IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.2922/2015 C/w.
MISCELLANEOUS FIRST APPEAL NO.3696/2015 MFA NO.2922/2015 BETWEEN THE MANAGER M/S. BHARTI AXA GENERAL INSURANCE PRIDE QUADRA, # 30, 3RD FLOOR, BELLARY ROAD, HEBBAL, BANGALORE 560024 REP BY ITS MANAGER, M/S. BHARTI AXA GENERARL INSURANCE LTD 1ST FLOOR, FERNS ICON, SURVEY NO.28, DODDANEKUNDI, BANGALORE 560037 ... APPELLANT (BY SRI H N KESHAVA PRASHANTH, ADVOCATE) AND 1. DEBASIS SENGUPTHA @ DEVASHISH SENGUPTA, S/O H. VIMAL SENGUPTA, NOW AGED ABOUT 55 YFEARS, HOUSE NO.7, JUNWANI BASTIK WARD NO.1, VILL-JUNWANI, THE, DURG, DISTRICT DURG 2. MANIKA SEN GUPTA W/O DEBASIS SENGUPTHA, NOW AGED ABOUT 48 YEARS, NO. 286, SRI RAMPUR NORTH, FLOT NO.3/A, JADAVAPUR, SOUTH 24, PARGNAS 700084 KOLKATA 784 3. VINOD P.B., S/O PADMANABHAN, SREEVALSAM, NO. L-205, 2ND FLOOR, PURVA, PAIRMOUNT, 24TH MAIN, 25TH CROSS, HSRR LAYOT, SECTOR-2, BANGALORE 560 102 ... RESPONDENTS (BY SMT. SHUBHA M.C., ADVOCATE FOR R1 & R2;
R3-NOTICE DISPENSED WITH V/O. DTD.21.08.2015 ) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.02.2015 PASSED IN MVC NO.5673/2013 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, AWARDING COMPENSATION OF Rs.18,38,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
MFA No.3696/2015 BETWEEN 1. SRI. DEBASIS SEN GUPTHA @ DEVASHISH SENGUPTA, AGED ABOUT 55 YEARS, S/O H VIMAL SENGUPTA, R/AT HOUSE NO.7, JUNWANI BASTIK, WARD NO.1, VILL-JUNWANI, DURGA TALUK AND DIST-84.
2. MANIKA SEN GUPTA, W/O DEBASIS SEN GUPTHA, AGED ABOUT 46 YEARS, R/AT NO.286, SRI RAMPUR NORTH, FLOT NO.3/A, JADAVAPUR SOUTH 24, PARGNAS-700 084, KOLKATTA-84.
(BY SMT. SHUBHA M.C., ADVOCATE) AND 1. SRI. VINOD P.B., S/O PADMANABHAN SREEVALSAM, NO.L-205, 2ND FLOOR, PURVA PAIRMOUNT, 24TH MAIN, 25TH CROSS, HSR LAYOUT, SECTOR-2, BANGLAORE-560 102.
... APPELLANTS 2. THE MANAGER, BHARATI AZA GENERAL INSURANCE CO.. LTD., PRDIE QUANDRA, NO.30, 3RD FLOOR, BELLARY ROAD, HEBBAL, BANGALORE-560 024.
... RESPONDENTS (BY SRI KESHAVA PRASHANTH, ADVOCATE FOR R2; R1-NOTICE DISPENSED WITH V/O. DTD.07.04.2017) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.02.2015 PASSED IN MVC NO.5673/2013 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T These appeals are directed against the judgment and award dated 06.02.2015 passed by the Motor Accident Claims Tribunal at Bangalore in MVC No.5673/2013 wherein the Tribunal has awarded a total compensation of Rs.18,38,000/- to the claimants for the death of one Debmala Sen Gupta in a road traffic accident that occurred on 19.10.2013.
2. MFA No.2922/2015 is preferred by the Insurance Company challenging the quantum of compensation and MFA No.3696/2015 is preferred by the claimants, namely; the parents of the deceased seeking enhancement of compensation.
3. The brief facts leading to the filing of these appeals are that on 19.10.2013 at about 4.15 p.m., the deceased was traveling in a car bearing No.KA-51/MC- 1627 along with three others, driven by her friend Sooraj Krishna, from Mysore towards Bangalore and when they reached near Gejjalagere near KMF Milk Dairy, Bangalore-Mysore Highway Road, the driver of the car drove the car in a high speed and in a rash and negligent manner and dashed against the Canter bearing No.KA-51/4455 which was parked on the left side of the road. Due to the impact, the deceased sustained fatal injuries. She was shifted to Apollo Hospital, Mysore for treatment, however not responding to the treatment, she succumbed to the injuries on 20.10.2013.
4. The claimants namely; parents of the deceased filed a claim petition seeking a total compensation of Rs.20,00,000/-. Father of the deceased was examined as PW1 and Exs.P1 to P20 were marked through his evidence. The claim petition was opposed by the Insurance Company. On behalf of the Insurance Company RW1 was examined and Exs.R1 and R2 were marked.
5. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.18,38,000/- with interest at 9% per annum from the date of petition till realization under the following heads:
Sl.No. Head of Compensation Amount/Rs.
1 Loss of dependency 17,28,000.00 2 Compensation to the family members (children and family members other than wife) for loss of love and affection, deprivation of protection, social security etc.
3 Cost incurred on account of funeral and ritual expenses 1,00,000.00 10,000 TOTAL 18,38,000.00 6. The learned counsel for the claimants would contend that the deceased was aged 20 years and she was pursuing final year B.Sc. in Bio-Technology at M.S. Ramaiah College and she was a bright and meritorious student. By giving private tuitions she was earning more than Rs.10,000/- per month and she also used to participate in curricular activities and she was having an aim to become an IAS or IPS Officer. She was the only daughter to her parents. It is submitted that the compensation awarded is inadequate and hence, the learned counsel sought to enhance the compensation awarded by the Tribunal.
