: 1 : IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE K.N.KESHAVANARAYANA

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1 : 1 : IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7 TH DAY OF JUNE 2012 BEFORE THE HON BLE MR.JUSTICE K.N.KESHAVANARAYANA BETWEEN: MFA.No.122 OF 2009 (MV) C/w MFA.No.120 OF 2009 (MV) New India Assurance Co. Ltd., Represented by Divisional Manager, 4 th Floor, M/s. Tower Block, Unity Building, J.C.Road, Bangalore.... Appellant (Common in both Appeals) [By Sri.R.Jaiprakash & Sri.M.Muniraju, Advocates] In MFA.No.122/09 AND: 1. Sri.N.Ajendra, S/o Narayanaswamy, Residing at Nandi Village & Post, Chickaballapur, Kolar District. 2. Smt.Sharadamma, Aged Major. 3. Smt.Jayashree, Aged Major. Both are Residing at No.79, Ward No.7, Ganganna Medde, Chikkaballapur Town, Kolar District Respondents

2 : 2 : [By M/s. Lawyers Net, Advocates for R-2 & R-3; Notice to R-1 is dispensed with vide order dated ] In MFA.No.120/09 AND: 1. Sri.N.Ajendra, S/o Narayanaswamy, Residing at Nandi Village & Post, Chickaballapur, Kolar District. 2. Smt.Susheelamma, Aged Major. 3. Smt.S.R.Nirmala, Aged Major. Both are Residing at No.225, II Cross, FCI Godown Road, Near Ganesha Temple, Vijinapura, Bangalore Respondents [By Sri.K.V.Shyama Prasad, Advocate for R-2 & R-3; Notice to R-1 is dispensed with vide order dated ] This Miscellaneous First Appeals are filed under Section 173 (1) of MV Act, against the judgment and award dated passed in MVC No.2650/2007 and MVC No.1924/2007 respectively, on the file of the Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-V, Metropolitan Area, Bangalore (SCCH-5) awarding a compensation of Rs.4,46,500/- with interest at 6% p.a. from the date of petition till deposit. These Appeals coming for hearing on this day, the court delivered the following:

3 : 3 : J U D G M E N T These appeals by the insurer are directed against the common judgment and award dated passed by Additional MACT-V, Bangalore City in MVC.Nos.1924/07 and 2650/07 questioning the method adopted by the Tribunal for quantification of the compensation. 2. The two claim petitions were filed under Section 163-A of the Motor Vehicles Act seeking compensation in respect of death of one Jagannath in road traffic accident that occurred at about 3.30 p.m. on while he was proceeding as a pillion rider in the motor cycle bearing registration No.KA-40 H The claim petitions were filed against the owner and insurer of the offending vehicle. The claimants were the natural mother, step mother and two sisters of the deceased. The deceased was a bachelor. The claim petitions were contested by the insurer of the offending vehicle.

4 : 4 : 3. The Tribunal, on assessment of the oral and documentary evidence, by the judgment under appeal, held that said Yashpal died as a result of motor vehicle accident as alleged in the petitions and that the claimants in both the petitions being his legal representatives are entitled to receive the compensation. As the petitions had been filed under Section 163-A of Motor Vehicles Act, the Tribunal proceeded to quantify the compensation as per Second Schedule attached to the Act by adopting the multiplier method choosing the multiplier with reference to the age of the deceased. The Tribunal also assessed the income of the deceased as Rs.36,000/- per annum. The Tribunal by applying multiplier of 18 with reference to the age of the deceased and after deducting 1/3 rd of the income towards personal expenses of the deceased, quantified the total compensation payable under the head of loss of dependency at Rs.4,32,000/-. The Tribunal awarded compensation of Rs.5,000/- towards loss of love and affection, Rs.2,000/- toward funeral and obsequies, Rs.2,500/- towards loss of estate, Rs.5,000/- towards

