IN THE HIGH COURT OP KARNATAEA CIRCUIT BENCH AT DHARWAD DATED THIS THE I 7’ DAY OF AUGUST 201 1 PRESENT THE HON’BLE MR.JUSTICE H.BILLAPPA AND TIlE HON’F3LE MR. JUSTICE ARALI NAGARAJ M.F.A. No. 6881/2Qj ciw. M F. A.N Os. 6924 &69QQQJMV BETWEEN: THE NEW INDIA ASSURANCE COMPANY LTD BANGALORE REGIONAL OFFICE NO 2-B UNIT’ BLILDING ANN! XL P.KALINGA RA() ROAD (MISSION ROAD) F-3ANGALORE 560 027 REP I-3\’ AU1HORLLD SIGNATORY VIZ ADMINISTRATIVE OFFICER. A PPE L LA X’F (COMMON) (BY SRI : RAVI G.SABHAHIT, ADVOCATE) A N D VAISHALI V/O DHONDIRAM WADE a HANABAR AGED 21 F \Rs, 0CC HOF mP HOLD VORF\ P \I (31 1) P H ROAD 1• SHIVAJI NAGAR, NIPPANI. 2. RAM ESHWARI D/O DHONDIRAM WADE :j HANABAR AGED 24 YEARS, STUDENT R/AT OLD P.B. ROAD SHIVAJI NAGAR, NIPPANI. 3. VINAYAK - S/C) DHONDIRAM WADE 41’ HANABAR AGED 21 YEARS, STUDENT R/AT OLD RB. ROAD SHIVAJI NACIAR, NIPPANI. 4. KU MARl PRIYANKA D/O DHONDIRAM WADE @ HANABAR AGED 17 YEARS, STUDENT MINOR REP. BY MOTHER 1ST PETITIONER R/AT OLD P.B. ROAD SHIVAJI NAGAR, NIPPANI. 5. SRI THIRU 1< GOVINDAN 5/0 KANIYATHA GOUNDAR, MAJOR, OWNER OF TRUCK, R/AT 276, CHINNATHIRUPATY, KUMARASANIPATI’Y, SALEM, T.N., (RC OWNER OF TRUCK BEARING REG.NO.TN-28/A-5697). RESPONDENTS (M.F.A. NO. 688 1/2006) (BY SRI : RAVIRAJ C. PATIL, ADVOCATE FOR RI-R4) AND: VIMAL W/O KRISHNA WAGHALE AGED 60 YEAS RIO MANE PLOTS. SHIVA 1 JJ NAGAR, I NIPPANI. 2. YASHODA D/C) KRISHNA WAGHALE AGED 34 YEARS R/AT MANE PLOT, SHIVAJI NAGAR NIPPANI. 3. KUMARI ALKA D/O KRISHNA WAGHALE AGED 30 YEARS R/AT MANE PLOT, SHIVAJI NAGAR NIPPANI. 4. THIRU K GOVINDAN 5/0 KANIYATHA GOUDAR MAJOR OWNER OF TRUCK R/AT 276, CHINNATHIRUPATHY KUMARASNIPA’fl’Y, SALEM T.N., (RC OWNER OF TRUCK BEARING REG. NO. TN-28/A-5697), R-I. RESPONDENTS (M.F.A. NO. 6924/2006) (BY SRI SANJAY S.KATAGERI, ADVOCATE FOR R1-R3) AND: HEMALATHA Wit) UDAY NIKAM AGED 28 YEARS HOUSEHOLD WORK, R/AT KAMAGAR CHOWK NIPPANI. 2. KUMARI GOURI D/O UDAY NIKAM AGED 9 YEARS. MINOR, REP. BY MOTHER 1ST PETITIONER 4 w R/AT KAMAGAR CHOWK NIPPAN1. 3. KUMARI AKASH D/O UDAY NIKAM AGED 6 YEARS, MINOR, REP. BY MOTHER 1ST PETITIONER R/AT KAMAGAR CHOWK NIPPANI. 4. KUMAR PRASAD 8/0 UDAY NIKAM AGED 4 YEARS, MINOR, REP. BY MOTHER I ST PETITIONER R/AT KAMAGAR CHOWK NIPPANI. 5. THIRUKGOVINDAN 5/0 KANIYATHA GOUNDAR MAJOR, OWNER OF TRUCK R/AT 276, CHINNATHIRUPATHY KUMARASANTPA’fl’Y. SALEM T.N (RC OWNER OF TRUCK BEARING REG. NO.TN-28/A-5697), RESPONDENT NO. 1. RESPONDENTS (BY SRI : SANJAY S. KATAGERI, ADVOCATE FOR RI) MFA NO. 6881/2006 IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28/2/36 PASSED IN MVC NO.1368/03 ON THE FILE OF THE B ADDL. DISTRICT JUDGE, MEMBER, MACT-III, BELGAUM, AWARDING A COMPENSATION OF RS.3,36,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION. MFA NO. 6924/2006 IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28/2/06 PASSED IN MVC NO.1369/03 ON THE FILE OF II ADDL.DISTRICT JUDGE, MEMBER. MACT-III. BELGAUM, AWARDINCi A COMPENSATION OF RS. 1.3 L00() W1’.’II INTEREST AT ii P.:. FROM THE D:TE OF PETITION TILL REALISATI()N. MFA NO. nL)25 200’ IS FIIKI) L’ S 173(1) OF Xl ACT AGAINST THE Jt’I)GMENT AND AWARE) I)ATEI) 28 2 )6 PASSEL) IN MVC NO.1370 ‘03 ON TIlE FILE OF THE 11 ADI’L. l)ISTRIC’T JUDGE. MEMBER, MACT-III, BEL(iA1M. AWAR1)ING A COMPENSATION OF RS.4,26.300 WITh INTEREST AT 6’ci P.A. FROM THE DATE OF PETITION TILL REALISATION. TIIESE APPEALS COMING ON FOR ORDERS TillS E)AY, SRI ARALI NAGARAJ. J.. I)ELIVERED TIlE FOLLOWING: JUDGMENT These three appeals are by the Insuraji,.’r Company. The appellant Insurance Compan3 his challenged in these appeals legality and correctness of the impugned common J udgmcn I a tid the respect tie awards dated 28.02.2006, passed in M.V.C. Nos. 1368. l3b9 and 1370 of 2003 on the lilt’ of the learned II Addi. District )udge and Member, M.A.C.T. Ill, l3elgaum (hcrc’inafter referred to us the ‘Claims Tribunal’ br short). 2. We have heard the arguments of Sri Ravi 0. Sabhahit, learned counsel for the appellant-Insurance Company and Sriyuths Raviraj C. Patil and Sanjay S. Katageri, learned Advocates reprcsenting the respective respondent-claimants in these three appeals. Perused the impugned common Judgment and respective awards. 