(PER: HON'BLE MR. JUSTICE K NATARAJAN)
Raichur, in MVC.No.69/2012 dated 19.11.2018.
02. Heard the learned counsel for both the parties.
03. The appellants in MFA.No.200849/2019 are
in these appeals.
04. The case of the claimants before the Tribunal is
the M.V. Act, claiming compensation of Rs.51,00,000/- for
Shivpur, in a road traffic accident on 23.08.2011.
05. It is contended that the deceased - Virupaxi and
the pillion rider sustained injuries and died on the spot.
06. The claimants taken contention that the
deceased was the police constable and their brother. He is
earning more than Rs.10,000/- salary per month. They are
all dependents of the deceased - brother. Due to the
untimely death, they have lost the dependency. This
middle of the road. The respondent No.3 - insurance
company is liable to pay compensation. Hence, they
07. The respondents appeared and filed the
income, occupation and dependency of the deceased.
08. The Tribunal framed 03 issues which are as
I. Whether petitioners prove that the accident dated
23.08.2011 was due to rash and negligence on the
part of driver of lorry bearing Reg.No.KA-36/6069
resulting in the death of Thirupathi.?
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II. Whether petitioners are entitled for award of
compensation? If so, how much and from whom.?
III. What order or award.?
09. Earlier the insurance company and the
claimants have filed the appeals before this Court in
MFA.No.33087/2013 and MFA.No.201710/2014. The
Division Bench of this Court has remitted the matter back
to the Tribunal for considering the quantum of
compensation. However, Coordinate Bench of this Court
up held the contributory negligence held by the Tribunal
on Issue No.1 and the matter was remitted back. Once
again, the Tribunal has passed the award by awarding the
compensation at Rs.15,83,868/- which is as under:-
Sl. Heads Compensation
No. Awarded
1. Loss of dependency Rs.15,53,868/-
2. Transportation and funeral Rs.15,000/-
expenses
3. Loss of Estate Rs.15,000/-
Total Rs.15,83,868/-
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10. Being aggrieved by the same, the claimants
filed the appeal as well as the insurance company is also
before this Court.
11. The learned counsel for the claimants has
contended that though the Tribunal has considered the
income of the deceased at Rs.10,156/- per month and
added 50% of the salary as future prospects. But 50%
deduction towards the personal expenditure is not correct,
since there were 04 dependents in the family. All the
brothers and sisters are unmarried. Therefore, deduction
of 50% is not correct. Hence, prayed for deduct 1/3rd of
the salary towards personal expenditures. Though, there is
no ground urged in the appeal. However, the learned
counsel for the claimants orally argued that all the 04
claimants shall be considered as dependents of the
deceased. It is also contended that the contributory
negligence and fixing the liability on both deceased as well
as on the owner of the lorry is not correct. Hence, prayed
for allowing the appeal.
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12. On the other hand, the learned counsel
appearing for the respondent - insurance company though
supported fixing of 50% liability, but contended that the
claimants are only siblings and they were not considered
as dependents as per the judgment of the Hon'ble
Supreme Court in the case of The New India Assurance
Company vs. Anand Pal in SLP (CIVIL) No.7805/202
D.D. 04.12.2023 and in the case of Sarla Verma (Smt.)
and Others. v. Delhi Transport Corporation and
Another reported in (2009) 6 SCC 121 and contented
that the brothers and sisters cannot be considered as
dependency. Therefore, they are entitled only for loss of
estate and 50% deduction is correct. It is also contended
that the fixing contributory negligence on the part of the
rider of the motorcycle as well as on the driver / owner of
lorry and 50% on the insurance company is already up
held by Coordinate Bench of this Court in
MFA.No.33087/2013 and MFA.No.201710/2014 and
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contended that the contributory negligence cannot be
exonerated, which is already attained finality. It is also
contended that the awarding interest at the rate of 8%
p.a. shall be reduced to 6% p.a. Hence, prayed for
allowing the appeal.
