IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.4064/2015 C/W M.F.A.No.3057/2015 [MV] M.F.A.No.4064/2015 BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., DO.VI, NO.202, BRIGADE PLAZA NORTH WING, 2ND FLOOR SUBEDAR CHATRAM ROAD ANANDA RAO CIRCLE BANGALORE-560 009.
REPRESENTED BY MOTOR THIRD PARTY CLAIMS HUB MAHALAKSHMI CHAMBERS NO.9, 2ND FLOOR MAHATMA GANDHI ROAD BANGALORE-560001.
BY ITS DULY CONSTITUTED ATTORNEY.
...APPELLANT (BY SRI.RAVISHANKAR C R, ADV.) AND:
1. SMT SHARADAMMA AGED ABOUT 43 YEARS W/O SRI. RAJANNA 2. SRI. RAJANNA AGED ABOUT 46 YEARS S/O LATE GANGAPPA 3. BHAVYA R AGED 14 YEARS D/O SRI. RAJANNA SINCE MINOR REPT. BY NEXT FRIEND FATHER RAJANNA.
ALL ARE RESIDING AT AREBOMMANAHALLI THYAMAGONDLU HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT-562123.
4. SRI. A.V.C. VEERABHADRAPPA S/O SRI. A.V. CHIKKAPAIYANNA PROP. M/S. SRI VIJAYA MOTOR SERVICE NO.1336, FORT STREET VIJAYAPURA, DEVANAHALLI BANGALORE-562135.
…RESPONDENTS (BY SRI. N R RANGE GOWDA, ADV. FOR R1 & 2 R3 IS MINOR REP. BY R2 SRI G.V. DAYANANDA, ADV. FOR R4) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.02.2015 PASSED IN MVC NO.506/2014 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDGE, & XXXIII ACMM, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.9,64,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A.No.3057/2015 BETWEEN:
1. SMT.SHARADAMMA W/O RAJANNA NOW AGED ABOUT 43 YEARS 2. RAJANNA D/O LATE GANGAPPA NOW AGED ABOUT 46 YEARS 3. BHAVYA R D/O RAJANNA NOW AGED ABOUT 14 YEARS NOTE: PETITIONER NO.3 IS SINCE MINOR REP. BY THEIR NATURAL GUARDIAN FATHER APPELLANT NO.2 ALL ARE R/AT AREBOMMANAHALLI THYAMAGONDLU HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT-562 123.
...APPELLANTS (BY SRI.RANGEGOWDA N R, ADV.) AND:
1. A.V.C. VEERABHADRAPPA S/O A V CHIKKAPAIYANNA PROP. M/S.SRI VIJAYA MOTOR SERVICE AGED MAJOR NO.1336, FORT STREET VIJAYAPURA, DEVANAHALLI BANGALORE -562 135.
2. THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., D O-VI, NO.202 BRIGADE PLAZA NORTH WING, 2ND FLOOR SUBEDAR CHATRAM ROAD ANAND RAO CIRCLE BANGALORE- 560009.
…RESPONDENTS (BY SRI.C R RAVISHANKAR, ADV. FOR R2 NOTICE TO R1 IS D/W) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.02.2015 PASSED IN MVC NO.506/2014 ON THE FILE OF THE 8TH ADDITIONAL SMALL CAUSE JUDGE, 33RD ACMM, MEMBER-MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both insurer and claimants are in appeals challenging the judgment and award dated 10.02.2015 passed in MVC No.506/2014 on the file of the VIII Additional Small Causes Judge and Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal' for short).
2. The insurer is in appeal in MFA No.4064/2015 assailing the impugned judgment and award on the ground that the Tribunal committed an error in saddling the liability on the insurer as the accident occurred solely due to the negligence of the deceased and on the ground that the Tribunal has awarded exorbitant compensation. The claimants are in appeal in MFA No.3057/2015 praying for enhancement of compensation, since the Tribunal has failed to award any compensation on the head of future prospects.
3. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental death of one Byregowda in a road traffic accident. The claimants are parents and unmarried sisters of the deceased. It is stated that on 01.01.2014 when the deceased Byregowda, who was working under Lanco Toll as a security was standing on the median of National Highway-48, Bengaluru-Kunigal Highway, a bus bearing registration No.KA-43/4699 driven in a rash and negligent manner and in a high speed came and dashed to the deceased. As a result, the deceased fell on the road and wheel of the bus ran over his head. Due to which, he succumbed to the injuries on the spot. The claimants state that the deceased was earning Rs.10,000/- p.m., and he was aged 25 years as on the date of accident.
