Bhagyamma W/O ... vs M/S Cisco Systems India Pvt Ltd
2021 Latest Caselaw 7017 Kant

                          1




  IN THE HIGH COURT OF KARNATAKA, BENGALURU

   DATED THIS THE 22nd DAY OF DECEMBER 2021

                      BEFORE

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

               MFA NO. 6523/2015 (MV)
BETWEEN:

1. BHAGYAMMA
   W/O POOTHANA BRAMHACHARYA
   AGED ABOUT 58 YEARS

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

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

4. P.B.GAYATHRI
   D/O POOTHANA BRAMHACHARYA,
   AGED ABOUT 31 YEARS,

  ALL ARE R/AT
  SHIVARA COLONY VILLAGE
  KERGODU HOBLI,
  MANDYA TALUK-571410.                   ...APPELLANTS

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

AND:

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

2. ROYAL SUNDARAM ALLIANCE
   INSURANCE COMPANY LIMITED,
   SUNDARAM TOWERS,
   WHITE ROAD,
   CHENNAI-600014.               ...RESPONDENTS
                              2




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


     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.

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

                            JUDGMENT

Though the matter is listed for admission, with the

consent of both the parties, the same is taken up for

final disposal.

2. 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.

3. The appellants/claimants filed a claim

petition before the tribunal claiming compensation for

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.

4. 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.

5. 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 respondent-

insurance 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.

6. After considering the pleadings of the

parties, the tribunal framed the following issues:

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

(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?

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

(iv) What Order?"

7. 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 2nd

respondent insurance company has got examined one

witness as R.W.1 and got marked seven documents as

Ex.R1 to R7.

8. After hearing the arguments, the tribunal

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

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.

9. 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.

10. 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.

11. 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.

12. Against this, learned counsel for the

Insurance Company supported the impugned judgment

and award passed by the tribunal.

13. 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.

14. 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

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:

"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:

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

979)

"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.

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

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

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:

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

    "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.

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

"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

deceased. When the age of the deceased is between 51 and 55 years the multiplier is 11, which is specified in the 2nd 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.

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.

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."

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

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

15. In the said case, the deceased was working

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.

16. 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.

17. Admittedly, the deceased was working as a

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, 1/3rd of the income has to be deducted

towards personal and living expenses of the deceased.

After deducting 1/3rd 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

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.

18. 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.

19. In the result, the compensation awarded by

the tribunal is re-judged and is recalculated under

different heads as under:

Sl. Particulars Compensation Compensation re-

No.                              awarded by the        determined by this
                                 tribunal              court

1.    Loss of dependency              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 of consortium                Rs.25,000/-               Rs.25,000/-





6.     Loss of love and               Rs.20,000/-          Rs.20,000/-
       affection

7.     Loss of estate                 Rs.25,000/-          Rs.25,000/-

                               Rs.14,85,510/-         Rs.19,92,030/-
       Total

In the result, I pass the following:

ORDER

1) The appeal is partly allowed;

2) 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.

3) 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.

4) Petition dismissed against the 2nd respondent is up-held.

5) The other conditions of the tribunal regarding apportionment and interest remained unaltered.

6) Respondent No.1 shall make good the differential amount within four weeks from the date of receipt of a certified copy of this order.

7) Rest of the order passed by the tribunal is kept in tact.

8) Costs made easy.

9) Sent back the records immediately to the tribunal.

Sd/-

JUDGE

JS/-