IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT
M.F.A.No.4698/2013 [MV]
BETWEEN:
1. SMT. JAYASHREE W/O LATE T NAVEENCHANDRA NAYAK @ NAVEEN KUMAR AGED 30 YEARS 2. BABY DHANYA D/O LATE T NAVEENCHANDRA NAYAK AGED 6 YEARS MINOR, REP. BY NEXT FRIEND APPELLANT NO.1 3. KESHAVA NAYAK T SINCE DEAD REP. BY HIS LR’S THE APPELLANTS NO.1, 2 AND 4 HEREIN 4. SMT. PUSHPA T W/O KESHAVA NAYAK T AGED ABOUT 64 YEARS ALL ARE R/AT DOOR NO.25-24-1720/60 NEAR JANARDHANA BHAJANA MANDIRA JEPPU BAPPAL MANGALORE-575001.
...APPELLANTS (BY SRI.GURU PRASAD B R, ADV.) AND:
1. MR. ABHISHEK MOHAN REVANKAR S/O MOHAN SHRINIVAS REVANKAR ANANTHA PRASADA PANDESHWAR NEW ROAD MANGALORE-575001.
2. ICICI LOMBARD GENERAL INSURANCE CO. LTD., KESHAVARAO KHADE MARG OPP.RACE COURSE, MAHALAKSHMI MUMBAI-34 AGED ABOUT 38 YEARS, REPRESENTED BY ITS MANAGER.
…RESPONDENTS (BY SRI.A M VENKATESH, ADV. FOR R2 R1-NOTICE D/W V/O DT:05.02.2016) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.09.2012 PASSED IN MVC NO.504/2010 ON THE FILE OF THE MEMBER, MACT-III & II ADDL.DISTRICT JUDGE, DK., MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The claimants are in appeal praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 28.09.2012 passed in MVC No.504/2010 on the file of MACT, D.K. Mangaluru.
2. The claimants are wife, minor daughter and parents of the deceased Naveenchandra Nayak. Claimant No.3 - father of the deceased is stated to be dead during the pendency of the appeal. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the accidental death of one Naveenchandra Nayak in a Road Traffic Accident. It is stated that on 22.02.2010 when the deceased was walking on the extreme end on U P Mallya Road, a motor cycle bearing Reg.No.19/EA.4400 driven in high speed, rash, negligent manner and dashed to the deceased due to which the deceased sustained grievous injuries and fell unconscious. Immediately he was shifted to Unity Hospital Mangalore, but the Duty Medical Officer examined and declared him dead. The deceased was earning Rs.8,000/- per month working as a technician.
3. On issuance of summons the 2nd respondent - Insurer appeared and filed its written statement denying the claim petition averments. The insurer also denied the involvement of the vehicle in question and stated that the same is collusive. In support of their case, claimant No.1 - the wife of the deceased examined herself as PW.1, and also examined PW.2, apart from marking the documents Exs.P1 to P14. The respondent - Insurer marked Ex.R1 - the Insurance Policy. The Tribunal based on the material on record awarded total compensation of Rs.6,88,000/- with interest at 6% p.a. from the date of petition till the date of realization on the following heads :-
1. Loss of dependency Rs.6,48,000/-
2. Consortium to petitioner No.1 10,000/-
3. Funeral, rituals and conveyance 10,000/-
4. Loss of love and affection 10,000/-
5. Loss of estate 10,000/-
TOTAL Rs.6,88,000/-
While awarding the above compensation the Tribunal assessed the income of the deceased at Rs.4,500/-. Not being satisfied with the quantum of compensation awarded by the Tribunal the appellants/claimants are in appeal before this Court.
4. Heard the learned counsel for the appellants and learned counsel for the 2nd respondent - Insurer. Perused the entire material on record.
