IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL No.7133 of 2015(MV-D) C/w MISCELLANEOUS FIRST APPEAL No.6362 of 2015(MV-D) IN MFA No.7133 of 2015 BETWEEN:
1. SMT. H.P. SUNITHA, W/O. LATE JAGANNATH @ JAGADISH, AGED ABOUT 38 YEARS, 2. MASTER A.J. SAISIDDARTH, S/O. LATE JAGANNATH @ JAGADISH, AGED ABOUT 09 YEARS, APPELLANT No.2 IS MINOR REPRESENTED BY HIS MOTHER AS A NATURAL GUARDIAN BOTH ARE PRESENTLY RESIDING AT C/O. SANJEEVEGOWDA, No.5770, 20TH CROSS, KUVEMPU NAGAR, HASSAN TOWN – 573 201.
3. SRI KEMPEGOWDA, AGED ABOUT 59 YEARS, 4. SMT. DEVAMMA, W/O. SRI KEMPEGOWDA, AGED ABOUT 54 YEARS, BOTH ARE PERMANENTLY RESIDING AT No.83-A, AGRAHARABACHIHALLI, K.R. PETE TALUK, MANDYA DISTRICT – 571 426.
... APPELLANTS (BY SRI K.T. GURUDEVA PRASAD, ADVOCATE) AND:
1. SRIRAM GENERAL INSURANCE CO. LTD., No.55, ‘MONARCH CHAMBERS’, 3RD FLOOR, INFANTRY ROAD, BANGALORE – 560 001.
2. SRI BASAVARAJU B.M., S/O. MARIBASAPPA, RESIDING AT BEECHANAHALLI VILLAGE & POST, HOLENARASIPURA TALUK, HASSAN DISTRICT – 573 211.
... RESPONDENTS (BY SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR R1; R2 IS SERVED BUT UNREPRESENTED.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.04.2015 PASSED IN MVC No.1563/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.6362 of 2015 BETWEEN:
M/S. SHRIRAM GENERAL INSURANCE COMPANY LTD., No.55, MONARCH CHAMBERS, 3RD FLOOR, INFANTRY ROAD, BANGALORE – 560 001.
REPRESENTED BY ITS BRANCH MANAGER.
NOW REPRESENTED BY ITS M/S. SHRIRAM GENERAL INSURANCE COMPANY LTD., No.302, 3RD FLOORS, S&S CORNER BUILDING, OPPOSITE BOWRING AND CURZON HOSPITAL, SHIVAJINAGAR, BANGALORE - 560 001.
... APPELLANT (BY SRI B.C. SHIVANNE GOWDA, ADVOCATE) AND:
1. SMT. H.P. SUNITHA, W/O. LATE JAGANATH @ JAGADEESH, NOW AGED ABOUT 38 YEARS, 2. MASTER A. J. SAISIDDARTHA, S/O. LATE JAGANATH @ JAGADEESH, NOW AGED ABOUT 11 YEARS, 2ND RESPONDENT IS MINOR, REP BY HIS MOTHER NATURAL GUARDIAN IE., 1ST RESPONDENT.
BOTH ARE RESIDENT OF C/O. SANJEEVEGOWDA, No.5770, 20TH CROSS, KUVEMPU NAGAR, HASSAN TOWN - 573 201.
3. KEMPEGOWDA, AGED ABOUT 58 YEARS, 4. SMT. DEVAMMA, W/O. KEMPEGOWDA, AGED ABOUT 54 YEARS, 3RD AND 4TH RESPONDENTS ARE RESIDING AT No.83/A, AGRAHARABACHIHALLI, K.R. PET TALUK, MANDYA DISTRICT – 571 401.
5. BASAVARAJU B.M., S/O. MARIBASAPPA, MAJOR, BEECHANAHALLI VILLAGE AND POST, HOLENARASIPURA TALUK, HASSAN DISTRICT – 573 201.
... RESPONDENTS [BY SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR SRI K.T. GURUDEVA PRASAD, ADVOCATE FOR R1-R4; (R2 IS MINOR REPRESENTED BY R1);
R5 IS SERVED BUT UNREPRESENTED.] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.04.2015 PASSED IN MVC No.1563/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AT CHANNARAYAPATNA, AWARDING COMPENSATION OF Rs.19,25,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, NATARAJAN. J., DELIVERED THE FOLLOWING:
JUDGMENT MFA No.7133/2015 is filed by the appellant- claimants seeking enhancement of compensation over and above what has been awarded by the Senior Civil Judge, Channarayapatna (hereinafter referred to as ‘Tribunal’), in MVC No.1563/2013, while MFA No.6362/2015 is filed by the insurer against the judgment and award passed by the Tribunal in the same case.
