1. These appeals arise out of the common accident which culminated into several MACT claim petitions and in turn the above appeals as shown in the table below:

The brief facts of the case are as follows:

2. On 27.12.2010 at 3.30 a.m. one M. Prakash was driving the tempo traveler bearing registration No.KA-01/C-2086 near Pethapuram bridge within the limits of Kaveripatnam Police Station, Tamilnadu. The said tempo traveler rammed into trailer lorry No.TN-30/Y-7179 which was moving ahead of it. In the accident driver M. Prakash, the other inmates of the tempo traveler by name Arunkumar, Bhagyalakshmi, Jayaram Reddy, Pruthvi and Suguna died at the spot itself. The other inmates by name Gayathri, Sudharani, Kishore, Alex, Vinoy Roy and Gowramma suffered injuries. Regarding accident on the basis of complaint of one Manoj-the inmate of the tempo traveler, Kaveripatnam Police registered first information report in Crime No.603/2010 against the driver of the lorry No.TN-30/Y-7179. It was alleged that the said lorry was proceeding in front of the tempo traveler. The driver of the tempo traveler was driving his vehicle in moderate speed, but the lorry driver was driving the vehicle in high speed. All of a sudden, without giving any indicators the driver stopped the lorry. Due to such sudden action, M. Prakash could not control his vehicle and the same rammed into the lorry causing fatalities and injuries to the inmates as aforesaid. Respondent Nos.1 and 2 in the claim petitions were the registered owner and insurer of lorry bearing No.TN-30/Y-7179. Respondent Nos.3 and 4 in those petitions were the registered owner and insurer of the tempo traveler No.KA.- 01/C-2086.

3. The wife and minor children of Prakash filed MVC No.7277/2011 against the respondents alleging that the accident occurred solely due to the actionable negligence of the driver of the lorry. They contended that they were depending on the income of the deceased and he was earning Rs.40,000/- per month from his fleet business and employment as driver. They claimed compensation of Rs.65,25,000/-.

4. Vinay Roy/the injured inmate of the tempo traveler filed MVC No.4909/2011 claiming compensation of Rs.4,00,000/-. Father and sister of the deceased Arun Kumar filed MVC No.4910/2011 claiming that he was working as executive in M/s Team Lease Staffing Solutions and earning Rs.17,000/- per month and they were all depending on his income. They claim compensation of Rs.25,00,000/-. The husband and daughter of deceased Bhagyalakshmi filed MVC No.4911/2011 claiming compensation of Rs.20,00,000/-. They claim that she was earning Rs.10,000/- by flower vending business and due to her death they have suffered damages. Deceased Bhagyalakshmi and Arun Kumar were the mother and son.

5. The claim petitions were contested only by respondent Nos.2 and 4. The Insurers of the lorry and the tempo traveler, each of them contended that the accident occurred solely due to the actionable negligence on the part of the driver of the other vehicle. They further denied the injuries and the permanent physical disability suffered by the claimant in MVC No.4909/2011, the age, occupation and income of the victims in other cases and their liability to pay compensation. Initially, the owner and Insurer of the Tempo Traveller was not impleaded in the petition. Subsequently, they were impleaded as respondent Nos.3 and 4. MVC Nos.4909/2011, 4910/2011 and 4911/2011 were filed before the VIII Addl. Small Causes Judge and MACT, Bengaluru. The Tribunal in these cases consolidated all these cases and recorded common evidence. Whereas MVC No.7277/2011 was filed before the XIX Addl. Small Causes Judge, MACT Bengaluru. That was adjudicated separately.

6. In both the cases the Tribunals held that the accident took place due to the contributory negligence of both the lorry and the tempo traveler. The Tribunals apportioned the actionable negligence to the tempo Traveller and the lorry at the rate of 70% and 30% respectively. The Tribunal on recording the evidence and on hearing the parties awarded compensation to the claimants as per the table below:

7. The wife and children of M.Prakash filed M.F.A.No.3563/2015 challenging the apportionment of negligence to Prakash at 70% and the quantum of compensation. None of the respondents in MVC No.7277/2011 questioned that award including respondent No.4. The awards in MVC Nos.4909/2011, 4910/2011 and 4911/2011 were not questioned by the claimants therein. However respondent No.4/the Insurer of the tempo traveler alone has challenged those awards in MFA Nos.1502/2015, 1500/2015 and 1501/2015 respectively, questioning the apportionment of negligence at 70% to the driver of tempo traveler and the quantum of compensation awarded.

