Partly allowed

The Branch Manager v. Smt.K.Vanita W/O Sangamesh So Kolhar

Karnataka HC18 Mar 2020MFA/101225/2019

Case brief

AI extract

What is this about?

This court revised the compensation awarded in a motor vehicle accident case involving a deceased government employee. While upholding the fact of the accident, the court directed the insurer to pay a reduced quantum based on a split multiplier method due to the deceased's prospective retirement at age 60.

What did the court decide?

Modified the judgment and award by reducing the compensation to Rs. 31,46,300/- calculated using a split multiplier method, to be deposited by the insurer within six weeks.

The Branch Manager Vs Smt.K.Vanita W/O Sangamesh So… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^{T H} DAY OF MARCH, 2020

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PRESENT

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THE HON’BLE MR.JUSTICE B.A.PATIL

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AND

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THE HON’BLE MR. JUSTICE M.I. ARUN

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M.F.A. CR. OB. NO. 100087/2019 C/W M.F.A. NO. 101225/2019 (MV)

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IN M.F.A. CR. OB. NO. 100087/2019

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BETWEEN:

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SMT. K. VANITA, W/O SANGAMESH S. KOLHAR, AGE: 51 YEARS, OCC: SERVICE, R/O H. NO.39/A, BUDA SCHEME NO. 40, 5^{T H} STAGE, HANUMAN NAGAR, BELAGAVI-590 010.

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KUMARI KAVYA, D/O SANGAMESH S. KOLHAR, AGE: 22 YEARS, OCC: STUDENT, R/O H. NO.39/A, BUDA SCHEME NO. 40, 5^{T H} STAGE, HANUMAN NAGAR, BELAGAVI-590 010.

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KUMAR CHANDAN, S/O SANGAMESH S. KOLHAR, AGE: 21 YEARS, OCC: STUDENT, R/O H. NO.39/A, BUDA SCHEME NO. 40, 5^{T H} STAGE, HANUMAN NAGAR, BELAGAVI-590 010.

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CROSS OBJECTORS (BY SMT.GEETA K.M. ADVOCATE)

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: 2 :

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AND:

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L.G. BROTHERS LORRY SERVICE, R/O UNIT NO. I, FIRST FLOOR, MCD BUILDING, D.B. GUPTA ROAD, PAHARGANJ, NEW DELHI-110 053 (OWNER OF ASHOKA LEYLAND CONTAINER TRUCK BEARING REGN. NO. HR-55/M-6642)

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THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., CLUB ROAD, BELAGAVI (INSURER OF ASHOKA LEYLAND CONTAINER TRUCK BEARING REGN. NO. HR-55/M-6642) POLICY NO. 4502331160100003952 VALID FROM 21.02.2017 TO 20.02.2018)

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RESPONDENTS

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(BY SRI G.N. RAICHUR, ADVOCATE FOR R2, NOTICE TO R1 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND AWARD DATED 27.11.2018 PASSED IN M.V.C. NO. 1/2018 BY THE LEARNED XI ADDL. DIST. JUDGE AND AMACT, BELAGAVI & ETC.

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IN M.F.A.NO. 101225/2019

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BETWEEN:

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THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, CLUB ROAD, BELAGAVI-590 003 (INSURER OF ASHOKA LEYLAND CONTAINER TRUCK BEARING REGN. NO. HR-55/M-6642, POLICY NO. 45020331160100003952 FROM 21.02.2017 TO 20.02.2018 REPRESENTED BY ITS DUTY CONSTITUTED ATTORNEY

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APPELLANT

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(BY SRI G.N. RAICHUR, ADVOCATE)

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: 3 :

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AND:

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SMT. K. VANITA, W/O SANGAMESH S. KOLHAR, AGE: 52 YEARS, OCC: SERVICE, R/O H. NO.39/A, BUDA SCHEME NO. 40, 5^{T H} STAGE, HANUMAN NAGAR, BELAGAVI-590 010.

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KUMARI KAVYA, D/O SANGAMESH S. KOLHAR, AGE: 23 YEARS, OCC: STUDENT, R/O H. NO.39/A, BUDA SCHEME NO. 40, 5^{T H} STAGE, HANUMAN NAGAR, BELAGAVI-590 010.

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KUMAR CHANDAN, S/O SANGAMESH S. KOLHAR, AGE: 21 YEARS, OCC: STUDENT, R/O H. NO.39/A, BUDA SCHEME NO. 40, 5^{T H} STAGE, HANUMAN NAGAR, BELAGAVI-590 010.

