IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO. 1956 OF 2016 (MV) C/W MFA NO. 1957 OF 2016 (MV) MFA NO.1956/2016 BETWEEN 1.SMT. GIRIJAMMA, W/O LATE RANGASHETTY, AGED ABOUT 55 YEARS, 2.LOKESH.A.R, S/O LATE RANGASHETTY, AGED ABOUT 18 YEARS, ALL ARE R/O #150, CHOWDESHWARI NAGARA, BENGALURU SOUTH, BENGALURU-560062 ... APPELLANTS (BY SRI. JAGADEESH.H.T, ADV.,) AND 1. SRI. DHANASHEKAR, S/O RAJANNA REDDY, NO.102, SOLEDEVANAHALLI, CHIKKABANAVARA, HESARAGATTA HOBLI, BENGALURU-560090.
2. IFFCO-TOKIO GENERAL INSURANCE CO LTD., SRI SHANTHI TOWERS, #141, 5TH FLOOR, 3RD MAIN, EAST OF NGEF LAYOUT, KASTURINAGARA, BENGALURU-560043, REP. BY THE MANAGER. ... RESPONDENTS (BY SRI. H N KESHAVA PRASHANTH, ADV.FOR R2; V/O DATED 26.02.2019 NOTICE TO R1 IS D/W) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:4.1.2016 PASSED IN MVC NO.1520/2015 ON THE FILE OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO.1957/2016 BETWEEN 1. SMT. CHANDRAMMA, W/O LATE RANGASWAMY, AGED ABOUT 51 YEARS, 2. SRI.SHIVAKUMAR.N.R, S/O LATE RANGASWAMY, AGED ABOUT 29 YEARS, 3. SRI.VINAY.R, S/O. LATE RANGASWAMY, AGED ABOUT 25 YEARS, ALL ARE R/O #144, KANAKAPURA MAIN ROAD, CHOWDESHWARINAGARA, BENGALURU SOUTH TATAGUNI, BENGALURU. ... APPELLANTS (BY SRI. JAGADEESH.H.T, ADV., ) AND 1. SRI. DHANASHEKAR, S/O RAJANNA REDDY, NO.102, SOLEDEVANAHALLI, CHIKKABANAVARA, HESARAGATTA HOBLI, BENGALURU-560090.
2. IFFCO-TOKIO GENERAL INSURANCE CO. LTD., SRI SHANTHI TOWERS, #141, 5TH FLOOR, 3RD MAIN, EAST OF NGEF LAYOUT, KASTURINAGARA, BENGALURU-560043, REP. BY THE MANAGER. ... RESPONDENTS (BY SRI. H. N. KESHAVA PRASHANTH, ADV., FOR R2) V/O DATED 26.02.2019 NOTICE TO R1 IS D/W) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:4.1.2016 PASSED IN MVC NO.1519/2015 ON THE FILE OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for orders, with the consent of learned counsels on both sides, the same are taken up for final disposal.
2. In these appeals appellants-claimants are seeking for enhancement of compensation against judgment and award dated 04.01.2016 passed by the Tribunal in MVC Nos.1520/2015 and 1519/2015.
3. In MVC No.1520/2015, the Tribunal has awarded compensation in a sum of Rs.6,96,133/- with interest @ 8% p.a., in MVC No.1519/2015, the Tribunal has awarded compensation in a sum of Rs.4,73,000/- with interest at 8% p.a. from the date of claim petitions till the date of realization.
4. Appellants- claimants in both the appeals are seeking enhancement of compensation against the impugned judgment and award rendered by the Tribunal in respect of income held, which is inadequacy, otherwise it is on lower side and also future prospectus are required to be considered.
5. The factual matrix of these appeals is as under:
It is stated in the claim petitions that M.V.C.No.1520/2015 and M.V.C. No.1519/2015 are filed by the legal heirs of the deceased Satish and Rangaswamy before the Tribunal seeking compensation urging on various grounds, that on 15.02.2015 at about 5.45 pm. when the deceased Satish and Rangaswamy were proceeding in a motor cycle bearing registration No.KA-05- JC-6586 on nice road precautiosly and when they reached near Purvankara Apartment, coming from Bannerghatta side, the driver of the Scorpio car bearing reg. No.KA-04-MC-7313 has drove the same in a high speed in a rash and negligent manner from behind and dashed against the aforesaid motor cycle, due to the said impact, they fell down and sustained grievous injuries and Rangaswamy died on the spot itself but Satish who was the pillion rider was immediately shifted to Vijayashree Hospital, Bangalore wherein he was provided first aid treatment. Subsequently he was shifted to NIMHANS Hospital in order to provide better treatment and from there he was shifted to KIMS Hospital, but in spite of best treatment, Satish could not survive and he succumbed to injuries on 16.02.2015.
