Narmada and Others vs Kusuma Birappa Mali and Others

S. Sujatha, J—This appeal is filed by the claimants challenging the judgment and award passed by the MACT, Khanapur in MVC No. 3329/2007.

The facts in brief are:

"That on 18.07.2007, deceased Chandrakant Narayan Shahapurkar was travelling as a pillion rider of a motorcycle bearing registration No. KA-22/U-679. When the said motorcycle came near Nayakol cross, truck bearing No. MH-10/A-6319 came in a rash and negligent manner and hit the motorcycle on which the deceased was travelling. Due to the impact of the accident, deceased sustained grievous injuries. He was shifted to Government Hospital, Khanapur and thereafter to KLE Hospital, Belgaum, wherein he succumbed to the injuries. Based on these facts, claim petition was preferred by the claimants seeking compensation of Rs. 20,00,000/-. Respondent-insurance company contested the matter denying all the material averments made in the petition. After analyzing the evidence placed on record, the Tribunal partly allowed the claim petition awarding compensation of Rs. 2,55,000/- with interest at 9% p.a. from the date of petition till the date of deposit. Being dissatisfied with the same, the appellants are before this Court seeking enhancement of compensation."

Learned counsel appearing for the appellants contended that the Tribunal determined the income of the deceased at Rs. 3,000/- p.m. considering the age of the father of the deceased, who is aged about 65 years and determined the loss of dependency at Rs. 1,80,000/-. It is the case of the appellants that the Tribunal ought to have considered the age of the deceased to apply the multiplier, in view of the law laid down by the Apex Court in the case of Munna Lal Jain and Another v. Vipin Kumar Sharma and Others passed in Civil Appeal No. 4497 of 2015 and further seeks compensation for the future prospects to be awarded.

On the other hand, learned counsel appearing for the insurance company vehemently argued that the Tribunal is justified in considering the age of the youngest parent, as per the judgment passed by the Apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, (1994) ACJ 1 : AIR 1994 SC 1631 : (1994) 107 PLR 1 : (1993) 4 SCALE 643 : (1994) 2 SCC 176 . In support of her contention, she also placed reliance on the judgment of this Court in the case of Bangalore Metropolitan Transport Corporation v. B.N. Nagesh in MFA No. 7665/2008 connected with MFA No. 491/2009 dated 07.12.2012. The defence taken by the insurance company is that the Tribunal has rightly awarded compensation, which does not call for any interference by this Court.

The Tribunal adopted the multiplier of ''6'' taking into consideration the age of the father of the deceased and arrived at the loss of dependency. However, in the case of Munna Lal Jain (supra), the Apex Court has held thus:

"The remaining question is only on multiplier. The High Court following Santosh Devei (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependents or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainly with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken."

The judgment relied on by the learned counsel appearing for the insurer in MFA No. 7665/2008 and connected matters, his Lordship placing reliance on the judgment of the Apex Court in the case of New India Assurance Company Ltd., v. Shanti Pathak has held thus:

"In view of the same, it can be noticed that Susamma Thomas case to be affirmed by a Larger Bench i.e., in Trilok Chandra''s case and subsequently followed in Charlie''s case, Syed Ibrahim''s case and again by Three Judges Bench in the case of Shanthi Pathak. Thus, it emerges that while considering a claim petition filed under Section 166 of Motor Vehicles Act, 1988 compensation is computed on the principles of just and reasonable compensation, namely, to offset the pecuniary loss that would accrue to the dependants and to meet the said contingency in future the compensation is awarded. It is this pecuniary loss to the living dependants which requires to be offset by awarding just and reasonable compensation'' taking into consideration the age of the dependents/claimants."

However, the Apex Court in the subsequent judgment of Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) ACJ 1428 : AIR 2012 SC 2185 : (2012) 4 SCALE 559 : (2012) 6 SCC 421 : (2012) AIRSCW 2892 : (2012) 3 Supreme 197 , Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 and Reshma Kumari and Others Vs. Madan Mohan and Another, (2013) 2 ACC 907 : (2013) ACJ 1253 : (2013) 4 AD 516 : (2013) 2 CTC 680 : (2013) 4 JT 362 : (2013) 2 PLR 750 : (2013) 2 RCR(Civil) 660 : (2013) 5 SCALE 160 : (2013) 9 SCC 65 , has categorically held that, to determine the loss of dependency, the multiplier shall be with reference to the age of the deceased. The judgment relied upon by the learned counsel in MFA No. 7665/2008 and connected matter was rendered on 07.12.2012 and Munna Lal Jain''s case was rendered in the month of May 2015, which was not available for consideration before this Court. The law existing at the time of delivering the judgment was considered and the age of the younger parent of the deceased was taken as the multiplier and arrived at the loss of dependency. In view of subsequent judgment rendered by the Apex Court, which is squarely applicable to the facts of the case, the multiplier adopted by the Tribunal requires to be modified to that of ''18'', considering the age of the deceased as 25 years.

As far as second contention of awarding future prospects is concerned, Division Bench of this Court in MFA No. 103220/2014 disposed of on 06.08.2015 has considered 50% of the income towards future prospects. In the light of the said judgment, considering the age of the deceased and his avocation, it would be appropriate to award future prospects at 30% of the income of the deceased. Applying the same, the total compensation awarded by the Tribunal requires to be enhanced by Rs. 7,02,000/-. Respondent No. 2-insurer shall deposit the enhanced compensation with interest at 6% p.a. from the date of petition till the date of deposit within six weeks from the date of receipt of copy of the judgment and claimants are at liberty to withdraw the same.