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L.G. BROTHERS LORRY SERVICE, R/O UNIT NO. I, FIRST FLOOR, MCD BUILDING, D.B. GUPTA ROAD, PAHARGANJ, NEW DELHI-110 053 (OWNER OF ASHOKA LEYLAND CONTAINER TRUCK BEARING REGN. NO. HR-55/M-6642) - RESPONDENTS

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(BY SMT. GEETA K.M., ADVOCATE FOR R1 TO R3, NOTICE TO R4 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTIOFN 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 27.11.2018 PASSED IN M.V.C. NO. 1/2018 BY THE LEARNED XI ADDL. DIST. JUDGE AND AMACT, BELAGAVI & ETC.

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THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION ALONG WITH MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, B.A.PATIL, J., DELIVERED THE FOLLOWING:

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: 4 :

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JUDGMENT

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M.F.A. No. 101225/2019 has been preferred

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by the appellant-Insurer whereas M.F.A. Cr. Ob. No. 100087/2019 has been preferred by the appellants-

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claimants, both challenging the judgment and award passed by the learned XI Addl. Dist. Judge & AMACT, Belagavi in M.V.C. No. 1/2018 dated 27.11.2010.

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We have heard the learned counsels

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appearing for the parties. Though these cases are listed for admission, with the consent of learned counsels appearing for the parties, the same are taken up for final disposal.

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The facts in brief as contended by the petitioners before the trial Court is that, on 25.09.2017 at about 8.15 PM Sangamesh Shivappa

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Kolhar while proceeding on his motorcycle bearing No. KA-22-X-4799 from Central Bus stand towards

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Hanuman Nagar along with his wife as a pillion, the said Sangamesh was riding the motorcycle on the left

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: 5 :

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side of the road. When they reached on BelagaviKhanapur road near Chennamma circle, a lorry bearing regn. No. hr-55-m-6642 came rashly and negligently and dashed against the motorcycle on which the said Sangamesh was proceeding along with his wife. As a result of the same, they fell down and sustained grievous injuries including the head injury and died on the spot. For having lost her husband and father of petitioners 2 and 3, the claim petition came to be filed.

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It is further contended by the petitioners

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that the deceased was hale and healthy and was working as a Gazatted Officer, i.e., Block Education Officer at Nippani and was drawing salary of more than Rs.60,000/- per month. On that count, the dependents have filed the claim petition claiming compensation.

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: 6 :

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The respondent No.1 appeared before the

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Court and filed his objections denying the contents of the petition. He has further contended that the said vehicle has been insured with the respondent No.2 and the insurance was valid. The respondent No.2 also filed separate objections denying the age of the deceased and other particulars. It is further contended that the alleged accident has taken place due to the rash and negligent driving of the deceased himself. After taking into consideration the objections, the tribunal has framed the issues.

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The petitioner No.1 got herself examined as PW1 and also got examined an eyewitness as PW2 and got marked 14 documents. The respondents have not examined any witnesses and only got marked the insurance policy as Ex.R.1. After hearing the parties, the Tribunal awarded compensation of Rs.52,42,062/-. Challenging the same, the

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: 7 :

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appellant-insurer as well as the appellants-claimants are before this Court.

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The accident in question is not in dispute so also the vehicle insured with the respondentinsurer. The only point which has been raised by the learned counsel for the appellant-insurer is that, since the deceased was working as a Block Education Officer and at the time of the accident he was aged about 59 years. In that light, the Tribunal ought to have calculated the compensation by applying split multiplier. In order to substantiate the said contention he has relied upon the decision of a coordinate Bench of this Court in the case of Union of India and Others Vs. K.S. Lakshmi Kumar and Others reported in ILR 2000 KAR 3809 ; so also in the case of Smt. Arati w/o Suresh Angadi Vs. Gouspeer Hussainsab Makandar in M.F.A. No. 25007/2012 c/w M.F.A. no. 25650/2012 decided on 20.01.2014 ; another decision in the case of The

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: 8 :

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New India Assurance Co. Ltd. & another Vs. Sri Prithviraj & Others in M.F.A. No. 20727/2010 & connected appeals decided on 08.12.2016 .

