IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.8146/2009 C/W M.F.A.No.8147/2009, M.F.A.No.8148/2009, M.F.A.No.146/2010, M.F.A.No.148/2010 & M.F.A.No.149/2010 (MV) IN M.F.A.No.8146/2009:
BETWEEN:
PREMA AGED ABOUT 34 YEARS W/O LATE SHEKHAR M K R/O SHAKUNTHALA SADANA HOSALA VILLAGE, BARKUR POST UDUPI TALUK AND DISTRICT. ..APPELLANT (BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE) AND:
1.A K AMEER KHAN AGED ABOUT 34 YEARS MOTTON MERCHANT MARKET ROAD, THIRTHAHALLI TALUK SHIMOGA DISTRICT.
2.THE NATIONAL INSURANCE CO. LTD., 1ST FLOOR, S.S.COMPLEX, ABOVE HARSHA BANGALES HONNAVARA ROAD, P.B.NO.151 SHIMOGA DSITRICT, REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE AT UDUPI, SHANKAR BUILDING, BEHIND SHANKAR VITTAL GARAGE MOSQUE ROAD, UDUPI ..RESPONDENTS (BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR SRI B C SEETHARAMA RAO, ADVOCATE FOR R2, NOTICE TO R-1 DISPENSED WITH VIDE ORDER DATED 05.01.2011) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.10.2009 PASSED IN MVC NO.535/2008 ON THE FILE OF ADDITIONAL MACT & PRINCIPAL CIVIL JUDGE (SR.DN.), UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.8147/2009:
BETWEEN:
1.PREMA AGED ABOUT 34 YEARS W/O LATE SHEKHAR M K 2.GIRIJA AGED ABOUT 61 YEARS W/O LATE MANJAPPA BOTH ARE R/AT SHAKUNTHALA SADANA HOSALA VILLAGE BARKUR POST UDUPI TALUK.
3.GIRIJA AGED ABOUT 61 YEARS W/O LATE MUTTA R/O BAJE, MELANGADY KUKKEHALLI VILLAGE ..APPELLANTS (BY SRI PAVANA CHANDRA SHETTY H, ADVOCATE) AND:
1.A K AMEER KHAN AGED ABOUT 34 YEARS MOTTON MERCHANT, MARKET ROAD, THIRTHALLI TALUK, SHIMOGA DISTRICT.
2.THE NATIONAL INSURANCE CO. LTD, 1ST FLOOR, S.S.COMPLEX, ABOVE HARSHA BANGALES, HONNAVARA RAOD, PB NO.151, SHIMOGA DISTRICT, REP. BY ITS DIVISIONAL MANAGER DIVISIONAL OFFICE, AT UDUPI, SHANKAR BUILDING, BEHIND SHANKAR VITTAL GARAGE, MOSQUE ROAD, UDUPI. ..RESPONDENTS (BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR SRI B C SEETHARAMA RAO, ADVOCATE FOR R2, NOTICE TO R-1 DISPENSED WITH VIDE ORDER DATED 05.01.2011) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.10.2009 PASSED IN MVC NO.536/2008 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & MEMBER, ADDL. MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.8148/2009: BETWEEN:
1.PREMA AGED ABOUT 34 YEARS W/O LATE SHEKHAR M K, R/A SHAKUNTHALA SADANA HOSALA VILLAGE, BARKUR POST UDUPI TALUK 2.NISHANTH AGED ABOUT 15 YEARS S/O LATE SHEKHAR M K, REP. BY HIS NATURAL GUARDIAN MOTHER SMT PREMA, R/A SHAKUNTHALA SADANA HOSALA VILLAGE, BARKUR POST UDUPI TALUK 3.GIRIJA AGED ABOUT 61 YEARS W/O MANJAPPA, R/A SHAKUNTHALA SADANA HOSALA VILLAGE, BARKUR POST UDUPI TALUK 4.GIRIJA AGED ABOUT 61 YEARS W/O LATE MUTTA, R/O BAJE, MELANGADY, KUKKEHALLI VILLAGE ..APPELLANTS (BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE) AND:
