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Sunday, September 7, 2014

Accident claim - M.V. Act -Apex court held that deceased salary Rs.26,000/- per month and after deducting 10% towards income tax, net income comes to Rs.23,400/per month.- Deducting 1/4th of this amount towards his personal expenses-multiplier of 11-Rs.1,00,000/- for loss of consortium, Rs.1,00,000/- for loss of love and affection ,Rs.10,000/- for funeral expenses ,Rs.1,00,000/- for loss of estate.-interest @9% p.a -Total : Rs.26,26,600/- as both the Tribunal and the High Court have erred in not following rule laid down by this Court on this aspect in the catena of cases referred to supra. Therefore, we set aside the same and award the compensation as per the calculations made in the penultimate paragraph of this judgment.= CIVIL APPEAL NO.7705 OF 2014 (Arising out of SLP(C) NO. 4895 OF 2014) YERRAMMA & ORS. …APPELLANTS Vs. G. KRISHNAMURTHY & ANR. ….RESPONDENTS = 2014- Aug.Part - http://judis.nic.in/supremecourt/filename=41869

Accident claim - M.V. Act -Apex court held that deceased salary Rs.26,000/-  per  month  and after deducting 10% towards income  tax,  net  income  comes  to  Rs.23,400/per month.-  Deducting 1/4th of this amount towards his  personal  expenses-multiplier of 11-Rs.1,00,000/- for loss of consortium, Rs.1,00,000/- for  loss  of  love  and affection ,Rs.10,000/- for funeral expenses ,Rs.1,00,000/- for loss of estate.-interest  @9%  p.a -Total : Rs.26,26,600/- as both  the
Tribunal and the High Court have erred in not following rule  laid  down  by this Court on this  aspect  in  the  catena  of  cases  referred  to  supra. Therefore, we set aside the same and  award  the  compensation  as  per  the calculations made in the penultimate paragraph of this judgment.=

On  20.5.2011,  the  deceased  Gavisiddappa   was
proceeding on a motor cycle  bearing  registration  No.KA034/K-3530  towards
S.P. Circle, when the State Road Transport Corporation bus which  was  going
ahead of him took a right turn to enter the bus  depot  without  giving  the
right turn indication.
The motor cycle of  Gavisiddappa  collided  with  the
bus while the bus was taking a right turn. Due to the impact caused by  this
collision of the bus with  the  motorcycle,  the  deceased  sustained  fatal
injuries and succumbed to the same while on the way to the hospital.

At the time of the accident, the deceased was  working  as  an  ASI  in  the
Kudithini Police Station and was  drawing  a  salary  of  Rs.  26,000/-  per
month. The deceased was the only earning member  of  the  family  for  their
livelihood.

The appellants herein, the wife, 3 minor children  and  the  mother  of  the
deceased Gavisiddappa,  filed  a  Claim  Petition  against  the  respondents
=

The gross salary drawn by the deceased at the  time  of  his  death  as  per
salary  slip  produced  on  record  was  Rs.26,000/-  per  month  and  after
deducting 10% towards income  tax,  net  income  comes  to  Rs.23,400/-  per
month. 
Thus, the annual income  of  the  deceased  would  be  Rs.2,80,800/-.
Deducting 1/4th of this amount towards his  personal  expenses  by  applying
the principle as laid down by this Court in Sarla Verma  case  (supra),  the
balance amount comes to Rs.2,10,600/-[(2,80,800/- –  Rs.70,200/-  (1/4th  of
Rs.2,80,800/-)].
Therefore, the loss of  dependency  of  the  appellants  by
applying the appropriate multiplier of 11, according to the rules laid  down
by this Court in the Sarla Verma comes to  Rs.23,16,600/-  (Rs.2,10,600/-  X
11).

