IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.7401 OF 2017 (MV-D) C/W M.F.A.NO.6479 OF 2017 (MV-D) IN M.F.A.NO.7401 OF 2017:
BETWEEN:
1. SMT JAYALAKSHMI, W/O M.H.SIDDAIAH, AGED ABOUT 46 YEARS.
2. M.S.VISHAL GOWDA, S/O LATE M.H.SIDDAIAH, AGED ABOUT 20 YEARS.
3. M.S.MOHAN GOWDA, D/O LATE M.H.SIDDAIAH, AGED ABOUT 19 YEARS.
4. SMT. ERAMMA, W/O HUCHEERE GOWDA, AGED ABOUT 81 YEARS.
ALL ARE RESIDING AT C/O MALLESH L, NO.37, 3RD CROSS, 1ST MAIN, VISHWANEEDAM POST, BANGALORE-560091.
PRESENT ADDRESS:
R/AT NO.1387, 10TH CROSS, SOUKARY CHANNAIAH ROAD, JANATHA NAGAR, BOGADI, MYSORE-570 026. ... APPELLANTS (BY SRI GURUDEV PRASAD K T, ADVOCATE) AND:
1. BHARATHI AXA GENERAL INSURANCE COMPANY LIMITED., T.P.CLAIMS HUB, 1ST FLOOR, SURVEY NO.28, FERNS ICON, DODDANEKUNDI, BENGALURU-560037.
2. HIREMANIYAVAR G B, S/O BASAPPA, RESIDING AT NO.202, 1ST MAIN ROAD, 2ND STAGE, 3RD BLOCK, NAGARABHAVI, BENGALURU-560072. ... RESPONDENTS (BY SRI D SADASHIVA, ADVOCATE FOR R2; SRI B.PRADEEP, ADVOCATE FOR R1) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.06.2017 PASSED IN MVC NO.2668/2016 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, & MEMBER MACT, BENGALURU. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.6479/2017:
BETWEEN:
LEGAL MANAGER, BHARATHI AXA GIC LTD., 1ST FLOOR, FERNS ICON, SURVEY NO 28, DODDANEKUNDI, K R PURAM HOBLI, BANGALORE – 560037. ... APPELLANT (BY SRI PRADEEP B, ADVOCATE) AND:
1. SMT JAYALAKSHMI, S/O M H SIDDAIAH NOW AGED ABOUT 46 YEARS.
2. M S VISHAL GOWDA, S/O M H SIDDAIAH, NOW AGED ABOUT 20 YEARS.
3. M S MOHAN GOWDA, S/O M H SIDDAIAH, NOW AGED ABOUT 19 YEARS.
4. SMT ERAMMA, W/O HUCHEERE GOWDA, NOW AGED ABOUT 81 YEARS, ALL ARE R/AT C/O MALLESH L, NO.37, 3RD CROSS, 1ST MAIN, VISWANEEDAM POST, BANGALORE – 91, PRESENT ADDRESS: NO.1387, 10TH CROSS, SOUKARY CHANNAIAH ROAD, JANATHA NAGAR BOGADI, MYSORE.
5. HIREMANIYAVAR G B, S/O BASAPPA, R/AT NO 202, 1ST MAIN ROAD, 2ND STAGE, 3RD BLOCK, NAGARABHAVI, BANGALORE – 72. ... RESPONDENTS (BY SRI K T GURUDEAVA PRASAD, ADVOCATE FOR R1 TO R4;
R5 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.06.2017 PASSED IN MVC NO.2668/2016 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, AND MEMBER MACT, BENGALURU, AWARDING COMPENSATION OF RS.25,16,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. MFA No.7401/2017 is filed by the claimants seeking enhancement of compensation while MFA No.6479/2017 is filed by the insurance company seeking reduction in the quantum of compensation awarded by the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as “Tribunal”, for the sake of brevity), both assailing the judgment and award dated 12.06.2017 passed in MVC No.2668/2016.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
4. The appellants-claimants filed the claim petition under Section 166 of Motor Vehicles Act, 1988 against the respondents seeking compensation of Rs.80,00,000/- on account of the death of Sri.M.H.Siddaiah in a road traffic accident. According to the claimants, on 23.02.2016 at about 8.10 a.m. Siddaiah was riding his Honda Activa Scooter bearing Reg.No.KA- 09/HF-6370 along with a pillion rider by name Kumari Shruthi N., from Kukkarahalli Lake towards Mysuru City on Mysuru-Hunsur road. When they reached Kalamandira signal junction and they took a right turn towards Mysuru City, at that time a car bearing Reg.No.KA-05-MR-9191 was driven from Hunsur side in a rash and negligent manner by its driver and dashed against the scooter from behind. As a result, Siddaiah sustained grievous injuries and was shifted to BGS Apollo Hosptial, Mysuru for treatment, but he succumbed to injuries on 27.02.2016. The V.V.Puram Traffic Police registered a case against the driver of the offending car in Crime No.30/2016.