7. Per contra, the learned counsel appearing for the Insurance Company would contend that as per the claimants, the deceased was earning a sum of Rs.10,000/- by giving private tuitions. However, apart from the oral evidence of PW1 there is no other material to show that the deceased was earning the said sum by giving private tuitions. He would further contend that the Tribunal has erred in deducting 1/3rd instead of deducting 1/2 from the income of the deceased towards person expenses while calculating the loss of dependency and therefore he submits that the total compensation arrived at towards loss of dependency is on the higher side. It is also his contention that the compensation awarded by the Tribunal under other heads are also not in accordance with law. Therefore, he seeks to allow the appeal filed by the Insurance Company.
8. The accident in question involving the car bearing No.KA-51/MC-1627 and the actionable negligence on the part of the driver of the said car in causing the accident is not in dispute. It is also not disputed that the said car was insured.
9. According to the claimants, the deceased was pursuing her final year B.Sc., in Bio-Technology and also she was giving private tuitions and earning Rs.10,000/- per month. She was a Bright student and she had bright future, etc.
10. The learned counsel for the claimants relies on a decision of the Hon’ble Apex Court in the case of Ashvinbhai Jayanthilal Modi V. Ramkaran Ramachandra Sharma and another reported in 2014 ACJ 2648, wherein, the income of the deceased was taken at 25,000/- per month, considering the fact that the deceased was a Medical Student. The Tribunal has also relied on a decision of the Madhya Pradesh High Court reported in 2013 ACJ 2498 wherein, the income of the deceased who was prosecuting her III year Engineering, was taken at Rs.15,000/- per month. In the instant case, the Tribunal considering that the deceased was prosecuting III year B.Sc., in Bio Technology, has taken the income of the deceased at Rs.12,000/- per month. It is relevant to see that the case of the claimants is that the deceased was giving private tuitions for students and earning a sum of Rs.10,000/- per month. It is no doubt true that she was prosecuting her final year B.Sc.-Bio Technology.
However, for the purpose of calculating loss of dependency, keeping in mind that an additional sum has to be added towards future prospects, I am of the view that the income of the deceased could be taken at Rs.10,000/- per month as pleaded by the claimants. The deceased was aged about 20 years at the time of accident. Hence, in view of the decisions of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi reported in 2017 ACJ 2700, an additional 40% is required to be added. The appropriate multiplier applicable is 18.
11. The Hon’ble Apex Court in the case of Sarala Verma vs. Delhi Transport Corporation reported in 2009(6) SCC page 121 has held that with regard to a bachelor, 50% is to be deducted towards personal and living expenses, because it is assumed that the bachelor would spend more on himself. Even otherwise, there is also a possibility of getting married in a short time in which event the contribution to the parents and siblings is likely to be cut drastically.
12. The learned counsel for the claimants would place reliance on the decision of the Hon’ble Apex Court in the case of Ashvinbhai Jayanthilal Modi V. Ramkaran Ramachandra Sharma and another reported in 2014 ACJ 2648 and submits that even in case of bachelor 1/3rd has to be deducted towards personal expenses.
13. The facts of the said case are entirely different, as in the said case the deceased was a 19 year old bachelor pursuing his medical degree. In the said case no addition was made towards future prospects. Considering that, in the case on hand the claimants are the parents and in view of the judgment in Sarala Verma’s case (supra) and in the facts and circumstances of the present case, it is just and proper to deduct 50% from the income arrived, towards personal expenses. Hence, the total compensation for which the claimants are entitled towards loss of dependency would be Rs.15,12,000/- (10,000 + 40% = 14,000/- x ½ = Rs.7,000/- x 12 x 18).
14. The Tribunal has awarded a total sum of Rs.1,00,000/- as compensation to the claimants towards loss of love and affection, deprivation of protection, social security etc., and another sum of Rs.10,000/- towards costs incurred on account of funeral and ritual expenses. Insofar as awarding compensation under conventional heads, the claimants being the parents of the deceased are entitled for a sum of Rs.30,000/- towards loss of estate and funeral expenses.
15. The Hon’ble Apex Court in the decision in the case of Magma General Insurance Company Limited vs.
Nanu Ram Alias Churu Ram reported in 2782 (2018) 2782 has observed that filial consortium is right of the parents to compensate in the case of accidental death of children as the accident leading to death of children causes great shock and agony to the parents and family of the deceased. The greatest agony of the parents is to lose their children during their life time. Children are valued for their love, affection and their role in the family unit. It is further held that The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in the cases of genuine claims. In case where the parents have lost their minor children or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head filial consortium.
16. In view of the aforesaid decisions of the Hon’ble Apex Court, I deem it proper to award a sum of Rs.50,000/- under the head filial consortium. Hence, the claimants are entitled for a total compensation of Rs.15,92,000/- as against Rs.18,38,000/- awarded by the Tribunal.
17. Accordingly, I pass the following:
ORDER MFA No.2922/2015 is allowed in part. MFA No.3696/2015 is dismissed.
The judgment and award dated 06.02.2015 passed in MVC No.5673/2013 on the file of the Member, Principal Motor Accident Claims Tribunal at Bangalore is hereby modified.
The claimants are entitled for a total compensation of Rs.15,92,000/- as against Rs.18,38,000/- awarded by the Tribunal.
The Insurance Company shall deposit the compensation amount before the Tribunal within a period of four weeks from the date of receipt of a copy of this judgment.
The amount in deposit before this Court shall be transmitted to the Tribunal for enabling the claimants to withdraw the same. The apportionment shall be in terms of the order passed by the Tribunal.
SBS* Sd/- JUDGE