IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH 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.8239 of 2016 (MV-D) C/W MISCELLANEOUS FIRST APPEAL No.1496 of 2017 (MV-D) IN M.F.A. No.8239 of 2016:
BETWEEN :
THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, MMK COMPLEX P.J.EXTENSION, DAVANAGERE.
REPRESENTED BY ITS DIVISIONAL MANAGER THE UNITED INDIA INSURANCE CO. LIMITED, DIVISIONAL OFFICE P.B.NO.237, 34/3, M.M.K. COMPLEX AKKAMAHADEVI ROAD, II MAIN P.J.EXTENSION, DAVANGERE–577 002. (BY SRI.P.B.RAJU, ADVOCATE) ... APPELLANT AND:
1. SHASHIKALA W/O.LATE MANJUNATHA AGED ABOUT 31 YEARS 2. NAGARAJA S/O.LATE MANJUNATHA AGED ABOUT 12 YEARS MINOR, STUDENT 3. MANIKANTA S/O.LATE MANJUNATHA AGED ABOUT 10 YEARS MINOR, STUDENT RESPONDENTS 2 & 3 ARE MINORS HENCE REPRESENTED BY NATURAL MOTHER, RESPONDENT NO.1 AS THEIR NATURAL GUARDIAN.
RESPONDENT NOS.1 TO 3 ARE R/O.ALAGAVADI VILLAGE CHITRADURGA TALUK – 577 501.
4. DURGAMMA W/O.LATE MUDUGAPPA AGED ABOUT 61 YEARS COOLIE, R/O.KAREKALLU DIBBA NOW RESIDING AT ALAGAVADI VILLAGE CHITRADURGA TALUK – 577 501.
5. GURUSIDDAPPA S/O.RAMAPPA, AGED ABOUT 48 YEARS OWNER OF MOTORCYCLE BEARING REGD.NO.KA-16/V-6260 R/O.RAMAGIRI, HOLALKERE TALUK CHITRADURGA DISTRICT – 577 501.
...RESPONDENTS (BY SRI.SPOORTHY HEGDE NAGARAJA ADVOCATE FOR R-1 TO R-4 (R-2 & R-3 MINORS REP. BY R-1), R-5 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 07.09.2016 PASSED IN MVC NO.1195/2015, ON THE FILE OF THE 1ST SENIOR CIVIL JUDGE & IV MACT AT CHITRADURGA AND ETC.
IN M.F.A. No.1496 of 2017:
BETWEEN :
1. SHASHIKALA W/O.LATE MANJUNATHA AGED ABOUT 31 YEARS 2. NAGARAJA S/O.LATE MANJUNATHA AGED ABOUT 12 YEARS 3. MANIKANTA S/O.LATE MANJUNATHA AGED ABOUT 10 YEARS THE APPELLANT 2 AND 3 ARE MINORS REP. BY THEIR NEXT FRIEND AND NATURAL GUARDIAN – VIZ. 1ST APPELLANT HERE IN ABOVE.
4. DURGAMMA W/O.LATE MUDUGAPPA AGED ABOUT 61 YEARS R/O.KAREKALLU DIBBA ALL ARE R/O.ALAGAVADI VILLAGE CHITRADURGA TQ – 577 501.
... APPELLANTS (BY SRI.SPOORTHY HEGDE NAGARAJA, ADVOCATE) AND:
1. UNITED INDIA INSURANCE CO.LTD., BY ITS DIVISIONAL MANAGER DIVISIONAL OFFICE, MMK COMPLEX P.J.EXTENSION, DAVANAGERE – 577 001.
2. GURUSIDDAPPA, S/O.RAMAPPA AGED ABOUT 47 YEARS OWNER OF MOTOR CYCLE NO.KA-16/V-6260, R/O.RAMAGIRI HOLALKERE TQ CHITRADURGA DIST. – 577 526.
...RESPONDENTS (BY SRI.P.B.RAJU, ADVOCATE FOR R-1, R-2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DTD.7-9-2016 PASSED BY THE I SENIOR CIVIL JUDGE AND IV M.A.C.T., CHITRADURGA IN M.V.C.NO.1195/2015, BY ENHANCING THE COMPENSATION WHICH IS JUST AND REASONABLE HAVING REGARD TO THE FACTS OF THE CASE BY ALLOWING THIS APPEAL.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. MFA No.8239/2016 has been filed by the Insurance Company while MFA No.1496/2017 has been filed by the claimants, both assailing the common judgment and award dated 07.09.2016 passed by the I Senior Civil Judge and Motor Accident Claims Tribunal –IV at Chitradurga (hereinafter referred to as ‘the Tribunal’, for the sake of brevity) in MVC No.1195/2015.
