Partly allowed

Bhagyamma W/O Poothanabramhacharya v. M/S Cisco Systems India Pvt. Ltd.

Karnataka HC22 Dec 2021MFA/6523/2015

Case brief

AI extract

What is this about?

This miscellaneous first appeal challenged the compensation awarded by the Tribunal for a motor vehicle accident. The Single Judge recalculated the dependency loss, rejecting the split multiplier method in favor of the Supreme Court's prescribed method of adding 15% for future prospects, enhancing the total compensation. The appeal was partly allowed.

What did the court decide?

Compensation enhanced to Rs. 19,92,030/-, with interest at 6% p.a. from the date of petition till realization.

Bhagyamma W/O Poothanabramhacharya Vs M/S Cisco… — Motor Accident Claims | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA, BENGALURU

¶3

DATED THIS THE 22^nd DAY OF DECEMBER 2021

¶4

BEFORE

¶5

THE HON'BLE MR.JUSTICE P.N.DESAI

¶6

MFA NO. 6523/2015 (MV)

¶7

BETWEEN:

¶8

BHAGYAMMA W/O POOTHANA BRAMHACHARYA AGED ABOUT 58 YEARS

¶9

P.B.MANJUNATH S/O POOTHANA BRAMHACHARYA, AGED ABOUT 36 YEARS

¶10

P.B.DHANALAKSHMI D/O POOTHANA BRAMHACHARYA, AGED ABOUT 34 YEARS,

¶11

P.B.GAYATHRI D/O POOTHANA BRAMHACHARYA, AGED ABOUT 31 YEARS, ALL ARE R/AT SHIVARA COLONY VILLAGE KERGODU HOBLI,

¶12

MANDYA TALUK-571410. ...APPELLANTS

¶13

(BY SRI. SREENIVASAN M.Y., ADVOCATE.)

¶14

AND:

¶15

M/S. CISCO SYSTEMS INDIA PVT. LTD., LPIL A 142359, PRESTIGE WATER FORD, NO.9, BRUNTON ROAD, BANGALORE-560001.

¶16

ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, SUNDARAM TOWERS, WHITE ROAD, CHENNAI-600014. …RESPONDENTS

¶17

¶18

(SRI. O.MAHESH, ADVOCATE FOR R2; R1 IS HELD SUFFICIENT V.O.D.15.04.2021)

¶19

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 24.01.2015 PASSED IN M.V.C NO.646/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.) AND MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶20

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶21

JUDGMENT

¶22

Though the matter is listed for admission, with the consent of both the parties, the same is taken up for final disposal.

¶23

The appeal is filed by the claimants challenging the judgment and award dated 24.01.2015, passed by the Prl. Civil Judge (Sr.Dn.) and MACT, Mandya, (for short hereinafter referred to as ‘Tribunal’), in MVC No.646/2009, whereby the claim petition came to be allowed in part by awarding compensation of Rs.14,85,510/- with interest at 6% p.a.

¶24

The appellants/claimants filed a claim petition before the tribunal claiming compensation for

¶25

¶26

the death of one Poothana Bramhacharya who is the husband of petitioner No.1 and father of petitioner Nos.2 to 4 respectively died in a road traffic accident occurred on 16.08.2009.

¶27

Brief case of the claimants before Tribunal is that, on 16.08.2009 at about 8.00 pm, the deceased Poothana Bramhacharya was proceeding on his motor bike along with his friend by name Ravindra from Mysore to Mandya on the left side of the road. When he came near Induvalu Village, the driver of the Mahindra Bolero SLX Vehicle No.KA-03-MK-3098 drove the same in a rash and negligent manner with high speed and dashed to the motor cycle of the deceased and caused the accident. Due to the impact, the deceased and his friend sustained grievous injuries and immediately, the deceased was taken to Mandya District Hospital, and thereafter, he was shifted to Cauvery Hospital, Mysore for better treatment. But he succumbed to the injuries. Hence, Petitioner Nos.1 to 4 who are the wife and children have filed the claim petition seeking compensation.

¶28

¶29

In response to the summons, both the respondents appeared and filed their written statements. They have denied the contentions of the petitioners as false and contended that they be put to strict proof of their contents. It is contended that the accident occurred due to rash and negligent riding of the rider of the two wheeler. The second respondentinsurance company admitted that the insurance policy was in-force as on the date of accident. However, the liability of respondent is strictly subject to the terms and conditions of policy. It is further contended that the driver of the offending vehicle was not holding valid and effective driving license at the time of accident issued under Motor Vehicles Act, 1988 and the driving license held by Mr. Chakravarthy was said to have been issued by State of Texas, United State of America and the DL is not valid in India since it is not issued as per the Motor Vehicles Act, 1988 or United Nations Vienna Conventions on Road Traffic. With these main contentions, respondents prayed to dismiss the claim petition.

