IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4933 OF 2014 (MV) BETWEEN:
1. MR. LAWRANCE D’SOUZA, S/O LATE ALBERT D’SOUZA, AGED 59 YEARS, 2. SMT. MARY D’SOUZA, W/O LAWRANCE D’SOUZA, AGED 53 YEARS, BOTH ARE RESIDING AT SANTHOSH VILLA, SANTHOSH NAGAR, SITE NO.175, MUNOOR VILLAGE AND POST, MANGALORE TALUK – 575 017.
... APPELLANTS (BY SRI. GURUPRASAD B.R., ADVOCATE) AND:
1. THE ICICI LOMBARD INSURANCE CO. LTD., MAXIMAS BUILDING, OPP. KMC MEDICAL COLLEGE, LIGHT HOUSE, HILL ROAD, MANGALORE – 575 001.
REPRESENTED BY ITS MANAGER.
2. MR. ASHOK KUMAR, S/O KRISHNAN, AGED ABOUT 44 YEARS, R/AT 39/3, KANAKAPURA MAIN ROAD, B.S.K. II STAGE, BANGALORE – 560 085.
3. KUMARI SARITHA D’SOUZA, D/O LAWRANCE D’SOUZA, AGED 28 YEARS, 4. SHARUN D’SOUZA, S/O LAWRANCE D’SOUZA, AGED 27 YEARS, 5. MASTER SACHITH D’SOUZA, D/O LAWRANCE D’SOUZA, AGED 22 YEARS, 6. MASTER SANIL SANDEEP D’SOUZA, S/O LAWRANCE D’SOUZA, AGED 22 YEARS, RESPONDENTS 3 TO 6 ARE RESIDING AT SANTHOSH VILLA, SANTHOSH NAGAR, SITE NO.175, MUNOOR VILLAGE AND POST, MANGALORE TALUK – 575 017.
... RESPONDENTS (BY SRI B.PRADEEP, ADVOCATE FOR R1;
R2 TO R6 –NOTICE DISPENSED WITH VIDE ORDER DATED 20.01.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.02.2014 PASSED IN MVC NO.709/2008 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MACT – 111, MANGALORE, 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 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 22/02/2014 in M.V.C.No.709/2008 on the file of the MACT III & II Additional District & Sessions Judge, D.K., Mangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Santosh D’Soza in a road traffic accident. It is stated that on 14-2-2008, when the deceased was proceeding in Goods Tempo bearing Reg.No.KA.01/B.2096 as driver, lorry bearing Reg.No.KA.04/AE.1929 came from opposite direction in a high speed with rash and negligent manner and dashed to the Goods Tempo. Due to which, the deceased succumbed to the injuries. It is stated that the deceased was aged 24 years as on the date of accident and was earning Rs.7,000/- per month as a driver in Vijwal Enterprise, Kulshekar, Mangalore.
3. On issuance of notice, the respondents i.e., the owner of Lorry and owner of Goods Tempo remained absent. Respondent-Insurer appeared before the Tribunal and filed its written statement denying the claim petition averments and contended that the drivers of both the vehicles contributed to the occurrence of the accident. Further stated that the compensation claimed is excessive and exorbitant. It is further contended that the driver of both the vehicles were not having a valid and effective driving licence as on the date of accident.
4. Claimant No.1-father of the deceased examined himself as PW-1, PW-2-employer of the deceased and also examined PWs.3 to 7 apart from marking documents Exs.P-1 to P-25. Whereas, respondents marked documents Exs.R-1 to R-4.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.4,30,000/- with interest
While awarding the above compensation, the Tribunal assessed the notional income of the deceased at Rs.5,000/- per month, taking multiplier of ‘13’ based on the age of younger parent. 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 and learned counsel for the respondent-Insurer. Perused the material on record.
