IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.7265 OF 2015 (MV) BETWEEN:
1. KALAVATHI W/O. GIRISH AGED ABOUT 25 YEARS 2. YESHU D/O. GIRISH AGED ABOUT 6 YEARS 3. BINDUSHREE D/O GIRISH AGED ABOUT 5 YEARS 4. GANGAMMA W/O SIDDAIAH @ SIDDAPPA AGED ABOUT 52 YEARS THE ABOVE APPELLANTS ARE R/AT SULKUNTE KULANAHALLI POST, THYAMAGONDLU HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DIST.
SINCE THE APPELLANT NOS.2 & 3 ARE MINORS HENCE REPTD. BY THEIR MOTHER / NATURAL GUARDIAN KALAVATHI ON BEHALF AND ON BEHALF OF MINOR APPELLANTS ALSO AS APPELLANT NO.1.
(BY SRI. K.V.NAIK, ADVOCATE FOR SRI. SHRIPAD.V.SHASTRI, ADVOCATE) AND:
1. GURURAJ K.M.
S/O MAHADEVAPPA NO.106/37, SRI GANESHA NIVASA, 3RD FLOOR, 11TH MAIN, 12TH CROSS, MALLESHWARAM, BANGALORE-3.
2. THE MANAGER BAJAJ ALLIANZ GENERAL INS. CO. LTD., GROUND FLOOR, NO.31, TBR TOWER, 1ST CROSS, NEW MISSION ROAD, ... APPELLANTS NEAR BANGALORE STOCK EXCHANGE, BANGALORE-27.
... RESPONDENTS (BY SRI. A.N.KRISHNASWAMY, ADVOCATE FOR R2 R1 – NOTICE D/W V/O DATED 11-09-2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.03.2015 PASSED IN MVC NO.4781/2013 ON THE FILE OF THE XXI A.C.M.M & XXIII ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, 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 The claimants are in appeal under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 28/03/2015 in M.V.C.No.4781/2013 on the file of the XXI A.C.M.M. & XXIII A.S.C.J, Bengaluru.
2. The claimants are wife, daughters and mother of deceased-Girish. The claim petition was filed under Section 166 of the Motor Vehicles Act, seeking compensation for the accidental death of Girish in a road traffic accident. It is stated that on 18-8-2013, when the deceased was standing at Kulavanahalli Bus stop, Skoda Car bearing No.KA-01-MJ-7622 driven by its driver came in a rash and negligent manner and dashed against the motorcycle No.TN-30-AY-7051 and then dashed to the deceased-Girish. As a result, the deceased fell down and sustained grievous injuries. Immediately, he was shifted to M.S.Ramaiah Harsha Hospital at Nelamangala and subsequently he succumbed to the injuries. He was aged 28 years as on the date of accident and it is stated that he was earning Rs.10,000/- per month as an agriculturist.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their written statement. Respondent No.1 in his written statement denied the claim petition averments and further stated that the accident occurred solely due to the negligent driving of the motorcycle and stated that the offending vehicle was insured with respondent No.2-insurer. Respondent No.2 in its written statement denied the claim petition averments. Further stated that the driver of the offending vehicle/car drove the same in a rash and negligent manner and caused the accident. It is also disputed with regard to the holding of driving license by the driver of the offending vehicle/car.
4. Claimant No.1-wife of the deceased examined herself as PW-1 and also PW-2, apart from marking documents Exs.P-1 to P-12. Respondent No.1 examined himself as RW-1.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.16,37,300/- with interest at the rate of 8% per annum from the date of petition till the date of depositing the amount, on the following heads and held that respondent Nos.1 and 2 are jointly and severally liable to pay compensation and directed respondent No.2 to deposit the entire compensation amount with interest.
The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellants- claimants and learned counsel for the respondent-Insurer. Perused the material on record.