Further, the High Court has erred in not following the rules  as  laid  down
by this Court in awarding compensation under  other  conventional  heads  as
mentioned hereunder.
We are of the view that the appellants are entitled  to
Rs.1,00,000/- for loss of consortium, Rs.1,00,000/- for  loss  of  love  and
affection as per the rule laid down by  this  Court  in  Rajesh  &  Ors.  v.
Rajbir Singh & Ors.[4],
Rs.10,000/- for funeral expenses as  per  the  rules
laid down by this Court in Amrit Bhanu Shali & Ors.  v.  National  Insurance
Co. Ltd. & Ors.[5] and
Rs.1,00,000/- for loss of estate.

The computation made  by  both  the  Tribunal  and  the  High  Court  after
deducting the amount out of the compensation  under  the  head  of  loss  of
dependency towards contributory negligence and not taking  gross  income  of
the deceased as laid down by this Court in Indira Srivastava’s case  (supra)
has rendered the determination of the compensation under the  head  of  loss
of dependency bad in law.
Further, the quantification of  compensation  from
all other heads as indicated in the preceding paragraph by us  as  both  the
Tribunal and the High Court have erred in not following rule  laid  down  by
this Court on this  aspect  in  the  catena  of  cases  referred  to  supra.
Therefore, we set aside the same and  award  the  compensation  as  per  the
calculations made in the penultimate paragraph of this judgment.

As regards to awarding of interest on the  compensation,  the  courts  below
have erred in awarding only 6% interest p.a.  on  the  compensation  awarded
instead of 9% p.a. by applying the  decision  of  this  Court  in  Municipal
Corporation of  Delhi  v.  Association  of  Victims  of  Uphaar  Tragedy[6].
Therefore, we have to award  the  interest  @9%  p.a.  on  the  compensation
determined in this appeal.

In the result, the appellants shall be entitled to compensation  under  the
following heads:
Loss of Life                         Rs.23,16,600/-
Funeral Expenses                Rs.   10,000/-
Loss of love and affection       Rs. 1,00,000/-
Loss of estate                   Rs. 1,00,000/-
Loss of consortium               Rs. 1,00,000/-

Total :                          Rs.26,26,600/-

Thus, the total compensation payable to the appellants  by  the  respondent-
Transport Corporation will be Rs.26,26,600/- with interest  @  9%  from  the
date of filing of the application till the date of payment.
In view of the reasons stated as above, we allow this appeal in  the  above
said terms.
The  compensation  awarded  shall  be  apportioned  amongst  the
appellants in terms of the award passed by  the  Tribunal.
The  respondent-
Transport Corporation shall either pay the amount of compensation by way  of
demand draft/drafts in favour of the appellants or  deposit  the  same  with
interest as awarded,  before  the  Motor  Accidents  Claims  Tribunal  after
deducting the amount already paid to the appellants within  six  weeks  from
the date of receipt of the copy of this judgment. No costs.

2014- Aug.Part - 

http://judis.nic.in/supremecourt/filename=41869

                                                             NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.7705 OF 2014
                  (Arising out of SLP(C) NO. 4895 OF 2014)

YERRAMMA & ORS.                      …APPELLANTS

              Vs.

G. KRISHNAMURTHY & ANR.            ….RESPONDENTS

                               J U D G M E N T


V. GOPALA GOWDA, J.

This appeal has been filed by the appellants against the  impugned  judgment
and order dated 05.06.2013 passed in M.F.A. No. 21576 of 2012  by  the  High
Court of Karnataka, Circuit Bench at Dharwad, wherein  the  High  Court  has
partly allowed the appeal filed by the appellants.

The necessary relevant facts are stated hereunder  to  appreciate  the  case
with a view to ascertain whether the appellants are entitled for  relief  as
prayed  in  this  appeal.  On  20.5.2011,  the  deceased  Gavisiddappa   was
proceeding on a motor cycle  bearing  registration  No.KA034/K-3530  towards
S.P. Circle, when the State Road Transport Corporation bus which  was  going
ahead of him took a right turn to enter the bus  depot  without  giving  the
right turn indication. The motor cycle of  Gavisiddappa  collided  with  the
bus while the bus was taking a right turn. Due to the impact caused by  this
collision of the bus with  the  motorcycle,  the  deceased  sustained  fatal
injuries and succumbed to the same while on the way to the hospital.

