IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.3810 of 2018 (MV) BETWEEN :
1. SMT.C.PRABHAVATHI W/O.LATE P.N.PRASAD AGED ABOUT 32 YEARS 2. MASTER P.VIHAAN S/O.LATE P.N.PRASAD AGED ABOUT 8 YEARS 3. SRI.P.NARASIMHULU CHETTY S/O.LATE P.VENKATAIAH CHETTY AGED ABOUT 67 YEARS 4. SMT.P.GIRIJA W/O.P.NARASIMHULU CHETTY AGED ABOUT 57 YEARS ALL ARE RESIDING AT BEHIND PRERANA INTERNATIONAL SCHOOL BODIGERE CROSS, NEAR OLD MADRAS ROAD VIRGO NAGAR, BANGALORE – 560 049.
NATIVE ADDRESS:
NO.8-151 A, JANDAMAN STREET CHITTOOR DISTRICT.
3RD APPELLANT RESIDES AT NO.5-8, SINGAM VADLA VOORU, CHITTOR DISTRICT.
SINCE THE 2ND APPELLANT IS MINORS REPTD. BY HIS MOTHER 1ST APPELLANT AS NATURAL GUARDIAN. ... APPELLANTS (BY SRI.N.GOPALAKRISHNA, ADVOCATE FOR SRI.A.SREENIVASAIAH, ADVOCATE) AND:
1. SREE.KALESWARI TRAVELS C.H.RAMESH (MANAGING PARTNER) NO.64-9-1, BESIDE EENADU M.G.ROAD, VIJAYAWADA KRISHNA DISTRICT, A.P.
2. THE MANAGER NEW INDIA ASSURANCE CO. LTD., D.O.3, NO.9/2, 2ND FLOOR MAHALAKSHMI CHAMBERS M.G.ROAD, BANGALORE – 560 001.
3. K.VENKATA REDDY S/O.LAXMAN REDDY, NO.2-115 THOPEHARLA VILLAGE, VEMULAPALLI NALAGONDA DISTRICT - 508 001, A.P.
4. THE MANAGER IFFCO-TOKIO GEN.INSURANCE CO. LTD., KSCMF BUILDING, 3RD FLOOR NO.8, CUNNINGHAM ROAD NEAR CHANDRIKA HOTEL BANGALORE – 560 034. ...RESPONDENTS (BY SRI.M.P.SRIKANTH, ADVOCATE FOR R-2, SRI.B.PRADEEP, ADVOCATE FOR R-4, V/O DATED:24.04.2019, NOTICE TO R-1 & R-3 DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED
DATED:24/11/2017, PASSED IN MVC NO.5194/2016, ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE AND XXXII ACMM., MEMBER, MACT-3, BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC., THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for orders, with consent of learned counsel on both sides, it is heard finally.
2. The claimants have preferred this appeal assailing the judgment and award passed in M.V.C.No.5194/2016, dated 24.11.2017, on the file of VII Additional Judge and XXXII ACMM, Court of Small Causes Bangalore (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 and ranking before the Tribunal.
4. The appellants / claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.1,00,00,000/- (Rupees One Crore Only) on account of death of Sri.P.N.Prasad @ Pinapedda Prasad in a road traffic accident that occurred on 01.07.2010 at about 5.10 a.m. According to the claimants, the deceased Sri.P.N.Prasad @ Pinapedda Prasad was travelling in a bus bearing registration No.AP-31-TT-414 and when the bus reached bypass road of Kothakota, in front of Palem village, near the bridge, at that time, the driver of the bus drove the vehicle in a rash and negligent manner and due to high speed, he lost control over the vehicle and hit the lorry bearing registration No.AP-24-X-1697 from behind which was stationed ahead by its driver without giving any indication and caused the accident. On account of the same, deceased - P.N.Prasad sustained grievous injuries and was immediately, shifted to Vanarapathi Hospital. In spite of good treatment, he succumbed to the injuries at the hospital.