2. The status of the parties before the Tribunal is retained herein for the sake of convenience.
3. The case of the claimants-petitioners before the Tribunal is that on 17.7.2011, at about 11.45 a.m., the husband of the first claimant namely, Jaganath @ Jagadish was proceeding along with his wife and son on a motorcycle bearing Regn. No.KA-13/K-1741 towards Jakkenahalli, on N.H.48, Channarayapatna. When he reached near the farm of Puttaswamy Gowda at Jodigatte- Hirihalli, he stopped the vehicle on the extreme left side of the road to attend nature’s call. At that time, a lorry bearing Regn.No.KA-13-9396 came in a rash and negligent manner and dashed against him, as a result of which, he sustained grievous injuries. Immediately, he was shifted to Government Hospital, Udyapura, and later to SSM Hospital, Hassan, Vikram Hospital, Mysuru and thereafter to KIMS Hospital, Bengaluru, and was treated as an inpatient for ten days. In spite of treatment, he succumbed to the injuries on 26.08.2011. The claimants, who are the dependents of the deceased filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (‘Act’ for short) claiming compensation of Rs.20.00 lakh.
Pursuant to the notice of the Tribunal, respondent No.1-insurer appeared before the Tribunal, filed objections denying rash and negligent driving of the lorry by its driver and also contended that the driver of the lorry was not holding a valid and effective driving license and that a false complaint had been filed for the purpose of seeking compensation, even though the deceased was negligent in riding the motorcycle. Therefore, respondent No.1-insurer was not liable to pay compensation and hence, prayed for rejecting the claim petition. Respondent No.2-owner of lorry appeared through the counsel, but did not file any written statement.
4. Based upon the rival pleadings, the Tribunal framed the following issues:
“ 1. Whether the claimants prove that Sri. Jaganath @ Jagadish has sustained grievous injuries in R.T.A. that occurred on 17.07.2011 at about 11.45 a.m., while he was proceeding on motorcycle bearing Reg.No.KA-13/K-1741 on NH-48 near Jodigattee-Hirihalli, Channarayapatna taluk met with an accident due to rash and negligent driving of the lorry bearing Reg.No.KA-13-9396 by its driver and succumbed to the injuries?
2. Whether claimants are entitled for compensation as claimed? If so, to what amount and from whom?
3. What order or award?”
5. To substantiate the claim, claimant No.1 examined herself as PW.1 and also examined two more witnesses as PWs.2 and 3 and got marked 24 documents as per Exs.P.1 to P.24 and on behalf of the respondent-insurer, one Mohankumar A.S., was examined as RW.1 and he got marked the Policy as Ex.R.1. After hearing arguments, the Tribunal answered issued No.1 in the affirmative and issue No.2 partly in the affirmative and awarded compensation of Rs.19,25,000/- with interest at 6% per annum from the date of petition till the date of deposit, under the following heads:
1) Medical, conveyance, : Rs. 1,25,000/- Nourishment & Attendant 2) Loss of dependency : Rs.17,55,000/-
3) Loss of Love & Affection : Rs. 20,000/-
4) Loss of consortium : Rs. 10,000/-
5) Transportation, Obsequies & Funeral expenses : Rs. 15,000/-
Total : Rs.19,25,000/-
6. Being aggrieved by the compensation awarded by the Tribunal, the insurer has filed the appeal contending that the Tribunal failed to note that the accident had occurred due to the negligence of the deceased while crossing the road after attending nature’s call. The income of the deceased was considered at Rs.15,000/- per month even though no documents were produced to prove the same. The father of the deceased was not dependent on the income of the deceased, but the Tribunal has considered the father as dependent. Further, 1/4th of the income of the deceased has been deducted towards his personal expenses, which is not correct. The Tribunal ought to have deducted 1/3rd of the income of the deceased towards his personal expenses. Therefore, learned counsel for the insurer contended that the compensation awarded by the Tribunal requires to be reduced. Further, it was also contended that the deceased is said to have been an LIC agent, but the income from the same is not more than Rs.2,000/- per month in the instant case. The documents produced by the claimants go to show that the deceased had very less income and such being the case, considering the income of the deceased at Rs.15,000/- per month by the Tribunal is not correct.
