IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.9822 of 2017 (MV) BETWEEN :
1. CHANDRASHEKAR S/O.MUNISHAMAPPA AGE ABOUT 48 YEARS 2. SMT.JAYAMMA W/O.CHANDRASHEKAR AGED ABOUT 43 YEARS 3. MANOHAR S/O.CHANDRASHEKAR AGED ABOUT 23 YEARS ALL ARE RESIDING AT WARD NO: 15, KANDAVARA PETE CHICKBALLAPUR, TOWN DISTRICT PIN – 562 101. …APPELLANTS (BY SRI.HANUMANTHAPPA.B.HARAVI GOWDAR, ADVOCATE) AND:
1. B.S.ANJENYA REDDY S/O.B.SEETHARAMA REDDY AGED ABOUT 48 YEARS R/O.CHILAKALANERPUR VILLAGE & POST TQ: CHINTAMANI DIST: CHICKBALLAPUR PIN - 562 101.
2. THE NEW INDIA ASSURANCE COMPANY LTD., MOTOR 3RD PARTY CLAIMS HUB NO : 9/2 MAHALAXMI CHAMBERS M.G.ROAD, BANGALORE – 01.
...RESPONDENTS (BY SRI.R.JAYAPRAKASH ADVOCATE FOR R-2, R-1 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF M V ACT 1988, PRAYING TO ALLOW THIS APPEAL AND ENHANCE THE DEATH OF COMPENSATION TO 40,00,000/- AS CLAIMED BY THE APPELLANTS, BEFORE IST ADDL., SENIOR CIVIL JUDGE & JMFC., AT CHICKBALLAPUR IN M.V.C. NO.158/2015 DATED 12TH DAY OF AUGUST 2017.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission with the consent of learned counsel on both sides it is heard finally.
2. The appellants were the claimants in MVC No.158/2015. Not being satisfied with the quantum of compensation awarded in the said case by the I Additional Senior Civil Judge and JMFC at Chickballapur (hereinafter referred to as the ‘Tribunal’ for the sake of convenience), they have preferred this appeal arising out of the judgment and award dated 12.08.2017.
3. For the sake of convenience, the parties 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, seeking compensation of Rs.40,00,000/- on account of the death of Madhukara in a road traffic accident. According to the claimants, on 08.02.2015 at about 10.40 p.m., Madhukara was proceeding as a pillion rider in a motor cycle bearing registration No.KA-03, HC-150 near Gururaja Kalyana Mantapa, NH-07, BB Road, Chickballapura Town and District, at that time, the driver of bus bearing registration No.KA-06, B-7877 came in a high speed in a rash and negligent manner endangering human life and suddenly, stopped the vehicle without any signal. As a result, Madhukara, who was riding the motor cycle dashed the bus from the hind side. Consequently, Madhukara sustained fatal injuries and died on the spot. The post mortem examination was conducted at Government Hospital. It is contended that Madhukara was young and healthy and he was working as a driver in Assistant Director of Land Records Office and earning a sum of Rs.9,000/- per month and on account of his sudden death, the family has suffered agony and penury. His parents and brother filed the claim petition seeking compensation on account of the death of Madhukara. They contended that the offending bus was covered with the Insurance Policy and that the owner and insurer of the bus are liable to satisfy the award jointly and severally.
5. Pursuant to the notices issued by the Tribunal, first respondent – owner of the bus remained absent and was placed ex parte, while the second respondent – Insurance Company appeared, but did not file any written statement, despite several opportunities given to him.
6. The Tribunal framed the following points for its consideration:-
1. Whether the petitioners have proved that due to actionable negligence of the driver of the bus bearing reg.No.KA-06, B-7877 on 08.02.2015 at 10.40 p.m. near Gururaja Kalyana Mantapa, B.B.Road, Chickballapur the son of the petitioners No.1 and 2 Madukara Reddy died?
2. Whether the petitioners are entitled for compensation as prayed for? If so to what extent and against whom?
3. What order or award?
7. In order to substantiate their case, claimants examined PW-1 and produced ten documents which were marked as Exs.P1 to P10. The respondent did not let-in any evidence in the matter. On the basis of the evidence on record, the Tribunal answered Issue No.1 in the affirmative and Issue No.2 partly in the affirmative and awarded compensation of Rs.7,83,000/- with interest at the rate of 6% per annum from the date of the claim petition till realization. The second respondent – insurer was directed to satisfy the award. Not being satisfied with the award of compensation, the claimants have preferred this appeal.
8. We have heard the learned counsel for the appellant and learned counsel for the second respondent – Insurer. The first respondent – owner of the vehicle is served and un-represented. We have perused the material on record.