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
4. The claimants have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.30,00,000/- on account of death of Manjunatha in the road traffic accident that occurred on 16.09.2015 at about 8.30 p.m. According to the claimants, on the fateful day, Manjunatha after visiting his relatives at Chikkanadavadi village, while returning to Chikkajajur, Udogere village as a pedestrian on the left side of the road, near Chikkajajuru railway gate, Holalkere Taluk at about 8.30. p.m., the rider of the motor cycle bearing registration No.KA-16-V-6260 drove the same in a rash and negligent manner without observing traffic rules and hit Manjunatha. As a result, he fell down and sustained severe injuries. Immediately, he was shifted to Government Hospital, Holalkere and thereafter, to District Hospital, Chitradurga. However, the doctor declared that he died due to severe injuries. Thereafter, post mortem examination was conducted and after the post mortem, the body was handed over to the claimants to perform the last rites of the deceased. Therefore, the claimants stated that they had spent a sum of Rs.30,000/- towards medical expenses, hiring car and also for funeral expenses. The first petitioner is the wife, second and third petitioners are minor children and fourth petitioner is the mother of the deceased. On account of sudden death of Manjunatha, the claimants contended that they had mental shock and agony as they had lost the bread earner of the family. Hence, they filed the claim petition seeking compensation of Rs.30,00,000/- before the Tribunal.
5. In response to the notices issued by the Tribunal, respondent Nos.1 and 2 appeared through their respective counsel. Respondent No.2 filed its statement of objections denying the averments made in the petition and contended that the petition is not maintainable in law or on facts. It was also contended that there was a delay in lodging the complaint and mahazar was drawn after three days from the date of accident. That the alleged vehicle was not involved in the accident. It was further stated that the amount of compensation claimed was highly excessive and without any legal basis. Hence, insurance company sought for dismissal of the claim petition.
6. On the basis of the aforesaid pleadings, the Tribunal framed the following issues for its consideration.
“1. Whether the petitioners prove that Manjunatha S/o.Mudugappa sustained fatal injuries in the RTA occurred on 16.09.2015 at about 8.30 p.m. near Chikkajajur Railway Gate, Holalkere Taluk, due to rash and negligent driving of driver of motor cycle bearing Reg.No.KA-16/V-6260 and died for the injuries on 16.09.2015?
2. Whether the petitioners are entitled for compensation, if so, how much and from whom?
3. What order / award?”
7. In order to prove her case, claimant No.1– Shashikala examined herself as PW-1 and Sri.Jayappa as PW-2 and they produced eleven documents which were marked as Exs.P.1 to P.11. While respondent No.2 – insurance company did not lead any oral evidence, but got marked the copy of the insurance policy which was marked as Ex.R.1. On the basis of the said evidence, the Tribunal answered issue No.1 in the affirmative. While answering Issue No.2, the Tribunal directed respondent No.2 to pay the compensation amount and allowed the claim petition in part by awarding compensation of Rs.16,81,160/- with interest at the rate of 8% per annum from the date of filing of the claim petition till realization. Being aggrieved by the award, the insurance company has preferred MFA No.8239/2016 and claimants have sought for enhanced compensation by filing MFA No.1496/2017.
8. Since these appeals arise out of the same judgment and award of the Tribunal and also from the same accident, they have been clubbed and have been heard together.
9. Learned counsel for the appellant - Insurance Company contended that the award passed by the Tribunal is opposed to law, facts and probabilities of the case. It was also contended that the Tribunal is not justified in fixing the income of the deceased at Rs.6,500/- per month and further adding 50% towards future prospects. More particularly, the deceased was not having a permanent employment and therefore, the grant of future prospects is unsustainable in law. It was further contended that having regard to the fact that the multiplier system would take care of all future contingencies including future prospects. Lastly, he contended that the compensation awarded by the Tribunal is excessive in view of the judgment of the Apex Court in the case of NIC v. PUSHPA & OTHERS in SLP No.8058/2014. Therefore, she submitted that the appeal filed by the Insurance Company may be allowed.
10. Per contra, learned counsel for the claimants submitted that the award of compensation is on the lower side. Hence, claimants have filed MFA No.1496/2017 seeking enhancement. He contended that the deceased was doing masonry work and was earning Rs.20,000/- per month, but the Tribunal arbitrarily took the income of the deceased at Rs.6,500/- per month. It was further contended that the compensation awarded towards ‘loss of dependency’ is very meager and the same is liable to be re-assessed by this Court and accordingly, it is contended that the appeal filed by the insurance company may be dismissed, while the appeal filed by the claimants may be allowed by enhancing the compensation.