3. Sri Ravi 0. Sabhahit, learned counsel for the appellant-insurer strongly contends that the Tribunal has erroneously fastened liability on the appellant Insurance Company to pay compensation to the respective claimants as awarded by it under the impugned common Judgment and Awards without considering the defence of the insurer that the rider of the two wheeler, on which all the three deceased were travelling, was solely responsible for causing the accident by driving it in a rash and negligent manner. He further contends that the Claims Tribunal has committed serious error in choosing the multiplier ‘18’ instead of ‘9’ as laid down by the Hon’hle Suprene 7 V Court in Sarla Verma’s case, while determining the loss of dependency in favour of the claimants in M.V.C. No. 1369/2003. He further contended that the Claims Tribunal committed another error in deducting only 1/3rd of the income of the deceased while determining loss of dependency in favour of the claimants in the said M.V.C. No.1369/2003 instead of deducting 50% of the said income, in view of the undisputed fact that the deceased was a bachelor as on the date of the accident. He also contends that the Claims Tribunal awarded compensation in favour of the claimants in other two cases on higher scales, and therefore, the same is required to be reduced to a considerable extent. 4. Per contra, the learned Advocates for the respondent-claimants contend that while determining loss of dependency to the claimants in M.V.C. No.1368/2003 the Claims Tribunal has deducted l/3f1 of the income of the deceased instead of deducting ¼th of it in vjgy of undisputed fact thut the claimant Nos. 1 8 9 10 4 were dependant on the income of the deceased. and therefore, though the claimants have not filed their own appeal or cross-objection to the present appeal, by invoking the discretionary powers vested in this Appellate Court under Order 41 Rule 33 of C.P.C., the compensation requires to be enhanced. 5. They also contend that though the Claims Tribunal was not justified in adopting the multiplier 1 8 while determining loss of dependency in favour of claimant Nos. 1 to 3 in M.V.C. No. 1369/2003, the structured formula in Second Schedule under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’ for short) is to be followed as guideline in determining the compensation to be awarded in favour of the claimants in the said case though they have filed the claim petition under Section 166 of thc Act. They also contend that the compensation awarded in favour of the claimants in M.V.C. Nos. 1368 & 1370 of 2003 cannot be said to be I) V on higher scale, and therefore. the impugned 1 Judgment and the awards in the said cases deserve to be confirmed. 6. On careful reading of the written statement filed by the appellant-insurer in the said cases it could be seen that the insurer has denied the very occurrence of the accident involving the vehicle in question and has also denied the fact that the said lorry was insured with it (appellant). Though it is contended in the written statement, in the alternative, that the allcged accident occurred as a result of rash and negligent driving of the two wheeler by one of the three deceased, who was riding it, and therefore, the Insurance Company is not liable to pay any amount of compensation to the respective claimants, the insurer has not chosen to place on record any evidence to substan t hi te the said defence. Therefore. the Claims Tribunal, on proper appreciation of oral and documentary evidence placed on record b’ the 10 I claimants in the said cases, has rightly recorded its finding fact that the said accident was due to rash and negligent driving of the lorry. Further. Ex.R1 is the copy of the Insurance policy. It clearly discloses that the said lorry was duly insured with this appellant Insurance Company as on the relevant date of accident. Though the insurer has taken a defence in the written statcment that its liability is subject to the terms and conditions of the policy. it has not taken any specific plea as to which of the terms/conditions incorporated in the said policy was violated by the owner so as to absolve the Insurance Company from its liability to pay compensation to the claimants. Therefore, we do not find any error in the findings recorded by the Claims Tribunal that the insurer is liable to pay compensation awarded by it in favour of the respective claimants in the said cases. 