1.A K AMEER KHAN AGED ABOUT 34 YEARS MOTTON MERCHANT, MARKET ROAD THIRTHAHALLI TALUK SHIMOGA DISTRICT 2.THE NATIONAL LINSURANCE CO LTD, 1ST FLOOR, S S COMPLEX, ABOVE HARSHA BANGALES, HONNAVARA ROAD P B NO.151, SHIMOGA DISTRICT, REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE AT UDUPI SHANKAR BLDG, BEHIND SHANKAR VITTAL GARAGE, MOSQUE ROAD, UDUPI ..RESPONDENTS (BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR SRI B C SEETHARAMA RAO, ADVOCATE FOR R2, NOTICE TO R-1 DISPENSED WITH VIDE ORDER DATED 05.01.2011) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.10.2009 PASSED IN MVC NO.537/2008 ON THE FILE OF THE ADDITIONAL MACT & PRINCIPAL CIVIL JUDGE (SR.DN.) UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.146/2010:
BETWEEN:
NATIONAL INSURANCE CO. LTD, UDUPI - DO, THROUGH ITS REGIONAL OFFICE # 144, SUBHARAM COMPLEX, M.G. ROAD, BENGALURU-01 REP. BY ITS DEPUTY MANAGER SRI M. GOVINDARAJU ..APPELLANT (BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR SRI B C SEETHARAMA RAO, ADVOCATE) AND:
1.SMT PREMA AGED ABOUT 35 YEARS W/O LATE SHEKAR M.K.
RESIDING AT "SHAKUNTHALA SADANA" HOSALA VILLAGE, BARKUR POST, UDUPI TALUK & DISTRICT 2.MR. A.K. AMEER KHAN AGED ABOUT 35 YEARS S/O MR. KHASIM KHAN, OCC: MUTTON MERCHANT, MARKET ROAD, THIRTHAHALLI SHIMOGA DISTRICT-577 432 ..RESPONDENTS (BY SRI H PAVAN CHANDRA SHETTY, ADVOCATE) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.10.2009 PASSED IN MVC NO.535/2008 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & MEMBER, ADDL. MACT, UDUPI, AWARDING COMPENSATION OF `37,900/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL REALISATION AND TO SET ASIDE THE SAME.
M.F.A.No.148/2010:
BETWEEN:
NATIONAL INSURANCE CO. LTD, UDUPI- DO THROUGH ITS REGIONAL OFFICE NO.144, SUBHRAM COMPLEX, M.G.ROAD, BENGALURU-01, REP.BY ITS DEPUTY MANAGER SRI M GOVINDARAJU ..APPELLANT (BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR SRI B C SEETHARAMA RAO, ADVOCATE) AND:
1.SMT PREMA AGED ABOUT 35 YEARS W/O LATE SHEKAR M K R/AT SHAKUNTHALA SADANA HOSALA VILLAGE, BARKUR POST UDUPI TALUK AND DISTRICT.
2.CHI NISHANTH AGED ABOUT 16 YEARS S/O LATE SHEKAR M K BEIND MINOR REP.BY HIS MOTHER THE FIRST REPONDENT HEREIN R/AT SHAKUNTHALA SADANA HOSALA VILLAGE, BARKUR POST UDUPI TALUK AND DSITRICT.
3.SMT GIRIJA AGED ABOUT 62 YEARS W/O MANJAPPA R/AT SHAKUNTHALA SADANA HOSALA VILLAGE, BARKUR POST UDUPI TALUK AND DSITRICT.
4.SMT GIRIJA AGED ABOUT 62 YEARS W/O LATE MUTTA R/AT BAJE, MELANGADI KUKKEHALLI VILLAGE UDUPI TALUK.
5.MR A K AMEER KHAN AGED ABOUT 35 YEARS S/O MR KHASIM KHAN OCC: MUTTON MERCHANT, MARKET ROAD, THIRTHAHALLI SHIMOGA DISTRICT-577 432 ..RESPONDENTS (BY SRI H PAVANA CHANDRA SHETTY, ADVOCATE FOR C/R-1 TO 4, R-5 SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.10.2009 PASSED IN MVC NO.537/2008 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & MEMBER, ADDL. MACT, UDUPI, AWARDING COMPENSATION OF `10,93,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION AND TO SET ASIDE THE SAME.
