IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE G.NARENDAR M.F.A.NO.3174/2017 (MV) BETWEEN LAKSHMIRANGANATHA DEAD BY LRS 1. SMT. RATHNAMMA AGED 33 YEARS, W/O LAKSHMIRANGANATHA 2. RANGANATHA AGED 15 YEARS S/O LATE LAKSHMIRANGANATHA 3. ASHOKA 13 YEARS S/O LATE LAKSHMIRANGANATHA APPELLANTS 2 AND 3 ARE MINORS R/B, N/G, THE MOTHER FIRST APPELLANT ALL ARE RESIDENTS OF RANGANAYAKANA ROPPA-532137 KASABA HOBLI MADHUGIRI TALUK TUMAKURU DISTRICT …APPELLANTS (BY SRI PATEL D KARE GOWDA, ADV.) AND 1. SRIDHARA A R MAJOR S/O RAGHUCHANDRA-572129 R/O AKKIRAMAPURA (PO) KORATAGERE TALUK TUMAKURU DISTRICT.
2. IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD., NO.2262, 7TH B MAIN, III STAGE, NEAR YELAHANKA- NEW TOWN BUS STAND BENGALURU-560 108 RESPONDENTS (BY SRI O MAHESH, ADV. FOR R2, NOTICE NOT ORDERED IN R/O R1.) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.02.2017 PASSED IN MVC NO.143/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. The appellants are the claimants and are before this court being aggrieved by the insufficiency of the sum awarded as compensation. The claimants-appellants are none other than the widow and minor children of the deceased.
3. Though the matter is listed for ‘Admission’ with the consent of the counsels, appeal is taken up for disposal as the dispute pertains to revolves around the notional income adopted by the Tribunal and the failure to award medical expenses incurred by the claimants-appellants during the period of hospitalization.
4. Learned counsel would submit that the factum of the accident, the manner in which it has occurred, the injury suffered and the consequential death on account of the injuries is not disputed by the insurer-respondent that is respondent No.2.
5. The parties are referred to by their nomenclature before the tribunal.
6. The case of the appellants/claimants is that on 15.03.2014 at about 8:20 p.m. the deceased Lakshmiranganatha, who is the husband of the first appellant/claimant No.1 and the father of the minor claimant Nos.2 and 3 was walking on the left side of the road in front of Raghavendra Wines, Madhugiri town on Madhugiri- Gowribidanur Road. At that time, the offending vehicle, being a motor cycle, bearing Reg. No.KA-06 EP 0557 and which was being driven in a rash and negligent manner, hit the deceased and caused the accident resulting in the death of the first claimant’s husband and that on account of the accident, deceased suffered fractures to the third tibia and segmental fracture right limb fibula, injuries to the head and right upper limb. Immediately, he was shifted to Govt. Hospital Madhugiri for treatment. Thereafter, he shifted to District Hospital, Tumkur. That he was hale and healthy prior to the accident and he was doing agriculture and milk vending business and was earning Rs.15,000/- per month.
That after hospitalization the deceased was discharged. That despite the treatment the deceased succumbed to the injuries on 07.06.2014. On account of the sad demise of the bread- winner, the claimants have been deprived of their only source of income.
7. That the factum of accident has been proved and the jurisdictional police have registered the FIR and proceeded against the driver of the offending vehicle. That the sudden and sad demise has caused immense mental agony and loss of the only source of income to the claimants.
8. The claim was not resisted by the first respondent. The second respondent insurer filed a detailed statement of objection and also contended that the death was not on account of injury suffered in the accident. That the police have foisted a false case on the first respondent in collusion with the claimants and that the rider of the motor cycle had no valid and effective license. That there is a delay in lodging the complaint. On these pleadings, the tribunal framed the following issues:-
“1. Whether L.Rs of the petitioner prove that deceased Lakshmiranganatha sustained injuries in the accident, that is occurred on 15-03-2014 at about 8-20 p.m in front of Raghavendra Wines, Madhugiri town, due to rash and negligent driving of the rider of the motor cycle bearing Reg.No.KA-06- EP-0557?
2. Whether the petitioners prove that they are the legal heirs of deceased Lakshmiranganatha?
3. Whether the L.Rs of petitioner further proves that the death of deceased Lakshmiranganatha is due to injuries sustained in the said accident?