5. Contending that Siddaiah was hale and healthy and he was aged about 55 years, working as First Division Clerk at Mandya District, Private Schools Employees’ Co- operative Society Ltd., Mandya and drawing a salary of Rs.32,000/- per month and that on account of sudden death of Siddaiah, they were at a great loss as the bread earner of the family died and therefore, they were in pain and agony, they sought compensation by filing the claim petition.
6. In response to the notice issued by the Tribunal, the respondents appeared through their respective advocates and filed statement of objections to the petition. Respondent No.1-insurer has admitted that it had insured the car bearing Reg.No.KA-05/MR-9191, but denied other averments in the claim petition and contended that the accident had occurred due to the negligence and carelessness of Siddaiah and that the driver of the car had no valid and effective driving licence and insured vehicle had been falsely implicated in the alleged accident. Therefore, the insurance company sought for dismissal of the claim petition.
7. Respondent No.2-owner of the car also denied the averments made in the claim petition, but contended that the driver of the car was holding a valid driving licence at the time of accident and that there was no negligence on the part of the driver of the car. Respondent No.2 sought for dismissal of the claim petition.
8. On the basis of the rival pleadings, the Tribunal framed the following corrected issues for its consideration:
“1. Whether the petitioners prove that they are the LRs of the deceased?
2. Whether the petitioners prove that deceased Sri.M.H.Siddaiah was died in RTA arising out of accident alleged to have been taken place on 23.02.2016 at about 8.10 a.m. at Kalamandira Signal junction, Mysore Hunsur Road, Mysore, due to the rash and negligence driving of driver of the car bearing No.KA-05- MR-9191?
3. Whether the petitioners are entitled for compensation? If so, what amount and from whom?
4. What order or award?”
9. In order to substantiate their case, the claimants examined the widow of the deceased Smt.Jayalakshmi as P.W.1 and two other witnesses viz., Sri Shivashankar R., and Sri M.H.Chandru as P.Ws.2 and 3 respectively. Claimants produced 30 documents, which were marked as Exs.P-1 to P-30, while respondent-insurer examined R.W.1-Sri Shashikumar B.N., and another witness viz., Sri Srinivasulu as R.W.2 and produced two documents, which were marked as Exs.R-1 and R-2.
10. On the basis of the evidence on record, the Tribunal awarded compensation of Rs.25,16,000/- with interest at the rate of 8% p.a. from the date of petition till the date of payment in the following terms:
1. Loss of dependency Rs.18,86,000/-
2. Medical Expenses Rs.03,80,000/-
3. Loss of Love and Affection (P-1 to 4 Rs.25,000/- each) 4. Loss of Estate (P-1 to 4 Rs.25,000/- each) 5. Loss of consortium (Petitioner No.1) 6. Transportation of dead body and Funeral Expenses Rs.01,00,000/- Rs.01,00,000/- Rs.00,25,000/- Rs.00,25,000/-
Total Rs.25,16,000/-
11. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimants have filed MFA No.7401/2017 seeking enhancement while the insurance company has filed MFA No.6479/2017 being aggrieved by the exorbitant compensation awarded by the Tribunal.
12. We have heard learned counsel for the respective parties and perused the material on record as well as the certified copy of the documents produced before the Tribunal, which have been made available by the learned counsel for the appellants-claimants.
13. Learned counsel for the appellants-claimants drew our attention to Ex.P-11 to contend that the deceased Siddaiah was working as First Division Assistant in a Co-operative Society; he was earning a sum of Rs.32,389/- per month but the Tribunal has assessed the monthly income of the deceased at Rs.26,194/- only, which is arbitrary and contrary to Ex.P-11. He contended that only the deductions which could be made are towards professional tax and income tax and other amounts will have to be added and in that event the monthly income would be Rs.32,389-Rs.3400/-, which would be Rs.28,989/-. He submitted that since the deceased was 57 years of age, there would be no amount to be added towards future prospects, but the correct assessment of the monthly income may be made. He also drew our attention to the fact that a sum of Rs.3,80,000/- was spent towards medical expenses, but no amount has been awarded towards incidental charges including conveyance and attendant charges. He also submitted that the award of compensation on conventional heads may be made in accordance with law with the latest dictum of Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 SCC 680 (Pranay Sethi) and Magma General Insurance Company Limited vs. Nanu Ram, reported in 2018 ACJ 2782 (Magma General Insurance Company) and award of compensation may be enhanced by allowing the appeal filed by the claimants.