5. It is stated that the deceased was aged 30 years and prior to the accident he was hale and healthy and was working as a Manager in Zee Turner Ltd., Tirupati, and was getting salary of Rs.30,000/- per month. That on account of his untimely death, the family had lost the bread earner and his love and affection. Hence, they sought compensation on various heads.
6. In response to the notices issued by the Tribunal, respondent Nos. 1 and 3 did not appear and hence, they were placed ex parte. The 2nd respondent - New India Assurance Company appeared and filed its statement of objections denying the claim petition averments and that the claim petition was barred by res judicata. It was further stated that the Insurance Company had not issued any policy and its liability, if any, was subject to the terms and conditions of the policy. They also denied the factors like, age, avocation, income and manner of accident occurred. It was also stated that the driver of the bus was not having valid and effective driving licence as on the date of the accident. That the claim was on the higher side and hence, prayed for dismissal of the claim petition.
7. Respondent No. 4 – IFFCO TOKIO General Insurance Company Limited resisted the claim petition and stated that the issuance of policy was subject to terms and conditions of the policy. It was also stated that the driver of the lorry had parked the lorry on the extreme left side of the road leaving sufficient space on his right side with indication, and at that time, the driver of the bus came in a high speed and hit the parked lorry and thus, sought to establish that no actionable negligence could be attributed against the driver of the lorry and prayed for dismissal of the claim petition.
8. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
“i. Whether the petitioners prove that they are the LRs/dependants of deceased Sri.P.N.Prasad?
ii. Whether the petitioners prove that deceased Sri.P.N.Prasad died in RTA arising out of the accident alleged to have been taken place on 01.07.2010 at about 5:10 a.m., near bridge, in front of Palem Village, Kothakota Mandal, Mahaboob Nagar District, due to rash and negligent driving of the drivers of both Bus bearing No.AP-31-TT-414 and Lorry bearing No.AP-24-X-1697 as alleged in the petition.
iii. Whether the petitioners are entitled for compensation? if so, what amount & from whom?
iv. What order or award?”
9. In order to substantiate their case, claimant No. 1 examined herself as P.W. 1 and marked twenty three documents which were marked as Exs.P.1 to P.23. Respondent No.2 examined one of its officials as R.W.1 and produced five documents which were marked as Exs.R.1 to R.5. Respondent No. 4 examined one of its officials as R.W 2, but did not produce any document.
10. On the basis of the evidence on record, the Tribunal answered Issue Nos.1and 2 in the affirmative, and Issue No.3 partly in the affirmative, and awarded compensation of Rs.33,71,920/- with interest at the rate of 8% per annum from the date of claim petition till its realization under the following heads :
11. Aggrieved by the low quantum of compensation awarded by the Tribunal, the appellants have preferred this appeal seeking enhancement of compensation.
12. We have heard Sri. N. Gopalakrishna, learned counsel for the appellants and Sri. M.P. Srikanth, learned counsel for respondent No.2 and Sri. B. Pradeep, learned counsel for respondent No.4.
13. Learned counsel for the appellants contended that the compensation awarded on all the heads is very meager and hence, the same is required to be enhanced. The Tribunal has erred in assessing the income of the deceased at Rs.16,379/- per month, instead of Rs.27,610/- per month (which is inclusive of professional tax of Rs 200/-). It was submitted that the Tribunal ought to have considered the Bank statement – Ex.P.13 and pay slip of the deceased – Ex.P.21 which disclosed that the deceased was working as a Territory Manager at Zee Turner Limited. It was also contended that the Tribunal was not justified in considering the future prospects at 40% instead of 50% and 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 Vs. Pranay Sethi and others reported in (2017) 16 SCC 680 (Pranay Sethi). Lastly, it was contended that the Tribunal had not awarded compensation towards ‘loss of love and affection’ and hence, prayed that the award of compensation required re-assessment by this Court.
