IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 6724 OF 2015 (MV) BETWEEN 1. SMT. BHAGYAMMA W/O LATE SRINIVASA AGED ABOUT 34 YEARS 2. ASHWINI D/O. LATE SREENIVASA AGED ABOUT 16 YEARS 3. SUDHA D/O LATE SREENIVASA AGED ABOUT 14 YEARS 4. SHRUTHI D/O SREENIVASA AGED ABOUT 14 YEARS 5. SHANMUKHA S/O SREENIVASA AGED ABOUT 9 YEARS 6. ERAMMA W/O THIMMAPPA AGED ABOUT 62 YEARS 7. THIMMAPPA S/O BOMMAPPA AGED ABOUT 72 YEARS ALL ARE R/AT JANAKONDA VILLAGE CHITRADURGA TALUK-577501 PETITIONER NOS.2 TO 5 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER, BHAGYAMMA W/O LATE SREENIVASA.
... APPELLANTS (BY SRI. KALYAN .R - ADVOCATE) AND 1. H. B. BASAVARAJAPPA S/O HANUMANTHAPPA AGED MAJOR R/AT T. YEMMIGANUR VILLAGE HOLALKERE TALUK-577526.
2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE 34/3, AKKAMAHADEVI ROAD P.J. EXTENSION DAVANAGERE-577001.
3. AJJAPPA S/O CHIKKAPPA R/O SHIVAPURA AGALAVADI POST GUBBI TALUK TUMKUR DISTRICT-572216.
... RESPONDENTS (BY SRI. ARUN PONNAPPA – ADVOCATE FOR R-2 NOTICE TO R-1 & R-3 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.06.2015 PASSED IN MVC NO. 686/2013 ON THE FILE OF THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, C.J.M & MACT-III, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellants - claimants and the learned counsel for the Insurance Company - Respondent no.2 and perused the records. Notice to R1 and R3 has been dispensed with vide order dated 14.1.2016.
2. The legal representatives of the deceased Sreenivasa - claimants have preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in its impugned judgment dated 01.06.2015 in MVC No.686/2013, seeking enhancement of compensation.
3. The factual matrix is that on 02.07.2013 at about 7.30 p.m., when the deceased Sreenivasa was riding his motor cycle bearing Reg.No.KA-06-U-1164, near Shankaramurthy’s hotel on NH-13 near Janukonda village, another motor cycle bearing Reg.No.KA-16-S-8321 which was coming from Chitradurga side ridden by its rider in a rash and negligent manner, came and dashed against the vehicle of the deceased, as a result of which he sustained grievous injuries and succumbed to the injuries in the hospital. Due to the sudden death of their bread winner, the appellants – legal representatives of the deceased Sreenivasa filed a claim petition before the Tribunal seeking compensation for his death in the road traffic accident.
4. After service of notice, the Insurer – Respondent No.2 appeared before the tribunal and filed its objection denying the entire averments in the claim petition. It was contended that the accident occurred due to the negligence of the deceased as well and hence, the petition was bad for non-joinder of the owner and the insurer of the motor cycle bearing No.KA-06-U-1164. the vehicle. It was further contended that the deceased did not have a driving licence to ride motorcycle and hence, a false case had been foisted against the owner of the offending vehicle, i.e., KA-16-S-8321.
At the instance of the Insurer, the third respondent - owner of the motor cycle bearing No.KA- 06-U-1164 was impleaded subsequently, he appeared through counsel and filed objection contending that he was not a necessary party to the case and his vehicle had nothing to do with the alleged accident. It was further contended that the rider – deceased had a valid driving licence and hence sought for dismissal of the petition.
5. The Tribunal, after evaluation of the oral and documentary evidence has held that the deceased also had contributed 50% negligence for the occurrence of the accident, since it was clear that the deceased did not have a driving licence to ride a motorcycle. Hence, the Tribunal came to the conclusion that the deceased as well as the owner of the offending motor cycle have contributed 50 : 50% negligence. Consequently, taking the income of the deceased at Rs.5,000/- and deducting 1/5th towards his personal expenses, the Tribunal awarded total compensation of Rs.12,12,000/-. However, since the Tribunal had held 50% contributory negligence on the deceased, 50% of the total amount, i.e., Rs.6,06,000/- was directed to be paid by the Insurer to the dependants of the deceased along with interest at 9% per annum from the date of petition till the date of deposit. It is this judgment which is under challenge in the present appeal.
6. The learned counsel for the appellant - claimant vehemently contended that as on the date of the accident, the deceased was an agriculturist aged 45 years who was earning Rs.10,000/- per month. But the Tribunal has grossly erred in taking the income of the deceased at just Rs.5,000/- per month. Even as per the settled norms, the accident being of the year 2013, his income ought to have been taken at Rs.8,000/- in order to compute the compensation towards ‘Loss of dependency’. It is his further contention that the Tribunal also erred in not adding any amount towards his future prospects to his monthly income while calculating the compensation towards ‘Loss of dependency’. Further, the learned counsel for the appellants also contends that the Tribunal was not justified in not awarding any compensation to the parents of the deceased – Respondents 6 and 7 towards ‘loss of love and affection’. Hence, the learned counsel prays that the compensation awarded by the Tribunal may be suitably enhanced.