8. Heard both side.

9. Sri K.P.Bhuvan, learned Counsel for the appellants/claimants submits that the finding of the Tribunal that driver of the tempo traveler contributed to the occurrence of the accident at 70% is not sustainable and the compensation awarded to the claimants in MVC No.7277/2011 is on the lower side.

10. Sri O.Mahesh, learned Counsel for the Insurer of the Tempo traveler vehicle reiterating the grounds of appeal in MFA Nos.1500/2015 to 1502/2015 vehemently assails the finding of the Tribunal fastening 70% negligence to the driver of the tempo traveler and the quantum of compensation also.

11. Sri B.Shivannegowda, learned Counsel for respondent No.2 i.e., the Insurer of lorry justifies the award both on the point of negligence as well as the quantum of compensation awarded.

12. On hearing both side and on perusal of the records the points that arise for determination of the Court are:

i) Whether the finding of the Tribunal that the accident in question occurred due to the contributory negligence of the driver of the tempo traveler and lorry at the ratio of 70% and 30% respectively is sustainable

ii) Whether the compensation awarded in MVC Nos.7277/2011, 4909/2011, 4910/2011 and 4911/2011 is sustainable

iii) Whether the rate of interest awarded in MVC NO.4909/2011 is liable to be reduced

Regarding Point No.1: Negligence

13. Admittedly, there is no dispute between the parties about the accident that occurred on 27.12.2010 at 3.30 a.m. within the limits of Kaveripatnam Police Station involving tempo traveler No.KA-01/C-2086 and lorry No.TN-30/Y-7179. It is also not disputed that the lorry was traveling ahead of tempo traveler and the said vehicle hit the lorry from its hind side. The death and the injuries alleged by the claimants in the above cases were also not disputed. It is also not disputed that first information report was registered only against the driver of the lorry. As submitted by both side, no charge sheet was filed in the case completing the investigation. As driver of tempo traveler died, he was not available to speak about the rashness and negligence. PW.1 in the said case was not an eye witness. The complainant-Manoj was also not examined. PW.2 i.e., the father and husband of the deceased in MVC Nos.4910/2011 and 4911/2011 respectively was also not an inmate of the tempo traveler and eye witness to the incident. RWs.1 and 2 the officials of the Insurance companies were also not eye witnesses. Both the Tribunals relying on the complaint, first information report, Spot mahazar, inquest mahazar and IMV report and considering the non-examination of the driver of the lorry, who would be a material witness, held that the driver of the lorry suddenly stopped the lorry, the driver of the tempo traveler did not maintain respectable distance and moderate speed, which led to the accident. The Tribunals considering the degree of damages caused to the tempo traveler and other oral evidence held that the negligence on the part of the driver of the tempo traveler was on the higher side, thus fastened 70% of the liability on the driver of the tempo traveler.

14. Challenging such finding in MVC No.7277/2011, Insurer of tempo traveler has not filed any appeal. Similarly the registered owner of the tempo traveler has not assailed such findings of the Tribunal in MVC Nos.4909/2011, 4910/2011 and 4911/2011. The registered owner and Insurer of lorry have also not questioned those findings. Since the Insurer of the tempo traveler has not questioned the said finding in MVC Nos.4909/2011, 4910/2011 and 4911/2011, that has become final against the other respondents in the said cases. Apart from that in the evidence of PW.1 in MVC No.4909/2011 and connected matters, he has admitted that if the driver had kept respectable distance and moderate speed, the accident could not have occurred. He also admitted that the accident occurred due to the fault of driver of tempo traveler. He has further admitted that the driver of the tempo traveler had drove the said vehicle for the whole night and accident occurred due to his fault. Under the circumstances, there are no grounds to interfere with the finding of the Tribunals that the contributory negligence of driver of the tempo traveler and lorry in occurrence of the accident is at 70% and 30% respectively.

Quantum in MFA No.3563/2015 ( MVC No.7277/2011):

15. The claimants in this case contended that the deceased was owning 3 lorries, 2 tempo travelers and 1 qualis and he was running fleet business. They further contended that he used to earn Rs.25,000/- per month out of his fleet business and Rs.15,000/- per month by way of salary from driving profession. Thus they claimed compensation of Rs.65,25,000/-.

