United India Insurance Company Limited and Others vs Anusuya and Others

R.S. Chauhan, J.—1. Arising out of the same impugned award, namely award dated 26.10.2009 passed by the Motor Accident Claims Tribunal, Bangalore (SCCH-11), whereby in MVC No. 5426/2007, the learned Tribunal had granted compensation of Rs. 7,05,760/- to the claimants, both the appeal and the Cross-objection were filed before this Court. They are both being decided by this common order.

MFA 1336/2010 has been filed by the United India Insurance Company Limited, whereas, MFA.CROB 158/2010 has been filed by the claimants/cross-objectors.

Briefly, the facts of the case are that on 26.05.2007 at 5.45 p.m., near Bharath Petrol Bunk situated at Kasturba Road, Cubbon Park, Bangalore, the husband of Smt. Anusuya and the father of Mr. Hariprasad. M and Ms. Vanishree.M, namely Late B.S. Madhuranath was waiting for refueling of his two wheeler (TVS-50) bearing registration No. KA-05/H-8162. At that time, a Tata Sumo, bearing registration No. KA-04/B-6675, being driven in a rash and negligent manner, dashed against Mr. B.S. Madhuranath. Consequently he succumbed to injuries. Since the claimants lost the sole bread-earner of the family, they filed a claim petition before the learned Tribunal. The insurance company as respondent No. 1 filed the written statement. While the insurance company admitted the fact that the offending vehicle was insured with the company, it denied all other allegations made by the claimants. Moreover, it claimed that there was contributory negligence on the part of Mr. Madhuranath. Further, it claimed that there was no effective driving license with the driver of Tata Sumo, the offending vehicle

In order to substantiate her claim, claimant No. 1 examined herself as PW. 1 and submitted eleven documents. The insurance company examined a single witness, RW.1 and submitted nine documents. After hearing both the parties, the learned Tribunal passed the award as above mentioned. Hence, this appeal by the insurance company and the Cross-objections by the claimants before this court.

The learned counsel for appellant has vehemently contended that, according to medical evidence, the deceased was aged about 57 years at the time of accident. Thus, he would have retired within three years. Hence, he would have earned 50% of his salary as pension. Whereas, the claimant is already receiving full pension. Thus, the pension amount should have been deducted from the ''loss of dependency''. Moreover, the learned Tribunal is not justified in applying a multiplier of ''12'' to assess the ''loss of dependency''. Hence, the impugned award deserves to be interfered with.

The learned counsel for insurance company has also pleaded that since respondent Nos. 2 and 3 happen to be majors, they could not be deemed to be dependants on the income of the father. On the other hand, the learned counsel for the cross-objectors has pleaded that there is no presumption in law that merely because a person happens to be a major, he/she no longer depends on the income of the father. In case, the insurance company wanted to plead that respondent Nos. 2 and 3 were independent of the father, they should have established the plea by cogent evidence. However, there is no evidence to this effect.

On the other hand, the learned counsel for Cross-objectors has pleaded reliance on the case of Vimal Kanwar & Ors. v. Kishore Dan & Ors. [, II (2013) ACC 752 (SC)] the Hon''ble Supreme Court has clearly opined that, since the pension would have been received by the family even if the deceased had not died in a motor vehicle accident, the amount of pension being received cannot be termed as ''Pecuniary Advantage''. Hence, the pension cannot be deducted from the ''loss of dependency'' calculated by the learned Tribunal and split multiplier should have been used by the learned Tribunal. The learned Tribunal ought to have applied the appropriate multiplier as the deceased was about to retire after three years. However, the learned Tribunal has failed to apply the split multiplier and has applied ''9'' multiplier.

The learned counsel for the Cross-objector has further pleaded that in the case of K.R. Madhusudan & Or. v. Administrative Officer & Anr. [2011 SAR (Civil) 283 SC] the Hon''ble Supreme Court has held that split multiplier could not be applied by the learned Tribunal. Therefore, the learned Tribunal was certainly justified in taking the multiplier of ''9'' as the deceased was aged about 57 years at the time of accident.

Heard the learned counsel for parties.

In the case of K.R. Madhusudan & Others (supra), the Apex Court has clearly held that the High Court was not justified in adopting split multiplier method. Therefore, the contention raised by the learned counsel for insurance company is clearly unacceptable.

Similarly, in the case of Vimal Kanwar & Ors. (supra) the Hon''ble Supreme Court has clearly opined that since cash, bank balance, shares, pension would have been received by the claimants regardless of the nature of death of the deceased, said amounts cannot be termed as ''Pecuniary Advantage'' which would be liable for deduction from the ''loss of dependency''. Therefore, even if the claimants were receiving the pension, the same could not be deducted from the ''loss of dependency'' by the Tribunal.