7. Per contra, learned counsel for the claimants who have also preferred the appeal contended that the deceased apart from running a Mess was also doing part- time job as LIC agent and was earning Rs.30,000/- per month. He was also getting income from LIC of India, ING Vysya Life Insurance, Agri-gold (JMO) PACL India Ltd., Hassan. The witnesses have been examined to prove the income, but without appreciating their evidence, the Tribunal has determined the monthly income of the deceased only at Rs.15,000/- per month. The Tribunal has also failed to add 30% of the income towards future prospects. The claimants have spent huge amount towards medical expenses, but the Tribunal has awarded only Rs.1,25,000/-. The award of compensation on the head of consortium by the Tribunal is also less. Therefore, learned counsel for the claimants prayed for enhancement of compensation.
8. Having heard the arguments of learned counsel for the respective parties and on perusal of the material placed on record, the points that arise for our consideration are:
“i) Whether the findings of the Tribunal holding that the accident in question had occurred due to rash and negligent driving of the lorry bearing Regn.No.KA-13-9396 by its driver calls for interference?
ii) Whether the claimants are entitled for enhanced compensation?
iii) What order?”
9. The claimant/petitioner No.1 has examined herself as PW.1 and contended that on the date of accident, her husband Jaganath @ Jagadish was proceeding along with her and their son on the motorcycle bearing Regn.No.KA-13/K-1741 towards Jakkenahalli, on NH-48. After reaching near the Farm of Puttaswamy Gowda at Jodigatte-Hirihalli, he stopped the vehicle on the extreme left side of the road to attend nature’s call. At that time, the lorry bearing No.KA-13-9396 came in a rash and negligent manner and dashed to her husband and caused grievous injuries. Immediately, her husband was shifted and admitted to various hospitals and subsequently, on 26.08.2011, he died in the hospital. The claimants also produced and marked documents viz., Ex.P.1-certified copy of the FIR with complaint, Ex.P.3 sketch, Ex.P.4-spot mahazar, Ex.P.8-charge sheet, Ex.P.9-IMV report and contended that the accident has occurred due to the rash and negligent driving of the lorry by its driver. Though respondent No.2-owner of lorry appeared through the counsel, but he did not file any written statement before the Tribunal, to plead that there was no negligence on the part of the driver of the lorry. In the cross-examination, PW.1 has again stated that after attending nature’s call, when her husband came near the vehicle and attempted to start the motorcycle, at that time, the accident occurred. Though the respondent-insurer contended that the accident occurred when the deceased was crossing the road and that there was contributory negligence on the part of the deceased etc, but there is no positive evidence from the side of the insurer to show that the accident occurred due to the negligence of the deceased while crossing the road. Ex.P.1-complaint filed by the complainant to the Police shows that when the deceased sat on the bike, the accident happened which corroborates the evidence of PW.1 that when the deceased was about to start the vehicle, the accident occurred. Ex.P.3-sketch also shows that the accident occurred by the side of the road and not in the middle of the road. Though RW.1 was examined on behalf of the respondent and contended that the deceased had also equally contributed to the accident, but they have not produced any separate accident report and positive evidence to prove that the accident happened due to the contributory negligence on the part of the deceased. On perusal of the evidence of PW.1, especially Police records, it clearly reveals that the accident occurred due to the negligent driving of the lorry by its driver. The Tribunal, after considering the evidence on record both oral and documentary, has given the findings that the accident occurred due to the negligent driving of the lorry by its driver. Therefore, we do not find any ground to interfere with the findings in respect of negligence on the part of the driver of the lorry. Hence, we answer point No.1 against the insurer and in favour of the claimants.
10. As regards the computation of compensation, learned counsel for the claimants contended that the deceased was running a Mess of his own and was also doing part-time job as an agent of LIC of India, ING Vysya Life Insurance, Agri-gold (JMO) PACL India Ltd., Hassan and earning Rs.30,000/- per month. The Bank Pass-book, statement of accounts and appointment letter were produced before the Tribunal, but the Tribunal has considered the income of the deceased only at Rs.15,000/-, which is not correct. Hence, he prayed for enhancement of the same.
11. Per contra, learned counsel for the respondent- insurer contended that though the claimants have produced the Bank Pass-book, statement of accounts and other documents in respect of the LIC agency, they do not reveal that the income of the deceased was more than Rs.2,000/- per month. Perusal of the documents produced by the claimants, especially, Ex.P.12 shows that he was also working in Agri-gold and Ex.P.14 - statement of accounts of the deceased issued by the Corporation Bank shows that he has received the amount from LIC as commission. Ex.P.16 is the appointment letter issued by the LIC of India. Form No.16A for having submitted the advance tax to the income tax department. Ex.P.17 is the photograph showing that the deceased was running a Mess in the name and style of J.S.S. These documents were not seriously disputed by the respondents. However, on perusal of the Bank Pass-book issued by the Corporation Bank and also bank note shows that the deceased was working as an agent for LIC of India, ING Vysya and Agri- gold Finance and he was receiving periodical commission from the above said Companies. Apart from that, he was also running a Mess.