16. The Tribunal considering the income of the deceased at Rs.15,000/- per month, adding 50% to the same by way of future prospects, deducting 1/3rd from the same for the personal expenses, considered his monthly income at (15,000+7,500x 2/3) =Rs.15,000/-. Tribunal considering the age of the deceased as 33 years erroneously applied 15 multiplier and assessed the damages on the head of loss of dependency at (Rs.15,000x12x15)=Rs27,00,000/-.

17. The Tribunal in all awarded compensation of Rs.28,85,000/- on different heads as per the table below:

18. The claimants produced Ex.P10 to P12 bank pass books, Exs.P.14 and 15 payment vouchers, Ex.P29 the bill of Sri Cauvery Transport, Ex.P27 and 28 the receipts of one Tamilnadu Transport and statement of Janani Tours, the authors of those documents were not examined to show that he was having business with those transport firms.

19. The substantial and acceptable evidence in proof of income produced by the claimants was Exs.P17 and 18 the Income Tax acknowledgment for the assessment year 2006-07. According to the said documents, the income of the deceased was at Rs.1,40,000/- per annum. The Tribunal held that apart from that the deceased had some other income and therefore considered his income at Rs.15,000/- per month and Rs.1,80,000/- per annum. First of all the income shown in Ex.P18 included his income from all sources, therefore there was no scope to add any other income. Even if that is accepted the Tribunal should have deducted 10% of the said income towards Income Tax. On such deduction his annual income comes to (Rs.1,80,000-18,000)= Rs.1,62,000/-.

20. The deceased had 3 dependents. Therefore as per the judgment of the Hon’ble Supreme Court in Sarla Varma v. Delhi Transport Corporation AIR 2009 SC 3104 one-third of his income has to be deducted for his personal expenses. On deducting one-third, the contribution to the family comes to (Rs.1,62,000x2/3)= Rs.1,08,000/-.

21. As per Ex.P9 the driving licence of the deceased the date of birth of Prakash was 17.03.1977. Therefore as on the date of the accident i.e., 27.12.2010 he was aged 33 years. As per the judgment of the Supreme Court in National Insurance Company Limited vs. Pranay Sethi AIR 2017 SC 5157 case in the case of self employed person aged below 40 years future prospects at 40% on the income of the deceased has to be awarded. However the Tribunal awarded 50% by way of future prospects.

22. 40% of Rs.1,08,000/- comes to (Rs.1,08,000x40/100)= Rs.43,200/-. Therefore, his total contribution to the family comes to (Rs.1,08,000+43,200) =Rs.1,51,200/-per annum. The applicable multiplier for his age is 16. Therefore loss of dependency comes to (Rs.1,51,200/-x16)=Rs.24,19,200/-.

23. As per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s and Magma General Insurance Company Ltd. v. Nanu Ram 2018 (18) SCC 130 cases, each of the claimants are entitled to compensation of Rs.40,000/- with escalation of 10% on the head of loss of consortium which comes to Rs.1,32,000/-.

24. As per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case referred to supra, the claimants are entitled to compensation of Rs.15,000/- on the head of funeral expenses and Rs.15,000/- on the head of loss of estate with escalation of 10% which comes to Rs.33,000/-. Thus the total damages of the claimants is as follows:

25. Out of that 70% has to be deducted for the contributory negligence of deceased Prakash in the occurrence of the accident. Therefore compensation payable to the claimants comes to (Rs.25,84,200x30/100) =Rs.7,75,260/-. But the Tribunal has awarded Rs.8,65,500/-. By no stretch of imagination that can be said to be unjust. However, having regard to the fact that the respondents have not questioned the award and the compensation on the head of consortium, funeral expenses and loss of estate which were not standardized before the judgment in Pranay Sethi’s case, there is little variation on those heads. Under the circumstances, the appeal deserves no merits and is liable to be dismissed.