6. Dead bodies were shifted to KIMS Hospital wherein post mortem was conducted on the dead bodies of Satish and Rangaswamy. Due to the untimely death of the deceased and having lost the love and affection and financial support and as the accident took place solely on account of rash and negligent driving by the driver of the Scorpio Car and the respondent no.1 being the owner and respondent no.2 being the insurer who are liable to pay the compensation, the petitioners filed the claim petitions seeking compensation.
7. On issuance of notice, respondents appeared through their respective counsel and filed their independent written statement denying the claim petitions averments and sought for dismissal of the petitions.
8. Based upon the pleadings, the Tribunal framed the issues for consideration of the claim petitions. In order to establish their cases, The petitioner No.1 in M.V.C.No.1520/2015 examined herself as P.W.2 and got marked Exs.P.14 to P.22. The petitioner No.2 in M.V.C. No.1519/2015 examined himself as PW.1 and got marked Exs.P1 to P.13. Respondents have not examined themselves nor examined any witness or marked any documents on their behalf.
9. It is relevant to state that Ex.P.14 and Ex.P.6 are said to be the post mortem report of deceased Satish and Rangaswamy respectively. Inquest of both deceased done as per Ex.P.15 and Ex.P.7. These relevant documents were placed by the claimants in order to establish their case which inflicts the injuries on the deceased. Apart from that I.O. said to be conducted spot sketch as per Ex.P.4 and Spot Mahazar as per Ex.P.3 in order to file the charge sheet against the accused as per Ex.P.8.
10. After hearing the arguments of learned counsel for the petitioners as well as the respondents in both the cases and on evaluation of oral and documentary evidence on record, the Tribunal passed the impugned common judgment awarding compensation of Rs.6,96,133/- in MVC No.1520/2015 and Rs.4,73,000/- in MVC No.1519/2015 with interest @ 8% p.a from the date of petition till the date of deposit. It is this common judgment which is challenged under these appeals by urging various grounds.
11. Learned counsel for the claimants-appellants in these appeals has taken me through the evidence of P.W.2 & 1 and so also relevant documents which are stated supra. He submits that the Tribunal assessed income at Rs.7,000/- p.m. in respect of deceased Satish stated to be the son and brother of the claimants. Insofar as deceased Rangaswamy, stated to be the husband of Chandramma and so also the father of first petitioner Shivakumar and second petitioner Vinay, the Tribunal has assessed the income in a sum of Rs.7,000/- which is notional income. He submits that the accident occurred in the year 2015 i.e. on 15.02.2015 which has been referred in the contention taken in the claim petition. He contends that the Tribunal ought to have assessed income of the deceased taking into consideration of their future prospects. As per guidelines in the year 2014-
2015, the notional income is of Rs.8,500 to 9,000/- per month. Therefore, learned counsel for the appellants in these appeals is seeking for intervention of this Court.
12. Learned counsel for the insurance company in these appeals has vehemently contended that there is no dispute about the death of Satish and Rangaswamy on 15.02.2015 at 5.45. p.m. which has been inflicted in the post mortem report of the deceased persons as per Ex.
P.14 and Ex.P.6 respectively. The first respondent being the owner of the vehicle has violated the terms of policy conditions and the driver of the offending vehicle was not having valid and effective license as on the date of accident and that the accident took place on account of negligence of the deceased and the insured vehicle was not at all involved in the accident. Further, the compensation awarded by the Tribunal under different heads is on higher side and the same is contrary to law, probabilities of the case, evidence and documents available on record.
On all these grounds, he sought for setting aside the judgment passed by the Tribunal.
13. In this context, contentions taken by the learned counsel for the parties in these appeals respectively are concerned, it is relevant to state that the Tribunal has considered ratio reliance in 2009 ACJ 1298 between Sarlaverma vs. Delhi Transport Corporation Ltd. in respect of the multiplier as required to be applicable to deceased Satish and Rangaswamy. As per the decision of the High Court of Karnataka reported in ILR 2012 KAR 2859, 50% has to be deducted out of the yearly income of the deceased, as personal and living expenses and assessed the income of the deceased Satish and Rangaswamy at Rs.7,000/- p.m. respectively. There is suitable guideline relating to income which has to be considered for the year 2014-2015 between Rs. 8,500/- to Rs.9,000/-p.m. When there is a guideline relating to the notional income which has to be considered for awarding compensation suitably, the same has not been considered by the Tribunal. Therefore, the income of the deceased in both the appeals is assessed at Rs.9,000/- p.m.
