IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL No.7215 of 2018 (MV-D) BETWEEN:
1. SMT. K.R. SHANTHAMMA, W/O. B.E. THIPPESWAMY @ THIMMAPPA, AGED ABOUT 39 YEARS, 2. B.T. PUNITH GIRI, S/O. LATE B.E. THIPPESWAMY, AGED ABOUT 16 YEARS, 3. PRAZWAL, S/O. LATE B.E. THIPPESWAMY, AGED ABOUT 15 YEARS, PETITIONER Nos.2 & 3 ARE MINOR AND REPRESETNED BY THEIR NATURAL GUARDIAN MOTHER PETITIONER No.1.
PETITIONER Nos.1 AND 3 ARE RESIDENT OF KANTAPURA VILLAGE, HOSADURGA TALUK - 577 527, CHITRADURGA DISTRICT.
... APPELLANTS (BY SRI. T.C. SHIVAKUMARAPPA, ADVOCATE) AND:
1. SMT. BARATHI, W/O. P.R. RANGASWAMY, AGED ABOUT 72 YEARS, HOUSE HOLD WORK, 1653, 6TH MAIN, 5TH CROSS, RPC LAYOUT BENGALURU.
2. SRI. C.M. PRAKASH, S/O. LATE MALE SIDDAPPA, AGED ABOUT 70 YEARS, AGRICULTURIST, 3. SMT. PUSHPA, W/O. G.H. PRASAD, AGED ABOUT 68 YEARS, HOUSE HOLD WORK, 368, RAILWAY QUARTERS, NANDINI COLONY, SHESHADRIPURAM ROAD, GANDINAGAR, BENGALURU.
4. SRI. C.M. ASHOK, S/O. LATE MALE SIDDAPPA, AGED ABOUT 66 YEARS, AGRICULTURIST.
5. SRI. C.M. VIVEKANANDA, S/O. LATE MALE SIDDAPPA, AGED ABOUT 64 YEARS, AGRICULTURIST, 6. SRI. C.M. SATHISH, S/O. LATE MALE SIDDAPPA, AGED ABOUT 62 YEARS, AGRICULTURIST, 7. SMT. HEMA, W/O.NAYAK, AGED ABOUT 60 YEARS, HOUSE HOLD WORK, 412, 4TH MAIN, 2ND STAG, 14TH BLCOK, NAGARABHOVI, BENGALURU.
8. SMT. SHASHIREKHA, W/O. VIJAYAKUMAR, AGED ABOUT 58 YEARS, HOUSE HOLD WORK, 13/12, 2ND CROSS, WIDIYA LAYOUT, ATTIGUPPE, VIDYANAGARA, BENGALURU.
9. SRI. C.M. RAVI, S/O. LATE MALE SIDDAPPA, AGED ABOUT 56 YEARS, AGRICULTURIST, 10. SMT. CHAYA, W/O. DEVENDRAPPA, AGED ABOUT 54 YEARS, HOUSE HOLD WORK, TARALUBALU BADAVANE, 2ND MAIN, 5TH CROSS, NEAR VIDYANAGARA BUS STOP, DAVANAGERE - 577 001.
11. SRI. C.M. EKALAVYA, S/O. LATE MALE SIDDAPPA AGED ABOUT 52 YEARS, AGRICULTURIST, 12. SMT. GEETHA, W/O. VASANTHAKUMAR, AGED ABOUT 50 YEARS, HOUSE HOLD WORK, 133, MUTYANILAYA, 3RD FLOOR, 1ST MAIN, 5TH CROSS, VITTALANAGARA KUMARASWAMY LAYOUT, BENGALURU.
R2, R4 TO R6, R9 AND R11 ARE RESIDING AT GATTIHOSAHALLY VILLAGE, HOLALKERE TALUK, CHITRADURGA DISTRICT.
13. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., MALGIRI PLAZA, OPPOSITE JJM DENTAL COLLEGE, MCC ‘B’ BLOCK, DAVANAGERE - 577 001.