4. On issuance of notice, the respondents appeared before the Tribunal and filed their independent written statement. The first respondent/owner of the offending bus in his statement denied the petition averments and stated that the offending vehicle is covered with insurance policy issued by the second respondent, which was valid as on the date of accident. The second respondent/insurer in its statement denied the claim petition averments, but admitted issuance of policy in respect of the offending vehicle. It was also stated that the claim made is exorbitant and excessive.
5. The second claimant was examined as P.W.1 and got marked the documents as Ex.P1 to Ex.P12. The insurer examined its Assistant Manager as R.W.1 and got marked the documents as Ex.R1 and Ex.P2(a).
6. On appreciating the material on record, the Tribunal awarded the total compensation of Rs,9,64,000/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following heads:
1. Loss of dependency :: Rs.8,64,000/-
2. Loss of love and affection :: Rs. 30,000/-
3. Loss of estate :: Rs. 60,000/-
4. Funeral & obsequies :: Rs. 10,000/-
Total Rs.9,64,000/-
While awarding the above compensation, the Tribunal assessed the monthly income of the deceased at Rs.8,000/- and adopted 18 multiplier taking into consideration the age of the deceased. Further saddled the liability on respondent No.2/insurer of the offending vehicle. The insurer is in appeal, being aggrieved by saddling of liability on it and also aggrieved by the quantum of compensation, whereas the claimants are in appeal praying for enhancement of compensation.
7. Heard the learned counsel for the insurer as well as the learned counsel for the claimants. Perused the material on record including the Lower Court Records.
8. Learned counsel for the insurer would submit that the Tribunal committed an error in taking the age of the deceased instead of the age of the younger parent to adopt the appropriate multiplier for calculating the compensation on the head of loss of dependency. He further submits that the accident had taken place solely due to the negligence of the deceased himself. Ex.P2 (a) sketch would disclose that the deceased was standing by the side of median on NH-48 i.e. Bengaluru-Kunigal road and suddenly he tried to cross the road, due to which the accident occurred. Therefore, he submits that the deceased also contributed his negligence towards occurrence of accident. The Tribunal failed to consider the contributory negligence on the part of the deceased.
9. Per contra, learned counsel for the claimants would submit that the accident occurred solely due to the negligence of driver of the bus. To contend the contributory negligence on the part of the deceased, the insurer has not lead any evidence. The insurer has not even examined the driver of the bus to substantiate their contention. On NH-48, road work was carried on and traffic deviated from the said National Highway. The deceased was standing by the side of the median and the driver of the bus came in a rash and negligent manner and dashed to the deceased, due to which, he died. Further, the learned counsel for the claimants submit that the monthly income assessed by the Tribunal at Rs.8,000/- is proper and claimants’ grievance is that the Tribunal failed to award any compensation on the head of ‘future prospects’. It is his submission that the deceased was aged about 25 years as on the date of accident and as per the decision of 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, the claimants would be entitled for adding 40% of the assessed income towards future prospects. Further, it is his submission that the claimants 1 and 2 are parents of the deceased who have lost their young son aged 25 years, they would be entitled to Rs.40,000/- each towards filial consortium as held by the Hon'ble Apex Court in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Thus, prays for enhancement of compensation.
10. On hearing the learned counsel for the parties and on perusal of the material on record including the lower Court Records, the following points would arise for consideration in this appeal:
(i) Whether the Tribunal is justified in saddling the liability on the second respondent/insurer?
(ii) Whether the Tribunal is justified in taking the age of the deceased for adopting the appropriate multiplier for awarding compensation on the head of loss of dependency?
(iii) Whether the claimants would be entitled at 40% of the assessed income towards future prospects and for enhancement of compensation?
11. Answer to the above points would be in the affirmative for the following reasons:
The accident occurred on 01.01.2014 involving the bus bearing registration No.KA-43/4699 and the accidental death of Byregowda son of claimants 1 and 2 is not in dispute in these two appeals. The insurer is in appeal questioning saddling of liability on it and also aggrieved by awarding exorbitant compensation by adopting the multiplier of 18 considering the age of the deceased instead of the younger parent, whereas the claimants are in appeal seeking enhancement of compensation.