14. It is relevant to peruse the oral evidence of PW.2 and PW.1 and documentary evidence marked on behalf of the petitioners. On perusal of the oral and documentary evidence it is clear that deceased died on account of the injuries sustained in the accident which was caused by rash and negligent driving of the driver of offending Scorpio Car bearing Reg. No.KA-04-MC-7313. The Tribunal has held that there is no evidence on the part of the respondent No.2 to the effect that there was any sort of negligence on the part of the deceased. Further, no evidence has been adduced to prove the contention that respondent no.1 and petitioners have colluded with each other in fixing the vehicle in question.
15. Claimants in MVC No.1520/2015 are the mother and brother of deceased Satish. He had last his breath while he was on treatment in KIMS Hospital i.e. on 16.02.2015. The Tribunal has assessed notional income of the deceased at Rs.7,000/- per month which is lower in side. However, keeping in view of the guidelines of 2014- 2015 in between 8,500-9,000 per month, it requires to be considered at Rs.9,000/- p.m. Insofar as the multiplier considered by the Tribunal is 15 as per decision reported in Sarlaverma vs. Delhi Transport Corporation Ltd., 2009 ACJ 1298. The compensation under the head loss of dependency works out as under:
Rs.9,000 x 40% = 3600 Rs.9,000 + 3600 = 12,600 x 50% = 6,300 Rs.6,300 x 12 x 15= Rs. 11,34,000/-
16. Further the Tribunal has awarded compensation of Rs.20,000/- towards loss of love and affection and Rs.30,000/- towards transportation of dead body and funeral expenses, Rs. 10,000/- towards loss of estate. Deceased Satish said to be the bachelor and the same has been referred in the averments made in the claim petition. In view of ratio of reliance in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in AIR 2017 SC 5157 the compensation under conventional heads should not exceed Rs.70,000/-.
17. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation awarded under the heads Loss of dependency Transportation of dead body and funeral expenses By MACT By this court 6,30,000 11,34,000 30,000 (-)15,000
Total 6,96,133 11,90,133 18. Thus, in all, the claimants are entitled to total compensation of Rs.11,90,133/- as against Rs.6,96,133/- awarded by the tribunal with interest.
19. Claimants in MVC No.1519/2015 are the wife, children of deceased Rangaswamy, the Tribunal has assessed the income of the deceased at Rs.7,000/- per month which is lower in side. But keeping in view of the judgment rendered by the Hon’ble Apex Court in National Insurance Company Ltd. vs. Pranay Sethi and others reported in AIR 2017 SC 5157, the compensation under the head loss of dependency works out as under:
Rs.9,000 x 10% = 900 Rs.9,000 + 900 = 9,900 x 50% = 4,950 Rs.4,950 x 12 x 9= Rs. 5,34,600/-
20. Under the conventional heads, the Tribunal has awarded Rs.25,000/- towards loss of consortium which is on lower side and it requires enhancement by another 15,000/- which comes to Rs.40,000/-.
21. The Tribunal has awarded Rs.30,000/- towards love and affection and care taker. The first petitioner Chandramma being the wife of deceased Rangaswamy, petitioners 2 and 3 are the children of the deceased Rangaswamy, another Rs.50,000/- is awarded towards “Loss of love and affection and care taker” which comes to Rs.80,000/-.
22. Towards loss of estate tribunal has awarded Rs.10,000/- which is lower in side. Another 5,000/- is awarded in addition to Rs.10,000/- which comes to Rs.15,000/-.
23. Towards Transportation of dead body and funeral expenses, Tribunal has awarded Rs.30,000/- which requires reduction of Rs.15,000/- which comes to Rs.15,000/-. But keeping in view the law laid down by the Hon’ble Supreme Court in Pranay Sethi’s case, the compensation under conventional heads should not be less than Rs.70,000/-. Accordingly, additional sum of Rs.70,000/- is awarded under various conventional head.
24. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Total 4,73,000 6,54,600 25. Thus, in all, the claimants are entitled to total compensation of Rs.6,54,600/- as against Rs.4,73,000/- awarded by the tribunal with interest.
26. In terms of the aforesaid reasons and findings, I have to proceed to pass the following order:
The appeal preferred by the appellants in MFA No.1956/2016 is allowed in part. The impugned judgment and award dated 04.01.2016 passed by the Tribunal in MVC No.1520/2015 is hereby modified. The claimants/appellants are entitled for enhanced compensation of Rs. 4,94,000/- with interest @ 6% p.a.
The appeal preferred by the appellants-claimants in MFA No.1957/2016 is allowed in part. The impugned judgment and award dated 04.02.2016 passed by the Tribunal in M.V.C.No1519/2015 is hereby modified. The claimants-appellants are entitled for enhanced compensation of Rs. 1,81,600/- with interest @ 6% p.a.
The apportionment made in both the appeals shall be maintained in terms of the award passed by the Tribunal on appropriate identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE HR