14. SRI. B.R. ESHWARAPPA, S/O. RANGAPPA, AGED ABOUT 64 YEARS, AGRICULTURIST.
15. SMT. SANNATHIMMAKKA, W/O. B.R. ESHWARAPPA, AGED ABOUT 59 YEARS, AGRICULTURIST, RESIDENT OF KANTAPURA VILLAGE, HOSADURGA TALUK - 577 527, CHITRADURGA DISTRICT.
... RESPONDENTS (BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R13; SRI. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR R14 TO R15;
R1-R12: NOTICE DISPENSED WITH VIDE COURT ORDER DATED 24.04.2019) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 01.06.2018 PASSED IN MVC No.44 of 2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, MACT, HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, NATARAJAN J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is preferred by the claimants for enhancement of compensation being aggrieved by the judgment and award dated 01.06.2018 passed by the Senior Civil Judge and MACT (hereinafter referred to as ‘Tribunal’ for the sake of convenience), Hosadurga, in MVC No.44/2014.
3. We have heard learned counsel for the respective parties.
4. The status of the parties before the Tribunal is retained for the sake of convenience.
5. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘Act’) claiming compensation of Rs.35,00,000/- inter alia, contending that on 02.12.2013, at 6.30 p.m., the husband of claimant No.1 namely, Thippeswamy @ Thimmappa son of Eshwarappa was traveling on a Hero Honda motorcycle bearing Chassis No.MBLH A10ASDHH and Engine No.HA10HLDH18697 as a pillion-rider from Kummingatta Village to Thalya village in between Neralakatte and Gattihosahally village in Holalkere Taluk. At that time, tractor bearing No.KA.16/T-4439 and Trailer bearing No.KA-16/TA-0534 being driven by its driver in a rash and negligent manner came from the opposite direction and dashed against the motorcycle. Due to which, Thippeswamy sustained grievous injuries and died while he was being shifted to the hospital. The claimants contended that the deceased was hale and healthy and he was doing agriculture as well as Shamiyana supply business (tent house business). He was earning Rs.30,000/- per month. Due to the untimely death, they lost the earning member of their family. Hence, they claimed compensation on various heads. Claimant Nos.2 and 3 are the sons and respondent Nos.3 and 4 are the parents of the deceased Thippeswamy.
Pursuant to notice, respondent No.1-owner of the Tractor appeared through his counsel and filed objections. During the pendency of MVC No.44/2014, respondent No.1 died and his legal representatives were brought on record and later respondent No.5-owner of the Trailer was impleaded as a party, but he did not file any statement of objections. The parents of the deceased i.e., respondent Nos.3 and 4 also filed statement of objections.
Respondent No.1 in the statement of objections denied the manner of accident and contended that the driver of the Tractor had a valid driving license and the vehicle was insured with respondent No.2-insurer. The insurance Policy was in force as on the date of the accident. Therefore, liability, if any, may be fastened on respondent No.2 and prayed for dismissal of the claim petition.
Respondent No.2-Insurance Company appeared through their counsel and filed statement of objections by denying the accident including the age, occupation, income of the deceased and other facts narrated in the petition as false and denied that the Tractor bearing No.KA-16/T-4439 being insured with their Company and contended that the Trailer bearing No.KA-16/T-0534 was involved in the accident. The owner of the Trailer was G.B.Thipperudrappa and contended that the Trailer was not insured with their company. Further, it was contended that as per the investigation made by the Insurance Company, three persons were traveling on the unregistered motorcycle and the rider of the motorcycle namely, Mounesh was riding the motorcycle under the influence of alcohol and dashed to the back of the trailer and in collusion with the Police, they created and fabricated the records to show as if only two persons were traveling on the motorcycle, which was hit by the tractor. The accident was due to the negligent riding of the motorcycle. Further, it was the specific contention that at the time of accident, one Thippesh was driving the tractor, but he had no effective and valid license. He also colluded with the Police and got implicated a driver namely H.C. Ramappa falsely and created false Police documents. Thereby, the owner of the tractor and trailer violated the terms and conditions of the insurance Policy. Therefore, insurer is not liable to pay any compensation to the claimants and prayed for dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues;
"1. Whether the petitioners prove that, deceased Thippeswamy @ Thimmappa succumbed to injuries in RTA that occurred on 2/12/2013 at 6-30 P.M. in between Neralakatte and Gattihosahally villages, when he was proceeding on his motor cycle as a pillion rider from Kummingatta to Thalya village, due to rash and negligent driving of driver of the tractor-trailer bearing No.KA-16-T-4439 and KA-16-TA-0534?
