Bhagirathi W/O Tukaram Mohite, Vs. Rahul S/O Laxman Patil, - Court Judgment

Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE14h DAY OF JUNE2017PRESENT R THE HON’BLE DR. JUSTICE VINEET KOTHARI AND THE HON’BLE DR. JUSTICE H. B. PRABHAKARA SASTRY M.F.A. No.25161/2012(MV) BETWEEN:

1. Smt. Bhagirathi w/o Tukaram Mohite, 48 years, Occ: Household, 2. Santhosh s/o Tukaram Mohite, 31 years, Occ: Private Service 3. Udaykumar s/o Tukaram Mohite, 28 years, Occ: Advocate All are R/o Mahalaxmipuram, Police Colony, Shindolli, Taluk and District: Belgaum. …APPELLANTS (By Shri.Srinivas B Naik, Advocate) AND:

1. Rahul s/o Laxman Patil, Major, Occ: Business, R/o Plot No.7, Ayodhya Nagar, Civil Hospital Road, Belgaum. Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 2 2. The Manager, IFFCO TOKIO General Insurance Co. Ltd., KSCMF Building, 3rd Floor, 3rd Block, No.8, Cunningham Road, Bangalore –52. …RESPONDENTS (By Shri. S.K.Kayakamath, Advocate for R-2, R1 – Notice dispensed with) This MFA is filed under Section 173 (1) of M.V. Act, 1988, against the judgment and award dated 10.10.2011 passed in MVC No.1001/2010 on the file of Principal Senior Civil Judge and Member, MACT, Belgaum, partly allowing the claim petition for compensation and seeking enhancement of compensation. This appeal coming on for final hearing on 5.6.2017 and the same having been heard and reserved for pronouncement of judgment, this day, DR H.B.PRABHAKARA SASTRY J, pronounced the following: JUDGMENT

This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, seeking enhancement of compensation awarded by the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Belgaum (hereinafter referred to as ‘the Tribunal’ for short), by its judgment and award dated 10.10.2011 in M.V.C. No.1001/2010. Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 2. The appellants/claimants, in their memorandum of 3 appeal has taken contention that the Tribunal below wrongly considered the age of the deceased and applied a smaller multiplier. It further erred in deducting the family pension out of the loss of dependency, which is contrary to the law. The compensation awarded towards loss of consortium and loss of love and affection is also very less. With this, they have prayed for modification of the judgment and award under appeal by enhancing the compensation awarded therein.

3. On notice being issued, respondent No.2 is represented by its standing counsel. Notice to respondent No.1 is dispensed with at the request of the appellants. The records of the Tribunal below were called for and the same are placed before us.

4. Heard the arguments from both sides and perused the memorandum of appeal, impugned judgment and the entire materials placed before this court. Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 5. In the light of the above, the point that arises for 4 our consideration is; “Whether the claimants have made out grounds for enhancement of compensation?.” 6. The summary of the case of the appellants as could be gathered from the materials placed before us is that on 5.11.2009 at about 1.00 p.m., the deceased Tukaram Gundu Mohite, while proceeding on his motor cycle bearing registration No.KA-22/Y-8067 from Belgaum to Shindolli, near Shindolli cross on Sambra road, a car bearing registration No.KA-22/MD-7555 being driven by its driver in a rash and negligent manner came from behind and dashed to his motor cycle, due to which accident, the deceased sustained grievous injuries to head and other parts of the body. He was immediately shifted to KLE Hospital, Belgaum for treatment, where he succumbed to the injuries during the course of treatment. The claimants have further stated that the deceased was aged 59 years and was serving as head constable in APMC Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another Police Station, Belgaum, and was drawing a salary of 5 `.20,000/- per month. The claimants were dependent upon him. Holding that the respondent Nos.1 and 2 as the owner and insurer of the motor cycle respectively in the Tribunal below, the claimants have claimed compensation of Rs.40,00,000/- from them.

7. The Tribunal below after recording the evidence and perusing the materials placed before it and also after hearing the parties, by its judgment and award dated 10.10.2011 awarded a compensation of a sum of `5,01,406/- together with interest at the rate of 6% p.a. from the date of petition till the date of realisation and held that both the respondents are jointly and severally liable to pay the said compensation. It is the said judgment and award the claimants have challenged in this appeal, seeking enhancement of compensation. The compensation awarded by the Tribunal below under different head is as below : Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 1 2 3 4 5 6 Loss of dependency `4,59,406-00 Loss of consortium `10,000-00 Loss of estate `10,000-00 Funeral expenses `7,000-00 Loss of love and Affection `15,000-00 Total `5,01,406/ 8. For the sake of convenience, the parties would be referred to with the ranks they were holding in the Tribunal below.