9. Appellant’s counsel contended that the deceased – Madhukara was working as a Driver in ADLR’s office and earning a sum of Rs.9,000/- per month. The accident occurred in the year 2015. But the Tribunal has assessed the notional income of the deceased at Rs.6,000/- per month which is on the lower side. He contended that the notional income ought to have been assessed at Rs.9,000/- per month, since the deceased had a valid driving licence to drive the light motor vehicle and working in the ADLR’s office.
10. He further submitted that having regard to the recent dictum of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, 50% of the said income ought to have been added towards the future prospects of the deceased and that the award of compensation on the conventional heads is very meager and having regard to the dictum of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. v. NANU RAM AND OTHERS reported in 2018 ACJ 2782 (SC), compensation on the head of loss of parental consortium ought to be awarded at Rs.40,000/- and compensation awarded towards ‘loss of estate’ as well as ‘funeral expenses’ may be enhanced by allowing this appeal.
11. Per contra, learned counsel for the second respondent – Insurer supported the impugned judgment and award of the Tribunal and contended that there is no merit in this appeal, the same may be dismissed.
12. Having heard learned counsel for the respective parties and on perusal of material on record, the following points would arise for our consideration:
1. Whether the appellants are entitled for enhanced compensation?
2. What order?
13. The fact that Madhukara died in a road traffic accident that occurred on 08.02.2015 at about 10.40 p.m. when he was proceeding as a pillion rider on the motor cycle bearing registration No.KA-03, HC-150 on National Highway – 07, B.B.Road, Chickballapur Town, when at that time, the driver of the bus bearing registration No.KA-06, B-7877 suddenly stopped the vehicle without any signal, resulting in the rider of the motor cycle dashing against the bus has been established. As a result of the said impact, Madhukara died on the spot. The negligence on the part of the driver of the bus has been established. Consequently, the owner and insurer of the offending bus are liable to satisfy the award vigorously.
14. The further contention of the claimants is that the deceased -Madhukara was working as a Driver and Ex.P6 is the driving licence to drive the light motor vehicle and earning a sum of Rs.9,000/- per month. The Tribunal has not assigned any reason as to why the said evidence could not be considered and assessed the notional monthly income at Rs.6,000/- only. We find that having regard to the fact that the accident occurred in the year 2015, the income of the deceased ought to have been assessed at least Rs.9,000/- per month, as the deceased was an skilled employee and driver of a light motor vehicle and not an unskilled labourer. Hence, Rs.9,000/- per month is construed as the monthly income of the deceased.
15. Having regard to the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi, 50% of the said income shall have to be added towards future prospects, as the deceased was only 25 years of age. Therefore, the total monthly income would be Rs.9,000+4500 = Rs.13,500/-. The deceased was 25 years of age and a bachelor. The claimants are three in number. Therefore, 50% of the said income would have to be deducted towards the personal expenses of the deceased, then the income of the deceased would be Rs.6,750/- per month. The said amount would have to be annualized by applying the multiplier ‘18’ and consequently, the compensation on the head ‘loss of dependancy’ would be Rs.14,58,000/- (6,750X12X18=14,58,000).
16. Further, a sum of Rs.30,000/- each is awarded to the parents of the deceased towards ‘loss of filial consortium’, on the basis of the dictum of Hon’ble Supreme Court in Pranay Sethi as well as in Magma General Insurance Company Limited . Further, a sum of Rs.30,000/- is awarded to the brother of the deceased towards ‘loss of love and affection’. A sum of Rs.15,000/- is awarded towards ‘loss of estate’ and another sum of Rs.15,000/- is awarded towards funeral expenses. In all, the claimants are entitled for compensation of Rs.15,78,000/-. The reassessed compensation is as follows:
17. The said enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
18. Out of the said compensation amount, 50% shall be apportioned to the mother of the deceased and 40% to the father of the deceased and 10% to the brother of the deceased.
19. 75% of the compensation awarded to the mother of the deceased shall be deposited in any Post Office and or Nationalized Bank deposit for an initial period of ten years and she shall be entitled to withdraw periodical interest on the said deposit. The balance compensation shall be released in her favour after due identification. 50% of the compensation awarded to the father of the deceased shall be deposited in any Post Office and / or Nationalized Bank for an initial period of five years. He shall be entitled to draw periodical interest on the said deposit. The balance amount shall be released to him after due identification. 10% of the compensation awarded to the brother of the deceased along with proportionate interest shall be released to him after due identification.
20. In the result, the appeal is allowed-in-part in the aforesaid terms.
21. The Insurance Company to deposit the reassessed the compensation amount with up-to-date interest within a period of four weeks from the date of receipt of certified copy of the judgment.
Parties to bear their respective costs.
In view of the disposal of the appeal, I.A.No.2/2017 stands disposed.
Sd/- JUDGE Sd/- JUDGE VMB