2. Whether petitioners prove that they and respondent No.3 and 4 are legal heirs of deceased Thippeswamy?
3. Whether petitioners are entitled for the compensation? If so, what extent and from whom?
4. What order or award?”
7. To substantiate their contentions, claimant No.1 examined herself as PW.1 and examined two more witnesses as PWs.2 and 3 and also got marked 13 documents as per Exs.P.1 to P.13. The administrative officer of respondent No.2 was examined as RW.1 and two more witnesses as RWs.2 and 3 and he got marked four documents as per Exs.R.1 to R.4. After considering the material on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and issue No.3 partly in the affirmative and awarded compensation of Rs.10,40,000/- with interest at 6% per annum from the date of petition till deposit on the following heads:
Sl.
No.
Heads of compensation Amount 1. Loss of dependency Rs. 9,45,000/-
2. Conveyance and funeral expenses Rs. 15,000/-
Total Rs.10,40,000/-
Assailing the judgment and award passed by the Tribunal, the claimants have filed this appeal seeking enhancement of compensation on various heads.
8. Learned counsel for the appellants-claimants contended that the Tribunal has committed an error in considering the income of the deceased. Even though the claimants examined PWs.2 and 3, the Village Panchayat officials to prove the income of the deceased and that he was doing Shamiyana supply business by obtaining mike- set license and was earning more than Rs.30,000/- per month, the Tribunal has considered only Rs.6,000/- per month as notional income, which is not correct and is against the oral and documentary evidence let in by the claimants. Learned counsel further contended that as per the dictum of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram alias Chuhru Ram reported in 2018 ACJ 2782 [Magma General Insurance Co. Ltd.,], the Tribunal ought to have awarded compensation towards loss of spousal consortium to claimant No.1-wife, loss of parental consortium to claimant Nos.2 and 3-children and loss of filial consortium to respondent Nos.3 and 4, who are the parents of the deceased. Therefore, he prayed for enhancement of compensation.
9. Per contra, learned counsel for the respondent- insurance Company contended that though the claimants claimed that the deceased was running a Shamiyana supply business apart from doing agriculture work and was earning Rs.30,000/- per month, no document was produced by them to prove the income of the deceased. In the absence of any proof of income, the Tribunal rightly assessed the income of the deceased at Rs.6,000/- per month and also considered 25% of the income towards future prospects. The Tribunal also awarded compensation on the conventional heads by relying upon the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017)16 SCC 680 [Pranay Sethi]. Therefore, the learned counsel for Insurance Company prayed for dismissal of the claim petition.
10. Upon hearing the arguments of learned counsel on both sides and on perusal of the material on record, the points that arise for reconsideration are:
i) Whether the Tribunal is not justified in awarding compensation of Rs.10,40,000/-, which is contended as insufficient by the appellants?
ii) Whether the appellants are entitled for enhanced compensation?
iii) What order?”
11. The claimants have established the factum of occurrence of the accident on 02.12.2013, at 6.30 p.m., while the husband of claimant No.1 namely, Thippeswamy @ Thimmappa son of Eshwarappa was traveling on a Hero Honda motorcycle bearing Chassis No.MBLH A10ASDHH and Engine No.HA10HLDH18697 as a pillion-rider from Kummingatta Village to Thalya village in between Neralakatte and Gattihosahally village in Holalkere Taluk. At that time, the Tractor bearing No.KA.16/T-4439 and Trailer bearing No.KA-16/TA-0534 being driven by its driver in a rash and negligent manner came from the opposite direction and dashed against the motorcycle. Due to which, Thippeswamy sustained grievous injuries and died while he was being shifted to the hospital. Though, initially the insurer disputed the manner of accident and liability, it has not filed any appeal against the findings and fastening of liability on the Insurance Company. Therefore, this Court is required to consider only whether the quantum of compensation awarded by the Tribunal is sufficient or not.
