The Manager vs Vasanthamma

Aravind Kumar, J.—Insurer is in appeal challenging the Judgment and award passed by MACT, Bangalore dated 09.10.2009 in MVC 6729/2008 contending that quantum of compensation awarded by Tribunal is excessive and not in consonance with the law laid down by this court.

I have heard the arguments of learned advocates appearing for the parties and by consent appeal is taken up for final disposal. Records secured from the tribunal has also been perused by me.

Facts in brief which has led to filing of this appeal can be crystalised as under:

Claimants before the tribunal who are wife and children of deceased Sri J. Chikkalingaiah filed a petition under section 166 of Motor Vehicles Act seeking compensation of Rs. 24,00,000/- contending inter alia that deceased who was working as a Head Constable in Karnataka State Reserve Police, on 21.06.2008 at about 6.30 a.m. was waiting for the department vehicle to pick him up and at that point of time a Canter Lorry bearing registration No. KA-15 3423 driven by its driver in a rash and negligent manner proceeding towards Krupanidhi College dashed against the deceased and due to the impact he sustained grievous injuries and succumbed at the spot. Hence, compensation was sought for by wife and children of deceased. Insurer appeared and contested the matter by filing detailed statement of objections and denying the averments made in the claim petition. Tribunal after considering the evidence tendered by parties and after evaluating the same allowed the claim petition in part and has awarded a total compensation of Rs. 13,44,082/- under the following heads:

It is this award which is challenged in this appeal and it is the contention of Sri O. Mahesh, learned counsel appearing for appellant that tribunal committed a serious error in not considering the fact that deceased was a permanent employee of Karnataka State Reserve Police and was having six years of service for superannuation and as such tribunal ought to have applied split multiplier and computed compensation and tribunal could not have construed his annual income and adopted the multiplier as laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, for computing compensation payable to dependents towards loss of dependency''. Hence, he seeks for re-computation of compensation insofar as compensation awarded by tribunal towards loss of dependency'' is concerned.

Per contra Sri Srinivas, learned counsel appearing for respondents 1 to 3 would support the Judgment and award passed by the Tribunal and prays for dismissal of the appeal and he would also hasten to add that compensation awarded by the tribunal under conventional heads is on the lower side and as such he prays this court to exercise power under Order 41, Rule 33 of C.P.C. and enhance the compensation.

Having heard the learned advocates appearing for the parties and on perusal of the records secured from the tribunal it would indicate that there is no dispute to the fact that deceased Sri Chikkalingaiah succumbed due to injuries sustained in the road traffic accident that occurred on 21.06.2008. Issuance of insurance policy to the offending vehicle by appellant-insurer and said policy being in force and vogue as on the date of accident are also facts which are not in dispute. Hence, they are not delved upon in this appeal.

The only question that arises for consideration in this appeal is whether the Tribunal could have computed the compensation by taking into consideration the age of deceased and his income by applying the principles laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, in toto or whether the split multiplier was required to be adopted?

In the instant case records would indicate that deceased was working as a Head Constable in Karnataka State Reserve Police and salary certificate produced by claimants as per Exhibit P-10 would also evidence this fact. As per post mortem report Exhibit P-7 age of the deceased was 54 years. Thus, he had still six years of service for superannuation. The Division Bench of this court in A. Manavalagan Vs. A. Krishnamurthy and Others, has held that in the case of deceased being a permanent employee drawing a fixed salary and were to superannuate in the near future loss of dependency'' to the claimants will have to be computed on the basis of number of remaining years of service by taking into consideration the net loss after deducting living expenses of deceased and for the remaining period 50% of annual income is to be taken. Infact another Division Bench of this court which was faced with similar situation has also held in the case of Smt. Arati and others vs. Gouspeer Hussainab Makandar and The Divisional Manager, Cholamandalam M.S. General Insurance Co. Ltd., in M.F.A. 25007/2012 and connected matters disposed of on 20.01.2014 to the following effect:

"11. "The facts are not in dispute xx It is correct. The deceased was aged 54 years. He would have attained the age of superannuation in 6 years during which period alone, he was entitled to full salary. In which event, the loss of income for the 6 years would be 12,00,000/-. For the remaining 5 years period, if we take 50% of the same as the income of the deceased by way of pension, he would be entitled to Rs. 5,00,000/- for the said period. Thus, Rs. 17,00,000/- would be the loss of dependency to the claimants. The Tribunal has awarded about Rs. 95,000/- under conventional heads which is proper. Thus, 17,95,000/- would be the compensation payable which could be rounded of to Rs. 18,00,000/- which in our view is a just compensation payable to claimants on account of death of deceased Suresh Shrikanth Angadi. However, while apportioning the said amount, the Tribunal has held that all the 4 persons are entitled to equal share. Again the Tribunal has committed a mistake. Compensation is paid for loss of dependency to the dependants. The widow and the mother were completely depending on the deceased. Though sons were also dependent to the extent of food and education, now that they have completed education and they have separate earnings by themselves. The Compensation amount awarded cannot be distributed between them. Similarly, the 4th respondent being the mother, aged about 75 years, she has to be taken care of out of the compensation amount for the rest of the period".