9. The learned counsel for the appellants in his argument reiterated the contention taken up by him in the memorandum of appeal.

10. On the other hand, the learned counsel for the respondents in his argument submitted that the compensation awarded by the Tribunal below is reasonable and adequate and as such, the findings of the Tribunal does not warrant interference at the hands of this court. Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 11. The present appeal being the claimants appeal and 7 the respondents having not preferred either cross- objection or a counter appeal, the question of occurrence of accident, the date, time and place as alleged by the claimants and also the alleged fault on the part of the driver of the offending vehicle are not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondents to pay compensation to the claimants need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal below.

12. The main contention in the arguments of the learned counsel for the appellants is that the Tribunal below ought not to have deducted the pensionary benefit while calculating the loss of dependency. Further, the multiplier adopted by it as ‘7’ is also incorrect and the multiplier ought to have been ‘9’ for the age of the deceased. The learned counsel for the appellants submitted that the observation of the Tribunal below that Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another the deceased was aged 59 years as on the date of the 8 accident and that he had left with 11 months of service for reaching superannuation is not disputed by the appellants and as such, the age of the deceased can be taken as 59 years. The Tribunal below has applied the multiplier of ‘7’ to the said age which ought to have been ‘9’. Considering the salary certificate of the deceased at Ex.P.8 and the evidence of P.W.1, the Tribunal below has arrived at a finding that the salary drawn by the deceased for the month of September 2009 and October 2009 was at `.18,941/- per month. After deducting professional tax of `.200/-, it has calculated the net salary of the deceased at `.18,741/-. After deducting 1/3 towards his personal expenses, the remaining amount of `.12,494/- per month was taken as contribution to the family of the deceased. For 11 months till the date of superannuation the deceased was expected to contribute every month the said sum towards his family. As such, the contribution towards the Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another family of the deceased for 11 months would be `.12,494 x 9 11 = `. 1,37,434. To calculate the loss of dependency for the remaining period, the Tribunal below has calculated the monthly pension expected to have been received by the deceased had he been alive, at `.9,500/- per month. Out of the said amount, 1/3 of the same was deducted towards his personal expenses by the Tribunal below. As such, the notional loss of dependency was considered to be `.6,333/- per month. The learned counsel for the appellants further submitted that he does not dispute the said calculation. However, the Tribunal below has observed that even after the death of the deceased who was a public servant, the family would continue to get family pension not less than a sum of `.2,500/- per month, and proceeded further to deduct the family pension also in calculating the notional loss of dependency towards the family. It is the said point the learned counsel for the appellants in his argument vehemently opposed and stated Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another that pension being a pecuniary advantage receivable by 10 the heirs on account of ones death, such amount will not come within the periphery of the Motor Vehicles Act to be termed as ‘a pecuniary advantage liable for deduction’. In his support, the learned counsel for the appellants has relied upon a decision of our Hon’ble Supreme Court in the case of Vimal Kanwar and Ors v. Kishore Dan and Ors, 2012(2) G.L.H.42. In the said case, the Apex Court after referring to the judgment in Helen C.Rebello (Mrs) and others v. Maharashtra State Road Transport Corporation & Anr. Reported in (1999) 1 SCC90was pleased to observe that the family pension earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. With this observation, it was held that the family pension receivable by the family after the death is not deductible by terming as ‘pecuniary advantage liable for deduction’ in a compensation of motor vehicle accident claims. Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 13. However, the learned counsel for the 11 respondent-insurance company in his argument relying upon another judgment of our Hon’ble Supreme Court in the case of Reliance General Insurance Company v. Shashi Sharma and Others, reported in 2016(9) SCC627 submitted that the family pension is deductible in the compensation of motor vehicle claims. In the said case, respondents/claimants were dependents of an employee of Government of Haryana who died in a motor accident and the claimants had separately claimed loss of pay and wages apart from receiving exgratia amount from State Government. The appellant insurance company challenged it on ground that such computation would end up conferring a profit to claimants. However, the High Court rejected this contention. In an appeal, the Hon’ble Apex Court observed that generally claimants are legally entitled to claim under “ loss of pay and wages “ of the deceased Government employee against tortfeasor or insurance company. However, the dependents of the deceased employee of Government of Haryana are not Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another entitled to claim such claim as they received “pay and 12 allowance” under Rule 5(1) of Haryana Compassionate Assistance to the Dependants of the Deceased Government Employees Rules, 2006. Thus, the result of harmonious interpretation of another applicable law like Haryana Rules, 2006 and M.V. Act is that compensation payable under Motor Vehicle Act must exclude the amount received under Haryana Rules, 2006 under head “ loss of pay and allowances”. With great respect, it is submitted that in the instant case there is no similar provision like Haryana Compassionate Assistance to the Dependants of the Deceased Government Employees Rules, 2006, under which the dependants would have received “Pay and allowance”. It is only the family pension, which the deceased employee may get and as such, the said family pension cannot be treated as “ pay and allowance”. Therefore, the said decision relied upon by the learned counsel for the insurance company is not helpful to him. Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 14. Further more, in the said decision, it is the 13 Hon’ble Apex Court at para –15 has observed that the principle regarding deductible amount has been correctly expounded in Helen C. Rebello, (1999) 1 SCC90 That the “pecuniary advantage” from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply proprio vigore to the corresponding provisions of the Motor Vehicles Act, 1988.

