IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.8281 OF 2016 (MV-D) BETWEEN:
THE DIVISIONAL MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, DB PLAZA, III FLOOR, NO.47, WHITES ROAD, CHENNAI - 600 014, TAMIL NADU.
NOW AT ROYAL SUNDARAM ALLIANCE COMPANY LTD. SUBRAMANIAM BUILDING, II FLOOR, NO.1, CLUB HOUSE ROAD, ANNSASALAI, CHENNAI - 600 002, BY ITS MANAGER.
... APPELLANT (BY SRI O. MAHESH, ADV.) AND:
1. B.N. ASHA W/O. LATE GANESH, AGED 25 YEARS.
2. HRUTHISHA S/O. LATE GANESH, AGED 5 YEARS.
3. KOMALA D/O. LATE GANESH, AGED 3 YEARS.
ALL ARE RESIDING AT MATADAKURUBARAHATTI VILLAGE, KASABA HOBLI, CHITRADURGA TALUK AND DISTRICT - 577 501.
RESPONDENTS NO.2 AND 3 ARE MINORS, REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER, RESPONDENT NO.1 - B.N. ASHA.
4. PARVATHAMMA W/O. MANJUNATHA C., D/O. LATE Y. THIPPESWAMY, AGED 36 YEARS, RESIDING AT MATADAKURUBARAHATTI VILLAGE, KASABA HOBLI, CHITRADURGA TALUK AND DISTRICT - 577 501.
5. T. PUSHPA W/O. DINESH @ DINESHAPPA, D/O. LATE Y. THIPPESWAMY, AGED 34 YEARS, R/O. MALALAKERE VILLAGE, DAVANAGERE TALUK AND DISTRICT - 577 501.
6. LAKSHMAMMA @ LAKSHMAKKA @ LAKSHMIDEVI W/O. LATE Y. THIPPESWAMY, AGED 53 YEARS, RESIDENT OF KURUBARAHALLI VILLAGE, CHITRADURGA TALUK AND DISTRICT - 577 501.
7. HARISH H.J. MAJOR, S/O. JAYADEVAPPA H.G., RESIDENT OF #23, 11TH ‘A’ MAIN, 5TH BLOCK, JAYANAGARA, BANGALORE - 560 011.
... RESPONDENTS (BY SRI T. VIJAY KUMAR, ADV., FOR R-1 to 6) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 24-10-2016 PASSED IN M.V.C. NO.560 OF 2013 ON THE FILE OF THE I SENIOR CIVIL JUDGE & IV M.A.C.T., CHITRADURGA, AWARDING COMPENSATION OF RS.22,73,900/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS, THIS DAY, NATARAJAN, J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed to consider I.A. No.1 of 2019 seeking withdrawal of the amount deposited by the insurance company, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is preferred by the insurer assailing the judgment and award dated 24-10-2016 passed by the I Senior Civil Judge and IV Motor Accident Claims Tribunal, at Chitradurga, (hereinafter referred to as ‘Tribunal’, for the sake of convenience) in M.V.C. No. of 560 of 2013.
3. We have heard learned counsel for the appellant and learned counsel for the respondents.
4. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
5. Respondents-claimants have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.23,50,000/- inter alia contending that, on 8-12-2012, Ganesh (deceased) was riding motor cycle bearing Registration No.KA-16/S-8624 from Kurubarahally to Bilichodu near Dyapanahalli gate on Bharamasagara- Bilichodu Road. At that time, the driver of car bearing Registration No.KA-05/ML-4059 came from opposite direction in a rash and negligent manner with high speed and dashed against the said motorcycle. As a result, Ganesh fell down and sustained grievous injuries. He was shifted to Primary Health Centre, Bharamasagara, and after first-aid, he was shifted to SSIMS Hospital, Davanagere. Thereafter, he was shifted to Sreenivasa Hospital, Bengaluru, in an ambulance and was admitted as an in-patient from 9-12-2012 to 16-12- 2012. Later, he was shifted back to SSIMS Hospital, Davanagere, and treated as an in-patient up to 19-12-2012, on that day, he succumbed to the injuries. Claimants contended that the deceased was hale and healthy prior to the accident. He had a bore-well agency and was earning Rs.25,000/- per month and they were depending on his income. Due to the sudden demise, they had lost their earning member. Hence, they prayed for grant of compensation.
