IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K. SOMASHEKAR MFA NO.3271/2015 (MV) BETWEEN 1. SMT. LAILUNISSA W/O LATE MD.ISLAMUDDIN ANSARI AGED ABOUT 43 YEARS 2. MS. SHABANA KHATOON D/O LATE MD. ISLAMUDDIN ANSARI AGED ABOUT 24 YEARS 3. SADDAM HUSSAIN S/O LATE MD. ISLAMUDDIN ANSARI AGED ABOUT 21 YEARS ALL ARE R/AT NO.22/1, INDIRANAGAR GANGONDANAHALLI MAIN ROAD DODDABIDARAKALLU BENGALURU – 560 073 ... APPELLANTS (BY SRI. KALYAN R. ADVOCATE) AND 1. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, NO. 4, 4TH FLOOR GOLDEN COMPLEX, 59TH ‘C’ CROSS INDUSTRIAL SUBURB RAJAJINAGAR, 4TH ‘M’ BLOCK BENGALURU – 560 010 BMTC, K. H. ROAD BENGALURU 2. RAVI MANTUR, S/O MANTUR AGED MAJOR, R/AT NO.645, 11TH CROSS, POORNA PRAGNA SCHOOL ROAD HAVANOOR EXTENSION BENGALURU – 560 073 ... RESPONDENTS (BY SRI. B. PRADEEP, ADV. FOR R-1;
V.O.D.5.7.2016 NOTICE TO R-2 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.11.2014 PASSED IN MVC NO.308/2014 ON THE FILE OF THE 18TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BENGALURU 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 Though this appeal is listed for admission, with the consent of learned counsels for the appellant and the respondents, the same is taken up for final disposal.
2. This appeal is directed against the judgment and award dated 15.11.2014 passed in MVC No.308/2014 on the file of the 18th Additional Judge, Court of small Causes, Member, MACT-4, Bengaluru (for short, ‘Tribunal’), whereby the Tribunal has partly allowed the claim petition and awarded compensation in a sum of Rs.10,44,000/- with interest at 6% pa., which has been incorporated in the operative portion of the order, on the grounds that the compensation awarded by the Tribunal is inadequate and on the lower side by assessing the monthly income of the deceased by the Tribunal at Rs.7,500/-, when the deceased is said to be a salaried person and he has also produced the salary certificate which is marked as Ex.P9, which shows that he was drawing salary of Rs.10,250/-. Further, under conventional heads the Tribunal has awarded only a sum of Rs.30,000/-, which is on the lower side and it requires to be enhanced, and since petitioners/claimants No.2 & 3 are the minor children of the deceased.
3. The brief facts of the case are that, on 26.12.2013 at about 6.55 am the deceased Mohd. Islamuddin Ansari was proceeding on his bicycle carefully and cautiously and when he reached Peenya Police Station Signal Junction of NH-4 Road, at that time, all of a sudden a Car bearing Registration No, KA.04.MJ.101 driven by its driver, came in rash and negligent manner with high speed and dashed against his bicycle. As a result of which, he sustained grievous injuries on his head and other parts of the body and he was shifted to Ravi Kirloskar Hospital for treatment, there he succumbed to the injuries. It is the further case of the appellants/claimants that, the deceased Mohd. Islamuddin Ansari was aged about 47 years and he was working as Watchman in M/s. Saravana Steel Pvt. Ltd, and was drawing salary of Rs.10,000/- p.m. Due to the death of the deceased Mohd. Islamuddin Ansari, the appellants/claimants have lost an earning member of the family. It is also the case of the appellants/claimants that, they being filed a claim petition in MVC No.308/2014 before the Tribunal, in pursuance of the notice on the respondents in the claim petition, the 1st respondent-Insurance Company has appeared through its counsel and filed a detailed objections statement resisting the claim petition and denying all the averments made in the petition. The 2nd respondent is said to be the owner of the offending vehicle and due to the negligence on the part of the driver of the offending vehicle, the death of the deceased has occurred. But, the 1st respondent admitted issuance of Insurance Policy in respect of the offending vehicle and so also its validity as on the date of the accident in question, and on the said grounds, the respondent No.1 has sought for dismissal of the above said claim petition.
4. The Tribunal, after hearing the learned counsels appearing on both sides, framed issues and given findings by convincing with the evidence of PW.1- Saddam Hussain, who is said to be the son of the deceased and PW.2-V. Nagendra, being the employer, under whom the deceased said to have been working as a Watchmen in M/s. Saravana Alloy Steels Private Ltd., and also considering the documents produced at Exs.P1 to P.16 awarded compensation in a sum of Rs.10,44,000/- with interest at 6% pa. from the date of petition till the date of deposit. Being not satisfied with the said compensation, the appellants/claimants have approached this court seeking for enhancement of compensation.
5. Heard Sri. Kalyan R, the learned counsel appearing for the appellants/claimants and Sri. B. Pradeep, the learned counsel appearing for Respondent No.2.