At the time of the accident, the deceased was  working  as  an  ASI  in  the
Kudithini Police Station and was  drawing  a  salary  of  Rs.  26,000/-  per
month. The deceased was the only earning member  of  the  family  for  their
livelihood.

The appellants herein, the wife, 3 minor children  and  the  mother  of  the
deceased Gavisiddappa,  filed  a  Claim  Petition  against  the  respondents
before the  MACT-XII,  Bellary,  vide  MVC  No.685  of  2011.  The  Tribunal
calculated the compensation amount under all heads  at  Rs.21,30,632/-.  The
Tribunal also apportioned the contributory negligence at 25% on the part  of
the deceased and 75% on the  driver  of  the  respondent-Corporation.  Thus,
after 25% deduction from the amount of the total compensation, the  Tribunal
awarded an amount of  Rs.15,97,974/-  payable  by  the  respondents  to  the
appellants vide order dated 29.12.2011.

Being aggrieved by the award passed by the Tribunal,  the  appellants  filed
an  M.F.A.  No.21576  of  2012  on  05.04.2012  before  the  High  Court  of
Karnataka, Circuit Bench at Dharwad. After considering the  facts,  evidence
on record and circumstances of the case, the High  Court  was  of  the  view
that the net income of the deceased at the time of his death was Rs.21,168/-
 per month.  As the claimants were 5 in number, the  High  Court  held  that
Rs.5292/- i.e. 1/4th of the income  had  to  be  deducted  towards  personal
expenses of the deceased (as per Sarla  Verma  &  Ors.  v.  Delhi  Transport
Corporation & Anr.[1]). Therefore, the remaining amount comes to Rs.15,876/-
 per month. The High Court applied the multiplier of  11  and  re-determined
the loss of dependency of the appellants at Rs.20,95,632/-  as  the  age  of
the deceased at the time of his death was 53 years.  It  further  awarded  a
sum of Rs.45,000/- towards conventional heads i.e. loss of consortium,  loss
of estate, loss of love and affection,          and  transportation  of  the
dead body. Thus, the total compensation amount was determined  by  the  High
Court at Rs.21,40,632/-. The High Court has affirmed  the  apportionment  of
contributory  negligence  as  determined   by   the   Tribunal           and
accordingly, deducted 25% from  the           above  compensation.  A  final
amount of               Rs.16,05,474/- was awarded to the appellants by  the
High Court as against Rs.15,97,974/- awarded  by  the  Tribunal.  Thus,  the
High Court partly allowed the appeal by enhancing the compensation by a  sum
of Rs.7,500/-.

Aggrieved by the above impugned judgment and order passed by the High  Court
of Karnataka, Circuit Bench at Dharwad, the appellants preferred  an  appeal
before this Court  for  setting  aside  the  same  and  for  enhancement  of
compensation by awarding just and reasonable compensation.

Mr. C.B. Gururaj, the learned counsel for the appellants contended that  the
judgment of this court in  Juju  Kuruvila  &  Ors.  v.  Kunjujamma  Mohan  &
Ors.[2] is applicable to the facts of the present case. In the  above  case,
Joy Kuruvila(the deceased) had a head-on collision with  a  bus  approaching
from the opposite side. Joy Kuruvila sustained serious injuries and died  on
the way to the hospital.  The Tribunal found that the accident occurred  due
to the rash and negligent driving of the  bus  driver.  It  apportioned  the
contributory negligence between the driver and the deceased in the ratio  of
75:25%. On the basis of the pleadings & evidence on  record,  in  the  above
said case this Court has held thus on the negligence of the  driver  of  the
bus:-
“20.5. The mere position of the vehicles  after  accident,  as  shown  in  a
scene mahazar, cannot give a substantial proof as to the rash and  negligent
driving on the part of one or the  other.  When  two  vehicles  coming  from
opposite  directions  collide,  the  position  of  the  vehicles   and   its
direction, etc. depends on a number of factors like the speed  of  vehicles,
intensity of collision, reason for collision, place  at  which  one  vehicle
hit the other, etc. From the scene of  the  accident,  one  may  suggest  or
presume the manner in which the accident was caused, but in the  absence  of
any direct or corroborative evidence, no  conclusion  can  be  drawn  as  to
whether there was negligence on the part of the driver. In absence  of  such
direct or  corroborative  evidence,  the  Court  cannot  give  any  specific
finding about negligence on the part of any individual.