M.F.A.No.149/2010:
BETWEEN:
NATIONAL INSURANCE CO. LTD, UDUPI - DO, THROUGH ITS REGIONAL OFFICE # 144, SUBHARAM COMPLEX, M.G. ROAD, BENGALURU-01 REP. BY ITS DEPUTY MANAGER SRI M. GOVINDARAJU ..APPELLANT (BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR SRI B C SEETHARAMA RAO, ADVOCATE) AND:
1.SMT PREMA AGED ABOUT 35 YEARS W/O LATE SHEKAR M.K RESIDING AT "SHAKUNTHALA SADANA" HOSALA VILLAGE, BARKUR POST, UDUPI TALUK & DISTRICT 2.MR. A.K. AMEER KHAN AGED ABOUT 35 YEARS S/O MR. KHASIM KHAN, OCC: MUTTON MERCHANT, MARKET ROAD, THIRTHAHALLI, SHIMOGA DISTRICT-577 432 ..RESPONDENTS (BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE FOR C/R-1, SRI PRAKSH HEGDE K., ADVOCATE FOR R-2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.10.2009 PASSED IN MVC NO.536/2008 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & MEMBER, ADDL. MACT, UDUPI, AWARDING COMPENSATION OF `2,25,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALISATION AND TO SET ASIDE THE SAME.
THESE MFAs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These six appeals are directed against the Judgment and award dated 20.10.2009 passed in MVC Nos.535/2008, 536/2008 and 537/2008 by the learned Additional MACT and Principal Civil Judge (Sr.Dn), Udupi, wherein the learned Member allowed the claim petitions in part thereby awarding compensation to the claimants as under:
MVC No.535/2008 – `37,900/- with interest @ 8% p.a. MVC No.536/2008 – `2,25,000/- with interest @ 6% p.a. MVC No.537/2008 – `10,93,000/- with interest @ 6% p.a. from the date of petition till realization.
2. All the three appeals preferred by both insurer and claimants challenging the Judgment and award dated 20.10.2009.
3. Appeals by the claimants is for enhancement of compensation and insofar as appeals preferred by insurance company is for setting aside the Judgment and award dated 20.10.2009.
4. In order to avoid confusion and overlappings, the parties are hereinafter referred to with reference to their status before the Tribunal.
5. Claim petitions and appeals filed relate to the incident dated 26.03.2008 at about 3.30 P.M.
Prema – wife Nishanth – Son Girija, w/o Manjappa – Mother Girija, w/o Mutta–Mother-in-law, (mother of Prema) 6. Shekhar M.K. died in accident dated 26.03.2008 and his dependents stated above claimed compensation for loss of dependency and other heads.
7. On 26.03.2008 Shekar M.K., prema his wife, daughter – Nishmitha were traveling on a motorbike bearing Reg. No.KA-17-A-2197 and when they were proceeding near Banabettu of Havanje Village, a goods tempo bearing Reg. No.KA-14-6889 coming from the opposite side in a rash and negligent manner dashed against motorbike wherein the petitioners were traveling and among them Shekar M.K. and Kum.Nishmitha, the daughter suffered serious injuries. Nishmitha, the daughter and her father Shekhar M.K. died in the accident.
8. The claim petitions were preferred claiming compensation for injuries sustained by Prema, W/o Shekhar M.K. in MVC No.535/2008, by Prema and Girija, W/o Manjappa 2nd respondent -60 years said to be mother of Shekhar M.K. and another lady by name Girija, W/o Mutta, mother of Prema in MVC No.536/2008 and by Prema, Nishanth-Son, Girija –mother and Girija – Mother- in-law in MVC No.537/2008.
