in error in not awarding loss of value of future service to the family, since the doctor, P.W. 3, opined that fracture resulted in a scar with restricted movement in extension of 15 degree hence a permanent disability in the movement of the right elbow. It is needless to state that woman in old age are scientifically proved to suffer from osteoporosis i.e. bones becoming brittle. The MACT having not considered the same, as is palpable from the judgment and award, appellant having suffered 30% whole body disability and reckoning value of service to the family as Rs. 5,000/- per month and applying multiplier 11 as applicable to age 51 of the injured, the appellant is entitled to Rs. 1,98,000/- towards loss of value of future service (Rs. 1,500 x 12 x 11).
MACT was not justified in awarding Rs. 30,000/- towards loss of amenities and for enjoyment of life. It is needless to state that appellant would have to continue to discharge her service to her family and look after her grand children and also other services, requiring exertion of the elbow and right hand, hence, is entitled to in the least Rs. 50,000/- as against Rs. 30,000/- awarded by the MACT. Compensation under other heads do not call for interference.
In the circumstances, appellant is entitled to Rs. 2,18,000/- with interest at 6% p.a. in addition to what is awarded by the MACT.
In the result, MFA No. 1908/2012 filed by the insurer of the offending motor vehicle is allowed in part, the judgment and award insofar as it relates to MVC No. 980/2010 is modified, reducing the compensation to Rs. 8,72,244/- and in all other respects remains unaltered. Amount in deposit in excess of said sum is directed to be refunded to the insurer.
Appeal of the claimants in MFA No. 2141/2012 is dismissed.
MFA No. 2140/2010 is allowed in part. Judgment and award impugned in MVC No. 979/2010 is modified, entitling the claimant to Rs. 2,18,000/- with interest 6%, in addition to what is awarded by the tribunal and in all other respects remains unaltered.