20.6. The post mortem report, Ext. A-5 shows the condition of  the  deceased
at the time of death.  The  said  report  reflects  that  the  deceased  had
already taken meal  and  his  stomach  was  half-full  and  contained  rice,
vegetables and meat pieces in a fluid  with  strong  smell  of  spirit.  The
aforesaid evidence, Ext.A-5 clearly suggests that  the  deceased  had  taken
liquor but on the basis of the same, no definite finding can be  given  that
the deceased was driving the car rashly and negligently at the time  of  the
accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext.  A-5
post-mortem report cannot take the place  of  evidence,  particularly,  when
the  direct  evidence  like  PW3  (independent  eyewitness),  Ext.  B-1  (FI
statement) are on record”

Thus in our view, the contributory negligence apportioned by  the  Tribunal,
which is affirmed by the High Court at  75%  on  the  respondent-Corporation
bus driver and 25% on the part of the deceased is erroneous  not  only  with
reference to the plea urged by the respondents before the Tribunal  and  the
High Court but also keeping in view the legal principles laid down  by  this
Court on this aspect in the above referred case.

The observations made by this Court in the case  of  Juju  Kuruvila  (supra)
certainly apply to the  fact  situation  on  hand.  Based  on  the  evidence
recorded in the present case, we  are  of  the  opinion  that  there  is  no
contributory negligence on the part of the deceased but on  the  other  hand
the negligence is on the part of the driver  of  the  respondent-Corporation
bus.

After thorough consideration of the facts and legal evidence  on  record  in
the present case, we are of the view that the collision  between  the  motor
vehicles occurred when the respondent-Corporation bus  was  turning  to  its
right side without showing the turn indicator to enter the  bus  depot.  The
driver of the  offending  vehicle  of  the  respondent-Corporation  bus  was
negligent by not giving the right turn indicator and causing  the  accident.
The driver of the respondent-Corporation bus should have been aware  of  the
fact that he was driving the heavy passenger motor vehicle, and that it  was
necessary for him to take extra care & caution of the other vehicles on  the
road while taking the turn to  enter  the  depot.  Had  the  driver  of  the
offending vehicle  taken  sufficient  caution  and  care,  slowed  down  and
allowed reasonable provision for other vehicles on  the  left  side  of  the
road to pass smoothly, the accident could have been averted.

Hence, we are of the view that the Tribunal and the High  Court  have  erred
in the apportionment of negligence at 25% on the part of  the  deceased  and
75% on the part of the driver  of  the  respondent-Corporation  bus  without
evidence adduced in this regard by the respondent. But on  the  other  hand,
legal evidence produced on record by the appellants in this case would  show
that the accident was caused on account of the negligence  on  the  part  of
the  driver  of  the  offending  vehicle  of   the   respondent-Corporation.
Therefore, the erroneous finding recorded by the Tribunal & concurring  with
the same by the High Court on the question  of  contributory  negligence  of
the deceased is liable to be set aside. Accordingly, we set aside  the  same
as it is not only erroneous but contrary to law laid down by this  Court  in
the case of Juju Kurivila (Supra).

In our considered view, since the deceased at the  time  of  his  death  was
approximately 53 years of age, therefore, as  per  law  laid  down  by  this
Court in the Sarla Verma case (supra),  30%  of  actual  salary  for  future
prospects of the deceased cannot  be  taken  for  the  purpose  of  awarding
compensation under loss of dependency in favour of the appellants.

