IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2160/2014 [MV] BETWEEN:
1. CHANDRAMMA W/O LATE KRISHNA @ KRISHNANAIKA AGED 31 YEARS 2. LOKESHA S/O LATE KRISHNA @ KRISHNANAIKA AGED 16 YEARS 3. MANJUNATHA S/O LATE KRISHNA @ KRISHNANAIKA AGED 15 YEARS 4. SIDDAMMA W/O JAVARAIAH AGED 68 YEARS THE APPELLANTS NUMBER 1 TO 4 ARE R/O YADATHORE VILLAGE T. NARASIPURA TALUK MYSORE DISTRICT C/O RAJANAIKA, 2ND CROSS RANGANATHA NAGARA SRIRANGAPATNA-571436.
NOTE: THE APPELLANTS NUMBER 2 AND 3 ARE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN THEIR MOTHER 1ST APPELLANT.
...APPELLANTS (BY SRI. PRAMOD R, ADV.) AND:
1. CHANDRA S/O JAYAMMA R/O NO.1057/2 NEAR KALAMMAGUDI GANGAMATHASTHARA BEEDI S.R.PATNA TALUK MANDYA DISTRICT-571 436.
2. THE BRANCH MANAGER SHRIRAM GENERAL INSURANCE CO. LTD., NO.10003-E, 8, RICOH INDUSTRIAL AREA SEETHAPURA RAJASTANA-302022.
…RESPONDENTS (BY SRI. B PRADEEP, ADV. FOR R2, NOTICE TO R1 IS D/W) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.03.2013 PASSED IN MVC NO.9/2012 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN) & JMFC, SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This is claimants’ appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 23.03.2013 in MVC No.9/2012 on the file of the Principal Civil Judge (Sr.Dn.) and JMFC, Srirangapatna (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Krishnanaika in a road traffic accident. The claimants are wife, children and mother of the deceased Krishnanaika. It is stated that on 19.10.2011, when the deceased was traveling in a lorry bearing registration No.KL-11/A-2757 as a cleaner, the driver of the said lorry drove the same in a high speed and lost control over the lorry. The lorry went to left side of the road and turtled. Due to which, the deceased sustained grievous injuries and died on the spot. It is stated that the claimant was getting Rs.4,000/- p.m., as salary and Rs.50/- per day as bata. He was aged about 45 years as on the date of accident.
3. On issuance of notice, second respondent/Insurer appeared and filed statement denying the entire claim petition averments. It is also contended that the driver of the lorry had not possessed valid and effective driving license as on the date of accident. It also contended that the deceased was traveling as a gratuitous passenger and he was not a cleaner.
4. The first claimant wife of the deceased got examined herself as P.W.1 and also examined P.W.2 apart from marking the documents as Ex.P1 to Ex.P10. However, the respondent/insurer has not examined any witness nor marked any document in support of their case.
5. The Tribunal, on appreciating of the material on record awarded total compensation of Rs.6,95,200/- with interest at the rate of 7% p.a., from the date of petition till realization on the following heads:
1. Funeral expenses :: Rs. 10,000/-
2. Loss of dependency & estate :: Rs.6,55,200/-
3. Loss of consortium :: Rs. 10,000/-
4. Loss of love and affection :: Rs. 20,000/-
Total Rs.6,95,000/-
While awarding the above compensation, the tribunal assessed the income of the deceased at Rs.4,000/- p.m. The Claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal.
6. Heard the learned counsel for the appellants/ claimants and learned counsel for the respondent/ Insurer. Perused the material on record.
7. Learned counsel for the appellants/claimants would submit that the income assessed by the Tribunal at Rs.4,000/- p.m., is on the lower side. He submits that the deceased was earning Rs.4,000/- p.m., as salary and Rs.50/- per day as bata, which would be around Rs.5,500/- p.m. But the Tribunal without there being any reasons has assessed the income of the deceased at Rs.4,000/- p.m. He further submits that the deceased was aged 45 years and the Tribunal failed to award any compensation on the head future prospects, which the claimants would be entitled at 25% of the assessed income. He further submits that the claimants are wife, two children and mother. Claimants No.2 to 4 would be entitled for compensation at the rate of Rs.40,000/- each towards parental and filial consortium as per the decision of the Hon'ble Apex Court in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent/ Insurer would submit that the compensation awarded by the Tribunal is just compensation which needs no interference. He submits that in the absence of any material to indicate the exact income of the deceased, the Tribunal has rightly assessed the notional income of the deceased at Rs.4,000/- p.m. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the income of the deceased assessed by the Tribunal at Rs.4,000/- p.m., is proper and correct?
(ii) Whether the claimants would be entitled for future prospects at the rate of 25% of the assessed income?
(iii) Whether the claimants would be entitled for enhanced compensation?
10. Answer to Point No.(i) is in the negative and points No.(ii) and (iii) would be in the affirmative, for the following reasons:
The accident occurred on 19.10.2011 involving the lorry bearing registration No.KL-11/A-2757 and the accidental death of Krishnanaika is not in dispute in this appeal. The claimants are wife, two children and mother of the deceased. The accident is of the year 2011. The income of the deceased assessed by the Tribunal at Rs.4,000/- p.m., is on the lower side. The claimants stated that the deceased was getting salary of Rs.4,000/- p.m., and Rs.50/- per day as bata which would work out to Rs.5,500/- p.m. But the Tribunal without there being any reasons has assessed the monthly income of the deceased at Rs.4,000/- which is on the lower side. This Court and Lok Adalath, while settling the accident claims of the year 2011, would normally assess notional income of Rs.6,500/- p.m. But in the instant case, the claimants have stated that the deceased was earning Rs.5,500/- p.m. Hence, it would be appropriate to assess the income of the deceased at Rs.5,500/- p.m.
11. The deceased was aged about 45 years. The Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 has held that the claimants would be entitled for adding 25% of the assessed income towards future prospects wherever the deceased was aged above 40 years and below 50 years. In the instant case, as the deceased was aged 45 years, the claimants would be entitled for adding 25% of the assessed income towards future prospects. The claimants are wife, two children and mother of the deceased. Children have lost love and affection and care and guidance of their father at their young age whereas the mother has lost love, affection and care of her son at her old age. Hence, they are entitled to Rs.40,000/- each towards parental and filial consortium, as per the judgment of the Hon'ble Apex Court in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. The first claimant would be entitled for a sum of Rs.70,000/- on conventional heads. Thus, the claimants would be entitled for the following modified compensation:
1. Loss of dependency including future prospects 5,500+25%=6,875 6875– ¼ = 5156x12x14 ::Rs.8,66,208/-
2. Parental and filial consortium (40000x3) ::Rs.1,20,000/-
3.Conventional heads ::Rs. 70,000/-
Total Rs.10,56,208/-
Thus the claimants would be entitled to total compensation of Rs.10,56,208/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.6,95,200/- awarded by the Tribunal.
12. Accordingly, the appeal is allowed in part. The judgment and award dated 23.03.2013 in MVC No.9/2012 on the file of the Principal Civil Judge (Sr.Dn.) and JMFC, Srirangapatna is modified to the above extent, thereby the claimants would be entitled to enhanced compensation of Rs.3,61,008/-.
Apportionment and deposit would be as ordered by the Tribunal.
This Court, by order dated 13.04.2017 allowed the application for condonation of delay of 246 days in filing the appeal, subject to condition that the claimants would not be entitled to interest for the delayed period, in case of enhancement of compensation. Accordingly, the claimants would not be entitled to interest for the delayed period of 246 days.
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