12. Learned counsel for the insurer also argued that the death of the deceased would not affect the income from the Mess which cannot be said to be stopped except the personal work contributed by the deceased for the development of the Mess as the claimants have given the Mess for rent.
13. By considering the rival contentions and on perusal of the record and after appreciating the evidence on record, the Tribunal ought to have assessed the income at Rs.12,000/- only per month in the absence of actual proof of income. We also do not find any proper document to show that the deceased was earning Rs.15,000/- per month or more, as contended by the claimants. Considering that the deceased was working as an Agent in three organizations and running a Mess, at least he could have earned Rs.12,000/- per month as income. Therefore, we propose to take the income of the deceased at Rs.12,000/- per month.
14. The Tribunal has also not considered the future prospects of the deceased. The Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017)16 SCC 680 considered the future prospects of the deceased at 25% for the age of 46 years. Though the claimant contended that as per the identity card issued by the ING Vysya Bank, his age should be considered as 41 years, but the claimants have not produced any Birth Certificate or school certificate of the deceased. On the other hand, a private banker has issued the identity card showing the age of the deceased, which cannot be acceptable. Therefore, we propose to consider the age of the deceased as 46 years by relying upon the medical documents and also the post-mortem report. Hence, we propose to add 25% of the income towards future prospects, which comes to Rs.15,000/- (Rs.12,000/- + Rs.3,000/-).
15. As per the decision of the Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation Limited and another reported in (2009) 6 SCC 121, if the claimants are more than 3 persons, 1/4th of the income shall be deducted towards personal expenses of the deceased. If 1/4th of the income at Rs.3,750/- is deducted, it comes to Rs.11,250/- per month and the same is multiplied by 12 for computing annual income and applying the multiplier of 13, compensation on the head of loss of dependency is Rs.17,55,000/-. Hence, the loss of dependency is also assessed by us at Rs.17,55,000/- in the aforesaid manner.
16. Towards medical expenses, the claimants produced the medical bills and claimed Rs.3,00,000/-, but after considering Exs.P.18 to P.20, the Tribunal has rightly awarded Rs.1,25,000/- towards medical expenses. Therefore, the compensation awarded by the Tribunal towards medical expenses is retained.
17. As per the decision of the Hon’ble Apex Court in the case of Pranay Sethi (supra), the Court is required to grant compensation towards loss of consortium to the claimants. As per the judgment of the Hon’ble Apex Court reported in the case of Nanu Ram alias Chuhru vs. Magma General Insurance Co. Ltd., reported in 2018 ACJ 2782, the wife is entitled to spousal consortium, the children are entitled for parental consortium and the parents are entitled for filial consortium. Therefore, claimant No.1 being the wife is entitled for Rs.40,000/-, towards spousal consortium, claimant No.2 is entitled for Rs.30,000/- towards parental consortium and claimant Nos.3 and 4 being the parents are entitled for filial consortium of Rs.30,000/- each. Thus, a total compensation of Rs.1,30,000/- towards loss of consortium is awarded. The claimants are also entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral and transportation expenses. Thus, the claimants are entitled to the following compensation:
i) Loss of dependency - Rs.17,55,000/-
ii) Loss of consortium to:
a) Claimant No.1 - Rs. 40,000/-
b) Claimant No.2 - Rs. 30,000/-
c) Claimant No.3 - Rs. 30,000/-
d) Claimant No.4 - Rs. 30,000/-
Total - Rs.20,40,000/-
18. In the result, despite taking into consideration the contentions of learned counsel for the appellant/insurer, the compensation is re-assessed at Rs.20,40,000/- and the same shall carry interest at the rate of 6% p.a.
The enhanced compensation with up-to-date interest shall be awarded to claimant No.1, widow of the deceased only.
50% of the said amount shall be deposited in any Nationalised Bank or Post Office for an initial period of five years. She shall be entitled to draw periodical interest on the said deposit.
The balance amount shall be released to her after due identification.
Consequently, the appeal filed by the claimants is allowed in-part and the appeal filed by the insurer is dismissed.
Parties to bear their respective costs.
The amount in deposit before this Court be transmitted to the Tribunal.
Sd/- JUDGE Sd/- JUDGE mv