13. On the other hand, the learned counsel for the
claimants has sought 18% p.a. instead of 8% p.a. fixed by
the Tribunal.
14. Having heard the arguments and perused the
records. The points that arise for our consideration are:-
I. Whether the contributory negligence at 50% each
fixed by the Tribunal call for any interference by this
Court.?
II. Whether the quantum of compensation amount
awarded by the Tribunal is just and fair and required
for any enhancement by way of modification.?
III. Whether rate of interest is required to be modified.?
If so to what extent.?
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15. Regarding the point No.1, the learned counsel
for the claimants has contended that the Tribunal has
committed error in fixing the contributory negligence at
50% each on both driver and rider of the motorcycle,
which is not correct. On the other hand, the learned
counsel for the respondent - insurance company has
contended that this issue has been already dealt with by
the earlier bench of this Court in MFA.No.33087/2013 and
MFA.No.201710/2014. The judgment copy is also placed
before this Court. We are verified the same, where at para
No.11 of the judgment the Coordinate Bench of this Court
has categorically held after considering the facts of the
case, as under:-
"under these circumstances, the grounds taken
by the appellant that fixing 50% liability on the
insurance company of the two wheeler it is
contrary to the facts cannot be accepted.
Accordingly, said submission is rejected. The
reasons have been assigned by the Tribunal for
fixing 50% negligence on both the vehicles
which are sound and proper and no grounds for
interference, MFA.No.33087/2013 is rejected."
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16. On reading of this findings of the earlier bench
of this Court, where the contention of the insurance
company was rejected and fixing the liability at 50% has
been already up held by this Court, which findings has
been also affected the claimants' case as they are not
challenged it, which attend the finality. Therefore, fixing
the liability at 50% ratio cannot be interfered by this
Court. The Tribunal rightly answered the issue No.1.
Accordingly, we found no ground to interference in this
regard.
17. As regards to the computation of compensation,
the claimants' case is that claimant No.1 - Jagadish who is
aged about 23 years, the claimant No.2 - Huchappa who
is aged about 27 years, claimant No.3 - Renukamma who
is aged about 21 years and younger sister and claimant
No.4 - Venkamma who is aged about 19 years and both
are unmarried sisters and claimant No.4 said to be
student. They have also contended that the deceased was
only earning member. However, on perusal of the age of
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the deceased and the age of the claimant No.2 -
Huchappa, which reveals that the Huchappa is the elder
brother of the deceased. That apart it is also seen from
the records that the claimants have no parents. Therefore,
normally the elder son of the family will takes burden
maintaining the family. Of course, the deceased is also
second son who was only with difference of one year age,
both could have look after the family members. There is
no contrary evidence on record to show the claimant No.1
- Jagadish also an earning member, but it is stated
unemployed. The claimants No.3 and 4 are the
unemployed and though they are majors that person are
unmarried sisters and claimant No.4 also a student. The
Tribunal though considered that the claimants No.3 and 4
are the dependents, however, we are of the opinion that in
the absence of any rebuttal evidence for the respondent -
insurance company, we also consider the Jagadish -
claimant No.1 is non earning member of the deceased
family. The claimant No.2 - Huchappa, who is the elder
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brother of the deceased cannot be considered as
dependent, as his occupation was shown as agriculturist.
Such being the case, the claimant No.2 cannot be
considered as non earning member of the family of the
deceased.