6. In pursuance of the notice issued by the Tribunal, respondent No.1-owner of the car filed statement of objections and contended that the compensation claimed is excessive and abnormal. He has also contended that the deceased was riding the motorcycle with high speed and dashed against the road side stone and sustained injuries. Driver of the car helped the deceased to take treatment, but claimants have given complaint against him. He further contented that the vehicle was duly insured with respondent No.2. Therefore, he prayed for dismissal of the claim petition.
7. Respondent No.2-insurance company also appeared through its counsel, filed statement of objections and contended that the driver of the car was not holding a valid and effective Driving License at the time of accident and respondent No.1 has entrusted his vehicle to the person holding no Driving License, thereby, the owner has violated the terms and conditions of the insurance policy. He further contended that, the rider of the motorcycle, without obtaining a Driving License, rode it in zig-zag manner with high speed and caused the accident. Therefore, insurance company is not liable to pay any compensation to the claimants. Further, it has contended that the legal heirs of the claimants are not depending upon the income of the deceased, they are living independently and also contended that the compensation amount sought by them is highly excessive and without any basis. Hence, it prayed for dismissal of the claim petition.
8. On the basis of rival pleadings, the Tribunal framed the following issues for its consideration:
“i. Whether the petitioners prove that, Ganesh W/o. B.N. Asha sustained grievous injuries and died in the alleged RTA occurred on 08-12-2012 at about 6.30 p.m. near Dyapanahalli gate, on Bharamasagar-Bilichodu Road, due to rash and negligent manner of driving the car bearing Reg.No.KA-05-ML-4059 by its rider?
ii. Whether the petitioners are entitled for compensation, if so, how much and from whom?
iii. What order/award?”
9. To substantiate their claim, petitioner No.5 examined herself as P.W.1 and also examined another witness as P.W.2 and got marked twenty-five documents as Exs.P.1 to P.25. Except filing statement of objections, the respondents did not let-in any evidence nor marked any document. Considering the evidence on record, the Tribunal answered issue No.1 in the affirmative and awarded compensation of Rs.22,73,900/- with interest at the rate of 8% per annum by fastening the liability on the respondents jointly and severally and also directed respondent No.2 to deposit the compensation amount before the Tribunal within thirty days from the date of judgment.
10. The break-up of the compensation amount awarded by the Tribunal is as under:
Sl.
No.
Heads Amount (in Rs.) Towards loss of dependency Salary – (Rs.6,500/- Add:50% of 1 it Rs.3,250/- Rs.9,750 (future prospectus) ¼ deducted towards personal expenses-i.e., Rs.7312 x 12 x 16) 14,03,904.00 2 Towards funeral and obsequies 10,000.00 3 Towards transportation of dead body, etc.
10,000.00 4 Loss of consortium 1,00,000.00 5 Towards love and affection to petitioner Nos.2 to 5 6 Towards love and affection to petitioner No.1 2,00,000.00 1,00,000.00
11. Assailing the judgment and award of the Tribunal and fastening of liability, respondent No.2-the insurance company has preferred this appeal for reduction of compensation.
12. Mr. O. Mahesh, learned counsel for the appellant, contended that respondent No.1 has stated before the Tribunal in the statement of objections that the deceased- Ganesh was riding the motorcycle with high speed and dashed against the road side stone and sustained injuries. Driver of the car shifted the deceased to the hospital only to help the deceased, but the claimants have filed a false complaint against him. Therefore, the learned counsel contended that the accident occurred due to the negligence of the deceased himself, but the Tribunal has wrongly fastened the liability on respondent No.2, which is liable to be set aside. He further contended that the Tribunal has committed an error in calculating the income of the deceased as Rs.6,500/- per month has considered 50% of his income towards future prospects and also awarded compensation towards conventional heads, namely towards loss of consortium of Rs.1,00,000/-, towards loss of love and affection to claimant Nos.2 to 5 at Rs.2,00,000/- and another Rs.1,00,000/- to claimant No.1 towards loss of care and guidance to minor children Rs.2,00,000/-, which are all against the principles laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 (Pranay Sethi). Alternatively, he has also argued that the compensation may be reduced under the conventional heads. Further, he also contended that interest of 8% per annum is also not just and proper and requires to be reduced. Hence, he prayed for allowing the appeal.