7. Learned counsel for the appellants would submit that the compensation awarded by the Tribunal is on the lower side. He further submits that the Tribunal committed an error in assessing the income of the deceased at Rs.5,000/- per month. It is further submitted that PW-2- employer of the deceased stated in his evidence that he was paying Rs.7,000/- per month to the deceased as salary. Learned counsel further submits that the claimants have placed on record Ex.P-11-driving licence of the deceased as well as Ex.P-12-salary certificate, Ex.P-13- vouchers, which would establish that the deceased was working as driver in Vijwal Enterprise, Kulshekar, Mangalore. The Tribunal ignoring those documents, awarded compensation which needs to be revised. Further, the Tribunal failed to award any compensation towards ‘Future prospects’ at 40% of the assessed income and relied on 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. Further he submits that the Tribunal committed an error in adopting multiplier of ‘13’ taking the age of the younger parent. He submits that as on this day, it is settled law that while applying multiplier, the age of the deceased will have to be taken. It is his further submission that claimant Nos.1 & 2 are parents of the deceased who would be entitled for a sum of Rs.40,000/- each towards ‘parental consortium’ in view of the decision in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent- Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that the Tribunal rightly assessed the income of the deceased at Rs.5,000/- per month. The accident is of the year 2008 and the assessment of the income by the Tribunal is proper and correct. Thus, he prays for dismissal of the 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.5,000/- per month is proper and correct?
b) Whether the claimants would be entitled for compensation on the head of ‘Future prospects’ at the rate of 40% of the assessed income?
c) Whether the Tribunal is justified in applying multiplier of ‘13’ taking the age of the younger parent?
d) Whether the claimants would be entitled for the compensation on the head of ‘parental consortium’?
e) Whether the claimants would be entitled for enhanced compensation?
Answer to the above points would be in the affirmative except point (c) which is answered in negative for the following reasons.
10. The accident occurred on 14-2-2008, involving Goods Tempo bearing Reg.No.KA.01/B.2096, lorry bearing Reg.No.KA.04/AE.1929 and the accidental death of one Santosh D’Souza are not in dispute in this appeal. The claimants are in appeal for enhancement of compensation. The accident is of the year 2008. The claimants state that the deceased was working as a driver under PW-2- Employer. PW-2 is the Managing partner of Vijwal Enterprise, Kulshekar, Mangalore. PW-2 in his evidence states that he was paying a sum of Rs.7,000/- per month as salary to the deceased and cash vouchers are produced at Ex.P13 and salary certificate at Ex.P12. Ex.P13-cash vouchers are of cash payment made by PW-2-employer to the deceased but the employer has not produced appointment letter issued to the deceased. The cash vouchers are raised by the employer and there is no cogent material to establish that PW-2 was paying Rs.7,000/- per month as salary to the deceased. As such, the Tribunal assessed the notional income of the deceased at Rs.5,000/- per month. The notional income that would be assessed by this Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases of the year 2008 is lesser than income assessed by the Tribunal. Thus, I am of the view that income of the deceased assessed at Rs.5,000/- per month needs no interference. The deceased was aged 24 years as on the date of accident and there is no dispute with regard to the age of the deceased. 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 held 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 24 years as on the date of accident and the claimants would be entitled for adding 40% of the assessed income towards ‘Future prospects’. The Tribunal committed an error in adopting multiplier of ‘13’ by taking the age of the younger parent. It is settled law that while applying proper multiplier, the age of the deceased will have to be taken.
In the instant case, if the age of the deceased is taken, the appropriate multiplier would be ‘18’. Claimant Nos.1 & 2- parents of the deceased, who have lost love and affection, care of their son who was aged 24 years, would be entitled for Rs.40,000/- each as compensation on the head of ‘parental consortium’. Thus, the claimants-appellants would be entitled for modified enhanced compensation as follows:
1. Loss of dependency Amount in (Rs.) 7,56,000
11. Thus, the claimants would be entitled for enhanced modified compensation of Rs.8,66,000/- as against Rs.4,30,000/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal. There would be no modification with regard to apportionment and deposit 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