18. Now, coming to the arguments advanced by the
learned counsel for the appellants and the respondents,
where the claimants can consider as dependents of the
deceased. The learned counsel for the claimants
contended that the claimants are the dependents of the
deceased - brother. For the purpose of computation of the
compensation, the claimants should be considered as
dependents of the deceased. In this regard, the learned
counsel for the claimants referred the judgment of the
Hon'ble Supreme Court in the case of The New India
Assurance Company vs. Anand Pal in SLP (CIVIL)
No.7805/202 D.D. 04.12.2023 and held at Para Nos.4
and 5 as under:-
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"4. In support of his contention, Mr. Kumar relies
on Sarla Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr. reported in (2009) 6 SCC 121
wherein this Court held as under:
"31. Where the deceased was a bachelor and the
different principle. In regard to bachelors,
normally, 50% is deducted as personal and living
expenses, because it is assumed that a bachelor
would tend to spend more on himself. Even
otherwise, there is also the possibility of his
getting married in a short time, in which event
the contribution to the parent(s) and siblings is
likely to be cut drastically. Further, subject to
evidence to the contrary, the father is likely to
have his own income and will not be considered
as a dependant and the mother alone will be
considered as a dependant. In the absence of
evidence to the contrary, brothers and sisters
will not be considered as dependants, because
they will either be independent and earning, or
married, or be dependent on the father."
5. In the absence of evidence to the contrary,
brothers and sisters will not be considered as
dependents as because they will either be
independent and earning, or married, or be
dependent on the father."
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19. A careful reading of paragraphs No.4 and 5 of
the judgment of the Hon'ble Supreme Court in the case of
Anand Pal (supra), where the Apex Court has relied upon
the judgment of the Smt. Sarla Verma's case and
discussed at Para No.31 of the judgment. Reading of the
last three lines of the said judgment it clearly reveals that
the Hon'ble Apex Court held that in the absence of
evidence to the contrary, brothers and sisters will not be
considered as dependents, because they will either be
independent and earning, or married, or being dependent
on the father.
20. We are of the considered opinion that this case
on hand is not applicable to the above principle laid down
in the said judgment of the Hon'ble Supreme Court, since
in this case, both the mother and father had died long
back. Only the claimant No.2 was a agriculturist and
earning member of the family. The deceased subsequently
secured the job and during his service, he was met with an
accident and died. As we already held that the claimant
No.1 is also unemployed, claimants No.3 and 4 are
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unmarried sisters and claimant No.2 is the agriculturist.
Such being the case, this case is not on par with the
judgment of the Hon'ble Supreme Court in Anand Pal's
case, since the claimants No.1, 3 and 4 are not
independent and they are not earning any income and
they are totally depend upon the income of their brother -
claimant No.2 and also the deceased. Therefore, in our
view, claimants No.1, 3 and 4 are treated as dependent of
the deceased-rider. The judgment relied by the learned
counsel for the insurance company is not applicable to the
case on hand.
21. Insofar as the computation of compensation,
the Tribunal has considered the income of the deceased at
Rs.10,156/-, after deducting the professional tax at
Rs.150/- as per the salary certificate of the deceased. As
already held above, the deceased is having a permanent
job with fixed salary. Therefore, 50% of the salary should
be considered as future prospects as additional income
which is calculated as Rs.5,078/- + Rs.10,156/- it comes
to Rs.15,234/-.
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22. Insofar as deduction is concerned, learned
counsel for the insurance company has contended that
since the deceased was a bachelor, 50% should be
deducted towards the personal and living expenses. But
as per the judgment of the Hon'ble Supreme Court in the
case of Smt. Sarla Verma's, at para 15 which reads as
under:
"15. Where the deceased was a bachelor and the
claimants are the parents, the deduction follows
a different principle. In regard to bachelor,
normally, 50% is deducted as personal and living
expenses, because it is assumed that a bachelor
would tend to spend more on himself. Even
otherwise, there is also the possibility of his
getting married in a short time, in which event
the contribution to the parent/s and siblings is
likely to be cut drastically. Further, subject to
evidence to the contrary, the father is likely to
have his own income and will not be considered
as a dependant and the mother alone will be
considered as a dependent. In the absence of
evidence to the contrary, brothers and sisters
will not be considered as dependents, because
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they will either be independent and earning, or
married, or be dependant on the father. Thus,
even if the deceased is survived by parents and
siblings, only the mother would be considered to
be a dependant, and 50% would be treated as
the personal and living expenses of the bachelor
and 50% as the contribution to the family.