7. Claimants in M.V.C. No. 1369/2003 are respectively the mother, elder sister and younger sister er II p of the deceased. The mother is widow, the claimant No.2 Yashoda was aged about 32 years and claimant No.3 Kum. Alka was aged about 28 years as on the date of the accident. It is not in dispute that the deceased Sanjay vas aged about 30 years as on the date of the accident. The claimants have pleaded that the deceased was earning 3,0OO/- per month. The Claims Tribunal has observed in the impugned Judgment that this amount is quite reasonable in view of the fact that the deceased was to support his mother, who is a widow and his two sisters, and therefore, the income of the deceased has to be taken at ?3,000/- per month or t36,000/- p.a. The Claims Tribunal has deducted 1/3rd of the income towards personal expenses of the deceased. It is the contention of the learned counsel for the appellant-Insurance Company that both the sisters of the deceased being respectively aged 32 years and 28 years werc major and they could not be held to be completely depending on the income of the deceased, and therefore, the Claims Tribunal ought to i 7; t:%) - ‘.0 — 7; - — -J — — -J 7; D — 0 0 — - _J -“0-; 2 - — - ; - — — - — — — — _J - — —, 7; C) -J — C . 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Placing strong reliance Oil the decision of Honh’ie Supreme Court in the case of Supe Dei (Smt.) and Others vs. National Insurance Company Limited and Another, reported in (2009)4 Supreme Court Cases 513 and also a subsequent decision of Hon’blc Supreme Court in the case of P.S. Somanathan and Others us, District Insurance Officer and Another, reported in (2011)3 Supreme Court Cases 566, learned counsel for the claimants strongly contends that though the claimants have filed their claim petitions under Sect ion Ion of the Act, tile structured formula in Second Schedule under Section md A of the Act can be taken as guideline while determining compensation under Section 1 oh of the Act and if that is don’, tile income of tOo deceased \iiicl1 is taken at .O0() por month is Illultiplad t)\ the niultiplu r 1 old U 01 tin 14 same is deducted towards his personal expenses. the claimants would be entitled to a sum of ?3,24,000/- which is less than 4,32,O0O/- arrived at by the Claims Tribunal, and therefore, award may bc modified accordingly. 10. Per contra, learned counsel for the appellant- insurer strongly contends that since the claimants have filed their claim petition under Section 166 of the Act, the provisions of Section 163-A of the Act cannot be invoked and multiplier ‘9’ has to be chosen by taking the age of the mother of the deceased as laid down by Hon’ble Supreme Court in the Sarla Verma’s case and the loss of dependency of the family of the claimants in the said case be determined accordingly. 11. At pars Nos. 8 and 10 of its judgment in the case of Supe Del (Smtj and Others vs. National Insurance Company Limited and Another, reported in 4 CD E - CD CD CD ON — 0 ON CD 0 -1 — ON CD CD CD ON CD 1 Q .— - CD1 ON o CD 0) JTh CD CD CD CD ON CD C)) (I) (1) ONCD CD CD B 2 -i-p (0 DCD CD Cl) jCI 2 1 -t 0) — — -i (f 0 CD o OC’) CD b ON CD2 ONcO CD 0 —CD CON •( N 0 ON — — CD -o — -i 0). . ON CD CD - t• H 2 CD’ ON-i ON —0 -i 0 — ON 4 , C 0 0 - CD CD —. CD 0 B0 B * - CD CD 0 CD — ON • CD N< 0_. — CD — ON 0 CD C1Q CD (N CD CD rr l — >o Cl). CD —C N CD ON Z Z. ON —1] ON CD C12 -I 0 cJ * CD CD Cl) CD. DO 0 ON r-CD CD 0) CD ZCD -J Nt ON -t ON CD ON -“CD Cl) 0%>(f) ONOCD CDCD ONrCD ONi CD CD):.C 0 0 ON CD ON- C (J)CD— CDCD 0) CD ONCD CD CD CD ON -, — L —. -N—-CD 0 - — (N ‘r — •Cf) --“CD CDCD CDCD- 0 -rN 1 CD•Cl) :CD - ON ‘- CD j•) 0 ON - 0 —. )ON.O CCD CD --iCD• ON-• CD 0. CDCD. CD •00)<— CDCD -CD B. CD ciD __0’.