Quantum in MFA NO.1502/2015 (MVC No.4909/2011)

26. In this case, the compensation is claimed for the personal injuries suffered by minor claimant Vinay Roy. The challenge of the Insurer regarding the contributory negligence is already rejected. Therefore only the aspect of quantum remains. Father of the injured claimant was examined as PW.1. The tribunal relied on Ex.P5 the wound certificate, Ex.P6 and P7 the discharge summaries and Exs.P8 and P9 medical certificate and medical bills respectively. The Tribunal considering the same awarded total compensation Rs.1,90,000/- on different heads as per the table below:

27. Ex.P6 the discharge summary shows that the claimant was admitted in Manipal Hospital from 27.12.2010 to 30.12.2010. Ex.P5 and 6 shows that claimant was diagnosed with the following injuries:

i) Fracture middle third clavicle with swelling on the shoulder

ii) B1 malleolar Fracture right ankle

iii) Salter Harris type 3 injury medial malleolar.

28. On 28.12.2010 he underwent surgery for ORIF with TBW right lateral malleoli and cancellous screw fixation for the medial malleoli under GA. Ex.P7 and 8 show that the claimant was again admitted in Manipal Hospital from 26.03.2012 to 28.03.2012 for removal of implants. The doctor who issued those documents was not examined. Therefore the Tribunal did not consider the aspect of disability of the claimant. Though the doctor treating the claimant was not examined, he suffering injuries in the accident is not disputed. Since the claimant was a minor he cannot be penalized for the negligence of his father/guardian in not examining the treating doctor. Considering the nature of injuries, the treatment underwent and the period of hospitalization, the compensation awarded to the claimant in the said case cannot be said to be exhorbitant. Therefore the quantum of compensation cannot be reduced.

Quantum in MFA No.1500/2015 (MVC No.4910/2011)

29. This case relates to the death of Arunkumar. The claimants are the father and sister of the deceased. It was contended that Arun Kumar was an MBA graduate and was working as Executive in M/s. Team Lease Staffing Solutions on salary of Rs.17,000/-, he had left that job to pursue his higher career and his income would have been more than 15,000/- and they were depending on his income. Thus they claimed compensation of Rs.25,00,000/.

30. The Tribunal relying on Ex.P11 the copy of the ration card considered the age of the claimant No.1 as 46 years and applied 13 multiplier. The Tribunal considering the educational qualification of the deceased, notionally assessed his income at Rs.15,000/- per month, added 50% to the same by way of future prospects, deducted 50% out the same for his personal expenses, applying 13 multiplier awarded compensation of Rs.17,55,000/- on the head of loss of dependency. The Tribunal in all awarded compensation of Rs.18,30,000/- on the different heads as per the table below:

31. The relationship of the claimants and the deceased was not in dispute. To prove his income though the claimants relied on Exs.P12 and 13/appointment letters and Ex.P14/payslip, the authors of those documents were not examined. To show that he was MBA graduate Exs.P16 and 17 the marks card and MBA degree certificate respectively were produced. Those documents show that the deceased had completed his MBA degree in second class in April 2011.

32. Ex.P10 the PM report shows that at the time of death Arun Kumar was aged 24 years. The Tribunal relying on the judgment of the Hon’ble Supreme Court in case of Rajesh and others v. Rajbir Singh and others 2013 ACJ 1403 (SC) considered the age of claimant No.1 instead of the deceased in applying the multiplier. The larger bench of the Hon’ble Supreme Court in Pranay Sethi’s case on reference held that the decision in Rajesh’s case is not a binding precedent. It was further held that for selection of the multiplier, the age of the deceased should be the basis and the Courts have to follow the table in Sarla verma’s case in selection of the multiplier. Therefore the Tribunal committed error in selecting the multiplier based on the age of claimant No.1, Tribunal should have considered the age of the deceased for selection of the multiplier.

33. As per the claimants themselves the deceased had left his earlier job. No material was produced to show that he was reemployed. However, considering the same, the age, qualification of the deceased, prevailing wage rates during the said period and cost of living, the Tribunal should have taken his notional income at Rs.12,000/- per month. Since the deceased was bachelor, the Tribunal rightly deducted 50% for his personal expenses. On such deduction his monthly income comes to (12,000-6,000)= Rs.6000/-.

34. As per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case, in case of self employed person or person without permanent employment aged below 40 years, 40% future prospects has to be granted. The Tribunal committed error in considering future prospects at 50%. 40% of Rs.5000 comes to (6000x40/100) Rs.2,400/-. Therefore his total income comes to (6000+2400/-) =Rs.8,400/-.