Further, with regard to gross annual income of the  deceased,  to  determine
the loss of dependency of the appellants, we refer to the case  of  National
Insurance Co. Ltd. v. Indira Srivastava[3], wherein this Court has  held  as
under:-

“19. The amounts, therefore, which were required to be paid to the  deceased
by his employer by way of perks, should be included for computation  of  his
monthly income as that would have been added to his monthly  income  by  way
of contribution to the family as contradistinguished to the ones which  were
for his benefit. We may, however, hasten to add that from  the  said  amount
of income, the statutory amount of tax payable thereupon must be deducted.


20. The term 'income' in P. Ramanatha  Aiyar's  Advanced  Law  Lexicon  (3rd
Ed.) has been defined as under : "The value of  any  benefit  or  perquisite
whether convertible into money or not, obtained from a company either  by  a
director or a person who has substantial interest in the  company,  and  any
sum paid by such company in respect of any obligation, which  but  for  such
payment would have been payable by the director or other  person  aforesaid,
occurring or arising to a person  within  the  State  from  any  profession,
trade or calling other than agriculture."


It has also been stated :


'INCOME' signifies 'what comes in' (per Selborne, C., Jones v. Ogle,  42  LJ
Ch.336). 'It is as large a word  as  can  be  used'  to  denote  a  person's
receipts '(per Jessel, M.R.  Re  Huggins,  51  LJ  Ch.938.)  income  is  not
confined to receipts from business only and means periodical  receipts  from
one's work, lands, investments, etc. AIR 1921 Mad 427 (SB). Ref. 124 IC  511
: 1930 MWN 29 : 31 MLW 438 AIR 1930 Mad 626 : 58 MLJ 337."




The Tribunal on examining the salary slip of the deceased for the  month  of
April, 2011 determined the salary of the deceased at Rs.21,168/-  per  month
after deducting towards P.T. and other statutory deductions. Therefore,  the
Tribunal arrived at Rs.21,168/- per month as the  salary  of  the  deceased.
The High Court in its impugned judgment and order affirmed the same. We  are
of the view, that on the facts and  circumstances  of  this  case,  the  net
salary of the deceased  taken  by  the  Tribunal  and  the  High  Court  for
determination of loss of dependency is erroneous as it is not in  accordance
with the principles laid down by this Court in this  regard.  Therefore  the
same is liable to be set aside as  it  has  to  be  properly  determined  by
taking gross income of the deceased. It is clear that the  gross  income  of
the deceased at the time of his death as per his salary slip was Rs.26,000/-
 per month. Therefore, we are  of  the  view  that  a  just  and  reasonable
compensation under the head of loss of dependency has  not  been  determined
by the courts below. Thus, the impugned  judgment  and  order  of  the  High
Court is vitiated both on account of erroneous finding  and  error  in  law.
The gross salary drawn by  the  deceased  at  the  time  of  his  death  was
Rs.26,000/- per month. The High Court and the Tribunal have  taken  the  net
salary at Rs.21,168/- per month, thereby the  Courts  below  have  erred  in
making deductions from the gross salary of  the  deceased  towards  P.T.  of
Rs.200/-  and  other  statutory  deductions  and  therefore,   arriving   at
Rs.21,168/- per month as the net salary of  the  deceased  is  erroneous  in
law. Therefore, we are of the view that  both  the  Tribunal  and  the  High
Court have erred in not following the rules  laid  down  by  this  Court  in
Indira Srivastava’s (supra) in not taking gross income of  the  deceased  to
determine the loss of dependency.