¶30

¶31

6. After considering the pleadings of the

¶32

parties, the tribunal framed the following issues:

¶33

“(i) Whether the claimants prove that they are the legal representatives of deceased Poothana Bramhacharya?

¶34

(ii) Whether the claimants prove that on 16.08.2009 at about 8.00 pm near Induvalu Village, the deceased Poothana Bramhacharya met with accident due to the wrongful use of Mahindra Bolero SLX vehicle bearing Reg. No.KA-03-MK-.3098 by its driver and thereby, deceased Poothana Bramhacharya died at the spot?

¶35

(iii) To what compensation the claimants are entitled and from whom?

¶36

(iv) What Order?”

¶37

Before the tribunal, petitioner No.1 got herself examined as PW.1 and got marked 20 documents as Ex.P1 to P20 and also got examined another witness as P.W.2. On the other hand, the 2^nd respondent insurance company has got examined one witness as R.W.1 and got marked seven documents as Ex.R1 to R7.

¶38

After hearing the arguments, the tribunal

¶39

has awarded a compensation of Rs.14,85,510/- with

¶40

¶41

interest at the rate of 6% per annum, from the date of petition till the date of realization. Aggrieved by the same, this appeal is filed.

¶42

Heard Mr.Sreenivasan M.Y., the learned counsel for the appellant and Sri. O.Mahesh, learned counsel for respondent No.2. Though served Respondent No.1 unrepresented.

¶43

Learned counsel for the appellants argued that the tribunal failed to appreciate the argument canvassed by the appellant with regard to driving licence. As on the date of accident in-question, the driver of the offending vehicle was having valid driving license. He further argued that, the tribunal while calculating the loss of dependency, split multiplier method was followed. As per the decision of the Hon'ble Apex Court in Puttamma's case, the system of split multiplier method was not justifiable. Hence, the calculation regarding compensation under the head of loss of dependency is not correct and requires interference by this Court.

¶44

¶45

The, learned counsel for the appellants has placed the reliance of the Hon'ble Apex Court in the case of N.Jayasree and others Vs. Cholamandalam MS General Insurance Company Limited reported in AIR online 2021 SC 923.

¶46

Against this, learned counsel for the Insurance Company supported the impugned judgment and award passed by the tribunal.

¶47

I have considered the arguments of learned counsel for the parties and perused the impugned judgment and award passed by the tribunal and records of the case.

¶48

Admittedly, the deceased died in a road traffic accident occurred on 16.08.2009, due to rash and negligent driving of the offending vehicle and the same is not disputed. Learned counsel for the appellant contended that the owner of the offending vehicle has paid the amount awarded by the Tribunal. He further contended that the Tribunal is not justified in using split multiplier to calculate loss of dependency. In this

¶49

¶50

regard, he relied upon the judgment of the Hon'ble Apex Court in the case of N.Jayasree and others as stated supra wherein at para-28, the Hon'ble Apex Court stated that the High Court was not justified in applying split multiplier. It is held at para 26 as under:

¶51

"26. In K.R. Madhusudhan and Ors. vs. Administrative Officer and Anr., this Court was considering a case where the High Court had applied split multiplier for the purpose of calculation of compensation towards loss of dependency and held as under:

¶52

10 (2011) 4 SCC 689: (AIR 2011 SC 979)

¶53

“8. In Sarla Verma1 judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances.

¶54

9. We are of the opinion that the rule of thumb evolved in Sarla Verma1 is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the

¶55

¶56

interpretation of different courts, and to overcome the same.”

¶57

27. In Puttamma and Ors. vs. K.L. Narayana Reddy and Anr., this Court was again considering a case where split multiplier for the purpose of calculation of dependency compensation was applied. It was held thus:

¶58

11.(2013) 15 SCC 45: (AIR 2014 SC 706)

¶59

“32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in the selection of a multiplier, this Court in Sarla Verma prepared a table for the selection of a multiplier based on the age group of the deceased/victim. The 1988 Act, does not envisage application of a split multiplier.

¶60

33. In K.R. Madhusudhan v. Administrative Officer10 this Court held as follows: (SCC p. 692, paras 14-15) 12.(2020) SCC Online SC 410: AIR 2020 SC 3076

¶61

“14. In the appeal which was filed by the appellants before the High Court, the High Court instead of maintaining the amount of compensation granted by the Tribunal, reduced the same. In doing so, the High Court had not given any reason. The High Court introduced the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefore. The High Court has also not considered the clear and corroborative evidence about the prospect of future increment of the

¶62

¶63

deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2^nd column in the Second Schedule to the Motor Vehicles Act, and the Tribunal has not committed any error by accepting the said multiplier. This Court also fails to appreciate why the High Court chose to apply the multiplier of 6.