9. Petitioners in all the cases claim compensation with interest @ 12% p.a. as under:
In MVC No.535/2008 – `15,80,000/- In MVC No.536/2008 – `3,68,000/- In MVC No.537/2008 – `5,00,000/-
10. The claim petitions were opposed by the respondent- insurance company claiming that the vehicle in question being goods vehicle had not complied the requirements of Section 5 of the Motor Vehicles Act. Driver had no driving licence for transport vehicle as the licence for goods vehicle cannot be treated as one for transport vehicle. The negligence was not proved and compensation claimed by claimants as exorbitant.
11. On considering the relevant materials, concept of just compensation, the Tribunal framed the issues on accident, negligence, injury, death, disability, entitlement for compensation. The Tribunal granted compensation as stated above.
12. The learned counsel for petitioner submits that the petitioners have lost a person on whom they were depending for their necessaries. The amount of compensation granted to the petitioners/claimants by the Tribunal in MVC No.537/2008 is `10,93,000/-. And loss of dependency is calculated by the learned Member at `10,40,000/- considering the salary income drawn by Shekhar M.K. as record clerk in Life Insurance Corporation of India at `10,196/-. `150/- was deducted towards professional tax and the salary was rounded of to `10,000/- per month. In this connection, it is necessary to remember that the personal and living expenses is allowed at 1/3rd of the income and considering the fact that Shekhar M.K. was married regard being had to the fact he is the husband of petitioner No.1-Prema and father of Nishanth and Nishmitha.
13. The, formula adopted by the learned Member is `10,000x12=`1,20,000/- i.e., annual income, 1/3 is reduced in view of personal and living expenses. Thereafter it comes to `80,000/- (1,20,000-40,000) and applicable multiplier considered by the learned Member is `13’. And, the loss of dependency as calculated by the Tribunal is `80,000x13 =`10,40,000/-.
14. Insofar as other conventional heads, the compensation granted towards consortium `20,000/-, funeral expenses `3,000/-, love and affection `20,000/-, loss of expectancy of life `10,000/-. The learned Member considers loss of expectancy of life at `10,000/-. Thus, it is unable to conclude exactly what is loss of expectancy of life.
15. The learned Member of the Tribunal grants `10,000/- for loss of expectancy of life without elaborating on the said head. But no compensation is added towards ‘future prospects’. Regard being had to the fact that Shekhar M.K., the husband of the petitioner No.1 was said to be a Full fledged employee of the Life Insurance Corporation of India and was drawing `10,196/- per month as per Ex.P9 and reduced to by deducting professional tax of `150/- to `10,000/-. There are no question of rounding up as `46/- will have its cumulative effect of causing difference of unreasonable sum. Thus, his salary is taken as `10,046/-. The age of Shekhar M.K. at the time of death due to injuries of accident is 45 years. Thus, 30% of the salary ought to have been calculated towards future prospects. Girija, wife of Late Manjappa, who is the mother- in- law is also considered as dependant. However this Court does not accept her as a dependant on her son- in-law M.K.Shekhar. Insofar as 1/3rd reserved for personal and living expenses considering Shekhar M.K. was the bread earner is just and proper.
16. Thus error committed by the Tribunal in not considering ‘future prospects’ is not acceptable. Thus, the salary of Shekhar M.K. has to be considered by adding 30% towards future prospects.
17. Another error by the learned Member of the Tribunal in reckoning compensation is that, having come to a conclusion that Shekhar M.K. was aged 45 years at the time of his death, considering multiplier ‘13’ is not proper. It should have been ‘14’.
Thus, the calculation for arriving at loss of dependency will be as under:
`10,046/- + 30% - 1/3rd x 14 `10,046/- + `3,013= `13,059 - `4,353/- = `8,706 x 12 x 14 = `14,62,608/- (loss of dependency).
18. Insofar as other heads are concerned, `20,000/- granted towards loss of consortium, `3,000/- towards funeral expenses deserves to be maintained. `20,000/- granted towards loss of love and affection deserves to be increased to `40,000/-. However, `10,000/- granted towards loss of expectancy of life is liable to be deleted in the light of considering future prospects.
