IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.7589/2015 [MV] BETWEEN:
1. GOPALA HARIJANA AGED ABOUT 53 YEARS S/O ABBU HARIJANA 2. PARVATHI @ LALITHA AGED ABOUT 45 YEARS S/O GOPALA HARIJANA 3. KUM. NAGARATHNA AGED ABOUT 21 YEARS D/O GOPALA HARIJANA ALL ARE R/AT KAJARAHALLI SHIRIYARA VILLAGE SAIBARKATTE POST UDUPI TALUK-576101.
(BY SRI.PAVANA CHANDRA SHETTY H, ADV.) AND:
1. SAYYED SALIM AGED ABOUT 32 YEARS S/O HUSSAIN SAB R/O THERUBEEDI HONDADAKERE SHIKARIPURA VILLAGE SHIMOGA DISTRICT-577201.
...APPELLANTS 2. MUNAVAR KHAN AGED ABOUT 48 YEARS S/O REHAMAN KHAN R/O TANK MOHALLA 1ST CROSS, SHIMOGA CITY SHIMOGA DISTRICT-577201.
3. THE NEW INDIA ASSURANCE CO. LTD., REP: BY ITS DIVISIONAL MANAGER SRI RAM ARCADE OPP: HEAD POST OFFICE UDUPI TALUK 576101.
(BY SRI. K.S. LAKSHMI NARASAPPA, ADV. FOR SRI.B.C. SEETHARAMA RAO, ADV.
NOTICE TO R1 & R2 ARE D/W) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.07.2014 PASSED IN MVC NO.515/2012 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSION’S JUDGE, AND ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR FURTHER ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This is a claimants' appeal seeking enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 31.07.2014 passed in MVC No.515/2012 on the file of Additional District and Sessions Judge and Additional MACT, Udupi (sitting at Kundapura), Kundapura.
2. Claimants are parents and sister of one deceased Nagesh. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of one Nagesh. It is stated that on 17.12.2011 when the deceased was proceeding as pillion rider on his Motor Cycle bearing Regn.No.KA.20.K.8219 near Hardalli-Mandalli Village a Tanker bearing Reg.No.KA.14.A.5769 came from opposite direction in high speed, rash and negligent manner and dashed to the Motor Cycle of the deceased due to which he was thrown out and sustained grievous injuries all over his body and died on the spot. It is stated that he was earning Rs.12,000/- working as a coolie. He was aged 21 years as on the date of accident.
3. On issuance of summons respondents 1 and 2 remained absent whereas respondent No.3 - Insurer appeared and filed its written statement denying the claim petition averments. Further it is submitted that their liability would be subject to the terms and conditions of the policy and holding of valid and effective driving licence by the driver of the Tanker as on the date of accident. Claimant No.1 father of the deceased examined himself as PW.1 and got marked the documents Exs.P1 to P6. Respondents got marked Ex.R1 - the insurance policy. The Tribunal on appreciating the material on record awarded total compensation of Rs.4,65,000/- along with interest at 6% p.a. from the date of petition till the date of realization on the following heads :-
1. Loss of dependency 4,20,000/-
2. Love and affection 20,000/-
3. Transportation of dead body 10,000/-
4. Cremation 10,000/-
5. Obsequies and religious functions 5,000/-
Total Rs.4,65,000/-
4. While awarding the above compensation the Tribunal assessed the income of the deceased at Rs.5,000/- per month and awarded Rs.45,000/- on conventional heads. Not being satisfied with quantum of compensation awarded by the Tribunal, the appellants/claimants are in appeal before this Court seeking enhancement of compensation.
5. Heard the learned counsel for the appellants and learned counsel for the 3rd respondent - Insurance Company. Perused the entire material on record.
6. Learned counsel for the appellants would submit that the income of the deceased assessed by the Tribunal at Rs.5,000/- per month is on the lower side. It is his submission that the deceased was earning more than Rs.12,000/- per month working as a coolie. He submits that looking to the standard of living and price index, the Tribunal ought to have to assessed the income of the deceased on the higher side. Taking into consideration the age of the deceased at 21 years, the Tribunal ought to have awarded compensation towards future prospects, which the claimants would be entitled for adding 40% of the assessed income towards future prospects. It is his further submission that the claimants 1 and 2, who are the parents of the deceased would be entitled to Rs.40,000/- each on the head filial consortium. Thus prays for enhancement of compensation by allowing the appeal.
7. Per contra, learned counsel for the 3rd respondent - Insurer submits that the Tribunal has awarded just compensation which needs no interference. He further submits that the deceased was a bachelor and the Tribunal has rightly deducted 50% of the assessed income towards personal expenses. Thus he prays for dismissal of the appeal.
8. Having heard the learned counsel for the parties and on perusal of the material on record, the points that arise for consideration is as to:-
a. Whether the income assessed by the Tribunal at Rs.5,000/- per month is just and proper?
b. Whether the claimants would be entitled for future prospects at 40% of the assessed income ?
c. Whether the claimants 1 and 2 would be entitled for filial consortium ?
Answer to point (a) is in the negative and points (b) & (c) is in the affirmative for the following reasons :-
The accident occurred on 17.12.2011 involving the Motor Cycle bearing No.KA-20.K.8219 and the Tanker bearing Reg.No.KA.14.A.5769 and the death of one Nagesh is not in dispute in this appeal. The claimants’ appeal is for enhancement of compensation. It is claimed that the deceased was earning Rs.12,000/- per month by doing coolie work, but no material is placed on record to indicate the exact income of the deceased. In the absence of any material to indicate the exact income the Tribunal assessed the income of the deceased notionally at Rs.5,000/- per month, which is on the lower side. Looking to the standard of living and the price index of the year 2011, even a coolie earned Rs.200/- per day, which would come to Rs.6,000/- per month. This Court and Lok Adalath while settling the accident claims of the year 2011 would normally assess the notional income at Rs.6,500/- per month. In the instant case, in the absence of any document to indicate the exact income of the deceased, it would be appropriate to assess the notional income at Rs.6,500/- per month. The deceased was aged 21 years as on the date of accident. The Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 has held wherever the deceased was self employed, the claimants would be entitled for adding 40% of the assessed income, wherever the deceased was below the age of 40 years. In the case on hand, the income of the deceased is assessed at Rs.6,500/- per month and was aged 21 years as on the date of accident. As such the claimants would be entitled for adding 40% of the assessed income towards future prospects. The claimants 1 and 2 are the parents of the deceased, who have lost their young son aged 21 years, have lost the love and affection and care of their son for ever. The claimants 1 and 2, who are the parents of the deceased would be entitled for filial consortium of Rs.40,000/- each in terms of the decision in MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS reported in 2018 ACJ 2782, Thus the claimants would be entitled to modified compensation on the following heads :-
a. Loss of dependency including future prospects Rs.6,500/- + 40% = Rs.9,100/-
Rs.9,100/- less 50% = Rs.4,550/-
Rs.4,550/- x 12 x 18 9,82,800/-
b. Filial Consortium 80,000/- (Rs.40,000/- x 2 = Rs.80,000/-) c. Conventional Heads 45,000/-
Total Rs.11,07,800/-
9. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent. The claimants would be entitled to modified compensation of Rs.11,07,800/- as against Rs.4,65,000/- awarded by the Tribunal, with interest at 6% p.a. from the date of petition till the date of realization. Apportionment and deposit would be as ordered by the Tribunal.
Sd/- JUDGE NG* CT:bms