IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.1330 of 2018 (MV) BETWEEN :
1 . SMT.AISHA H K W/O.LATE BASHEER AGED ABOUT 33 YEARS 2 . RAMSINA D/O.LATE BASHEER AGED ABOUT 13 YEARS 3 . JABIR S/O.LATE BASHEER AGED ABOUT 12 YEARS 4 . JASNA K B D/O.LATE BASHEER AGED ABOUT 9 YEARS 5 . ALIMA W/O.LATE ABU AGED ABOUT 66 YEARS (SINCE APPELLANT NOS.2 TO 4 ARE MINOR REPRESENTED BY THEIR NEXT FRIEND MOTHER SMT.AISHA H K, 1ST APPELLANT) ALL ARE RESIDING AT AJRI VILLAGE, BETTOLI POST NEAR CHECK POST VIRAJPET TALUK – 571 212. ... APPELLANTS (BY SMT.SUMA KEDILAYA, ADVOCATE FOR SRI.V P KEDILAYA, ADVOCATE) AND:
1 . SRI.SATHISHA J S/O.LATE JAYAKUNDAR, MAJOR R/AT #1-114, KUNDAR NIVAS MEENAKALIKYA, BAIKAMPADY MANGALORE – 575 011.
2 . UNITED INDIA INSURANCE CO LTD DIVISIONAL OFFICE (T P HUB), BALLAL CIRCLE, CHAMARAJAPURAM MYSORE – 570 005. ...RESPONDENTS (BY SRI.JANARDHANA REDDY, ADVOCATE FOR R-2, R-1 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT 1988, PRAYING TO PASS AN MODIFYING THE JUDGEMENT AND AWARD PASSED ON 13.10.2017, IN MVC NO.8/2017 ON THE FILE OF I ADDL. DISTRICT JUDGE AND MACT, KODAGU AT MADIKERI AND ETC., THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The claimants have preferred this appeal assailing the judgment and award dated 13.10.2017 passed in MVC No.8/2017 by the I Additional District Judge and Motor Accident Claims Tribunal, Madikere (hereinafter referred to as ‘Tribunal’ for the sake of brevity).
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
4. Claimant Nos.1 to 4 being the widow and minor children of deceased - Basheer and claimant No.5, being the mother of the deceased - Basheer, who died in a road traffic accident that occurred on 21.12.2016 at about 2.20 p.m. on Mangaluru-Bengaluru road filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’, for the sake of brevity). It is the case of the appellants/claimants that the deceased - Basheer was driving Gas Tanker Lorry bearing Registration No KA -01-AP 5833 and when he was proceeding from Mangaluru to Bengaluru, at that time, the driver of Lorry bearing registration No.KA -19-D 8643 came from the opposite side in a rash and negligent manner and dashed against the said lorry. Due to the accident, the deceased - Basheer got stuck inside the Lorry and died at the spot. The dead body was taken to the Government Hospital, Hassan. After the post mortem examination was conducted, his body was handed over to his family members and thereafter, funeral and obsequies ceremonies were performed. That on account of untimely death of Basheer, the family had lost his earnings and love and affection of the deceased. Hence, they sought compensation on various heads.
5. In response to the notices issued by the Tribunal, respondent No.1 did not appear before the Tribunal and he was placed ex parte. But respondent No.2, appeared before the Tribunal through their counsel and filed written statement denying the averments made in the claim petition and contended that the claim petition is not maintainable in law or on facts. It was contended that the accident occurred due to the rash and negligent driving of the deceased / Driver of the lorry bearing registration No.KA-01-AF-5833 and that no liability could be fastened on the respondents. It was further contended that the deceased /driver of the lorry did not possess a valid and effective driving licence. The compensation and interest claimed are exorbitant. The second respondent also prayed for permission to contest the petition by raising all permissible grounds under Section 170 of the Act. Hence, second respondent prayed for dismissal of the claim petition.
6. On the basis of the above pleadings, the Tribunal framed the following issues for its considerations:
1. Whether the petitioners prove that Late K.A.Basheer, who is the husband of the 1st petitioners, father of petitioner Nos.2 to 4 and son of 5th petitioner, died in a road traffic accident that occurred on 21.12.2016, at about 2.20 p.m. when the deceased was driving the Gas Tanker Lorry bearing Reg.No.KA-01-AF-5833 and proceeding from Mangaluru towards Bengaluru and reached near Anachihalli village, Hassan and the driver of the lorry bearing regn. No.KA-19-D-8643 came in a rash and negligent manner from the opposite side and dashed the lorry of the deceased?
2. Whether the petitioners prove that they are entitled to compensation, if so, how much and from whom?
7. In order to substantiate their case, claimant No.1 was examined as PW.1 and Sri.Pradeep Raghottaman was examined as PW.2 and they produced 16 documents which were marked as Exs.P.1 to P.16. While respondents produced one document i.e., Ex.R.1, but did not step into the witness box. On the basis of the evidence on record, the Tribunal answered Issue No.1 in the affirmative and Issue No.2, partly in the affirmative and awarded compensation of Rs.13,23,000/- with interest at the rate of 9% per annum from the date of petition till realization.
8. Being aggrieved by the compensation awarded by the Tribunal, the claimants have preferred this appeal seeking enhancement of compensation.
9. We have heard Smt.Suma Kedilaya, learned counsel for Sri.V.P.Kedilaya, learned counsel for the appellants, Sri.Janaradhana Reddy, learned counsel for second respondent. We have perused the material on record.
