IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO. 2556 OF 2015 (MV) C/W MISCELLANEOUS FIRST APPEAL CROB NO. 109 OF 2017 (MV) IN MFA. NO.2556/2015 BETWEEN:
LEGAL MANAGER RELIANCE GENERAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.28 EAST WING, 5TH FLOOR CENTENARY BUILDING M.G. ROAD BENGALURU – 560 001.
(BY SRI. PRADEEP B., ADVOCATE) AND:
1. MADAMMA W/O JAVARSHETTY NOW AGED ABOUT 46 YEARS.
2. JAVARSHETTY SON OF JAVARSHETTY NOW AGED ABOUT 51 YEARS.
3. MALAGMMA DAUGHTER OF JAVARSHETTY NOW AGED ABOUT 41 YEARS.
... APPELLANT 4. SUDHA DAUGHTER OF JAVARSHETTY NOW AGED ABOUT 18 YEARS ALL ARE RESIDING AT BASAVAPURA VILLAGE GUNDLUPET TALUK CHAMRAJANAGAR DISTRICT – 571 111.
5. H.A. SHASHIREKHA DAUGHTER OF K. SHIVAKUMAR NO. 1805, HULLINA STREET 2ND CROSS, K.R. MOHALA MYSORE – 570 001.
… RESPONDENTS (BY SRI. K.M. SANATH KUMAR, ADVOCATE FOR R-1 TO R-4; VIDE ORDER DATED 15.07.2019, NOTICE TO R-5 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2014 PASSED IN MVC NO. 205 OF 2014 ON FILE OF THE DISTRICT AND SESSIONS JUDGE, MACT, CHAMRAJANAGAR, AWARDING A COMPENSATION OF RS. 11,00,350/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION OF AWARD AMOUNT TO MODIFY THE SAME.
IN MFA CROB.NO.109/2017 BETWEEN :
1. MADAMMA W/O JAVARASJETTY AGED ABOUT 48 YEARS.
2. JAVARASHETTY SON OF JAVARASHETTY AGED ABOUT 53 YEARS.
3. MALAGAMMA DAUGHTER OF JAVARASHETTY AGED ABOUT 43 YEARS.
4. SUDA DAUGHTER OF JAVARASHETTY AGED ABOUT 20 YEARS.
ALL ARE RESIDING AT BASVAPURA VILLAGE GUNDLUPET TALUK CHAMRAJANAGAR DISTRICT PIN 571 303.
…CROSS OBJECTORS (SRI. SANATH KUMARA K.M., ADVOCATE) AND:
1. H.A. SHASHIREKHA DAUGHTER OF K. SHIVAKUMAR NO.-1805, HULLINA STREET 2ND CROSS, K.R. MOHALA MSYORE PIN – 570 004.
2. THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE CO. LTD., NO.28, EAST WING, 5TH FLOOR CENTENARY BUILDING M.G. ROAD BENGALURU PIN – 560 001.
… RESPONDENTS (SRI. B. PRADEEP., ADVOCATE FOR R-2 VIDE ORDER DATED 15.07.2019, NOTICE TO R-1 IS DISPENSED WITH) THIS MFA CROB IN MFA NO. 2556 OF 2015 IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 05.12.2014 PASSED IN MVC NO. 205 OF 2014 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE AND MACT AT CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA & MFA CROB COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal and the Cross Objection are listed for Orders, with the consent of learned counsel for both parties, the matters are taken up for final disposal.
2. The appeal in MFA No.2556/2015 is preferred by the appellant – Insurance Company challenging the impugned judgment and award dated 05.12.2014 passed in MVC NO.205/2014 on the file of the District and Sessions Judge and MACT at Chamarajanagar, partly allowing the claim petition by awarding compensation in a sum of Rs.11,00,350/- and has ordered that the claimant would be entitled to interest at 9% p.a. The compensation awarded by the tribunal being found to be inadequate, the Cross Objectors have filed Cross Objection No.109/2017 seeking re-
appreciation of entire evidence on record and enhancement of compensation suitably.
3. The factual matrix of the appeal and cross objection are as under:
It is stated in the claim petition that on 20.03.2014, at about 12.30 p.m., the deceased Raju in MVC No.205/2014 and he being the friend to the person namely, Shiva Kumara @ Kumara, the rider of the motorcycle, who died in the accident in MVC No.201/14 and one Nagesh was a pillion rider of the motorcycle. The said Raju was sitting in between the deceased Shivakumar and Nagesh. After getting treatment they were returning to their village from Gundlupet. When they reached at Mallaiahnapura Gate bridge on the left side of the Gundlupete-Ooty road, one TATA 909 vehicle bearing registration No.KA-09-B-1420, which was driven by its driver in a great speed, hit against the motorcycle, in which the deceased Shivakumar @ Kumara and so also Raju and Nagesh said to be travelling. As a result of that accident, the deceased Raju sustained grievous injuries to his head and was shifted to Gundlupet Government Hospital and from there he was shifted to J.S.S. Hospital, Mysuru and there, he died on 06.04.2014. The deceased Raju by avocation was a mason, also doing agricultural work and having earning capacity in a sum of Rs.9,000/- per month. But due to untimely death of deceased Raju in MVC No.205/2014, that the legal representatives have lost the income to eke out their livelihood and also that they were suffering mental agony and shock. These are the contentions taken by the learned counsel for the claimants before the Tribunal.