35. As per the judgment in Sarala Verma’s case referred to supra the applicable multiplier for the age of 24 years/the deceased Arunkumar is 18. Therefore just compensation on the head of loss of dependency comes to Rs.18,14,400/- (8400 X 12 X 18). The compensation payable under the head of loss of consortium is 40000/- each with escalation at 10% which comes to Rs.88,000/-. The compensation payable on the head of funeral expenses and loss of estate is Rs.15,000/- + 15000/- with escalation at 10% which comes to Rs.33,000/-. Therefore the total damages in terms of compensation is as per the table below:

However, the claimants have not preferred appeal questioning the quantum of compensation. Since more than 12 years have elapsed, at this length of time, it would not be just and appropriate to exercise the powers under Order XLI Rule 33 of CPC to enhance the compensation in favour of the claimants.

Quantum in MFA No.1501/2015 (MVC No.4911/2011):

36. This case relates to death of Bhagyalakshmi. Claimant No.1 is the husband and claimant No.2 is the daughter of the deceased. They contended that Bhagyalakshmi was earning Rs.10,000/- by doing flower vending and they were depending on her income. They did not produce any acceptable evidence of her actual income. The Tribunal notionally considered her income at Rs.6,000/- per month. Though there was no proof of actual income, considering the age of the deceased, prevailing wage rates during the said period and cost of living the same cannot be considered as higher side.

37. In the entire cross examination of claimant No.1 in this case his dependency on the deceased was not disputed. Claimant No.2 was an unmarried daughter and could be considered as dependent. As per the judgment of the Hon’ble Supreme Court in Sarala Verma’s case referred to supra in case of 2 to 3 dependents one-third of her income has to be deducted for her personal expenses. Therefore her contribution to the family comes to Rs.(6000 X2/3) 4,000/- per month. Since deceased was self employed and as per Ex.P18 PM report was aged 45 years, as per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s, case 25% has to be added to her income as future prospects. Therefore her monthly income comes to (4000+1000)=Rs.5000/-. The applicable multiplier is 14. Thus loss of dependency comes to Rs.(5000x12x14) 8,40,000/-.

38. As per the judgments of the Hon’ble Supreme Court in Pranay Sethi’s and Magma General Insurance Company’s cases the claimants are entitled to compensation of Rs.40,000/- each on the head of consortium with escalation at 10% which come to Rs.88,000/-. Similarly on the heads of funeral expenses and loss of estate the claimants are entitled to compensation of Rs.15,000+15,000/- with escalation at 10% which comes to Rs.33,000/-.

39. Therefore the compensation awarded under the impugned award in this case has to be reduced to Rs.9,61,000/- from 11,03,000/-.

Reg. Interest

40. Though the Tribunal passed the common award in MVC No.4909/2011 to 4911/2011, in MVC No.4909/2011 8% interest was awarded and in the other two cases 6% interest was awarded without assigning any reason for such discrimination. In MVC No.7277/2011 the Tribunal has awarded interest at 6% p.a. Therefore it would be just and appropriate to reduce the interest in MVC No.4909/2011 to 6% p.a.

41. In the light of the above discussions MFA No.3563/2015 and MFA No.1500/2015 are liable to be dismissed, MFA No.1501/2015 and 1502/2015 succeed in part. Hence the following:

ORDER

i) MFA No.3563/2015 and MFA No.1500/2015 are hereby dismissed.

ii) MFA Nos.1501/2015 and 1502/2015 are partly allowed.

iii) The award in MVC No.4911/2011 is modified as follows:

a) The claimants are entitled to compensation of Rs.9,61,000/- with interest thereon at 6% p.a. from the date of the petition till its realization.

iv) The award in MVC No.4909/2011 is modified as follows:

a) The claimants are entitled to compensation of Rs.1,90,000/- with interest thereon at 6% p.a. from the date of the petition till its realization.

v) The appellant in MFA Nos.1500/2015 to 1502/2015 shall deposit the above amount before the Tribunal, on adjusting the amount already deposited, if any, within four weeks from the date of receipt of the copy of this order.

vi) Since respondent No.2/ICICI Lombard General Insurance Co.Ltd., has not preferred any appeal, the same is not entitled to seek any recovery from the claimants based on this order.

vii) The awards of the Tribunal with regard to the apportionment of the award amount amongst the claimants interse is hereby maintained.

viii) The Registry shall transmit the amount in deposit, if any, and the TCRs to the Tribunal forthwith. On such transmission the Tribunal shall release the said amount to the claimants.