IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 1666 OF 2013 (MV) BETWEEN 1. SMT. LAXMAMMA W/O LATE NARASAIAH AGED ABOUT 50 YEARS 2. SRINIVASA S/O LATE NARASAIAH AGED ABOUT 30 YEARS 3. BEERAIAH S/O LATE NARASAIAH AGED ABOUT 28 YEARS ALL ARE R/AT BEERESHWARA EXTENSION, SATHANUR MANDYA TALUK, MANDYA DISTRICT – 571 402 ... APPELLANTS (BY SMT. BHUSHANI KUMAR, ADVOCATE) AND 1. RAJU P.
FATHERS NAME NOT KNOWN AGED ABOUT 42 YEARS R/AT NO.138, 4TH MAIN BSK 3RD STAGE 6TH BLOCK, KATRIGUPPE BENGALURU – 560 085 2. THE UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, M. C. ROAD MANDYA – 571 401 REP. BY THE BRANCH MANAGER ... RESPONDENTS (BY SRI. K. SURESH, ADV. FOR R2; NOTICE TO R1 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.07.2011 PASSED IN MVC NO.691/2008 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN.) CJM, MACT, MANDYA, 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 counsel on both sides, the matter is heard for final disposal.
2. This appeal is preferred by the appellants/claimants against the judgment and award dated 12.7.2011 rendered by the Addl.Civil Judge (Sr.Dn) & CJM and MACT, Mandya in MVC No.691/2008 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 20.02.2008 deceased Narasaiah was grazing the sheep by standing on the left side of the Sathanur- Ummadahalli road. At about 4.30 p.m., when the said Narasiah was so standing on the left side of the road in between Sathanur-Ummadahalli road near Sri Narasimhaswamy Temple, at that time one Tata Sumo bearing No.KA.04/N 1217 being driven by its driver came from temple side in rash and negligent manner at high speed and dashed against the said Narasaiah and caused the accident. Due to the said impact, Narasaiah fell down and sustained severe and multiple injuries.
4. Immediately thereafter, Narasaiah was taken to District Hospital, Mandya but on the way succumbed to the injuries. After that post mortem was conducted. The claimants had spent huge amount towards transportation of dead body, funeral and obsequies ceremony. Due to the untimely death of Narasaiah, the petitioners having suffered mental shock, pain, agony and suffering and so also having lost the financial assistance, filed claim petition before the Tribunal seeking compensation.
5. After issuance of notice, though respondent no.1 entered appearance but did not file written statement. Second respondent filed objection statement denying the petition averments and sought for dismissal of the petition.
6. Based upon the pleadings of the parties, the Tribunal framed the issues for consideration. In order to substantiate their case, petitioner no.1 – Lakshmamma was examined as PW.1 and got examined one witness as PW.2 and got marked Exs.P1 to P7. On behalf of respondents no evidence was let in. The Tribunal after hearing the arguments advanced by learned counsel for the parties and on appreciation of oral and documents available on record, passed the impugned judgment, awarding compensation of Rs.1,90,000/- with interest @ 6% p.a. Being not satisfied with the quantum of compensation awarded by the Tribunal, the petitioners being the wife and children of the deceased, have preferred the present appeal on various amongst other grounds.
7. Learned counsel for the appellants contends that the compensation awarded by the Tribunal is on lower side and it has been awarded without considering the material produced by the appellants. It is contended that the Tribunal erred in not awarding any compensation towards loss of dependency and failed to consider the income of the deceased arising out of agriculture by opining that the deceased was aged 65 years as per post mortem report though his age was 50 years. Further, she contends that no compensation has been awarded towards transportation of dead body and towards loss of love and affection. The compensation awarded towards loss of estate and funeral expenses is on lower side and the same needs to be enhanced. On all these grounds, learned counsel for the appellants seeks enhancement of compensation by allowing the appeal.
8. Per contra, learned counsel for the respondent–insurance company disputes the age of the deceased and his income. He contends that accident occurred not due to the rash and negligent driving of the offending vehicle, but due to the contributory negligence on the part of the deceased also. As such the insurer is not liable to indemnify the compensation amount. Further, he contends that the compensation awarded by the Tribunal is just and proper and it does not call for interference of this Court and accordingly, sought for dismissal of the appeal.
9. In the backdrop of the contentions as taken by learned counsel for the appellants as well as learned counsel for the respondent - insurance company, it is relevant to note that there is no dispute regarding the death of Narasaiah in a road traffic accident which occurred due to the actionable negligence on the part of the driver of the offending vehicle. PW.1 in his evidence has stated about the averments as made out in the petition and has produced documents such as Ex.P1 – FIR, Ex.P2 – complaint, Ex.P3 – charge sheet, Ex.P4 – crime detail form, Ex.P5 – inquest, Ex.P6 – P.M.report, Ex.P7 – IMV report. PW.2 – Channappa is an eye witnesses to the accident.
10. First petitioner is the wife, petitioners 2 and 3 are sons of deceased Narasaiah. It is stated that prior to the accident deceased Narasaiah was grazing sheep and from all sources he used to earn Rs.4,000/- p.m. But having regard to the avocation of the deceased, the income assessed by the Tribunal at Rs.4,000/- p.m. appears to be on lower side and the same is enhanced to Rs.4,500/- p.m. Further, keeping in view the submission of learned counsel for the appellants and the dispute with regard to the age of deceased is concerned, I deem it appropriate to hold multiplier of ‘9’ as the deceased would fall under the age group of 56 – 60 years as per Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298. Further, in view of decision of the Hon’ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi reported in AIR 2017 SC 5157, 10% of his income ought to have been added towards future prospects, which has not be done. As rightly held by the Tribunal, 1/3rd of his income has to be deducted towards personal expenses. Accordingly, the compensation under the head ‘loss of dependency’ is re- worked out as under:
11. In so far as compensation under conventional heads is concerned, as per Pranay Sethi (supra), the compensation under the conventional heads should not exceed Rs.70,000/-. But the Tribunal under the conventional heads has awarded in all a sum of Rs.30,000/-. Hence, an additional amount of Rs.40,000/- is awarded under the conventional heads.
12. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), the Hon’ble Apex Court has held that “the right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to the family. 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.” In the instant case, claimant Nos. 2 and 3 are the sons of deceased Narasaiah. They have lost their father and lost his love and affection, companionship and there is a reciprocity in between the family and the deceased. The deceased was contributing his income to the entire family for their sustenance and survival. The claimants being the children have lost the passionate of their father Narasaiah. Keeping in view the said decision of the Hon’ble Supreme Court, a sum of Rs.40,000/- each is awarded to claimants 2 and 3 towards loss of parental consortium totaling to Rs.80,000/-.
13. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation Particulars awarded by MACT Compensation by this Court Loss of future income / Loss of dependency 1,60,000 3,56,400 Loss of estate 10,000 Loss of consortium 10,000 Funeral expenses 70,000 and transportation of dead body Parental consortium 10,000 - 80,000 Total 1,90,000 5,06,400 Thus, in all, the claimants are entitled to total compensation of Rs.5,06,400/- as against Rs.1,90,000/- awarded by the Tribunal. The enhanced compensation would be Rs.3,16,400/-.
For the reasons and findings as stated above, I proceed to pass the following:
ORDER The appeal filed by the appellants/claimants is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.3,16,400/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 12.07.2011 passed by the Tribunal in MVC No.691/2008, is modified accordingly.
Respondent - Insurance Company shall deposit the enhanced compensation before the Tribunal, along with accrued interest, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
DKB Sd/- JUDGE