14. Per contra, learned counsel for the respondents while supporting the award of the Tribunal contended that the compensation awarded was just and proper. The appellants had not made out any good grounds for enhancement of compensation and hence, prayed for dismissal of the appeal.
15. Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration:
i. Whether the appellants are entitled for the enhanced compensation?
ii. What order?
16. The fact that P.N. Prasad died in the road traffic accident that occurred on 01.07.2010 had been established before the Tribunal. It was also established that the offending vehicle was insured with the second respondent and it was also established that the accident occurred due to rash and negligent driving by the driver of offending vehicle and Exs. P.4 and P.7, reveal that the death of the deceased was due to multiple injuries.
Therefore, the Tribunal was justified in holding that the deceased died in the road traffic accident.
17. The deceased was working as a Territory Manager in Zee Turner Limited, Tirupati, and was getting a salary of Rs.30,000/-per month. The Tribunal while taking into consideration the documents produced by the claimants at Exs.P.8 to P.14 and Exs.P.20 to P.22 reckoned that the deceased was getting a salary of Rs.27,610/- per month. We have perused the original record and Ex.P21 is the pay slip for the month of June 2010. In the income tax work sheet for the period from April 2010 to March 2011, the annual income of the deceased was Rs.3,19,656/-. Therefore, we hereby take the annual income of the deceased as Rs.3,19,656/-. After deducting a sum of Rs.2,400/- towards professional tax, the annual income of the deceased would be Rs.3,17,256/. Since, deceased was aged 33 years, 40% of his income has to be added towards future prospects, as per the dictum of the Hon’ble Supreme Court in Pranay Sethi. If 40% of the income of Rs.3,17,256/-, is added towards future prospects, it comes to 4,44,158/- (Rs.3,17,256/- + Rs.1,26,902/-). The claimants are four in number. Therefore, 1/4th of the income of the deceased has to be deducted towards deceased’s personal expenses, which comes to Rs.3,33,118/-. Since, deceased was aged 33 years, `16’ multiplier has to be applied. Thus, compensation towards ‘loss of dependency’ works out to Rs.53,29,896/- (Rs.3,33,118x16). Hence, we propose to award Rs.53,29,896/- as against Rs.33,01,920/- awarded by the Tribunal on the head of ‘loss of dependency’.
18. Claimant No.1 is the spouse of the deceased.
Therefore, she is entitled to Rs.40,000/- towards ‘loss of spousal consortium’. Claimant No.2 is the minor child of the deceased and he is entitled to Rs.30,000/- towards ‘loss of parental consortium’. Claimant Nos. 3 and 4 are the parents of the deceased and they are entitled to Rs.60,000/- towards ‘loss of filial consortium’. In addition, the claimants are entitled for Rs.15,000/- towards ‘loss of estate’ and another sum of Rs.15,000/- towards ‘loss of funeral expenses. In all, the claimants are entitled to compensation of Rs.54,89,896/-/-.
19. In the result, the re-assessed compensation is as follows:
20. The said amount shall carry interest at the rate of 6% per annum from the date of the claim petition till realization, instead of 8% per annum as awarded by the Tribunal.
21. The re-assessed compensation shall be apportioned in the following manner:
60% to the widow of the deceased, 20% to the minor son of the deceased and 10% to each of the parents of the deceased.
75% of the compensation apportioned to the wife of the deceased shall be deposited in any post office and/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.
The entire compensation awarded to the minor son of the deceased shall be deposited in any post office and/or nationalized bank until he attains the age of majority.
50% of the compensation awarded to each of the parents of the deceased shall be deposited in any post office and/or nationalized bank for an initial period of five years. They shall be entitled to draw periodical interest on the said amount. The balance shall be released to them after due identification.
22. The respondents shall deposit the re-assessed compensation amount in terms of the judgment and directions issued by the Tribunal within four weeks from the date of receipt of the judgment of this Court.
23. The appeal is allowed in part in the aforesaid terms.
24. Parties to bear their respective costs.
25. Office to transmit the record to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE Mgn/-