10. Learned counsel for the appellants submitted that the award passed by the Tribunal is unsustainable in law. She submitted that the award of compensation is very meagre and also the income of the deceased is not assessed properly. She further contended that the deceased - Basheer was earning a salary of Rs.25,000/-
per month. But the Tribunal has assessed the income of the deceased at Rs.8,000/- per month, which is on the lower side. It was further contended that the award of compensation on all other heads is contrary to the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. Further, it was submitted that the future prospectus ought to have been considered. The first appellant had produced certificate of registration, explosives licence, transfer delivery note and the pass book showing the salary which was deposited to her account. Therefore, the Tribunal has erred in taking the income of the deceased at Rs.8000/- per month. She would further contend that the compensation awarded on all other heads is also very meagre. Hence, she prayed for enhancement of compensation.
11. Per contra, learned counsel for the second respondent supported the impugned judgement and award of the Tribunal, both on the finding of negligence and quantum of compensation. Hence, he prayed for dismissal of the appeal.
12. Having heard learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration:-
1. Whether the claimants are entitled to enhanced compensation?
2. What order?
13. The fact that on 21.12.2016 at about 2.20 p.m. when Basheer was proceeding from Mangaluru to Bengaluru, by driving lorry bearing registration No.KA-01-AF-5833, at that time, the driver of lorry bearing registration No KA-19-D 8643 came from the opposite side in a rash and negligent manner and dashed the said lorry has been established. The fact that there was collision of two vehicles which was coming from the opposite direction and as a result Basheer sustained grievous injuries and on account of the impact and accident, he succumbed to the injuries, has also been established by the claimants. However, the controversy is only with regard to quantum and enhancement of compensation.
14. The Tribunal awarded compensation of Rs.13,23,000/- with interest at the rate of 9% per annum from the date of claim petition till realization on the following heads:-
Heads Compensation awarded by the Tribunal (in Rs.) Towards loss of dependency 10,08,000.00 Towards love and affection 1,00,000.00 Towards loss of consortium 1,00,000.00 Towards Transportation of dead body and funeral expenses 15,000.00 Towards loss of estate 1,00,000.00 Total 13,23,000.00 15. Learned counsel for the appellants has drawn our attention to the documents at Exs.P1 and P2, apart from other documents. On perusal of the same, it would show that the driver of the lorry bearing registration No.KA-19-D-8643 is responsible for the accident, which resulted in death of Basheer.
16. Further, the evidence of P.W.2 – Sri.Pradeep Raghottaman, who is the partner of Kowshik Cargo Movers, Mangaluru, discloses his organisation owns more than 20 LPG Gas Tankers and that the deceased - Basheer was working as a Driver and was driving the lorry bearing registration No.KA-01-AF-5833 as on the date of the accident. It was also deposed by PW-2 that the deceased was paid a sum of Rs.25,000/- per month, as salary and the same was paid in cash and deposited to the bank account of his wife- appellant No.1 herein. Further Ex.P.12 would also disclose that the deceased - Basheer was authorized to drive light motor vehicles and heavy motor vehicles.
17. The Tribunal has considered the income of the deceased only at Rs.8,000/- per month which is on the lower side. Since this job demanded highly cautious driving, we propose to reckon his income at Rs.15,000/- per month as the accident occurred in the year 2016 . The deceased was aged 45 years. As per the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi, 25% of the income shall have to be added towards future prospects. If 25% of the income towards future prospects is added to the monthly income of Rs.15,000/-, it comes to Rs.18,750/- per month. The claimants are five in numbers. Therefore, 1/4th of the income of Rs.18,750/- has to be deducted towards personal expenses of the deceased, it comes to Rs.14,062/-. When the same is annualised and multiplied by ‘14’, it comes to Rs.23,62,416/- and it is rounded off to Rs.23,62,500/-. Hence, we propose to award Rs.23,62,500/- as against Rs.10,08,000/- awarded by the Tribunal on the head of ‘loss of dependency’.
18. As per the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Company v/s Nanuram and others, reported in 2018 ACJ 2782, claimant No.1, being the widow of deceased - Basheer, is entitled for ‘loss of spousal consortium’ of Rs.40,000/-, claimant Nos.2 to 4, being the children of the deceased, are entitled for ‘loss of parental consortium’ of Rs.30,000/- each and claimant No.5, being the mother of the deceased, is entitled for ‘loss of filial consortium’ of Rs.30,000/-. The claimants are entitled for ‘funeral expenses’ and ‘loss of estate’ of Rs.15,000/- each. In all, claimants are entitled to Rs.25,52,500/-. The reassessed compensation is as under:
Heads Compensation awarded by this Court (in Rs.) Loss of dependency (14,062 x 12 x 14) 23,62,500.00 Loss of spousal consortium 40,000.00 Loss of parental consortium @ Rs.30,000/- each 90,000.00 Loss of filial consortium 30,000.00 Loss of estate 15,000.00 Funeral expenses 15,000.00 TOTAL 25,52,500.00 19. The enhanced compensation amount of Rs.12,29,500/- shall carry interest at the rate of 6% p.a., while the compensation of Rs.13,23,000/- awarded by the Tribunal shall carry interest at the rate of 9% p.a. from the date of the claim petition till realization.
20. As the number of claimants are five in number, out of which three are minors and two others are the widow of the deceased and mother of the deceased – Basheer, the apportionment of compensation made by the Tribunal is affirmed.
21. 50% of the compensation apportioned to widow of the deceased shall be deposited in any Post Office or Nationalized Bank for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification.
22. The compensation awarded to the minor children of the deceased shall be deposited in any Post Office or Nationalized Bank until they attain the age of majority.
23. Out of the amount awarded to the mother of the deceased, a sum of Rs.3,00,000/- shall be deposited in any Post Office or Nationalized Bank for an initial period of five years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification.
24. The appeal is allowed in part in the aforesaid terms.
25. The respondent/Insurer shall deposit compensation amount before the Tribunal within a period of four weeks from the date of receipt of the certified copy of this judgment.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE VMB