IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE H.T. NARENDRA PRASAD MFA NO. 4412 OF 2015 ( MV ) CONNECTED WITH MFA NO. 4731 OF 2015 ( MV ) MFA NO.4412/2015:
BETWEEN CHOLAMANDALAM M S GENERAL INSURANCE COMPANY LIMITED NO. 9/1, ULSSOR ROAD BENGALURU – 560 042, NOW AT UNIT NO. 04, 9TH FLOOR “GOLDEN HEIGHTS COMPLEX”
59TH ‘C’ CROSS, INDUSTRIAL SUBURB 4TH ‘M’ BLOCK, RAJAJINAGAR BENGALURU – 560 010 BY ITS MANAGER.
... APPELLANT (BY SRI. LINGARAJ .H.S. - ADVOCATE) AND 1. MANJUDEVI NOW AGED ABOUT 26 YEARS W/O LATE RAMACHANDRA 2. GAJENDRA NOW AGED ABOUT 5 YEARS S/O LATE RAMACHANDRA 3. MONISHA NOW AGED ABOUT 2 YEARS D/O LATE RAMACHANDRA (RESPONDENT NOS.2 AND 3 SINCE MINOR REPRESENTED BY MOTHER / NATURAL GUARDIAN RESPONDENT NO.1 HEREIN) RESPONDENT NOS. 1 TO 3 ARE R/A NO. 34/8, DAYAPPAREDDY BUILDING KONNAPPANA AGRAHARA HOSUR ROAD BENGALURU – 560100.
4. KUNARAM SINCE RESPONDENT-4 DEAD, REPRESENTED BY HIS LR RESPONDENT-5.
[AMENDED AS PER ORDER DATED 16.6.2016] 5. TIJADEVI NOW AGED ABOUT 61 YEARS W/O KUNARAM R/AT NO.441, SOJAT SANDIYA SOJAT PALI DISTRICT.
6. JAGANNATHAN .G MAJOR S/O GOPAL .G R/AT NO. 2/37, A1 N NO.2/436 DASANAPURAM DORAPALLI POST HOSUR TALUK KRISHNAGIRI – 635 109 (TAMIL NADU STATE) ... RESPONDENTS (BY SRI. T .C. SATHISH KUMAR – ADV., FOR R-1 TO R-3 AND R-5; R-4 DECEASED;
R-6 – SERVED AND UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.03.2015 PASSED IN MVC NO. 397/2014 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU AWARDING A COMPENSATION OF RS.20,39,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
MFA NO. 4731/2015 :
BETWEEN 1. SMT. MANJUDEVI W/O LATE RAMACHANDRA HINDU NOW AGED 26 YEARS 2. GAJENDRA S/O LATE RAMACHANDRA HINDU NOW AGED 5 YEARS 3. MONISHA D/O LATE RAMCHANDRA HINDU NOW AGED 2 YEAR SINCE APPELLANTS 2 & 3 ARE MINORS AND ARE R/BY MOTHER AS NATURAL GUARDIAN.
4. KUNARAM SINCE APPELLANT-4 DEAD, REPRESENTED BY HIS LR APPELLANT-5.
[AMENDED AS PER ORDER DATED 16.6.2016] 5. TIJA DEVI W/O KUNARAM HINDU NOW AGED 60 YEARS R/AT NO.441 SOJAT, SANDIYA SOJAT PALI DISTRICT.
APPELLANTS 1 TO 3 ARE R/AT NO.34/8 DAYAPPAREDDY BUILDING KONAPPANA AGRAHARA HOSUR ROAD BANGALORE – 100 ... APPELLANTS (BY SRI. T. C. SATHISHKUMAR – ADV., FOR APPELLANT NOS.1, 2, 3 AND 5; APPELLANT NO.4 DECEASED) AND 1. JAGANATHAN .G S/O GOPAL .G HINDU MAJOR NO.2/37 A1 N NO. 2/436 DASANAPURAM DORAPALLI POST HOSUR TALUK KRISHNAGIRI DIST-635109 TAMIL NADU STATE.
2. THE BRANCH MANAGER CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., NO.9/1, ULSOOR ROAD BANGALORE-560042.
... RESPONDENTS (BY SRI. LINGARAJ H.S. – ADVOCATE FOR R-2 NOTICE TO R-1 DISPENSED WITH VIDE ORDER DATED 18.01.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.03.2015 PASSED IN MVC NO. 397/2014 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE & MEMBER, MACT, BENGALURU 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:
JUDGMENT These two appeals are filed by insurance company and also claimants challenging the judgment and award dated 9.3.2015 passed by the MACT, Court of Small Causes, Bengaluru (SCCH-15) in MVC No.397/2014.