6. Learned counsel for the appellants has submitted that, out of the documents-Exs. P1 to P16 marked, the Important documents are Ex.P3, P4, P5, P6 & P7. Mahazar-Ex.P3 is said to be conducted by the Investigating Officer in order to file the charge sheet against the driver of the offending car and Ex. P9 is the Salary Certificate, which is said to have been issued by PW.2. Ex.P4 is the sketch drawn by the Investigating Agency during the course of investigation. The offending car was subjected to verification by the RTO and the RTO has issued report as per Ex.P5. Ex.P7 is the P.M. Report issued by the Doctor, who conducted autopsy over the dead body. Ex.P8 is the report of inquest proceeding held over the dead body of the deceased and the same was issued for the purpose of laying charge sheet against the driver of the offending vehicle. In so far as income is concerned, the deceased was the salaried person and Ex.P16 is the extract of Wage and Attendance Register maintained by his employer relating to the deceased. Learned counsel also relied upon Ex.P9-Salary Certificate and contended that, though the said document show that the deceased was drawing a sum of Rs.10,000/- as salary per month, but the Tribunal without considering the said document, has assessed the monthly income of the deceased at Rs.7,500/-. He has also submitted that, the Tribunal has not applied the principles laid down by the Hon’ble Apex Court in respect of granting compensation under conventional heads. In that context, the learned counsel for the appellant has also relied upon a decision rendered by the Hon'ble Apex Court in 2018 SCC ON LINE SC 1456 [Magma General Insurance Co. Ltd. vs. Nanu Ram], wherein it has been observed that,-
“In legal parlance, “Consortium” is a compendious term which encompasses ‘Spousal Consortium’, ‘parental consortium’, and ‘filial consortium’.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of ‘Company, Society, co-operation, affection, and aid of the other in every conjugal relation.
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.
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world- over have recognized that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.”
7. Learned counsel for the appellant further submitted that, in view of the above referred decision of the Hon’ble Apex Court, prayed for award of suitable compensation by re-appreciating the evidence of PWs. 1 & 2 and also considering the documents produced by the claimants.
8. Learned counsel for Respondent No.1- Insurer sought to justify the impugned judgment and award passed by the Tribunal contending that, after proper appreciation of the evidence and the materials produced on record, the Tribunal has awarded just compensation. Therefore, the impugned Judgment and Award does not call for interference by this Court and hence, the appeal may be dismissed by confirming the impugned judgment and award passed in MVC No.308/2014.
9. Having heard the learned counsels appearing on both sides and perused the materials on record, the facts that, the accident in question and the death of the deceased are not in dispute. The salary certificate (Ex.P9) was issued by the employer of the deceased and produced before the Tribunal shows that, the last salary drawn by the deceased was Rs.10,250/-. Ex.P16, the Wage and Attendance Register extract also indicates that he was the employee of M/s.Saravana Ally Steels Pvt. Ltd., Bengaluru, therefore, it is also not in dispute. Therefore, the Tribunal might have taken the monthly income of the deceased as per the salary certificate produced at Ex.P9 at Rs.10,250/- for computing compensation. Therefore, the Tribunal has committed an error in taking the monthly income of the deceased only at Rs.7,500/-. As it is stated that the age of the deceased as on the date of the incident in question was 47 years, therefore, as per the principle laid down in AIR 2017 SC 5157 [National Insurance Co. Ltd. Vs. Pranay Sethi and Others), 25% of the said amount, which comes to Rs.2563/- must be added to the salary amount of Rs.10,250/- which comes to Rs.12,813/- and after deducting 1/3rd of the said amount towards his personal expenses, the monthly income of the deceased works-out to Rs.8,542/- and after applying the multiplier of ‘13’ as assessed by the Tribunal, the loss of dependency works-out to Rs.13,32,552/- (Rs.8542x12x13), as against Rs.10,14,000/- awarded by the Tribunal.
10. In so far as the compensation awarded under the heads of transportation of dead body of the deceased, consortium and loss of estate is concerned, the Tribunal has awarded a sum of Rs.30,000/-. Therefore, keeping in view the principle laid down by the Hon’ble Apex Court in Pranay Sethi’s case (supra) that, the amount under conventional heads should not exceed Rs.70,000/-, I am of the opinion that, it is just and proper to award another sum of Rs.40,000/- under the conventional heads. Accordingly, totally a sum of Rs.70,000/- is awarded under this head.
11. As noted supra, as per the guidelines laid down by the Hon’ble Apex Court in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), the compensation towards filial consortium has to be paid in a sum Rs.40,000/- each. Accordingly, in this case, the amount to be awarded to claimants – 2 & 3 under the head ‘filial consortium’ works-out to Rs.80,000/-.
12. In view of the above, in total, the claimants are entitled to the revised compensation as under:
13. In view of the above, the appellants/claimants–1 to 3 are entitled for the enhanced compensation of Rs.4,38,552/- (Rs.14,82,552/- – Rs.10,44,000/-) with 6% interest from the date of petition till the date of deposit. For the reasons and findings, the following:
ORDER i) The appeal is allowed in part. The judgment and award dated 15.11.2014 passed by the Tribunal in MVC No.308/2014 is modified. The appellants (Claimants-1 to 3) are entitled for enhanced compensation of Rs.4,38,552/- with interest at the rate of 6% pa., from the date of petition till the date of deposit.
ii) The respondent No.1-Insurance Company is directed to deposit the aforesaid enhanced compensation amount with accrued interest before the Tribunal in MVC No.308/2014 within a period of six weeks from the date of the receipt of a copy of this judgment iii) The disbursement of the amount to the appellants (Claimants- 1 to 3) in this appeal, shall be made as per the judgment passed by the Tribunal.
Sd/- JUDGE KGR*