15. From this, it is clear that as observed by the Apex Court in the case reported in 2013(2) G.L.H.42 (supra) , the pension is an earning of an employee for the benefit of his family in the form of his contribution in terms of service conditions receivable by the heirs after his death. Therefore, the same cannot be correlated to the pecuniary advantage, which has no correlation to the injury or death caused on account of the motor accident. As such, the Tribunal below ought not to have deducted Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another family pension at `.2,500/- per month from the notional 14 loss of dependency at `.6,333/- per month. Thus, the notional contribution of the deceased being his contribution to the family remains at `.6,333/- per month. When it is multiplied by multiplier ‘9’, (`.6333 x 12 x 9), it comes to `.6,83,964/-. To this amount, 11 months contribution of `.1,37,434 as calculated above when added, it comes to a sum of `.8,21,398/-. This amount the claimants are entitled as compensation towards ‘loss of dependency’.

16. The Tribunal has awarded compensation of `.10,000/- towards loss of consortium, `.7,000/-towards funeral expenses and `.15,000/- towards loss of love and affection. In the facts and circumstances of the case, we are of the opinion that towards loss of consortium, the claimants are entitled for compensation of `.50,000/-. Towards funeral expenses and transportation of body `.20,000/- is awarded. Towards love and affection, a sum of `.30,000/-, towards loss of estate a sum of `.10,000/- as awarded by the Tribunal below has been retained as it Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another is. Thus, in total the claimants are entitled for a sum of 15 `.9,31,398/- rounded of to `.9,31,400/-. The brake up figures are as under:

1. 2 3 4 5 Towards loss of dependency `.8,21,398/- Towards loss of consortium `.50,000/- Towards funeral expenses and Transportation of dead body `.20,000/- love and `.30,000/- loss of Towards affection Towards loss of estate Total rounded of to `.10,000/- `.9,31,398/- `.9,31,400/- 17. Since the judgment and award passed by the Tribunal being lower than what the reasonable compensation was, the appeal deserves to be partly allowed and the judgment and award under appeal requires to be modified.

18. Accordingly, we answer the above point partly in the affirmative and proceed to pass the following: Date of Judgement 14.06.2017, MFA No.25161/2012 Smt. Bhagirathi Mohite & others Vs. Rahul Laxman Patil & another 16 ORDER

The appeal is allowed in part. The judgment and award passed by the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Belgaum, in M.V.C. No.1001/2010 dated 10.10.2011 is modified to the extent that the compensation awarded at `.5,01,406/- is enhanced and fixed at `.9,31,400/- (Rupees nine lakhs thirty one thousand four hundred only). The rest of the order of the Tribunal with respect to fixing the liability upon the respondent/s and directing the respondent/s to deposit the awarded amount, awarding interest, its rate, terms regarding release of the amount awarded shall remain unaltered. Sd/- JUDGE Sd/- JUDGE Msu