5 : 5 : medical expenses. Thus in all, the Tribunal awarded compensation of Rs.4,46,500/-. The Tribunal further directed that the claimants in both the claim petitions are entitled for 50% of the total compensation determined and further among the two claimants in each of the petitions, it should be shared at the ratio of 30:20. Aggrieved by the said judgment, the insurer has presented these appeals. 4. As noticed supra, the area of challenge is only in relation to the application of the multiplier with reference to the age of the deceased. The challenge is also relation to quantum of compensation awarded towards loss of love and affection and medical expenses. both sides. 5. I have heard the learned counsel appearing on 6. The principal contention of the learned counsel for the appellant insurer is that in the light of the decision of the Apex Court in the case of Ramesh Singh and another Vs. Satbir Singh and another reported in

6 : 6 : AIR 2008 SC 1233, the Tribunal ought to have applied the relevant multiplier with reference to age of the parents i.e., the age of the mother and not with reference to age of the deceased. According to him, if this decision is applied, the appropriate multiplier applicable with reference to the age of the natural mother who is the first claimant in MVC.No.1924/2007, would be 15 and not 18 as adopted by the Tribunal. 7. On the other hand, the learned counsel for the respondents/claimants contended that the Tribunal has rightly taken the multiplier applicable with reference to the age of the deceased in the light of the law laid down by the Apex Court in the case of National Insurance Company Limited Vs. Gurumallamma and another reported in 2009 AIR SCW 7434 and it does not call for interference by this Court. Alternatively, he contended that as held in Gurumallamma s case, the multiplier found in second column of Second Schedule is not applicable to the fatal accident cases and in fatal accident cases, the quantum of compensation as shown

7 : 7 : in the horizontal columns of Second Schedule should be chosen with reference to the age of the deceased as indicated in column-i and from out of the total amount of compensation mentioned therein, 1/3 rd should be deducted for the personal expenses of the deceased and the remaining amount should be treated as loss of dependency. According to the learned counsel if the age of the deceased is taken into consideration and on that basis the total compensation as mentioned in further horizontal columns with reference to the income group of the deceased is taken into consideration, the compensation computed by the Tribunal towards loss of dependency would be almost as determined by the Tribunal, therefore, the Tribunal has not committed any error in quantification of the amount towards loss of dependency. Further alternatively the learned counsel for the claimant submitted that if for in any reason this Court were to hold that the age of the parent namely mother of the deceased is to be applied in the case on hand, in that event, the income of the deceased may be taken as Rs.40,000/- per annum and on that basis the

8 : 8 : compensation be determined with reference to the age of the mother. 8. I have bestowed my serious considerations to the submissions made by the learned counsel on both sides and also perused the decisions cited at the Bar. 9. As noticed supra, the Tribunal has determined the income of the deceased at Rs.36,000/- per annum and after deducting 1/3 rd of the same, has determined the annual loss of dependency at Rs.24,000/- and by applying multiplier of 18 has arrived at a total compensation of Rs.4,32,000/- towards loss of dependency. The multiplier of 18 is adopted with reference to the age of the deceased. There is no dispute that the deceased was aged about 26 years. The multiplier of 18 is chosen as mentioned in Second Schedule on the basis that the victim was within the age group of 25 to 30 years. Now the question would be in a case of death of a bachelor where the claimants are the parents, whose age would be relevant for the purpose of computing the compensation under the head loss of

9 : 9 : dependency. Further, question would be as to whether the multiplier shown in the Second Schedule would at all be applicable in a claim petition filed under Section 163-A of the Act in respect of a fatal accident. 10. In Ramesh Singh s case referred to supra, the Apex Court has ruled that even in a claim under Section 163-A of the Act involving death of a bachelor and claimants being aged parents, the age of the parents is relevant for consideration. 11. In Gurumallamma s case referred to supra, a co-ordinate Bench of the Apex Court of which incidentally one of the learned Judges is common in both the decisions, has held that the multiplier shown in second schedule has no application to the fatal accident cases and further in a claim petition under Section 163-A of the Act, the age of the victim viz., the deceased would not be irrelevant. In Gurumallamma s case which involved a death of a bachelor and the claim petition had been filed by the parents, the Apex Court determined quantum of compensation on the basis of