13. Per contra, Mr. T. Vijay Kumar, learned counsel for claimant Nos.1 to 6, supported the judgment and award passed by the Tribunal and contended that though
produced any document before the Tribunal to prove their contention taken in the statement of objections. The Police registered F.I.R. against the driver of the car bearing Registration No.KA-05/ML-4059 and filed the charge-sheet. Though respondent No.1 has taken a plea that he had helped the deceased to shift him to the hospital and that the deceased himself had met with the accident by dashing against the road-side stone, etc. but he has not entered into the witness-box and offered himself for cross-examination. Therefore, the learned counsel contended that in absence of any rebuttal evidence from the side of the respondents, the Tribunal has rightly held that the accident has occurred due to rash and negligent driving of the car by its driver. Respondent No.2 has not disputed the issuance of insurance policy, which was in force as on the date of the accident. Therefore, the Tribunal has rightly fastened the liability on respondent No.2-insurance company. Hence, the learned counsel contended that the finding on issue No.1 does not call for interference by this Court.
He further contended that in respect of quantum of compensation is concerned, the deceased was running a bore-well agency and earning Rs.25,000/- per month. In the absence of proof of income, the Tribunal has considered only Rs.6,500/- per month and added 50% of it towards future prospects and awarded compensation on various heads, which calls for no interference by this Court and prayed for dismissal of the appeal.
14. Upon hearing learned counsel for the respective parties, the points that arise for our consideration are:
i. Whether the Tribunal was not justified in fastening the liability on the insurance company as contended by the appellant- insurance company?
ii. Whether the compensation awarded on the head of loss of dependency as well as on conventional heads and interest awarded by the Tribunal is exorbitant and excessive and deserves to be reduced?
iii. What order?
15. The case of the claimants is that on 8-12-2012, the deceased-Ganesh was riding his motorcycle bearing Registration No.KA-16/S-8624 from Kurubarahally to Bilichodu near Dyapanahalli gate on Bharamasagara- Bilichodu road slowly. At that time, the driver of the car bearing Registration No.KA-05/ML-4059 came from opposite direction in a rash and negligent manner with high speed and dashed against the motorcycle of the deceased. As a result, the deceased fell down and sustained grievous injuries to left eye, right shoulder, right leg, forehead, chest and other parts of the body. The motorcycle was damaged. The deceased was shifted to Primary Health Centre, Bharamasagara. Thereafter, the injured was treated in SSIMS Hospital and Sreenivasa Hospital and while he was taking treatment at SSIMS Hospital, Davanagere, he succumbed to the injuries on 19-12-2012. P.W.1, who is the fifth claimant, got marked Ex.P.1-copy of complaint, Ex.P.2-F.I.R., Ex.P.3-spot mahazar, Ex.P.4-Death intimation, Ex.P.5-Inquest report, Ex.P.6-P.M.report, Ex.P.7-I.M.V. report, Ex.P.8-charge sheet RTC extracts, Exs.P.9 to P.16-medical records. These documents corroborate with the evidence of P.W.1. Another witness from claimants’ side (Dinesh L.H) was also examined as P.W.2 who is an eyewitness to the accident and he also supported the case of the claimants. Respondents have not elicited any evidence in the cross-examination to disbelieve the evidence of P.Ws.1 and 2. On the other hand, Police documents namely F.I.R., charge-sheet and medical records clearly go to show that the accident in question occurred due to the rash and negligent driving of the car by its driver, due to which, Ganesh sustained injuries and died during treatment. Therefore, we are of the view that the Tribunal has rightly held that there was negligence on the part of the driver of the car and the findings of the Tribunal on issue No.1 does not call for interference. Hence, we answer point No.1 against the appellant-insurance company and in favour of the respondents-claimants.
16. The next contention of the appellant-insurance company is that with regard to quantum of compensation awarded by the Tribunal on various conventional heads as well as on interest. In this regard, we shall re-assess the same in order to answer point No.2.
17. On perusal of the evidence on record, it is seen that though the claimants have contended that the deceased was earning Rs.25,000/- per month by running bore-well agency, but no document was produced to prove the income. However, the Tribunal was not right in considering Rs.6,500/- per month as the income of the deceased. Normally, this Court considers between Rs.7,000/- and Rs.7,500/- per month for an unskilled labourer for an accident of the year 2011-12. The accident had occurred in December-2012, which is closer to the year 2013. As the deceased was an unskilled labour, this Court considers Rs.8,000/- per month as his income for the year 2013. Therefore, the income of the deceased is considered as Rs.8,000/- per month. If 40% of the income is considered towards ‘loss of future prospects’ as per the judgment of the Hon’ble Apex Court in the case of PRANAY SETHI, it comes to Rs.3,200/-. Thereby, the income of the deceased is considered as Rs.11,200/- per month (8,000 + 3,200). As per dictum of the Hon’ble Supreme Court in the case of SARLA VERMA v. DELHI TRANSPORT CORPORATION reported in 2009 ACJ 1298 (SC), when the dependants are four in number, 1/4th of the income has to be deducted towards personal expenses of the deceased. If 1/4th of Rs.11,200/- i.e., Rs.2,800/- is deducted from Rs.11,200/-, it comes to Rs.8,400/- which is the monthly net income or Rs.1,00,800/- per annum. The proper multiplier applicable is ‘16’. Therefore, towards loss of dependency, the claimants are entitled for Rs.16,12,800/- (Rs.1,00,800/- x 16). Hence, ‘loss of dependency’ is re-assessed at Rs.16,12,800/- as against Rs.14,03,904/- awarded by the Tribunal.
