IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT M.F.A. NO.2829/2014 (MV) BETWEEN:
1. SMT. GIRIJAMMA W/O LATE THIPPESWAMY AGED ABOUT 37 YEARS 2. AJJAIAH S/O LATE THIPPESWAMY AGED ABOUT 20 YEARS 3. NAGARAJA S/O LATE THIPPESWAMY AGED ABOUT 17 YEARS APPELLANT NO.3 IS MINOR REP. BY HIS MOTHER (APPELLANT NO.-1) ALL ARE R/O HUVINAMADU VILLAGE DAVANAGERE TALUK & DISTRICT- 577512. ... APPELLANTS (BY SRI. R SHASHIDHAR, ADV.) AND:
1. SRI G O RAVI S/O ONKARAPPA AGED ABOUT 44 YEARS R/O HONNEMARADAHALLI VILLAGE CHANNAGIRI TALUK DAVANAGERE DIST.- 577354 DRIVER OF TRACTOR REG. NO-KA-16-TA-2807 & TRAILER REG. NO.KA-17-T-9923.
2. SRI CHANDRAPPA S/O GIRITHIMAPA AGED ABOUT 40 YEARS R/O ANJANAPURA VILLAGE KENGUNTI POST RAMAGIRI HOBALI HOLALKERE TALUK CHITRADURGA DISTRICT- 577539 OWNER OF TRACTOR REG NO-KA-16-TA-2807.
3. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE MELAGIRI PLAZA MCC "B" BLOCK DENTRAL COLLEGE ROAD DAVANAGERE- 577004.
4. M.S SHEKARAPPA S/O LATE MANJAPPA AGE MAJOR KORTIKERE POST CHANNAGIRI TALUK DAVANAGERE DIST.-577798 (OWNER OF TRAILER NO.KA-17-T-9923) 5. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD., P.B.NO.123, CHANNAGIRI ROAD BHADRAVATHI, PIN:577289 SHIMOGA DISTRICT.
... RESPONDENTS (BY SRI.BASAVARAJ POOJARY S, ADV. FOR R1, R2 & R4 SRI.S.SRISHAILA, ADV. FOR R3 SRI.RAVISH BENNI, ADV. FOR R5) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.10.2013 PASSED IN MVC NO.445/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & MACT-4, DAVANAGERE PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellants/claimants are before this Court seeking for enhancement of compensation and assailing the judgment and award dated 28.10.2013 passed in MVC No.445/2012 on the file of Principal Senior Civil Judge and Motor Accident Claims Tribunal, Davangere.
2. The claimants filed petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the death of one Thippeswamy in a road traffic accident that occurred on 15.02.2012. The claimants are wife and children of the deceased Thippeswamy. It is stated that on 15.02.2012 when the deceased was crossing the road at Neethigere Village, a Tractor-Trailor bearing Registration No.KA.16-TA-2807 and KA-17-T-9923 dashed against the deceased, due to which the deceased sustained grievous injuries and succumbed to the injuries. It is stated that as on the date of death, the deceased was aged 42 years and he was earning Rs.10,000/- per month by his agricultural activities.
3. On issuance of notice the 3rd and 5th respondents - Insurance Companies appeared before the Tribunal and filed their objections contending that as on the date of accident, the driver of the offending vehicle did not possess valid driving license and also contended that the tractor-trailor was not at all involved in the accident. But the Insurance Policy was admitted. The claimant No.1 examined herself as PW.1 and produced documents Exs.P1 to P8. Respondent No.5 examined its officer as RW.1 and got marked Exs.R.1 to R.6. The Tribunal based on the material on record awarded total compensation of Rs.5,39,000/- to the claimants with interest at 6% p.a. from the date of petition till the date of realization. The claimants not being satisfied with the quantum of compensation are before this Court praying for enhancement of compensation.
4. Heard the learned counsel for the appellants and learned counsel for the respondents. Perused the appeal papers and the lower court records.
5. The learned counsel for the appellants would submit that the Tribunal committed an error in taking Rs.4,500/- as monthly income of the deceased, when it is the case of the appellants that the deceased was earning Rs.10,000/- per month by his agricultural activities. It is also submitted that the claimants are entitled for 25% future prospects, which the Tribunal has failed to grant. It is also his submission that the compensation granted on conventional head is on the lower side. Relying upon the decision of the Hon’ble Supreme Court in MAGMA GENERAL INSURANCE CO.LTD. Vs. NANU RAM reported in 2018 SCC ONLINE SC 1546, the learned counsel for the appellants submits that the claimants are entitled for compensation on the head of ‘Filial Consortium’.
6. Per contra, learned counsel for the respondents – Insurance Companies submits that the compensation awarded by the Tribunal is just and proper and does not warrant interference.
7. The accident is of the year 2012. In their appeal there is no dispute with regard to the accident that occurred on 15.02.2012 involving the tractor-trailor and death of Thippeswamy in the said accident. This appeal is confined to enhancement of compensation. The claimants states that the deceased was earning Rs.10,000/- per month by his agricultural activities, but there is no proof to indicate the exact income of the deceased. In the absence of documentary evidence to show the exact income of the deceased, the Court will have to assess the income on notional basis. The Tribunal has assessed the notional income of the appellant at Rs.4,500/-, which is on the lower side. This Court and the Lok Adalath while determining the compensation on the head of ‘Loss of dependency’ for the accidents of the year 2012 would normally take Rs.7,000/- per month. Hence I deem it appropriate to determine the monthly income of the deceased at Rs.7,000/- as compensation on the head ‘Loss of dependency’. Further the claimants would be entitled for compensation on the head of ‘Future prospects’. The Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS has held that when deceased was on self employment, he would be entitled for additional 25%, towards future prospects, if he is aged between 40 to 50 years. The deceased was aged 42 years as on the date of the accident. Therefore, the claimants would be entitled for additional 25% to the income on ‘Future prospects’. Thus on the head of ‘Loss of dependency’ the claimants would be entitled for modified compensation as follows :-
Rs.7,000/- + 25% = Rs.8,750/- Less 1/3rd = Rs.5,833/-
Rs.5,833/- x 12 = Rs.69,996/- (Rounded off to Rs.70,000/- x 14 = Rs.9,80,000/- .
8. Further the claimants would be entitled for compensation of Rs.70,000/- on ‘Conventional head’ as against the compensation awarded by the Tribunal. The Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. V. NANU RAM. has held as follows :-
“Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.”
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.”
9. Following the above decision of the Hon’ble Supreme Court, I am of the view, that the claimants 2 and 3 are sons entitled for Rs.40,000/- each towards ‘Parental consortium’. Thus totally Rs.80,000/- is awarded on the said head. The claimants are thus entitled for total compensation of Rs.11,30,000/- as against Rs.5,39,000/- awarded by the Tribunal. Thus the enhanced compensation would be Rs.5,91,000/- with interest at 6% as awarded by the Tribunal. The appeal is allowed in part. The liability of the 5th respondent and 3rd respondent would be 50% each as ordered by the Tribunal. Out of the enhanced compensation 50% of the amount shall be released in favour of the claimants and the balance 50% of the amount shall be kept in Fixed Deposit in any Nationalized Bank for a period of five years with liberty to the appellants/claimants to withdraw the periodical interest.
Sd/- JUDGE NG* CT:bms