19. Thus, the claimants in MVC No.537/2008 are entitled for the modified compensation of `15,25,608/- instead of `10,93,000/- as under:
Loss of dependency `14,62,608/-
Loss of consortium ` 20,000/- Loss of love and affection ` 40,000/- Funeral expenses ` 3,000/- Total `15,25,608/-
20. Thus, the claimants are entitled to an enhanced compensation of and there would be an enhancement of `4,32,608/-.
21. Insofar as petitioner in MVC No.535/2008 (MFA No.
8146/2009) Smt. Prema is concerned, the Tribunal has granted `37,900/- as compensation as under:
Pain and suffering ` 20,000/-
For conveyance ` 2,000/-
For attendant and nourishing food ` 2,000/-
Medical expenses ` 2,900/-
For loss of income during treatment period For discomfort and loss of amenities ` 6,000/ ` 5,000/ Total ` 37,900/-
22. She claims that she was earning `200/- per day by doing tailoring work. It is also necessary to marshal her deposition in MVC No.537/2009, wherein she says she was dependent completely on her husband.
Both the versions cannot be pleaded. In such case, she is a house wife and her income could be taken as `3,000/- per month and there is no disability. On the basis of the injuries, there is no permanent disability. She has been granted `37,900/- by the Tribunal. In the circumstances, the amount of `37,900/- granted by the Tribunal in the absence of any disability on record appears to be just. Moreover, in the light of considering compensation granted to her in other two cases.
Hence, the appeal filed by Smt. Prema in M.F.A.No.8146/2009 is devoid of merits deserves to be dismissed.
Insofar as compensation of `2,25,000/- granted in MVC No. 536/2008 (MFA No.8147/2009) is concerned, the Court finds that the compensation awarded is neither exorbitant nor low. Thus, the appeal fails as the amount stands.
Thus, the appeal in MFA No.8148/2009 in respect of MVC No.537/2008 deserves to be partly allowed.
Insofar as appeal in MFA Nos.8146/2009 and 8147/2009 in respect of MVC Nos.535/2008 and 536/2008 are concerned, considering the amount granted therein, this Court finds justification in the said compensation awarded by the learned Member. Thus, both the appeals are liable to be dismissed.
The appeals filed by the Insurance Company in M.F.A Nos.146/2010, 148/2010 and 149/2010 filed against judgment and award passed in MVC Nos.535/2008, 537/2008and 536/2008 are liable to be dismissed.
The learned Member of the Tribunal has granted interest at 6% p.a. and 8% p.a. without mentioning the rational for awarding 8% in two cases and 6% in one case. Thus, the interest to be granted must be uniform for all the cases and it should be at 6% p.a.
Hence, I proceed to pass the following:
ORDER (i) MFA No.8146/2009 and MFA No.8147/2009 preferred by the claimants against the Judgment and award passed in MVC No.535/2008 and MVC No.536/2008 for enhancement are dismissed.
(ii) MFA.No.8148/2009 preferred by the claimants against the judgment and award dated 20/10/2009 in MVC No.537/2008 is hereby set aside for the purpose of modification by granting compensation of `15,25,608/- instead of `10,93,000/- . Thus there shall be an enhancement of `4,32,608/- with interest at 6% p.a. from the date of petition till its realization.
(iii) MFA Nos.146/2010, 148/2010 and 149/2010 filed by the Insurance Company against the judgment and award dated 20th October 2009 passed in MVC Nos.535/2008, 536/2008 and 537/2008 are hereby dismissed.
(iv) Insurance Company is hereby directed to deposit the balance amount along with interest at the rate of 6% p.a. from the date of petition till its realization within four weeks from the date of receipt of a certified copy of this judgment.
(v) The apportionment and manner of disbursement made in MVC No.537/2008 holds good for the enhanced compensation of `4,32,608/- granted in MFA No.8148/2009.
(vi) The amount if any in deposit in the appeals filed by the Insurance Company shall be transmitted to the jurisdictional Tribunal.
(vii) No costs.
Sd/- JUDGE SBN/tsn*