IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.1858/2015 (MV) BETWEEN:
1. Smt.Ashwini, W/o late Basavaraju H.K., Aged about 21 years, 2. Sri.Kemparaju @ Kemparajappa, S/o Channabasappa, Aged about 50 years, 3. Smt.Sharadhamma, W/o Kemparaju @ Kemparajappa, Aged about 48 years, 4. Smt.H.K.Mani, D/o Kemparaju @ Kemparajappa, Aged about 29 years, 5. Smt.Shobha, D/o Kemparaju @ Kemparajappa, Aged about 27 years, 6. Smt.Halagamma, W/o Channabasappa, Aged about 72 years, 7. Baby Roopashree, D/o late Basvaraju H.K., Aged about 2 years, Since the appellant No.7 is minor She is represented by her mother Smt.Ashwini, The First Appellant herein.
Appellants No.1 to 4, 6 and 7, R/at Mukundoor, Hosahalli, Katsaya Hobli, Hassan Taluk, Hassan District.
Appellant No.5 is R/at No.E-15/2, Roopena Agrahara, Near Babu Reddy House, Bengaluru – 560 068.
...Appellants (By Sri. Shivakumar P., Advocate) AND:
1. United India Insurance Co. Ltd., Krishibhavan, Nrupathunga Road, Next to Magistrate Court, Bengaluru – 560 001.
Represented by its Manager.
2. Sri.Duggappa Gowda, S/o late Ramanna Gowda, Nariyoor House, Kanakamajalu Post, Sulllia Taluk – 574 239, Dakshina Kannada District.
…Respondents (By Sri. C.Shankar Reddy, Advocate for R1; R2 – Notice dispensed with vide order dated 24.01.2017) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 28.11.2014 passed in MVC No.2586/2012 on the file of the XXII Additional Small Causes Judge, Member, MACT, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Miscellaneous First Appeal coming on for Admission, this day, the Court delivered the following:
J U D G M E N T The claimant is in appeal under Section 173(1) of the Motor Vehicles Act not being satisfied with the quantum of the compensation awarded in MVC No.2586/2012 dated 28.11.2014 on the file of the MACT, Court of Small Causes, Bengaluru, praying for enhancement of the compensation.
2. Claimants are wife, parents, sisters and daughter of one late H.K. Basavaraj. Claim petition was filed under Section 166 of MV Act claiming compensation for the death of one H.K. Basavaraju in a road traffic accident. It is stated that on 04.04.2012 deceased was proceeding as a pillion rider on the motorbike bearing registration No.KA-16-R-8162 and a Scorpio Jeep bearing registration No. KA-21-M-6465 being driven in a rash and negligent manner with high speed came from behind and hit the bike in which the deceased was proceeding. Due to which the deceased along with the rider fell down and sustained grievous injuries all over their body. Immediately the deceased was shifted to Harsha Hospital and was admitted as an inpatient and subsequently was shifted to BGS Global Hospital, Bengaluru. The deceased underwent surgery and subsequently he succumbed to injuries on 12.04.2012. The deceased was aged about 28 years as on the date of accident and was earning a sum of Rs.11,373/- p.m. working at Hofincons Infotech and Industrial Services Pvt., Ltd.
3. On issuance of notice, respondent Nos. 1 & 2 appeared before the Tribunal, and opposed the claim by filing separate written statements. Respondent No.1- Insurer denied the claim petition averments in written statement. In its statement it also denied the involvement of vehicle in question, but admitted the issuance of policy to the offending vehicle. It is further contended that the compensation claimed is excess and exorbitant. Further, it also stated that the accident occurred solely due to the negligent driving of the rider of the motorcycle. The second respondent contended that the accident had taken place solely due to the negligent driving of the rider of the motorcycle and further stated that Scorpio Jeep is insured with the first respondent and the policy was in force.
4. First claimant examined herself as PW1 and examined PWs-2 and 3 apart from marking Exs. P1 to P84. No evidence was led by the respondents. The Tribunal, after appreciating the material on record, awarded a compensation of Rs.20,23,800/- (Rupees Twenty Lakh Twenty Three Thousand Eight Hundred Only) with interest at the rate of 6% p.a. from the date of petition till realization on the following heads:
5. While awarding the above compensation the Tribunal assessed the monthly income of the deceased as Rs.9,700/- (Rupees Nine Thousand Seven Hundred Only) and deducted 1/3 towards personal expenses of the deceased apart from awarding 50% of the assessed income towards future prospects. The appellants-
claimants not being satisfied with the quantum of compensation awarded, are before this Court praying for enhancement of compensation.
