IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.1932 of 2018 (MV) BETWEEN :
1. LAKSHMI @ PUTTALAKSHMI, W/O. RANGASWAMY, AGED ABOUT 38 YEARS, 2. SACHIN S.R., S/O. LATE RANGASWAMY @ BELLARY NAGA, AGED ABOUT 11 YEARS, 3. VIJAYKRISHNA S.R.
S/O. LATE RANGASWAMY @ BELLARY NAGA, AGED ABOUT 17 YEARS, ALL ARE R/O. SHANKARANAHALLI VILLAGE, KATTAYA HOBLI, HASSAN TALUK – 573 201.
PRESENTLY R/AT :
BEHIND GANDADA KOTI, NO. 915, R.R.NO.3037, HASSAN – 573 201.
SINCE APPELLANT NOS. 2 AND 3 ARE MINORS, THEY ARE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN LAKSHMI – APPELLANT NO.1.
... APPELLANTS (BY SRI. BYRAREDDY G.S. ADVOCATE FOR SMT. KAVITHA H.C., ADVOCATE) AND:
1. KOMAREGOWDA, S/O.CHIKKEGOWDA, SINGAPURA VILLAGE AND POST, PALAYA HOBLI, ALUR TALUK, HASSAN DISTRICT – 573 201.
2. MANAGER, RELIANCE GENERAL INSURANCE COMPANY LTD., 1ST FLOOR, KRUTIKA ARCADE, NR CIRCLE, HOLENARASIPURA ROAD, HASSAN – 573 201.
...RESPONDENTS (BY SRI. B. PRADEEP, ADVOCATE FOR R-2, VIDE ORDER DATED 29.08.2019, NOTICE TO R.1 DISPENSED WITH.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.06.2017 PASSED IN MVC NO. 595/2016, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with consent of learned counsel on both sides, it is heard finally.
2. The claimants have filed the appeal assailing the judgment and award dated 03.06.2017 passed by the II Additional Senior Civil Judge and Motor Accident Claims Tribunal, Hassan in MVC No.595/2016 (hereinafter referred to as ‘the Tribunal’, for the sake of brevity).
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.30,00,000/- on account of death of Rangaswamy in a road traffic accident that occurred on 14.10.2015 at about 11.30 p.m. According to the claimants, on the fateful day, when the deceased Rangaswamy was travelling in the autorickshaw bearing registration No.KA-13-B-6838 on B.M.Road of N.H-75, at that time, the driver of a maxi cab bearing reg.No.KA-11- 2135 drove the same in a rash and negligent manner from the opposite direction and hit the autorickshaw, as a result of which the Rangaswamy sustained serious injuries and succumbed to the injuries. On account of sudden death of Rangaswamy, the claimants suffered mental shock and agony and lost the bread earner of the family. Hence, they filed the claim petition before the Tribunal seeking compensation of Rs.30,00,000/-.
5. In response to the notices issued by the Tribunal, respondent Nos.1 and 2 appeared through their respective counsel. Respondent No.2 has filed its statement of objections denying the averments made in the claim petition and contended that since the accident has occurred by collision between two vehicles, the principle of contributory negligence needs to be applied for apportioning the liability and sought for dismissal of the claim petition.
6. On the basis of the aforesaid pleadings, the Tribunal framed the following issues for its consideration.
1. Whether the petitioners prove that on 14.10.2015 at about 11.30 a.m. while deceased Rangaswamy was traveling in the autorickshaw bearing registration No.KA-13-B-6838 as a passenger, the driver of the maxi cab bearing reg.No.KA-11-2135 by driving it in a rash and negligent manner dashed to the auto and caused his death?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order?
7. In order to prove her case, claimant No.1 examined herself as PW-1 and produced twenty one documents which were marked as Exs.P.1 to P.21. While respondent No.2 examined Bharath as R.W.1 and produced one document as Ex.R.1. On the basis of the said evidence, the Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and allowed the claim petition in part by awarding compensation of Rs.9,16,866/- with interest at the rate of 8% per annum from the date of filing of the claim petition till realization.
8. We have heard Sri. Byra Reddy G.S., learned counsel for the appellants and Sri.B.Pradeep, learned counsel appearing for the respondent No.2 - Insurance Company and perused the records.