12. The claimants have contended that the deceased Thippeswamy was running a Shamiyana supply business and also doing agriculture work. In support of the said contention, claimant No.1, wife of the deceased examined herself as PW.1 and also got marked Ex.P.10-General license, Exs.P.11 and P.12-RTCs, Ex.P.13-Note-book maintained by the deceased for having received the income. The claimants also examined PW.2-N.O.Murthy (PDO) and PW.3-N.K.Timmappa to prove that the deceased was running Shamiyana business by obtaining mike-set license and also supplying Shamiyana for rent.
The Tribunal by considering the evidence of PWs.1 to 3 though held that the evidence of PWs.1 to 3 and Exs.P.10 and 13 collectively established that the deceased was doing Shamiyana supply business, nothing has been elicited in the cross-examination of the said witnesses and not made available any contra evidence to disbelieve the case of the claimants insofar as the occupation of the deceased is concerned. However, the Tribunal though accepted the evidence of PWs.1 to 3 and the documents, it considered the notional income of the deceased at Rs.6,000/- per month, which is meager and against the evidence on record. Ex.P.13-Note-book has not been verified by the Tribunal in respect of the income of the deceased. Therefore, we are of the view that the Tribunal has committed error in considering the notional income of the deceased only at Rs.6,000/- per month and we propose to assess the monthly income of the deceased at Rs.10,000/-. As per the judgment of the Hon’ble Apex Court in the case of Pranay Sethi, 25% of the income shall be considered towards future prospects for the age group of 40 to 50 years. If Rs.2,500/- is added to Rs.10,000/- p.m. it comes to Rs.12,500/-, which would be the income of the deceased. There are three claimants and respondent Nos.3 and 4 are the parents, totally five in number. Therefore, if 1/4th of the income is deducted towards personal expenses of the deceased, it comes to Rs.9,375/- per month (or Rs.1,12,500/- per annum). Applying the appropriate multiplier of ‘14’ ie. Rs.1,12,500 x 14, it comes to Rs.15,75,000/-. This would be the loss of dependency as against Rs.9,45,000/- as awarded by the Tribunal.
13. As per the dictum of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd., claimant No.1-widow of the deceased is entitled to Rs.40,000/- towards loss of spousal consortium, claimant Nos.2 and 3- children are entitled to Rs.30,000/- each towards loss of parental consortium and respondent Nos.4 and 5-parents (R14 & R15 in this appeal) are entitled to Rs.30,000/- each towards loss of filial consortium. Further, the claimants are entitled to Rs.15,000/- towards loss of estate and another Rs.15,000/- towards funeral. In all, the claimants are entitled to Rs.17,65,000/- as against Rs.10,40,000/- awarded by the Tribunal.
14. Consequently, the re-assessed compensation is as under:
1. Towards loss of dependency Rs.15,75,000/-
Total Rs.17,65,000/-
The compensation shall carry interest at the rate of 6% per annum from the date of claim petition till deposit. In the result, the appeal is allowed in-part.
15. The compensation shall be apportioned in the names of the claimants (i.e., appellant Nos.1, 2, 3 and respondent Nos.14 and 15 together) in the ratio of 35:20:20:25. The parents of the deceased, respondent Nos.14 and 15 in this appeal shall be together awarded 25% of the compensation.
75% of the compensation awarded to the widow of the deceased shall be deposited in any Post Office or Nationalised Bank deposit for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification.
The compensation awarded to the minor appellants shall be in deposit till they attain the age of majority in any Post Office or Nationalized Bank.
The compensation awarded to the parents of the deceased, namely, respondent Nos.14 and 15 in this appeal shall be deposited to an extent of 50% in any Post Office or Nationalised Bank deposit for an initial period of five years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
The respondent-insurance company shall deposit the balance compensation within a period of four weeks from the date of receipt of certified copy of this judgment.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE mv