18. However, the Tribunal awarded Rs.1,00,000/- towards loss of consortium, Rs.2,00,000/- to claimants Nos.2 to 5 and Rs.1,00,000/- to claimant No.1 towards loss of love and affection, Rs.2,00,000/- towards loss of care and guidance to the minor children and also granted Rs.10,000/- each towards funeral and transportation charges. We are of the view that the award of compensation on the conventional heads is excessive and exorbitant and requires to be reduced. As per the dictum of the Hon’ble Apex Court in the case of PRANAY SETHI AND MAGMA GENERAL INSURANCE CO. LTD. v. NANU RAM ALIAS CHUHRU RAM AND OTHERS reported in 2018 ACJ 2782 (SC), respondent No.1-wife of the deceased is entitled for Rs.40,000/- towards ‘loss of spousal consortium’. Respondent Nos.2 and 3-children of the deceased are entitled for Rs.30,000/- each towards ‘loss of parental consortium’, respondent No.6-mother of the deceased is entitled for Rs.30,000/- towards ‘loss of filial consortium’. The father of the deceased-claimant No.4 died during the pendency of the petition and the sisters-respondent Nos.4 and 5 of the deceased were brought on record and are entitled for Rs.30,000/- each towards ‘loss of love and affection’. Rs.15,000/- is awarded towards ‘funeral expenses’ and Rs.15,000/- is awarded towards 'loss of estate’. Claimants have produced the medical records and the Tribunal has awarded Rs.2,50,000/- towards medical and incidental charges, which is retained. The total compensation awarded by the Tribunal deserves to be reduced. Also, this Court normally awards 6% interest per annum on the compensation.
19. Thus, the compensation is re-assessed at Rs.20,82,800/-, instead of Rs.22,73,900/- awarded by the Tribunal, which is as under:
Heads Compensation awarded by this Court
20. The aforesaid compensation shall also carry interest at the rate of 6% per annum from the date of claim petition till realisation, instead of 8% per annum as ordered by the Tribunal. Point No.2 is accordingly answered.
21. The reassessed compensation is apportioned in favour of the respondents, after deducting a sum of Rs.30,000/- each payable to respondent Nos.4 and 5. Further, the enhanced compensation shall be apportioned in the following ratio, i.e. 40% to respondent No.1-wife of the deceased, 20% each to respondent Nos.2 and 3-minor children of the deceased and 20% to respondent No.6- mother of the deceased.
22. 75% of the compensation awarded to respondent No.1 shall be deposited in a Fixed Deposit in any Post-Office or nationalised Bank for an initial period of ten years and she shall be entitled to draw periodical interest on the said deposit. The remaining compensation shall be released to her, after due identification.
The entire compensation awarded to respondent Nos.2 and 3 shall be deposited in a Fixed Deposit in any Post-Office or nationalised Bank till they attain the age of majority.
50% of the compensation awarded to respondent No.6 shall be deposited in a Fixed Deposit in any Post-Office or nationalised Bank for an initial period of five years and she shall be entitled to draw periodical interest on the said deposit. The remaining compensation shall be released to her, after due identification.
Compensation awarded to respondent Nos.4 and 5 shall be released to them, after due identification.
23. Appellant-insurance company shall deposit the balance compensation amount with interest within a period of four weeks’ from the date of receipt of a certified copy of this judgment. The respondents-claimants are permitted to withdraw the amount in the aforesaid terms.
24. Amount in deposit to be transmitted to the Tribunal, forthwith.
25. The appeal is allowed-in-part in the aforesaid terms.
Parties to bear their respective costs.
In view of the disposal of the appeal, I.A. No.1 of 2019 stands disposed.
Sd/- JUDGE Sd/- JUDGE kvk