10 : 10 : the age of the deceased. In the light of these two decisions, a learned Single Judge of this Court referred this very point to a larger Bench for its opinion. The point referred to the opinion of the larger bench was, Whether the MACT can apply a multiplier lesser than the one permitted in Second Schedule on the basis of the age of the claimant when a claim petition is filed under Section 163-A of the Act by the persons other than wife and children of the deceased? 12. Full Bench in the case of BMTC Vs. Jayamma and other connected cases by its opinion dated has held that the law as laid down by the Apex Court in the case of U.P. State Road Transport Corporation Vs. Trilok Chandra [(1996) 4 SCC 362] which has been re-affirmed in Ramesh Singh s case would govern the field. In other words, the Full Bench of this Court has held that in a claim petition under Section 163-A of the Act in relation to death of a bachelor, the age of the claimants would be relevant for quantification of the compensation. The Full Bench has

11 : 11 : not considered the question whether the multiplier mentioned in Second Schedule should be applied in such claim petitions. Therefore, in my opinion, with reference to non-application of the multiplier mentioned in the Second Schedule in claim petition under Section 163-A of the Act, the law laid down in Gurumallamma s case would hold the field. As a result, in a claim under Section 163-A of the Act, in respect of death of a bachelor, the compensation will have to be quantified on the basis of the age of the claimants as held in Ramesh Singh s case with reference to the age group to which the younger of the claimants would fall, amount of compensation shown in the horizontal column of Second Schedule falling under the annual income of the deceased as determined should be ascertained and then out of the said amount 1/3 rd should be deducted towards the personal expenses of the deceased to arrive at the loss of dependency. This would strike a balance and make both the decisions in Ramesh Singh and Gurumallamma operate in the field and it would also

12 : 12 : make the Second Schedule more meaningful and workable. 13. As noticed supra, in the case on hand, the Tribunal has assessed the income of the deceased at Rs.36,000/- per annum. The deceased was stated to be a mason. The accident occurred in the year In my opinion, having regard to the cost of living during and also the rupee Value and having regard to the nature of the vocation of the deceased, the income of the deceased can be safely taken as Rs.40,000/- per annum which is the maximum provided under the Second Schedule. 14. In the cause title of the claim petition, the age of both the natural mother and step mother have been shown as 45 years. On the basis of the age of the natural mother of the deceased, the total compensation as computed in Second schedule applicable to the income group of Rs.40,000/-, would be Rs.5,60,000/-. As per the note below in Second Schedule, 1/3 rd of the amount mentioned in the horizontal columns should be

13 : 13 : deducted towards the personal expenses of the deceased. If this is done, the total loss of dependency works out to Rs.3,73,333/- which may be rounded of to Rs.3,74,000/-. In my opinion, the claimants are entitled to this amount towards loss of dependency. To this extent, the appeal filed by the insurer deserves to be allowed. As per Second Schedule, the only compensation payable under conventional heads would be towards funeral expenses, loss of consortium and loss of estate. In this case loss of consortium has no application. Therefore, the claimants are entitled to only Rs.4,500/- under the conventional heads. The medical expenses awarded at Rs.5,000/- is confirmed. Thus the claimants are entitled for total compensation of Rs.3,83,500/- as against Rs.4,46,400/- awarded by the Tribunal. To this extent, the award of the Tribunal requires to be modified. 15. Accordingly, the appeals filed by the Insurance Company are allowed-in-part. In modification of the common judgment and award passed by the Tribunal,

14 : 14 : the compensation payable to the claimants in both the claim petitions together, is quantified at Rs.3,83,500/- as against Rs.4,46,400/- awarded by the Tribunal. The Compensation amount as determined by this court shall carry interest at 6% per annum from the date of petition to the date of deposit/payment. The apportionment of the compensation quantified by this Court shall be as stated in the award of the Tribunal. The statutory amount deposited by the insurer in these appeals, are ordered to be transferred to the Tribunal for disbursement. SD/- JUDGE RS/*