¶64

15. We are, thus, of the opinion that the judgment of the High Court deserves to be set aside for it is perverse and clearly contrary to the evidence on record, for having not considered the future prospects of the deceased and also for adopting a split multiplier method.

¶65

34. We, therefore, hold that in absence of any specific reason and evidence on record the tribunal or the court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in Sarla Verma as affirmed in Reshma Kumari.”

¶66

28. From the above discussion, it is clear that at the time of calculation of the income, the court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Further, while the evidence in a given case may indicate a different percentage of increase, standardization of the addition for future prospects should be made to avoid different yardsticks being applied or different methods of calculation being adopted. In Pranay Sethi, the Constitution Bench has directed addition of 15% of the salary in case the deceased was between the age of 50 to 60 years as a thumb rule, where a

¶67

¶68

deceased had a permanent job. In view of the above, the High Court was not justified in applying split multiplier in the instant case."

¶69

In the said case, the deceased was working

¶70

as Assistant Professor at Devaswom Board Pampa College, Paruamala. While calculating the loss of dependency, applied split multiplier. Hon'ble Supreme Court in Pranay Sethi's case, held that 15% of the salary of the deceased has to be added, in case the deceased aged between 50 and 60 years, as a thumb rule, where the deceased had a permanent job.

¶71

The Hon'ble Apex Court in the above case, while calculating the loss of dependency, has applied split multiplier, but the same is not applicable to the case on hand and the same is also upheld in the judgment of the coordinate bench of this court in the case of Thejaswin N.S. and others Vs. Shashidhar N and another in MFA No.4330/2016 C/w MFA No.4329/2016 dated 10.11.2021.

¶72

¶73

17. Admittedly, the deceased was working as a

¶74

head master and his gross salary as per Ex.P14-Salary certificate, is 22,941/-. After deducting professional tax of Rs.200/-, it comes to Rs.22,741/- and the age of the deceased as on the date of accident was 58 years. As per the decision rendered in National Insurance Company Limited v. Pranay Sethi and Others , reported in AIR 2017 SC 5157, 15% of the salary has to be added as further prospects where the deceased is between age group between 56 to 60 years as per the decision rendered in Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another reported in (2009)6 SCC 121 . Then, it comes to Rs.26,152/- (Rs.22,741+Rs.Rs.3,411). As there are three dependants, as per the decision in Sarla Verma referred supra, 1/3^rd of the income has to be deducted towards personal and living expenses of the deceased. After deducting 1/3^rd of his income towards his personal expenditure, it comes to Rs.17,435/-. Therefore, the compensation towards 'loss of dependency' works out to Rs.18,82,980/(Rs.17,435x12x9). Therefore, the

¶75

¶76

appellants/claimants are entitled for a sum of Rs.18,82,980/- (Rupees Eighteen Lakhs Eighty Two Thousand Nine Hundred And Eighty only) towards loss of dependency as against Rs.13,76,460/awarded by the tribunal.

¶77

The Tribunal has awarded just and reasonable compensation towards medical expenses, transportation, funeral expenses, loss of consortium, loss of love and affection and loss of estate which are unaltered.

¶78

In the result, the compensation awarded by

¶79

the tribunal is re-judged and is recalculated under different heads as under:

¶80

Sl. No.	Particulars	Compensation awarded by the tribunal	Compensation re- determined by this court
1.	Loss ofdependency	Rs.13,76,460/-	Rs.18,82,980/-
2.	Transportation	Rs.2,550/-	Rs.2,550/-
3.	Medical Expenses	Rs.16,500/-	Rs.16,500/-
4.	Funeral expenses	Rs.20,000/-	Rs.20,000/-
5.	Loss ofconsortium	Rs.25,000/-	Rs.25,000/-

¶81

¶82

6.	Loss of love and affection	Rs.20,000/-	Rs.20,000/-
7.	Loss of estate	Rs.25,000/-	Rs.25,000/-
	Total	Rs.14,85,510/-	Rs.19,92,030/-

¶83

In the result, I pass the following:

¶84

ORDER

¶85

1. The appeal is partly allowed;

¶86

1. The impugned judgment and award dated 24.01.2015 passed by Court of the Prl. Civil Judge (Sr.Dn.) and MACT, Mandya, in MVC No.646/2009 having been modified, the compensation is enhanced to Rs.19,92,030 /- (Rupees Nineteen Lakhs Ninety-two Thousand Thirty only) from Rs.14,85,510/- awarded by the tribunal.

¶87

1. The appellants are entitled for the enhanced compensation of Rs.5,06,520 /- ( Rupees Five Lakhs Six Thousand Five hundred and Twenty only ) with 6% per annum, from the date of petition till the date of realization.

¶88