IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.8862/2010 (MV) BETWEEN:
The New India Assurance Company Ltd., Divisional Office, Mysore.
Represented by Manager, Regional Office, The New India Assurance Company Ltd., No.2-B, Unity Building Annexe, Mission Road, Bangalore-560 027. (By Sri R. Rajagopalan, Advocate) AND:
1. Smt. Bindu Madhavi W/o late Srinivasalu PLNV Aged 32 years 2. Master Surya Abhishek Bharadwaj S/o late Srinivasalu PLNV Aged about 8 years (Being Minor, represented by His Mother Smt.Bindu Madhavi 1st respondent) Both are residents of D.No.12, Block No.9, SBM Colony, Sriramapura 2nd Stage, Mysore-570 001.
… Appellant 3. Sri K.S. Jagadeesha Rao Aged 51 years R/A No.15E, 7th Cross, Subhas Nagar, Mysore-570 001. … Respondents (By Sri R. Pallava, Advocate for R1 and R2; R2 is minor represented by R1;
R3-Notice dispensed with vide Court Order dated 05.11.2013) This MFA is filed under Section 173(1) of the MV Act, 1988 against the judgment and award dated 09.06.2010 passed in MVC No.878/2009 on the file of I Additional District Judge and MACT at Mysore, awarding a compensation of Rs.31,60,000/- with interest a 6% P.A. from the date of petition till realization.
This MFA coming on for Admission this day, the Court delivered the following:-
J U D G M E N T The present appeal has been filed by the appellant- Insurance Company assailing the judgment and award passed by the I Addl. District Judge and MACT at Mysore, in MVC No.878/2009 dated 9.6.2010.
2. Heard. Appeal is admitted. With consent of learned counsel appearing for the parties, it is taken up for final disposal.
3. The brief facts leading to the case are that on 22.1.2007 at about 8.15 p.m. when Srinivasalu was walking by the side of the road on the footpath on Hunsur road near Paduvarahalli Circle, a Maxi Cab bearing registration No.KA-10-1359 came rashly and negligently from Hunsur side and dashed against Srinivasalu from his backside. As a result of the same, he sustained severe head injuries and he was admitted to B.M.Hospital, Mysore. On 29.1.2007 he succumbed to the injuries sustained by him in the accident. It is further contended that the deceased Srinivasalu was aged about 31 years and he was an employee of State Bank of Mysore and working as an Officer in the Regional Office at Mysore and was drawing a salary of Rs.16,702.55 per month and for having lost the bread earner, the wife and son filed the claim petition claiming compensation.
4. On service of notice, respondent No.1 remained absent and was placed exparte. Respondent No.2- Insurance Company appeared through its counsel and filed its objections by denying the contents of the petition. It is further contended that the said vehicle has been insured with the respondent No.2-Insurance Company, but the liability is subject to the terms and conditions of the policy and subject to validity of Driving Licence, RC and other documents. On these grounds he prayed for dismissal of the petition.
5. On the basis of the pleadings the Tribunal framed the following issues:
(1) Whether the petitioners prove that on 22.1.2017 at about 8.15 p.m., when the deceased was walking on the extreme side of Hunsur Road, near Paduvarahalli Circle (Sri Adarsha Nursery and in front of Rajesh Traders shop), one Max Cab bearing registration No.KA-10-1359, driving by the 1st respondent in a rash and negligent manner so as to endanger human life from Hunsur side and dashed on the back side of the deceased Srinivasalu and due to the said impact, the deceased sustained injuries on his head and admitted to Basappa Memorial Hospital, Mysore for treatment, and on 29-1-2007, the deceased Srinivasalu succumbed to the injuries as alleged?
(2) Whether the petitioners prove that the deceased Srinivasalu was working in State Bank of Mysore, Regional Office, Mysore and drawing a salary of Rs.16,702-55 per month as on the date of the accident?
(3) Whether the respondent No.2 proves that the vehicle bearing registration No.KA-10- 1359 was covered under an insurance policy as on the date of accident?
(4) Whether the petitioners are entitled for compensation? If so, from whom and what amount?
(5) What Order?
6. In order to prove the case, petitioner No.1- wife of the deceased came to be examined as PW1 and got marked the documents Exs.P1 to P14 and she has also examined two more witnesses as PW.2 and PW.3. On behalf of respondent No.2, one witness was examined as RW1 and got marked the documents Exs.R1 to R6.