However, where family of the bachelor is large
and dependant on the income of the deceased,
as in a case where he has a widowed mother and
large number of younger non-earning sisters or
brothers, his personal and living expenses may
be restricted to one-third and contribution to the
family will be taken as two-third."
23. On reading of this judgment passed by the
Hon'ble Apex Court, where the dependents are more and
even though the deceased is a bachelor and mother is
widowed, the deduction cannot be 50%, it should be 1/3rd.
In this case, there are three dependents and the mother is
not alive. Such being the case, definitely the deceased is
having more responsibility of educating the sisters and he
has to perform the marriage of both the sisters and also
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the unmarried brother. Such being the case, it cannot be
considered that the deceased may spend 50% of his
income towards the personal expenditure, he might have
dedicated the total amount to his family for necessity and
maintenance. Such being the case, the question of
deducting 50% towards the personal and living expenses
cannot be considered as per the facts and circumstances
of the case.
24. The Tribunal considering the evidence on record
has committed error in deducting 50% of the income
towards personal expenditure. The learned counsel for
appellants-claimants has rightly contended that 1/3rd shall
be deducted as per the decision of the Hon'ble Supreme
Court in the case of Smt. Sarla Verma's referred supra.
Therefore, if 1/3rd i.e., Rs.5,078/- is deducted from
Rs.15,234/- it comes to Rs.10,156/-. This should be the
income of the deceased. Loss of dependency: Rs.10,156 x
12 x 17 = Rs.20,71,824/-.
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25. The Tribunal though considered the case and
awarded no amount towards the loss of consortium and
loss of love and affection. Therefore, we are proposed to
award Rs.25,000/- each to the claimants including the
claimant No.2. Totally we propose to award Rs.1,00,000/-
(Rs.25,000/- x 4) towards loss of love and affection. The
Tribunal awarded Rs.30,000/- towards loss of estate and
funeral expenses and the same is retained. Thus, the
claimants are entitled for compensation as calculated
under:
Description Amount
Loss of dependency Rs.20,71,824.00
Loss of love and affection Rs.1,00,000.00
Conventional head Rs.30,000.00
Total Rs.22,01,824.00
Rounded off to Rs.22,01,900.00
Award of the Tribunal Rs.7,91,900.00
Enhanced Compensation Rs.14,10,000.00
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26. Thus, the claimants in the claim petition are
entitled to a total compensation of Rs.22,01,900/- as
against Rs.7,91,900/- awarded by the Tribunal. Out of
which as already held above 50% shall be deducted
towards the contributory negligence on the part of the
deceased which comes to Rs.11,00,950/-.
27. In pursuance to the interest on award, normally
the Court used to award 6% per annum. The Tribunal has
awarded 8% per annum and there is no reason assigned
for awarding 8% per annum. Though, the learned counsel
for claimants contended and requested to enhance the
interest to 18% per annum, but we do not find any reason
for enhancing the same. However, normally the Courts
are required to grant 6% interest per annum as rightly
contended by the learned counsel for the insurance
company.
28. Accordingly, we proceed to pass the following:
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ORDER
(i) Both the appeals are allowed in part.
(ii) The claimants are entitled for
compensation of Rs.11,00,950/- (half
of Rs.22,01,900/-).
(iii) The claimants are entitled for 6%
interest on the compensation amount
from the date of petition till the date of
realization.
(iv) The appellant-insurance company shall
deposit the entire compensation
amount with accrued interest before
the Tribunal within a period of eight
weeks from the date of receipt of
certified copy of this judgment.
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(v) The amount in deposit, if any, shall be
transmitted to the Tribunal along with
trial Court records forthwith.
Sd/-
(K NATARAJAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
KJJ/MCR
CT:SI
