IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 9554/2012(MV) BETWEEN 1.Smt. Jalajakshi, Aged 58 years, W/o late Jayakar, 2. Vinod, aged 27 years, S/o late Jayakar, Both are R/at Ashraya Colony, Kanakatla, Surathkal -575 014, Mangaluru Taluk, D.K. ... APPELLANTS (By Sri. Pundikai Ishwara BHat, Advocate) AND 1. Ramananda Pandith, 61 years, S/o Shridhar Bhat, Vidisha Jodukatte, Kadandale Villlage, Mangaluru, Dakshina Kannada District -574 227.
2. National Insurance Co. Ltd., I Floor, Nityananda Complex, Near Bus Stand, Moodabidre, Mangaluru -574 227 Reptd. by its Manager. RESPONDENTS (By Shri. Shivaraj Patil, Advocate for R2, R1- Notice dispensed with) This MFA is filed under section 173(1) of motor vehicles act, against the Judgment and Award dated 31/05/2012 passed in MVC No.1394/2009 on the file of the Prl. Senior Civil Judge, Member, MACT, Mangaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellants and the learned counsel for respondents No.1 and perused the records.
2.Though the matter is listed for orders on I.A.1/19, with consent of both parties, the same is heard for final disposal.
3. The legal heirs, who are the dependents of the deceased Jayakar have preferred this appeal, being not satisfied with the quantum of compensation awarded in the impugned judgment and award dated 31/05/2012 passed by the Motor Accident Claims Tribunal at Mangaluru, seeking enhancement of compensation.
4. The facts of the case are that on 24/07/2009 at about 07-45 p.m. when deceased Jayakar while crossing the road near Urva Store Junction, Mangaluru, the driver of a car bearing No.KA-19/Z-146 was driven in a rash and negligent manner with high speed dashed against him. Due to the impact, he sustained grievous injuries and died. Therefore, the claimants have filed claim petition seeking compensation.
5. After service of notice, the owner of the offending vehicle as well as the insurer have filed their written statement and contested the claim petition.
6. Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, petitioner no.1 got examined herself as PW.1 and got marked 19 documents as per Ex.P1 to P19. Respondents got marked Ex.R1 and Ex.R2. The Tribunal after hearing the learned counsel for the parties and on an evaluation of oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.2,04,110/- with interest @ 6% p.a. from the date of petition till the date of deposit. It is this judgment which is challenged in this appeal by the claimants seeking enhancement of compensation by urging various grounds.
7. The tribunal taking the income of the deceased at Rs. 4,000/- per month and deducting 1/3 towards his personal expenses and since the deceased was aged 70 years, applied the multiplier ‘5’ and awarded total compensation of Rs.2,04,110/- with interest at 6% per annum from the date of petition till the date of realization.
8. The learned counsel for the appellants vehemently submitted that the deceased was a Bar bender and earning Rs.10,000/- per month. The tribunal was not justified in assessing the income of deceased at Rs.4,000/- per month and that the compensation awarded towards loss of dependency is on lower side. He submitted that the deceased was inpatient for 17 days in Government Wen Lock Hospital, Mangaluru and spent about Rs.15,000/-. The tribunal has awarded a paltry sum of Rs.110/- towards medical expenses. He further submitted that the compensation awarded towards conventional heads such as loss of estate, consortium, loss of love and affection, funeral and attendant charges is also on lower side and prays for enhancement in the compensation.
9. Per contra, the learned counsel appearing for the insurer submitted that P.W.1, wife of the deceased has admitted in her cross-examination that deceased was 70 years at the time of accident. Therefore, the tribunal on appreciation of the evidence and material on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
10. On careful evaluation of the material on record, it is seen that the claimants are the wife and son of the deceased. Ex.P.1 is the copy of FIR, Ex.P.2 is the copy of post-mortem report, wherein the age of the deceased is mentioned as 60 years. Ex.P.18 is the salary certificate issued by P.W.2 under whom deceased was working as Bar bender which shows that deceased was earning Rs.10,000/- per month. The accident has occurred in the year 2009. Therefore, the income of the deceased has to be taken at Rs.5000/- per month and after deducting 1/3 towards personal expenses, it would come to Rs.3333/- . Considering the age of the deceased as ‘65’, the multiplier would be ‘7’. Hence, the loss of dependency would be arrived at Rs.2,79,972/- (3333 x12x7).
11. In view of ratio of reliance in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in AIR 2017 SC 5157, the compensation under conventional heads should not exceed Rs.70,000/- or should not be less than Rs.70,000/-. Therefore, it requires to be enhanced to further sum of Rs.30,000/-.
12. Further, having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD.
vs. NANU RAM (2018 SCC ONLINE SC 1546), I find it is just and proper to grant ‘parental consortium’ to appellant No.2. In the said judgment, the Apex Court has held thus:
“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.”
Hence, a sum of Rs.40,000/- is awarded under the said head to appellant No.2.
13. The deceased was hospitalised for 17 days.
However, the tribunal has awarded only a sum of Rs.110/- towards medical expenses and a sum of Rs.4,000/- towards attendant charges which do not require alteration.
14. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation enhanced by this Court Total Loss of dependency Loss of consortium Loss of love and affection Funeral and obsequies 1,60,000/- Increased by Rs.1,19,972 10,000/-
10,000/-
Enhanced 2,79,972/-
70,000 ceremony 10,000/-
Loss of estate 10,000/-
by Rs.30,000 Parental consortium to Appellant No.2 Nil Rs.40,000/- Rs.40,000/-
TOTAL 2,04,110/- 1,89,972/- 3,94,082/-
Thus, in all, the claimants are entitled to total compensation of Rs.3,94,082/- as against Rs. 2,04,110/- awarded by the tribunal. The enhanced compensation would come to Rs. 1,89,972/-.
Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 31.05.2012 passed by the Tribunal in MVC No.1394/2009 is hereby modified. The claimants/appellants are entitled for enhanced compensation of Rs.1,89,972/- which is rounded of to Rs.1,90,000/- with interest @ 6% p.a. from the date of petition till realisation.
Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment. The apportionment of compensation is in terms of the judgment of the tribunal However, the impugned judgment and award, in so far as it relates to the rate of interest, shall remain unaltered.
Office is directed to draw the decree accordingly.
In view of the disposal of the appeal, I.A.1/19 does not survive for consideration and consequently it is rejected.
Registry is directed to return the records to the concerned tribunal forthwith.
Msu Sd/- JUDGE