12. Learned counsel for the insurer submits that the accident occurred solely due to the negligence of the deceased himself and there is no negligence on the part of the driver of the offending bus. To substantiate his contention, the insurer has not lead any evidence nor marked any document. The best witness to say as to whether there was negligence on the part of the deceased in the occurrence of the accident would have been the driver of the bus. But, he is not examined. Moreover, when Ex.P2(a)-sketch of the spot of accident is looked into, it is seen that the deceased was standing on the median on NH-48 from Nalamangala to Kunigal. The offending bus, which came from Nelamangala side to Kunigal, dashed to the deceased and the accident occurred at the edge and close to the median, which means, the deceased was standing touching the median whereas the bus came close to the median and dashed to the deceased. Therefore, it can be safely said that the accident had taken place solely due to the rash and negligent driving of the driver of the offending bus. Accordingly, point No.1 is answered in the affirmative.
13. The deceased was aged 25 years. The Tribunal determining the age of the deceased as 25 years adopted multiplier of 18. The contention of the insurer is that the Tribunal ought to have taken the age of the younger parent for adopting the multiplier. But the said contention no more survives for consideration as the Hon'ble Apex Court in catena of decisions has made it clear that for adopting appropriate multiplier, age of the deceased will have to be taken into consideration. The Hon'ble Supreme Court in a decision reported in AIR 2019 SC 3814 in the case of JOGINDER SINGH AND ANOTHER v/s ICICI LOMBARD GENERAL INSURANCE COMPANY has held as follows:
“The issue with respect to whether the Multiplier to be applied in the case of a bachelor, should be computed on the basis of the age of the deceased, or the age of the parents, is no longer res integra. This issue has been recently settled by a three Judge bench of this Court in Royal Sundaram Alliance Insurance Co. Ltd. V/S Mandala Yadagari Goud and others, wherein it has been held that the Multiplier has to be applied on the basis on the age of the deceased.”
Thus adopting of multiplier 18 taking the age of the deceased is proper and correct. Accordingly, answered point No.2 in the affirmative.
14. The Tribunal failed to award any compensation of the head of future prospects. The Tribunal determined the monthly income of the deceased at Rs.8,000/- which is correct and the same is not under challenge either by the claimants nor by the Insurer. The deceased was aged 25 years. The Hon'ble Apex Court in PRANAY SETHI case (supra) has laid down that the claimants would be entitled for adding 40% of the assessed income, wherever the deceased was aged below 40 years. Following the said decision, I am of the view that the claimants would be entitled for adding 40% of the assessed income towards future prospects.
15. Claimants No.1 and 2 are parents of the deceased Byregowda, who have lost their son aged 25 years. Claimants No.1 and 2 lost love, affection and care of their son forever. Hence, they would be entitled for filial consortium at the rate of Rs.40,000/- each as held by the Hon'ble Apex Court in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. The Tribunal has awarded a sum of Rs.1,00,000/- on conventional heads. But, as per the decision of the Hon'ble Apex Court in PRANAY SETHI case (supra), since the deceased was bachelor, the claimants would be entitled for only Rs.30,000/- towards conventional heads. Accordingly, the claimants would be entitled for the following modified compensation:
1. Loss of dependency including future prospects (8000+40% = 11200 – 50% 5600x12x18) :: Rs.12,09,600/-
2. Conventional heads :: Rs. 30,000/-
3. Filial Consortium :: Rs. 80,000/- (40000x2) -------------------
Total Rs.13,19,600/-
Thus the claimants would be entitled for total compensation of Rs.13,19,600/- with interest at the rate of 6% p.a., from the date of petition till realization, as against Rs.9,64,000/- awarded by the Tribunal.
16. Accordingly, both the appeals are allowed in part. The judgment and award dated 10.02.2015 passed in MVC No.506/2015 on the file of the VIII Additional Small Causes Judge and Motor Accident Claims Tribunal, Bengaluru is hereby modified to the above extent. The claimants are entitled to enhanced compensation of Rs.3,55,600/-.
The amount in deposit in MFA No.4064/2015 be transmitted to the concerned Tribunal.
The apportionment and deposit would be as per the order of the Tribunal.
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