6. Heard the learned counsel for the appellant- claimants and the learned counsel for respondent No.1- Insurer. Perused the materials including lower Court records.
7. The learned counsel for the appellants would pray for enhancement of compensation on two grounds. One is that Tribunal committed an error by deducting 1/3 towards personal expenses of the deceased. He submits that taking note of the dependants, Tribunal ought to have deducted ¼ towards personal expenses of the deceased. He also submits that deceased has parents, children, who were dependent only on the deceased. As there were four dependents, Tribunal ought to have taken ¼ as personal expenses of the deceased. The next contention is that the by the claimant -appellants No. 2, 3 and 7, who are parents and child of the deceased, would be entitled to Rs.40,000/- (Rupees Forty Thousand Only) each under the head of parental and filial consortium. Thus he prays for enhancement of the compensation on the above two grounds.
8. Per contra, respondent-No.1-insurer would submit that the compensation awarded by the Tribunal is just compensation. It needs no interference.
9. Having heard the learned counsel for the parties and on perusal of the appeal papers, the following questions would arise for consideration in the facts and circumstances of the case;
1. Whether the Tribunal is justified in deducting 1/3 towards expenses of the deceased?
2. Whether the claimants are entitled for enhancement of compensation under heads loss of dependency and consortium in the facts and circumstances of the case?
Answer to the above said questions would be partly in the ‘negative’ for the following reasons;
10. The accident that occurred on 04.04.2012 involving Motor Cycle bearing Reg.No. KA-16-R-8162 and Scorpio jeep bearing Reg.No. KA-21-M-6465, and the accidental death of H.K. Basavaraju are not in dispute in this appeal. The income of the deceased taken at Rs.9,700/- per month is not in dispute. The claimants are aggrieved by the deduction of 1/3 towards personal expenses of the deceased. The first claimant is the wife and second and third claimants are father and mother of the deceased. Claimant No.7 is the daughter of the deceased. There are four dependents. If there are four dependents the appropriate deduction would be ¼ of the income towards personal expenses of the deceased. In that view of the matter, the Tribunal committed an error in deducting 1/3rd towards personal expenses and the same has to be taken as 1/4th since there are 4 dependents. The Tribunal taking note of the decision of the Hon’ble Supreme Court in 2013 ACJ 1403, Rajesh & others Vs. Rajbir Singh awarded 50% of the assessed income towards future prospects. The respondent insurer has not challenged the same, hence the same is retained.
11. The Tribunal awarded total compensation of Rs.45,000/- on conventional head. But the claimants would be entitled for a sum of Rs.70,000/- under the said head. Appellant-claimants No. 2 and 3 have lost love, affection and care of their son. Hence, they would be entitled for Rs.40,000/- each under parental consortium. Claimant No.4 is the daughter of the deceased who was aged about 2 months as on the date of accident and has lost her father at a very early and she has also lost love and affection of a father.
Therefore, she would be entitled for a compensation of Rs.40,000/- on filial consortium. Thus, the claimants would be entitled for the following modified compensation.
12. The claimants-appellants would be entitled for the modified enhanced compensation as follows:
SI.No. Heads Amount in (Rs.) 1. Loss of dependency including future prospects (9,700+50%=14550 – (¼th) 3637 =10913x12x17) 22,26,252.00
13. Thus, the claimants would be entitled for total compensation of a sum of Rs.24,16,252/- (Rupees Twenty Four Lakh Sixteen Thousand Two Hundred and Fifty Two Only) as against Rs.20,23,800/- (Rupees Twenty Lakh Twenty Three Thousand Eight Hundred Only) awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till its realization. The judgment and award passed by the Tribunal is modified to the above extent.
14. The apportionment, deposit and release of the modified compensation amount shall be as per the ratio ordered by the Tribunal.
Accordingly, appeal is allowed in part.
Sd/- JUDGE BVK/-