2. Brief facts of the case are that on 22.10.2013 at about 7.30 p.m. deceased Ramachandra was proceeding as a rider of TVS XL moped bearing Reg.No.KA-51/482 from PES College towards Konappana Agrahara. At that time, a skoda car bearing Reg.No.TN-70 J-4797 came from Hosur road junction towards Electronic city in rash and negligent manner and dashed against the TVS moped. Due to the accident, deceased fell down and suffered grievous injuries all over the body. He was shifted to Blossom Hospital and he succumbed to the injuries. Subsequently, the wife, two minor children and parents of the deceased filed claim petition in MVC No.397/2014 before the MACT, Bengaluru.
3. To establish their case, the appellants have examined two witnesses and marked 10 documents. On the other hand, insurance has not examined any witness nor marked any documents. On appreciation of oral and documentary evidence, the Tribunal has granted compensation in a sum of Rs.20,39,000/- with interest @ 8% per annum. Being aggrieved by the same, the claimants have filed the appeal for enhancement of compensation and the insurance company has filed the appeal challenging the award passed by the Tribunal.
4. Sri T.C.Satish Kumar, learned counsel for the claimants submits that as on the date of the accident, deceased was aged 29 years. He was running a provision store and earning a sum of Rs.15,000/- per month. The Tribunal is not justified in taking the income of the deceased as Rs.6,000/- per month.
5. Per contra, Sri Lingaraju.H.S., learned counsel appearing for the insurance company submits that even though the claimants have claimed that deceased was earning Rs.15,000/- per month, they have not produced any document to establish the income. Therefore, the Tribunal has rightly taken the monthly income of the deceased at Rs.6,000/-.
6. He further contends that in view of the law laid by Hon’ble Supreme Court in National Insurance Co.Ltd vs. Pranay Sethi and others ( AIR 2017 SC 5157) the claimants are entitled only for Rs.70,000/- under the conventional heads, but the Tribunal has erred in granting compensation of Rs.3,20,000/-.
7. He further contends that in the case of Pranay Sethi (supra), the Hon’ble Supreme Court has clearly opined that if a person is either self-employed, or on a fixed salary, then 40% of his income should be taken for the purpose of calculating the loss of future prospects. He further contends that the Tribunal has granted higher compensation under the head of love and affection and the interest granted by the Tribunal at 8% is on higher side. Hence, he sought for reduction of the compensation and allow the appeal filed by the insurance company.
8. Heard learned counsel for the parties and perused the records.
9. It is not in dispute that on 22.10.2013, Ramachandra met with an accident due to rash and negligent driving of skoda car bearing Reg.No.TN-70 J- 4797 and succumbed to death. At the time of the accident, deceased was aged about 29 years. Even though the claimants have claimed that he was running provision store and have produced Ex.P9 – rental agreement, but they have not produced any document to establish the income of the deceased. Under such circumstances, the Tribunal was left with no other alternative but to assess the notional income of the claimant as Rs.6,000/- per month, which is on the lower side. In catena of decisions, while calculating the notional income, this Court has taken into consideration the chart prepared by the Lok Adalat for deciding the cases. As per the chart, for the accident of the year 2013 the notional income has to be fixed at Rs.8,000/- per month.
10. In the case of Pranay Sethi (supra), the Hon’ble Supreme Court has clearly opined that if a person is aged below 40 years and he is either self- employed, or on a fixed salary, then 40% of his income should be taken for the purpose of calculating the loss of future prospects. But in this case, the Tribunal instead of taking 40%, it has taken 50% towards future prospects. Therefore, future prospects has to be taken as 40%. Accordingly, the compensation under the head ‘loss of dependency’, is recalculated as under:
Monthly income Rs. 8,000 Add: 40% towards future prospects 3,200 Total Rs.11,200 Rs.11,200 x 12 x 17 x ¾ = 17,13,600/-
11. Further, as per Pranay Sethi (supra) in respect of the conventional heads, i.e., ‘loss of consortium’, ‘loss of estate’ and ‘funeral expenses’, it should be Rs.70,000/- but the Tribunal has granted in all compensation of Rs.3,20,000/-. Accordingly, the compensation of Rs.70,000/- is granted under the conventional heads.
12. In the category of ‘love and affection’ is concerned, at the time of the accident, the son of the deceased was aged 4 years and daughter was aged 1 year. Therefore, the Tribunal has rightly granted the compensation of Rs.1,00,000/- each. Accordingly, the compensation of Rs.1,00,000/- each is granted under ‘love and affection’ for the children of deceased Ramachandra. As regards the compensation to mother is concerned, Rs.40,000/- is granted for love and affection.
13. Accordingly the award passed by the Tribunal, dated 09.03.2015, is modified as under:
The Insurance Company is directed to deposit the compensation amount along with interest at 8% per annum from the date of filing of the claim petition, till the date of realization, within a period of six weeks from the date of the receipt of a copy of this order. The amount so deposited by the Insurance Company shall be disbursed to the claimants in terms of the award.
The amount in deposit, if any, before this Court shall be transferred to the Tribunal.
With the above modifications the MFA. 4412/2015 filed by the Insurance company is allowed in part. MFA.4731/2015 filed by the claimants stand disposed of.
Sd/- JUDGE DKB