Santosh Devi v. National Ins Co.

In the case of Santosh Devi v. National Ins Co. [, AIR 2012 SC 2185] the Hon''ble Supreme Court has also opined that there is no presumption in law that a claimant who is major is presumed to be employed. Hence, the claimant is deemed to be financially independent of the sole bread-earner of the family. In case, the insurance company wanted to take advantage of the plea, it was required to prove the same by cogent evidence. However, in the present case, the said plea was not established by the insurance company. Therefore, the insurance company cannot raise a disputed question of fact, a new plea, at the appellate stage.

Hence, for the reasons stated above, this court does not find any merit in the appeal filed by the insurance company. The same is hereby dismissed.

As far as Cross-objection is concerned, the learned counsel for cross-objectors has raised two contentions before this court; firstly, the learned Tribunal has erred in deducting the pension amount from the ''loss of dependency'' which it could not have done in the light of judgment of the Hon''ble Supreme Court in the case of Vimal Kanwar & Ors. (supra). Secondly, that the tribunal has granted compensation of merely Rs. 20,000/- towards ''loss of consortium''. The said compensation is a meager amount. Relying on the case of Rajesh and Others v. Rajbir Singh and Others [, 2013 ACJ 1403] the learned counsel has pleaded that even in the said case, the accident had occurred in the year 2007 and even in the present case, the accident had occurred in the year 2007. While discussing the entire concept of ''loss of consortium'', the Apex Court has enhanced the compensation from Rs. 25,000/- to Rs. 1,00,000/- under the category of ''loss of consortium''. Therefore, the compensation for the category of ''loss of consortium'' needs to be enhanced by this court. On the other hand, the learned counsel for insurance company has pleaded that in the case of Rajesh and others (supra) the deceased was merely 37 years old, whereas, in the present case, the deceased was 57 years old at the time of his death. Therefore, a just and reasonable compensation has been paid to the claimants in the category of ''loss of consortium''.

Heard the learned counsel for parties and perused the impugned order.

As mentioned above, in the case of Vimal Kanwar & Ors. (supra), the Apex Court has laid down the principle that pension cannot be deducted from the ''loss of dependency''. However, the learned Tribunal has deducted 1/3rd from the ''loss of dependency''. According to the learned Tribunal, the ''loss of dependency'' was calculated as Rs. 9,53,640/-. After deducting 1/3rd amount, it has calculated the ''loss of dependency'' as Rs. 6,35,760/-. Therefore, obviously, the learned Tribunal was not justified in deducting 1/3rd as the amount received by way of pension by the claimants. Hence, the ''loss of dependency'' would have been taken as Rs. 9,53,640/-.

In the case of Rajesh and others (supra) the Apex Court has opined as under:

"20. In legal parlance, "consortium'' is the right of the spouse to the company, care help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., which the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world, more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the Courts have made an attempt to compensate the loss of spouse''s affection, comfort, solace, companionship, society, assistance, protection, care and sexual, relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rs. 1,00,000 towards loss of consortium."

Merely because the deceased in the case of Rajesh and others (supra) was 37 years old, and merely because the deceased in the present appeal is 57 years old, would hardly be of any consequence. Considering the fact that Smt. Anusuya was 52 years old at the time of filing of the claim petition, considering the fact that both she and her husband were approaching the dusk of their life, the loss of husband is likely to be more at this his age, when he is on the last lap of life. Therefore, the loss of care, affection and companionship is more required when one is old. Therefore, the contention raised by the learned counsel for insurance company is clearly unacceptable. Hence, this court is of the opinion that Smt. Anusuya should have been granted ''loss of consortium'' to the tune of Rs. 1,00,000/-. Since she has already been awarded Rs. 20,000/- under the said category, the compensation is hereby enhanced by Rs. 80,000/-. Hence, the total compensation is calculated as under:

Therefore, I pass the following:

ORDER

MFA 1336/2010 filed by the insurance company is dismissed.

MFA.CROB 158/2010 filed by the claimants is accepted. The compensation of Rs. 7,05,760/- awarded by the Tribunal is enhanced to Rs. 11,03,640/-. The enhanced compensation shall carry interest at 9% per annum from the date of filing of the petition till the date of payment. The insurance company shall deposit the enhanced compensation within one month from the date of receipt of certified copy of this order through a Demand Draft in the name of the first claimant. The amount deposited by the insurance company with this court shall be transferred to the Tribunal forthwith.