7. Learned counsel for the appellants would submit that the deceased was an agriculturist and was earning Rs.10,000/- per month, as such, the income assessed by the Tribunal at Rs.7,000/- per month, is on the lower side. He further submits that the Tribunal awarded 30% of the assessed income towards ‘Future prospects’, whereas the claimants would be entitled for adding 40% of the assessed income towards ‘Future prospects’ in view of the decision of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. It is his further submission that the claimant Nos.2 to 4 who are the daughters and mother of the deceased-Girish, would be entitled for Rs.40,000/- each on the head of ‘parental and filial consortium’. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.2– Insurer would submit that the compensation awarded by the Tribunal is on the higher side and the claimants would not be entitled for any enhanced compensation in this appeal. He further submits that the Tribunal awarded more compensation on the head of ‘Loss of love and affection’. It is his further submission that the claimants would be entitled for only Rs.70,000/- towards ‘Conventional Head’ in view of the decision held in the case of Pranay Sethi (supra). It is further submitted that the Tribunal awarded 8% interest per annum, whereas the claimants would be entitled only at 6% interest per annum. Hence, prayed to modify the interest rate from 8% to 6% per annum and prays for passing an appropriate order in this appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in the facts and circumstances of the case.
a) Whether the income of the deceased assessed by the Tribunal at Rs.7,000/- per month is proper and correct?
b) Whether the claimants would be entitled for the enhanced compensation?
Answer to the above points are in the negative and in the affirmative respectively for the following reasons.
10. The accident occurred on 18-8-2013 involving Skoda Car bearing No.KA-01-MJ-7622, motorcycle No.TN-30-AY- 7051 and the accidental death of Girish are not in dispute in this appeal. The claimants’ appeal is for enhancement of compensation. The deceased was aged 28 years as on the date of accident and the claimants state that the deceased was earning Rs.10,000/- per month by doing agricultural work. But no material/document is placed on record to indicate the exact income of the deceased. In the absence of any material/document to indicate the exact income, the Tribunal assessed the income of the claimant notionally at Rs.7,000/- per month, the same is on the lower side. In these days, even an agricultural coolie would earn Rs.300/- per day, which would amount to Rs.9,000/- per month. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2013 at Rs.8,000/- per month. In the present case also in the absence of any material/document to indicate the exact income of the deceased, it would be appropriate to assess Rs.8,000/- per month as notional income of the deceased for determination of the compensation.
11. As stated above, the deceased was aged 28 years as on the date of accident. The Tribunal awarded 30% of the assessed income towards ‘Future prospects’. The Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, has laid down that the claimants would be entitled for adding 40% of the assessed income towards ‘Future prospects’ wherever the deceased was aged below 40 years. In the instant case also the deceased was aged 28 years. Hence, the claimants would be entitled for adding 40% of the assessed income towards ‘Future prospects’.
12. The Tribunal awarded compensation of Rs.2,45,000/- on ‘Conventional Head’ i.e., ‘Loss of love and affection’, ‘Funeral expenses’, ‘Transportation of dead body’, ‘Loss of estate’ and ‘Loss of consortium’. As per the decision of the Hon’ble Apex Court in the case of PRANAY SETHI (supra), the claimants would be entitled for only Rs.70,000/- on ‘Conventional Head’. Further claimant Nos.2 to 4 are daughters and mother of the deceased who would be entitled for Rs.40,000/- each on the head of ‘parental and filial consortium’ as per the decision of the Hon’ble Apex Court in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546. The claimant Nos.2 & 3-daughters of the deceased are aged about 4 & 3 years respectively who have lost love and affection and care of their father at a very tender age. Further, claimant No.4-mother of the deceased has lost her son who was aged 28 years. She has also lost love and affection and care of her son. Therefore, she would be entitled for compensation on the head of ‘parental consortium’. Thus, the claimants-appellants would be entitled for modified enhanced compensation as follows:
Amount in
13. Thus, the claimants would be entitled for enhanced modified compensation of Rs.19,03,600/- as against Rs.16,37,300/- with interest at the rate of 6% per annum for the enhanced compensation from the date of petition till its realization. The deposit and apportionment would be as ordered by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