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
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