4. Whether the L.Rs of petitioners are entitled for compensation? If yes, to what amount and from which respondent?
5. What order or award?”
9. The tribunal has rendered a finding in the affirmative in respect of issues No.1 to 3 and a partly affirmative finding in respect of issue No.4. Thereby, the tribunal has rejected the contention of the insurer that there is no nexus between injury suffered in the accident and subsequent death due to the injury suffered and has rendered a finding that the death can be attributed to the injuries suffered in the accident. The said finding is not contested by the insurer by filing a separate appeal. In that view of the matter, the finding of the tribunal has become final and the claim ought to be adjudicated from the view point of the death of the bread winner.
10. It is contended by the learned counsel for the appellant that the tribunal erred in adopting the notional income at the rate of Rs.6,000/- per month. He would further contend that the claimants had specifically contended that the deceased was earning about Rs.15,000/- per month on account of the agriculture and milk vending business. He would also contend that the tribunal has not awarded any compensation in lieu of the expenses incurred by the deceased while undergoing treatment in the Govt. hospital. That the tribunal was bound to compensate the claimants for the sum expended on medical treatment prior to him succumbing to the injuries. It is contended that even in the Lok-Adalaths where the parties arrive at a consensus the notional income is adopted at Rs.8,500/- per month in respect of claim arising out of accident occurred in the year 2014 and hence he would submit that the tribunal ought to have adopted the said sum. He would also contend that the tribunal has failed to award any sum under the head ‘loss of future prospects’ and in the light of the law laid down by the Constitutional Bench of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi, reported in AIR 2017 SC 5157, the notional income has to be determined @ 40% on the income.
11. Per contra, learned counsel for the respondent-insurer would submit that the sum awarded under the head loss of care and guidance to the claimant No.2 and 3 and loss of consortium to the first claimant-appellant No.1 is contrary to the law laid down by the Hon’ble Apex Court in the case of Pranay Sethi’s case stated supra. He would contend that the said sum would indeed compensate the short fall if any. The tribunal has failed to award compensation under the head of future prospects and the lower notional income adopted by the tribunal. He would contend that in view of the law laid down in the Pranay Sethi’s case stated supra, the claimant would be entitled to a total sum of Rs.70,000/- under the conventional heads i.e. loss of estate, loss of consortium and funeral expenses and hence, he would submit that the sum awarded represents a just and reasonable compensation as envisaged under Section 168 of the MV Act.
12. In the above background, the issue that requires to be addressed by this court is;
“Whether the compensation awarded represents a just compensation as mandated under the Act?”
13. That the learned counsel for the appellant is right in contending that the notional income adopted by the tribunal is on the lower side. This court and other coordinate Benches have, as a thumb rule, been adopting the notional income, at the rate fixed and adopted during the Lok-Adalaths and which income is also accepted by the insurance companies for the purpose of calculating compensation in the Lok- Adalath. In that view of the matter, this court is of the opinion that the tribunal ought to have adopted the notional income @ Rs.8,500/- per month. In that view of the matter, the claimants would be entitled under the head loss of dependency in the following manner:-
Rs.8,500x12x16=16,32,000/- less 1/3rd which comes to Rs.10,88,000/-.
14. In view of the above, the claimants would be entitled to an enhanced award amount of Rs.3,20,440/-. As rightly contended by the learned counsel for the appellants, the claimants would be entitled to a compensation under the head of future prospects in the light of the law laid down by the Hon’ble Apex Court in the case of Pranay Sethi. Therefore, the claimants would be entitled to a further sum of Rs.4,35,200/- under the head of future prospects calculated @ 40%. The claimant should be entitled to a total compensation of Rs.70,000/- under the Conventional heads as rightly contended by the learned counsel for the respondent in the light of the law laid down by the Hon’ble Apex Court in Pranay Sethi’s. The claimants would not be entitled to the sum awarded by the tribunal under the head of loss of care and guidance to the claimants Nos.2 and 3. As rightly contended by the counsel for the appellants, the claimants should be entitled to a revised compensation of Rs.40,000/- under the head of loss of consortium, Rs.15,000/- under the loss of estate and Rs.15,000/- under the head of funeral expenses only i.e. in all a sum of Rs.70,000/- under these conventional heads.
15. In all the claimant would be entitled to a total compensation sum of Rs.15,93,200/-. The claimant would be entitled to the above sum with interest calculated @ 6% per annum from the date of filing of the petition till the realization of the amount.
Accordingly, the appeal is partly allowed.
Office to draw-up decree accordingly.
The amount to be disbursed as per the order of the tribunal.
Sd/- JUDGE Chs* CT-HR