— -t°O •C/) CD CDCD ‘ 0-• 0ON BOND CD 0)ON - 0 CD ., •. (N CD CD CDON CON ) CD -) Nt — Nt. Nt -. Nt N * Nt OONON CON OCDCD CDCD —CD CDi ON 0 CD (N NO ON CD 0 -i Nt rON CD CDCD 0))) CDCD — Cl) 0) CD CD > Nt ON — CD CD flN •0 -J 0) 0 NO 1 CD B CD 16 C involved in the accident. Therefore, in Second Schedule to Section 163-A of the Act a structured formula is given for determining the compensation payable to the victims of the accident (i.e., injured and dcpendants of the victims). If the claimant has to seek higher amount of compensation than what could be awarded under Section 163-A of the Act, hc has to file his petition under Section 166 of the Act, plead and establish that the accident in question occurred as a result of rash and negligent driving of the vehicle involved in the accident. The claimant, who files his petition under Section 166 of the Act may, at any stage of proceedings, switch over to 163-A of the Act and thereby restrict his claim for compensation to be determined according to the structured formula. But the claimant who files his petition tinder Section 163-A of the Act, wherein he is not supposed to plead and establish the negligence on the part of the driver of the vehicle involved in the accident, cannot switch over to Section 166 of the Act. wherein he has to plead and 17 establish the negligence. In the instant case, undisputedly the income of the deceased was Less than flO,000/- p.a. Therefore, the claimants, being the dependants of the deceased, could maintain their petition either under Section 166 or under Section 163-A of the Act. Though the claimants have filed thcir petition under Section 166 of the Act and have pleaded and established negligence on the part of the driver of the lorry involved in the said accident, they are not prohibited from claiming compcnsation under Section 163-A of the Act by determining the same in accordance with the structured formula given in the Second Schedule to Section 163-A of the Act. 13. Tn the said case before the Hon’ble Supreme Court multiplier 15 was chosen by the Claims Tribunal for determining the loss of dependency to the family of the deceased. On those facts the Hon’ble Supreme Court observed that Second Schedule under Section 163-A of the Act can be taken as guideline while IS determining the compensation under Section 166 of the Act. While observing so, it took the multiplier ‘17’ as against 15’ that was taken by the Claims Tribunal. 14. Tn its later decision, in the case of P.S. Somanathan and Others vs. District Insurance Officer and Another, reported in (2011)3 Supreme Court Cases 566, following the decision in Supe Del’s case l-lon’ble Supreme Court has observed as under: 12. In Supe Del ii. National Insurance Co. Ltd. The Court observed that while considering the question of just compensation payable in a case all relevant factors including appropriate multiplier had to be considered, and that the Second Schedule under Section 163-A of the Motor Vehicles Act, 1988, which gave amount of compensation to be determined for the purpose of claim under the Section, could be taken as a guideline while determining the compensation under Section 166 of the Act. 15. In the case of P.S. Somanathan and Others, wherein the Supe Del’s case is referred to, the Hon’ble 19 r Supreme Court has also considered various decisions in the cases of Kerala SRTC v. Susamma Thomas (AIR 1994 SC 1631), T.N. STC Ltd., v. S. Rajapriya (AIR 2005 SC 2985) and also United India Insurance Co. Ltd. v. Bindu (2009) 2 SCC (cr1) 186 = (2009) 3 5CC 705 as to how the multiplier is to be chosen with reference to the age of the deceased/age of the claimants. 16. Respectfully following the decisions of Hon’ble Supreme Court in Supe Dei’s case and also in P.S. Somanczthan’s case, we are of the considered opinion that though the claimants in M.V.C. No. 1369/2003 have filed their claim petition under Section 166 of the Act the structured formula given in Second Schedule to Section 163-A of the Act shall have to be considered as ‘guideline’ for determining the loss of dependency to the family of the deceased in the said case. If that is done, while taking the same income of ?3,000/- per month as taken by the Claims Tribunal, 50% of it is to be deducted towards personal expenses of the deceased 20 r as he was a bachelor. Thus, the net annual dependency to the family