14. Per contra, learned counsel for the insurer supported the judgment and award insofar as the assessment made on the head of loss of dependency and the award of compensation of Rs.18,86,000/- on the said head and also on the head of medical expenses. However, he drew our attention to the fact that a sum of Rs.2,50,000/- has been awarded towards conventional heads, which is exorbitant and contrary to the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi and Magma General Insurance Company. He next submitted that the award of 8% p.a. interest on the compensation is also without any reason and excessive; that the rate of interest may be capped at 6% p.a. only.
15. Having heard learned counsel for the respective parties and on perusal of the material on record and particularly Ex.P-11, the following points would arise for our consideration:
1. Whether the award of compensation of the Tribunal would call for any interference in this appeal?
2. What order?
16. The fact that Siddaiah died in a road traffic accident that occurred on 23.02.2016 at about 8.10 a.m. on Mysuru-Hunsur road, Mysuru City, while he was riding the scooter bearing Reg.No.KA.09-HF-6370 when the car bearing Reg.No.KA-05-MR-9191 driven in a rash and negligent manner by its driver hit the scooter from behind, resulting in grievous injuries and consequent death, has been established by the claimants.
17. The only controversy herein is with regard to the quantum of compensation awarded by the Tribunal. The detailed contentions of the respective counsel would not call for a reiteration except taking note of the fact that as per Ex.P-11, the gross salary earned by the deceased as a First Division Assistant in Mandya District Private Schools Employees’ Co-Operative Society Ltd., was Rs.32,389/- and the deductions that could be made in the said salary are with regard to professional tax being Rs.200/- per month and income tax being 10% of the said gross income, which could be in total Rs.3400/-, then the net income would be Rs.28,989/-. Since the deceased was already 57 years of age and on the verge of retirement, no amount towards future prospects can be added. Further, there are four claimants and hence, 1/4th of the said amount would have to be deducted towards personal expenses of the deceased, in which event, it would be Rs.21,741.75/- (Rs.28,989-7247.25), which is the amount that will have to be annualised and the appropriate multiplier ‘9’ would have to be applied bearing in mind the age of the deceased being 57 years. Hence, the compensation towards loss of dependency would be Rs.23,48,109/- (Rs.21,741.75 X 12 X 9) instead of Rs.18,86,000/- awarded by the Tribunal.
18. Further, a sum of Rs.3,80,000/- has to be awarded as has been awarded by the Tribunal towards medical expenses, since Siddaiah was treated for a period of five days prior to his death. A sum of Rs.20,000/- is awarded towards incidental charges including conveyance, attendant charges, etc.
19. Having regard to the latest dictum of the Hon’ble Supreme Court in the case of Pranay Sethi as well as Magma General Insurance Co., a sum of Rs.40,000/- is awarded to the widow of the deceased under the head loss of spousal consortium and a sum of Rs.30,000/- each is awarded to two children of the deceased under the head loss of parental consortium and a sum of Rs.30,000/- is awarded to the mother of the deceased towards loss of filial consortium. In addition, a sum of Rs.15,000/- is awarded under the head loss of estate and a sum of Rs.15,000/- is awarded towards funeral expenses. Thus, the total compensation is Rs.29,08,109/- which shall carry interest at the rate of 6% p.a. instead of 8% p.a. as awarded by the Tribunal from the date of claim petition till realization.
20. The direction of the Tribunal with regard to apportionment and deposit are not interfered with and are confirmed.
21. In the result, MFA No.7401/2017 is allowed-in- part, while MFA No.6479/2017 is dismissed despite accepting the contentions of the appellant-insurer.
The amount in deposit to be transmitted to the Tribunal.
The insurance company shall deposit the reassessed compensation with up to date interest within a period of four weeks from the date of receipt of certified copy of this judgment.
Parties to bear their respective costs.
Sri B.Pradeep, learned counsel is permitted to file vakalathnama for respondent No.1 in MFA No.7401/2017 within a period of four weeks from today.
Sd/- JUDGE Sd/- JUDGE BSR