The gross salary drawn by the deceased at the  time  of  his  death  as  per
salary  slip  produced  on  record  was  Rs.26,000/-  per  month  and  after
deducting 10% towards income  tax,  net  income  comes  to  Rs.23,400/-  per
month. Thus, the annual income  of  the  deceased  would  be  Rs.2,80,800/-.
Deducting 1/4th of this amount towards his  personal  expenses  by  applying
the principle as laid down by this Court in Sarla Verma  case  (supra),  the
balance amount comes to Rs.2,10,600/-[(2,80,800/- –  Rs.70,200/-  (1/4th  of
Rs.2,80,800/-)]. Therefore, the loss of  dependency  of  the  appellants  by
applying the appropriate multiplier of 11, according to the rules laid  down
by this Court in the Sarla Verma comes to  Rs.23,16,600/-  (Rs.2,10,600/-  X
11).



Further, the High Court has erred in not following the rules  as  laid  down
by this Court in awarding compensation under  other  conventional  heads  as
mentioned hereunder. We are of the view that the appellants are entitled  to
Rs.1,00,000/- for loss of consortium, Rs.1,00,000/- for  loss  of  love  and
affection as per the rule laid down by  this  Court  in  Rajesh  &  Ors.  v.
Rajbir Singh & Ors.[4], Rs.10,000/- for funeral expenses as  per  the  rules
laid down by this Court in Amrit Bhanu Shali & Ors.  v.  National  Insurance
Co. Ltd. & Ors.[5] and Rs.1,00,000/- for loss of estate.


 The computation made  by  both  the  Tribunal  and  the  High  Court  after
deducting the amount out of the compensation  under  the  head  of  loss  of
dependency towards contributory negligence and not taking  gross  income  of
the deceased as laid down by this Court in Indira Srivastava’s case  (supra)
has rendered the determination of the compensation under the  head  of  loss
of dependency bad in law. Further, the quantification of  compensation  from
all other heads as indicated in the preceding paragraph by us  as  both  the
Tribunal and the High Court have erred in not following rule  laid  down  by
this Court on this  aspect  in  the  catena  of  cases  referred  to  supra.
Therefore, we set aside the same and  award  the  compensation  as  per  the
calculations made in the penultimate paragraph of this judgment.



As regards to awarding of interest on the  compensation,  the  courts  below
have erred in awarding only 6% interest p.a.  on  the  compensation  awarded
instead of 9% p.a. by applying the  decision  of  this  Court  in  Municipal
Corporation of  Delhi  v.  Association  of  Victims  of  Uphaar  Tragedy[6].
Therefore, we have to award  the  interest  @9%  p.a.  on  the  compensation
determined in this appeal.




 In the result, the appellants shall be entitled to compensation  under  the
following heads:
Loss of Life                         Rs.23,16,600/-
Funeral Expenses                Rs.   10,000/-
Loss of love and affection       Rs. 1,00,000/-
Loss of estate                   Rs. 1,00,000/-
Loss of consortium               Rs. 1,00,000/-

Total :                          Rs.26,26,600/-







Thus, the total compensation payable to the appellants  by  the  respondent-
Transport Corporation will be Rs.26,26,600/- with interest  @  9%  from  the
date of filing of the application till the date of payment.



 In view of the reasons stated as above, we allow this appeal in  the  above
said terms. The  compensation  awarded  shall  be  apportioned  amongst  the
appellants in terms of the award passed by  the  Tribunal.  The  respondent-
Transport Corporation shall either pay the amount of compensation by way  of
demand draft/drafts in favour of the appellants or  deposit  the  same  with
interest as awarded,  before  the  Motor  Accidents  Claims  Tribunal  after
deducting the amount already paid to the appellants within  six  weeks  from
the date of receipt of the copy of this judgment. No costs.


                                                ……………………………………………………………………J.
                      [DIPAK MISRA]



                                                ……………………………………………………………………J.
                      [V.GOPALA GOWDA]


  New Delhi,
  August 28, 2014.

-----------------------
[1]
      [2] (2009)6 SCC 121
[3]
      [4] (2013)9 SCC 166
[5]
      [6] (2008) 2 SCC 763
[7]
      [8]  (2013) 9 SCC 54
[9]
      [10] (2012) 11 SCC 738
[11]
      [12] (2011) 14 SCC 481

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