5. Learned counsel for the appellants/claimants would submit that the deceased was aged 34 years. He was earning Rs.8,000/- per month by working as Technician, but the Tribunal without appreciating the evidence of PW.1 has assessed the income of the deceased at Rs.4,500/- per month which is on the lower side. He further submits that the Tribunal has failed to add 40% of the assessed income towards future prospects relying on the decision of NATIONAL INSURANCE COMPANY LTD. VS. PRANAY SETHI reported in 2017 (16) SCC 680. Further he submits that the Tribunal also failed to award proper compensation on conventional heads. He submits that claimant No.2 is the minor daughter and claimant No.4 is the mother of the deceased and they would be entitled to Rs.40,000/- each towards parental consortium and filial consortium respectively as held in the decision of MAGMA GENERAL INSURANCE COMPANY LIMITED Vs. NANU RAM AND OTHERS reported in 2018 ACJ 2782.
Thus he prays for enhancement of compensation.
6. Per contra, learned counsel for the 2nd respondent - insurer submits that the Tribunal awarded just compensation which needs no interference. Thus prays for dismissal of the appeal.
7. On hearing the learned counsel for the parties and on perusal of the material on record, the points that fall for consideration is as to a. Whether the income of the deceased assessed by the Tribunal at Rs.4,500/- per month is just and proper ?
b. Whether the claimants would be entitled to add 40% of the assessed income towards future prospects ?
c. Whether the claimants 2 and 4 would be entitled to Rs.40,000/- each towards parental consortium and filial consortium respectively ?
d. Whether the claimants would be entitled for enhancement of compensation in the facts and circumstances of the case?
The point (a) is answered in the negative and points (b to d) are answered in the affirmative for the following reasons :-
The occurrence of the accident on 22.02.2010 involving the Motor Cycle bearing No.KA-19-EA-4400 and the accidental death of one Naveenchandra Nayak are not in dispute in this appeal. The present appeal is for enhancement of compensation. It is stated that the claimant was working as technician, earning Rs.8,000/- per month. But the claimants have not placed on record any documents to establish the income of the deceased. In the absence of any material to establish the income of the deceased, the Tribunal assessed the monthly income at Rs.4,500/- per month, but the same is on the lower side. This Court and the Lok Adalath while settling the accident claims of the year 2010 would normally assess the income notionally at Rs.5,500/- per month, wherever there is no material to establish the income. In the instant case, as no document is placed on record to establish the monthly income, it would be appropriate to assess the notional income of the deceased at Rs.5,500/- per month. Admittedly the deceased was aged 34 years as on the date of accident. The Tribunal committed an error in not awarding any compensation on the head ‘future prospects’. The Hon'ble Apex Court has held in PRANAY SETHI's case that whereever the deceased was aged below 40 years, the claimants would be entitled for adding 40% of the assessed income of the deceased towards future prospects. In the instant case, the deceased was aged 34 years, therefore, the claimants would be entitled for adding 40% of the assessed income of the deceased towards future prospects. The Tribunal awarded only Rs.40,000/- on conventional heads, whereas the claimants would be entitled to Rs.70,000/- on conventional heads as held in PRANAY SETHI's case cited supra.
Claimant No.2 is minor daughter and claimant No.4 is the mother of the deceased, who have lost love, affection, care and concern of the deceased, thus they would be entitled to Rs.40,000/- each on the head parental and filial consortium respectively as held by the Hon'ble Apex Court in MAGMA GENERAL INSURANCE COMPANY LIMITED cited supra.
8. Thus the claimants would be entitled for the modified compensation as follows :-
TOTAL Rs.12,58,800/-
Page No.10 is corrected and replaced vide Court order dated 05.04.2021 9. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent. The claimants are entitled to the modified compensation of a sum of Rs.12,58,800/- as against Rs.6,88,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization. Since claimant - appellant No.3 died during the pendency of the appeal, the enhanced compensation shall be apportioned in the ratio of 40:40:20 between appellants 1, 2 and 4 respectively. The apportionment of enhanced compensation in respect of appellant No.2- Minor, shall be kept in Fixed Deposit in any Nationalized Bank, till she attains majority with liberty to withdraw the interest accrued periodically.
Sd/- JUDGE
NG* CT:bms Page No.11 is corrected and replaced vide Court order dated 05.04.2021