9. Learned counsel for the appellants contended that the deceased was earning a sum of Rs.15,000/- per month but the Tribunal has not properly assessed the income of the deceased and has erred in holding that the income of the deceased was Rs.7000/- per month. He further contended that the award of compensation on all other heads is very meager and the same has to be reassessed by the Hon’ble Court. Nextly, he contended that the Tribunal ought to have taken the age of the deceased as 30 years instead of 38 years and that the higher multiplier has to be applied. It is further contended that the deduction towards personal expenses is on the higher side and that the Tribunal ought to have awarded higher rate of interest, and prayed for setting aside the judgment and award passed by the Tribunal.
10. Per contra, learned counsel for the respondent submitted that the accident is a collision between two vehicles, amounting to contributory negligence and therefore, while apportioning liability, the principle of contributory negligence has to be taken into consideration and accordingly, sought for dismissal of the appeal.
11. Having heard learned counsel for the respective parties and on perusal of material on record, the following points would arise for our consideration:
i. Whether the claimants are entitled for enhanced compensation?
ii. What order?
12. The fact that Rangaswamy died in a road accident on 14.10.2015 is established by the claimants. The first respondent who is the owner of the Maxi cab has not chosen to deny the claim of the claimants. Further, the second respondent - Insurance company has generally denied the petition averments. The Tribunal after taking into consideration the material evidence on record, has come to the conclusion that the accident occurred due to rash and negligent driving of the driver of the offending maxi cab. As against this finding, the Insurance Company has not filed any appeal. Therefore, the only controversy in this appeal is with regard to quantum of compensation.
13. The Tribunal has awarded compensation of Rs.9,16,866/-, on the following heads:
14. We find that the Tribunal has taken the income of the deceased at Rs.7,000/- per month, which is on the lower side. It is not in dispute that the deceased was an autorickshaw driver and was also doing agricultural work. The Tribunal while assessing the income of the deceased has held that there is no evidence to ascertain the actual income of the deceased as on the date of the accident and has held that even a coolie is paid a sum of Rs.7,000/- per month and on that basis, the Tribunal has assessed the income of the deceased at Rs.7,000/- per month. But we are of the opinion that the Tribunal has erred in assessing the income at Rs.7,000/- per month, as even a coolie will be paid a sum of Rs.9,000/- per month and this Hon’ble Court has consistently taken the same, if the accident is of the year 2015, while settling cases before the Lok Adalat. Therefore, we hereby reckon the income of the deceased at Rs.9,000/- per month, as the accident is of the year 2015 in the instant case. The deceased was aged 44 ½ years. As per the dictum of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, 25% of the income shall have to be added towards future prospects. If 25% of the income towards future prospects is added to the monthly income of Rs.9,000/-, it comes to Rs.11,250/- per month. The claimants are three in numbers. Therefore, 1/3rd of the income of Rs.11,250/- has to be deducted towards personal expenses of the deceased, it comes to Rs.7,500/-. When the same is annualised and multiplied by ‘14’, it comes to Rs.12,60,000/- Hence, we propose to award Rs.12,60,000/- as against Rs.7,84,056/- awarded by the Tribunal on the head of ‘loss of dependency’.
15. Having regard to the judgment of the Hon’ble Supreme Court in the case of PRANAY SETHI, the claimant is entitled to Rs.40,000/- towards ‘loss of spousal consortium’, to the widow of the deceased and to the children of the deceased a sum of Rs.60,000/- together is awarded towards ‘loss of parental consortium’. A sum of Rs.15,000/- is awarded on the head ‘loss of estate’ and another sum of Rs.15,000/- is awarded towards ‘funeral expenses’. A sum of Rs.2,810/- is awarded towards ‘medical expenses’. In all, claimants are entitled to Rs.13,92,810/-. The reassessed compensation is as under:
The aforesaid amount shall carry interest at the rate of 6% per annum from the date of the claim petition till realization.
16. The aforesaid compensation shall be apportioned between the widow and children of the deceased in the ratio of 60:20:20.
17. 75% of the compensation awarded to the widow of the deceased shall be deposited in any Post Office and / or Nationalized Bank 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 entire compensation awarded to the minor children of the deceased shall be deposited in any Post Office and / or Nationalized Bank deposit till they attain the age of majority.
18. The enhanced compensation with up-to-date interest at the rate of 6% per annum from the date of claim petition till realization shall be deposited by the insurer within a period of four weeks from the date of certified copy of this judgment.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE VMB/mgn