11. Having heard learned counsel for the respective parties and on perusal of material on record as well as the original record, the following points would arise for our consideration:-
i. Whether the quantum of compensation awarded by the Tribunal calls for any interference in this appeal?
ii. What order?
12. To substantiate the contention that Manjunatha died in the road traffic accident that occurred on 16.09.2015 at about 8.30 p.m., the claimants have relied upon the documents viz., complaint, FIR, inquest mahazar, IMV, post mortem report and charge sheet. The Tribunal after perusal of the above documents was justified in holding that the accident occurred due to the rash and negligent driving of the offending vehicle. Further, to prove that the accident occurred due to rash and negligent driving, the claimant No.1 was examined as PW.1 and PW.2 who is the eye witness to the accident. Though PWs.1 and 2 were subjected to cross-examination by respondent No.2, nothing worthy was elicited to disbelieve the claim of the petitioners. Therefore, the Tribunal was justified in holding that the death was due to the rash and negligent driving of the offending vehicle.
13. Now, the controversy is with regard to the quantum of compensation. The Tribunal has awarded compensation of Rs.16,81,160/-, on the following heads:
HEADS COMPENSATION AWARDED BY THE TRIBUNAL (IN RS.) Towards loss of dependency 13,16,160.00 Towards funeral and obsequies Towards transportation of dead body 10,000.00 5,000.00 Loss of consortium 1,00,000.00 Towards love and affection to petitioners 2 and 3 Towards love and affection to petitioner 4 mother 2,00,000.00 50,000.00 Total 16,81,160.00 14. The Tribunal has considered the income of the deceased at Rs.6,500/- only per month only which is on the lower side. The deceased was engaged in masonry work which is a skilled labour. Skilled labour is generally characterized by higher education, expertise levels attained through training and experience and will likewise correspond with higher wages. Skilled labour refers to highly trained, educated or experienced segments of the work force that can complete more complex, mental or physical on the job. Skilled labour, which can be contrasted with unskilled or low skilled workers, usually command higher incomes. Taking into consideration these facts, we propose to reckon the income of the deceased at Rs.9,000/- per month. 40% of the said amount has to be added towards his future prospects which would be Rs.3,600/-. Thus, the total salary would be Rs.12,600/- per month. Since there are four claimants, 1/4th of the said amount has to deducted towards personal expenses which comes to Rs.9,450/- which has to be annualized and by applying the appropriate multiplier of ‘15’ as the deceased was aged 38 years as per Ex.P6 – post mortem report, the compensation on the head ‘loss of dependency’ would be Rs.17,01,000/- instead of Rs.13,16,160/- awarded by the Tribunal.
15. Having regard to the judgment 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., claimant No.1 is entitled to Rs.40,000/- towards ‘loss of spousal consortium’, to the children of the deceased a sum of Rs.60,000/- together is awarded towards ‘loss of parental consortium’ and a sum of Rs.30,000/- is awarded to the mother of the deceased towards ‘loss of filial consortium’. A sum of Rs.15,000/- is awarded on the head ‘loss of estate’ and another sum of Rs.15,000/- is awarded towards ‘funeral expenses’. In all, claimants in MVC No.1496/2017 are entitled to Rs.18,61,000/-. The reassessed compensation is as under:
HEADS COMPENSATION AWARDED BY THIS COURT (IN RS.) Loss of dependency 17,01,000.00
16. Said enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization, instead of the compensation awarded by the Tribunal at Rs.16,81,160/- with interest at 8% per annum from the date of claim petition till realization.
17. The re-assessed compensation shall be apportioned and deposited in the following manner:
40% to the widow of the deceased, 20% each to the minor children of the deceased and mother of the deceased.
65% of the compensation awarded to the widow 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 children of the deceased shall be deposited in any Post Office or Nationalized Bank deposit till they attain majority.
50% of the compensation awarded to the mother of the deceased shall be deposited in any Post Office or Nationalized Bank for an initial period of five years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification.
18. The appellant – Insurer shall deposit the compensation amount with upto date interest within a period of four weeks from the date of receipt of certified copy of this judgment.
19. Thus, MFA No.8239/2016 filed by the Insurance Company is disposed of in the aforesaid terms while MFA No.1496/2017 filed by the claimants is allowed in part in the aforesaid terms.
20. Parties to bear their respective costs.
21. The amount in deposit shall be transmitted to the Tribunal forthwith.
Office is directed to transmit the original records to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE VMB