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It is his consistent stand that, in case of a Government Servant, who is bound to retire at the age of 60 years and under such circumstances while calculating the loss of dependency for the first one year multiplier has to be applied after deducting 1/3^rd towards personal expenses of the deceased and thereafter the retirement benefit must be taken by reducing 50% and after applying the multiplier of 8 so also the split up multiplier, the compensation ought to have been assessed. The Tribunal without looking into the said aspect has applied the multiplier of 9 by taking the income at the rate of Rs.67,550/- and after deducting professional tax and income tax, awarded the compensation on the higher side. The Tribunal has not kept into view the decision of this Court and the apex Court.

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: 9 :

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The learned counsel for the respondents-

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cross objectors argued that the split multiplier

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cannot be applied in this case. The proper multiplier must be applied considering the age of the deceased. She further submits that the Hon’ble apex Court in the case of Puttamma & Others Vs. K.L. Narayana Reddy & another reported in 2014 ACJ 526 , has clearly held that the split multiplier is not applicable and the said ratio has also been taken into consideration by the co-ordinate Bench in the case of Smt. Yashodha Vs. Smt. S. Mahadevi in M.F.A. No. 7025/2015 decided on 04.02.2020.

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It is her further submission that in the

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absence of any specific reason and the evidence on record the split multiplier requested by the appellant – Insurer is not advisable and it is not acceptable. On these grounds, she prayed to hold the calculations done by the Tribunal as correct and prayed to dismiss the appeal, Further, she has also contended

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: 10 :

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that the tribunal has not adequately awarded compensation under conventional heads and prays to allow her petition with interest. The Co-ordinate Bench of this Court had an occasion to consider the issue in question and in the case of New India Assurance Co. Ltd., quoted supra at paragraph Nos.16 to 20 as discussed, under what circumstances the split multiplier is applicable and what is to be considered in this behalf. We will not go in depth with regard to the applicability, or otherwise of the theories but the circumstances under which the split multiplier can be applied is that if special reason are stated in this behalf split multiplier can be adopted. Under such circumstances, as held in the case of Puttamma quoted supra the split multiplier can be made applicable if special reasons are stated. In the instant case on hand, admittedly the deceased was a government servant and working as BEO and he is going to retire at the age of 60 years, and with that

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: 11 :

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certainty, the one can not accept that he is going to get whatever the income, which he is going to get at the time of his death. After retirement, pensionery benefits will only 50%. In that light, the contention which has been taken up by the learned counsel for the appellant – Insurer appears to be justified. The tribunal without looking into this aspect had erred and has not specifically applied the split multiplier, while awarding the compensation. In that it is a case wherein split multiplier has to be applied.

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Admittedly, the deceased was earning a

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sum of Rs.67,550/- per month at the time of death. The annual income for the first split multiplier will be Rs.8,10,600/-; to which, added 15% towards future prospectus, deducting 1/3rd towards his personal expenses and also after deducting the income tax to the tune of Rs.31,000/-, the annual income for the first year will be Rs.5,90,460/-. Since the deceased used to retire at the age of 60 years and

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: 12 :

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his salary was Rs.67,550/- and annually he used to

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get Rs.8,10,600/-, to which 15% is to be added as future prospectus and 1/3rd is deducted towards his personal expenses and out of which 50% has to be taken for the purpose of his pensionary benefits, he is going to get an amount of Rs.3,10,730/- and the same is multiplied with “8” multiplier, he will get an amount of Rs.24,85,840/- . The same is added to the amount of first split multiplier, the total amount of Rs.30,76,300/- is awarded, to which an amount of Rs.70,000/- is awarded towards conventional heads. Accordingly, the claimants are entitled to the total compensation of Rs.31,46,300/- as against Rs.52,42,062/- with interest at the rate of 6% p.a.

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For the discussions held by us above, MFA

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No.101225 of 2019 is allowed in part and the judgment and award passed by the tribunal is modified as indicated above and MFA

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Cr.Ob.No.100087 of 2019 stands dismissed.

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: 13 :

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The Insurer is hereby directed to deposit the

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compensation amount as indicated above within a period of six weeks from the date of receipt of a copy of this order.

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The amount in deposit, if any, be transmitted to the tribunal forthwith for disbursement along with lower Court records.

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In view of the disposal of the main case, I.A.No.1/2020 in MFA No.101225 of 2019 does not survive for consideration. Accordingly, the same stands rejected.

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SD JUDGE

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SD JUDGE

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Bvv & Vnp*

The Branch Manager v. Smt.K.Vanita W/O Sangamesh So Kolhar

Case brief

What is this about?

What did the court decide?

The Branch Manager v. Smt.K.Vanita W/O Sangamesh So Kolhar

Case brief

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What did the court decide?

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