of the deceased comes to fl,500/- per month or fl8,000/- p.a. It is laid down by this Court in the case of Guruanna Vadi & Another v. The General Manager, Karnataka State Road Transport Corporation, Bangalore & Another, reported in (2001)5 Kar.L.J. 322 (FB) = ILR 2001 EAR 2879 (FB) - thAT multiplier fixed in the Second Schedule depending on age of victim of fatal accident at the time of the accident cannot bc altered in order to apply lower multiplier depending upon the age of the claimants, where the claimants are parents of victim or persons other than victim’s wife and children. Therefore, we are of the opinion that the appropriate multiplier to be adopted in the present case would be ‘fl. If the net annual loss of dependency or ?18,000/- is multiplied by multiplier ‘18’, the total amount of compensation to be awarded in favour of the claimants in the said case under the head ‘loss of dependency’ comes to ?3,24,000/- as against 4.32,OOO/- awarded by the Claims Tribunal. Therefore, thc amount awarded by 21 1• the Claims Tribunal towards loss of dependency is liable to be reduced accordingly. The claimants are entitled to the compensation of 2,00O/- towards funeral expenses and a sum of 2,5OO/- towards loss to estate as per the second Schedule under Section 163-A of the Act. Further, the claimants are also entitled to interest on the said amount of compensation at the rate of 6% p.a. as awarded by the Claims Tribunal. 17. Thus, the claimants in the said case M.V.C. No.1369/2003 shall be entitled to a total compensation of Z3,28,500/-, as against Z4,34,000/- awarded by the Claims Tribunal with interest thereon @ 6% p.a. from the date of their petition till actual payment. Therefore, award in the said case deserves to be modified accordingly. 18. Insofar as compensation in M.V.C. No.1368/2003 is concerned, the Claims Tribunal has er ‘.1 r deducted 1/3rd of the income towards the income of the deceased towards his personal expenses. There is no dispute as to the income of the deceased. The claimant Nos. I to 4 therein are respectively the wife and children of the deceased. Claimant Nos. 2 and 3 were already aged respeotively 22 years and 19 years as on the date of the accident. Claimant No. 4 though minor was already aged 15 years as on the said date. Therefore, it is clear that as rightly contended by the learned counsel for the appellant-insurer, claimant Nos. 2 to 4 could be dependant on the income of the deceased only for a certain period, but not throughout the life of the deceased. In this view of the matter, we do not find any illegality committed by the Claims Tribunal in deducting 1/3rd of the income towards the personal expenses. Therefore, we are of the opinion that the compensation awarded by the Claims Tribunal in favour of the claimants in the said case (M.V.C. No.1368/2003) is just and reasonable and as such it does not call for any interference. rSW 23 19. The claimants in M.V.C. No. 1370/2003 are also the wife and children of the deceased. Wife was aged about 26 years and three children were aged respectively 7 years, 4 years and 2 years as on the date of the death of the deceased. The income of the deceased in the said case is taken at Z3,000/- p.m. Therefore, we do not find any reason to interfere with the amount of compensation awarded by the Claims Tribunal in favour of the claimants in the said case. 20. For the reasons aforesaid, wc pass the following- ORDER M.F.A. fios. 6881/2006 and 6925/2006, wherein thc correctness of the awards passcd in M.V.C. Nos.1368 and 1370 of 2003 are challenged, are hereby dismissed as being devoid of merits. ecn 24 r M.F.A. No. 6924/2006, wherein the correctness of the award passed in M.V.C. No. 1369/2003 is challenged, is hereby allowed in part. The total amount of compensation awarded in favour of the claimants in M.V.C. No. 1369/2003 is hereby reduced from ?4,34,000/- to ?3,28,500/- but awarding of interest at the rate of 6% p.a. from the date of petition till the date of actual payment on the amount of compensation is left undisturbed. Award shall be modified accordingly. The impugned order insofar as it relates to the apportionment of compensation amongst