7. I have heard the learned counsel Sri R.Rajagopalan for the appellant and Sri R.Pallava for respondent Nos.1 and 2.
8. The main grounds urged by the learned counsel for the appellant are that the Tribunal erred in taking the net salary of the deceased at Rs.30,000/- per month and it also erred in adopting split multiplier system. It is further contended that the Tribunal has failed to appreciate the income of the deceased and it has also added 50% of his income towards future prospects and has awarded the compensation on higher side. He has further contended that the Tribunal has erroneously passed the impugned order and as such he prayed for allowing the appeal by setting aside the impugned order by reducing the compensation.
9. Per contra, learned counsel appearing for the respondents-claimants vehemently argued and contended that the appellant has not made out any good grounds to interfere with the order of the trial Court. Even the compensation awarded by the Tribunal, if it is re-assessed, there are no grounds to reduce the quantum of compensation. He has further contended that the Tribunal has awarded lower compensation towards conventional head and even the Tribunal has not awarded any compensation on the loss of estate and he has further contended that if the compensation awarded by the Tribunal is just and marginally correct, then under such circumstances the appellate Court cannot interfere with the order of the Tribunal and the same has to be confirmed. In order to substantiate the said fact he has relied upon the decision in the case of Rajanna Prakash and Others Vs. Divisional Manager and Another reported in 2011 ACJ 2418, and prayed for dismissal of the appeal.
10. The accident in question is not in dispute, so also the involvement of the offending vehicle insured with the respondent No.2-Insurance Company.
11. As could be seen from the judgment and award of the Tribunal, the Tribunal by taking into fact that the deceased was working as an Officer in State Bank of Mysore and was drawing a salary of Rs.16,357/- per month and was due for retirement in the year 2029 and after deducting Rs.200/- towards professional tax and considering the future prospectus of the deceased, by taking into consideration the income of the deceased at Rs.50,191/- per month and after deducing 1/3rd towards personal expenses, by applying split multiplier has awarded an amount of Rs.26,40,000/- towards loss of dependency. Though under the normal circumstances the said method adopted by the Tribunal appears to be justifiable, the method of split multiplier which has been applied is not correct. In that behalf, the compensation which has been awarded by the Tribunal has to be re- assessed under the said head.
12. The documentary evidence which has been produced clearly goes to show that the deceased was working as an Officer in the State Bank of Mysore and was drawing a salary of Rs.16,357/- and after adding 50% towards future prospects, an amount of Rs.24,535/- is taken as monthly income of the deceased, and after deducting Rs.200/- towards professional tax, an amount of Rs.24,336/- is taken as the monthly income of the deceased, after deducting income tax and 1/3rd towards personal expenses of the deceased, the total annual income comes to Rs.1,69,113/-. Since the deceased was aged about 31 years at the time of accident and after applying multiplier ‘15’ the respondents-claimants are entitled to an amount of Rs.25,36,700/- towards loss of dependency.
13. As could be seen from the judgment and award, the Tribunal has awarded an amount of Rs.20,000/- towards loss of consortium, Rs.10,000/- towards loss of love and affection and Rs.10,000/- towards funeral expenses. The amount of compensation awarded under the conventional heads appears to be on the lower side.
14. Keeping in view the decision of the Hon’ble Apex Court in the case of Rajesh and Others Vs. Rajbir Singh and Others reported in (2013) 9 SCC 54 at paragraphs 17 and 18 which reads as follows:
“17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio- economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Deve. We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2500 to Rs.10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarala Verma Case, it was held that compensation for loss of consortium should be in the range of Rs.5000 to 10,000. in legal parlance, “ consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non- pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spous’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head “funeral expenses”. The “price index”, it is a fact has gone up in that regard also. The head “funeral expenses” does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of “funeral expenses”, in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-”., the respondents are entitled to an amount of Rs.1,00,000/- towards loss of estate, Rs.1,00,000/- towards love and affection and Rs.25,000/- towards funeral expenses and transportation of dead body. Thus, the respondents- claimants are entitled to a total compensation of Rs.27,61,700/- with interest at 6% per annum. Since the compensation which has been now re-assessed as stated above, Rs.3,98,300/- appears to be on the excessive.
15. Keeping in view the above said facts and circumstances, the appeal is allowed in part. The judgment and award passed by the Tribunal in MVC No.878/2009 is modified as indicated above. The respondents-claimants are entitled to a total compensation of Rs.27,61,700/- with interest at 6% per annum.
16. The appellant-Insurance Company is directed to deposit the modified compensation amount awarded by this Court within six weeks from the date of receipt of certified copy of this Judgment. The same shall be disbursed to the respondents-claimants as per the directions issued by the Tribunal.
The Registry is directed to draw the award accordingly and send back the record forthwith.
If any excess amount is deposited by the appellant- Insurance Company, the same shall be paid to the appellant on proper identification and acknowledgement.
*AP/-
Sd/- JUDGE