In the light of the dicta laid down by Division Bench of this court and applying the principles laid down thereunder to the facts on hand the compensation payable to the claimants who are wife and children of deceased Sri Chikkalingaiah will have to be recomputed since split multiplier had not been adopted by the tribunal. Same would be as under:

Deceased Sri Chikkalingaiah as already noticed herein above was drawing a gross salary of Rs. 15,323/- as per Salary Certificate Exhibit P-10. The only deduction which requires to be excluded from the purview of gross loss of salary for purpose of computing loss of dependency'' would be professional tax which was deducted from his salary viz., Rs. 200/- and when same is deducted the net salary or loss of dependency to the claimants would be ( Rs. 15,323- Rs. 200) Rs. 15,123/- per month. Claimants contended that they were solely dependent on the income of the deceased. Though Sri O. Mahesh, learned counsel for appellant contends that major sons cannot be construed as dependents, I am not inclined to accept the said contention for reasons more than one: (i) age of the children on the date of filing of petition was 24 years and 21 years. There is no material to show that they were gainfully employed or even employed anywhere and earning their independent income or were living separately to raise such a presumption." Merely because they are aged 21 years and 24 years it cannot be construed or no inference can be drawn that they were not dependent on the income of the deceased. Hence, said contention is hereby rejected.

(ii) Claimants being three in number as per the dicta laid down in Sarla Verma's case, 1/3rd is deducted from and out of the income which would be Rs. 5,041/-, when so deducted net loss of dependency per month would be Rs. 10,082/- or net loss of dependency per year is (10,082 x 12) Rs. 1,20,984/-. As per post mortem Exhibit P-7 age of deceased is indicated as 54 years. Thus, appropriate multiplier which requires to be adopted as per Sarla Verma's case would be `11''. In view of the fact that deceased was a permanent employee and principles laid down in A. Manavalagan Vs. A. Krishnamurthy and Others, as well as Smt. Arati's case referred to supra would be applicable to the facts on hand in all force, by applying split multiplier the compensation payable to the claimants is recomputed as follows:

Thus, claimants would be entitled to a compensation of Rs. 10,28,364/- towards loss of dependency'' which would be in substitution to what has been awarded by tribunal.

Perusal of the award would indicate that tribunal has awarded a compensation of Rs. 55,000/- under the conventional heads as already noticed hereinabove under four different heads. This court is of the considered view that compensation awarded towards transportation of dead body, burial and obsequies ceremony is substantially on the lower side and marginally on the lower side insofar as loss of estate and loss of consortium is concerned. Hence, an additional sum of Rs. 45,000/- if awarded it would meet the ends of justice. Accordingly it is hereby awarded. Thus, claimants would be entitled to Rs. 1,00,000/- under conventional heads and accordingly it is hereby awarded.

Thus, total compensation to which claimants would be entitled to would be Rs. 11,28,364/-.

Hence, following:

JUDGMENT

Appeal is hereby allowed in part.

Judgment and award passed by MACT Bangalore, dated 09.10.2009 in MVC No. 6729/2008 is hereby modified and in substitution to what has been awarded by tribunal a sum of Rs. 11,28,364/- is hereby awarded which shall carry interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.

Insurer is directed to deposit compensation amount with interest before the jurisdictional tribunal within four weeks from the date of receipt of copy of this order.

Compensation awarded herein above is apportioned as follows:

In favour of:

They would also be entitled for proportionate interest on the said compensation awarded. It is hereby ordered that entire compensation awarded in favour of parents of deceased be paid to them by the tribunal on proper identification.

Out of compensation awarded in favour of claimants 1, 2 and 3, 50% shall be kept in a Fixed Deposit in any Nationalized Bank of their choice for a period of four years and first claimant alone would be entitled to draw periodical interest.

Balance 50% amount awarded with proportionate interest is ordered to be released in their favour by the tribunal on proper identification.

Amount in deposit before this court is ordered to be transferred to the jurisdictional Tribunal together with the records forthwith.

I.A. 1/2014 for early hearing does not survive and same stands rejected.