The deceased having died in the accident, the Tribunal was not justified in coming to the conclusion that he had contributed 50% to the occurrence of the accident, i.e., he had died due to his own negligence. Hence, the counsel contends that the finding insofar as negligence is concerned requires to be set aside and the Insurance Company be directed to pay the entire amount of compensation to the legal representatives of the deceased.
7. Per contra, learned counsel for Respondent No.2 – Insurance Company contends that the Tribunal has awarded exorbitant compensation in respect of all the heads put together, and in particular has awarded very much excessive compensation in a sum of Rs.1,00,000/- towards ‘Loss of consortium’, an amount of Rs.4,00,000/- (Rs.1,00,000/- each) towards ‘Loss of love and affection in favour of Appellants 2 to 5 – the children of the deceased as well as Rs.40,000/- towards ‘Transportation of dead body’ and hence seeks reduction in the quantum of compensation awarded by the Tribunal.
8. On a careful evaluation of the material on record, it is seen that the deceased Srinivasa though taken to hospital immediately after the accident, he succumbed to the injuries while under treatment. As contended by the learned counsel, though there is no proof of his income, he was working as an agriculturist at the time of his death. The accident being of the year 2013, in view of the settled norms, it is trite for this court to take his monthly income at Rs.8,000/- in order to arrive at the compensation towards ‘Loss of dependency’. Further, since he was aged 45 years at the time of the accident, the Tribunal had erred in not adding any amount towards his future prospects. Hence, I find it appropriate to add 25% of his income towards future prospects. Hence, taking 25% of his income towards future prospects, his income would come to Rs.10,000/- per month (8000 x 25/100). With Rs.10,000/- as the monthly income and deducting one- fifth towards his personal expenses, the income comes to Rs.8,000/-. Hence, the compensation towards ‘Loss of dependency’ comes to Rs.13,44,000/- (8000 x 12 x 14) as against Rs.6,72,000/- awarded by the Tribunal.
Further, as contended by the learned counsel for the appellant, I find that the Tribunal has erred in granting Rs.4,00,000/- (Rs.1,00,000/- each) towards ‘Loss of love and affection in favour of Appellants 2 to 5’.
Having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), it is just and proper to grant ‘parental consortium’ to Appellants 2, 3, 4 and 5 who are the children of the deceased, in view of the death of their father at an unexpected age. In the said judgment, the Apex Court has held thus:
“Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.”
In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- each to Appellants 2, 3, 4 and 5, in all amounting to Rs.1,60,000/- under the head “Loss of Parental consortium to Appellants 2, 3, 4 & 5”.
In the same judgment in MAGMA GENERAL INSURANCE CO. LTD. (supra), it is further held thus:
“Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.”
Hence, ‘Filial consortium’ is required to be granted to the parents of the deceased, i.e., appellants 6 and 7. In accordance with the said ruling, I hereby grant a sum of Rs.50,000/- each to Appellants 6 and 7, in all amounting to Rs.1,00,000/- under the head “Loss of filial consortium to Appellants 6 & 7”.
9. The Tribunal had granted a sum of Rs.40,000/- towards ‘Transportation of dead body and funeral expenses’. In view of the decision of the Apex court in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), the compensation towards the said head is hereby restricted to Rs.30,000/-. However, the compensation of Rs.1,00,000/- granted towards ‘Loss of consortium’ to Appellant No.1 – wife of the deceased, remains undisturbed.
However, in view of the evidence on record, the finding of the Tribunal holding 50% contributory negligence on the deceased is hereby set aside. The contributory negligence of the deceased is hereby held at 25%. As a result, the Insurance Company is liable to pay 75% of the compensation awarded by this Court.
10. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation after re- computing by this court Loss of dependency 13,44,000 Loss of consortium (to Appellant No.1) Loss of parental consortium (to Appellants 2,3,4 & 5) Loss of filial consortium (to Appellants 6 & 7) 1,00,000 1,60,000 (40,000 each) 1,00,000 (50,000 each)
The total enhanced compensation would come to Rs.6,94,500/-. Thus, in all, the appellants / claimants are entitled to a total enhanced compensation of Rs.13,00,500/- as against Rs.6,06,000/-awarded by the tribunal.
Hence, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 01.06.2015 passed by the Tribunal in MVC No.686/2013, the compensation payable to the claimants / appellants is enhanced from Rs.6,06,000/- to Rs.13,00,500/-. The enhanced compensation would come to Rs.6,94,500/- which would carry interest at 6% from the date of petition till the date of deposit. The second respondent- insurer shall deposit the enhanced compensation with interest at 6% in addition to the compensation already awarded with interest at 9%, before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants, in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
SD/- JUDGE KS