4. On service of notice on the respondents, the respondents participated in the proceedings, wherein the second respondent being the insurer of the TATA 909 vehicle in question filed objections statement and taken a different contention relating to the negligence on the part of the offending vehicle, though the driver of the offending vehicle was not having any valid and effective license to drive the category of vehicle involved in the accident as on the date of the accident and that the owner of the offending vehicle did not follow the provisions of the Motor Vehicles Act, 1988 and also the terms and conditions of the policy. On these grounds, the second respondent sought for dismissal of the claim petition.
5. Based on the pleadings of the parties, the Tribunal framed the issues and gave the findings on evaluating the evidence of PW.3 - Madamma, said to be the claimant in MVC No.205/2014 and so also, the Post-mortem Report as per Ex.P.8 relating to deceased Raju and charge sheet laid against the driver of the offending vehicle as per Ex.P.6. The Investigating Officer conducted spot mahazar as per Ex.P.3 in the presence of the panch witnesses. On the part of the respondent – insurer, policy has been got marked as per Ex.R.1 but no witnesses were examined. Even though the claimant No.1 said to be examined as PW.3 namely, Madamma, she did not produce any specific evidence in order to seek suitable compensation. But the Tribunal awarded compensation in a sum of Rs.1,05,000/- towards mental shock and agony and loss of love and affection and also pain and suffering. Further, the Tribunal awarded compensation in a sum of Rs.25,000/- towards transportation and funeral obsequies ceremonies which is contrary to the decision of the Hon’ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi reported in AIR 2017 SC 5157 case as he is unmarried person. Therefore, under the conventional head, the compensation shall not be more than Rs.30,000/-. Hence, the judgment and award of the Tribunal requires interference.
6. Learned counsel Sri Sanath Kumar K.M., appearing on behalf of the claimants has taken me through the evidence of PW.3 said to be claimant No.1 in MVC No.205/2014 and she being the mother of deceased Raju who met with an untimely death has lost the bread winner of the family. Therefore, the learned Counsel submits that the income taken by the Tribunal in a sum of Rs.6,000/- is inadequate and is on the lower side. Therefore, in this appeal the income of the deceased is required to be enhanced as per the guidelines and illustrations prevailing during the relevant year. In the instant case, the accident occurred in the year 2014-15. When there is no proof of income, the notional income has to be taken. Having regard to the avocation of the deceased as a mason it is claimed to be around Rs.8,500/- to Rs.9,000/- as per the norms. Further, the parental consortium is required to be considered as per the judgment rendered by the Hon’ble Supreme Court in Magma General Insurance Company Limited vs. Nanuram and other reported in 2017 SCC 1546. On these grounds, learned counsel for the claimants sought for enhancement of compensation suitably.
7. Having regard to these strenuous contentions as taken by the learned counsel for the claimants and counter arguments made by learned counsel for the insurer respectively, it is relevant to state that there is no dispute about the death of the deceased Raju on 20.3.2014 who met with an accident, as the offending vehicle has been involved which is narrated in the claim petition. The averments made in the claim petition have been substantiated by the evidence of PW.3 Madamma said to be the mother of deceased Raju. Having regard to her evidence as well as the documentary evidence placed by her relating to the income, the Tribunal has taken the income of the deceased at Rs.6,000/- per month, which is appears to be on the lower side and also inadequate. Therefore, the same requires to be enhanced in a sum of Rs.8,500/- per month. Further, keeping in view the judgment rendered by the Hon’ble Supreme Court in National Insurance Company Limted vs. Pranay Sethi reported in AIR 2017 SC 5157, 40% of future prospects is required to be added to his income as deceased Raju was aged 24 years. The Tribunal has considered the multiplier as ‘18’ as according to ratio laid down in Sarla Verma’s case and the same appears to be just and proper. Further, 50% of his income has to be deducted towards his personal expenses. Accordingly, compensation under the head loss of dependency is re-worked out as under:
respect of pain and suffering and mental shock and agony in a sum of Rs.1,05,000/- but it is contrary to the ratio laid down in Pranay Sethi’s case as it is case of death. Keeping in view of the judgment of the Hon’ble Supreme Court as stated supra in Magma General Insurance Company Limited, Madamma and Javarashetty said to be claimant Nos.1 and 2 are the parents of the deceased Raju and claimant Nos.3 and 4 – Malagamma and Sudha, are the elder and younger sisters of deceased Raju. Parental consortium is granted to a child upon premature death of a parent but in the instant case, the filial consortium is the right of the claimants to the compensation in case of accidental death of a child i.e., the accident leading to the death of child causes great shock and agony to the parents and family of the deceased but claimants No.1 and 2 said to be the parents of the deceased were awarded compensation but no compensation was awarded to claimants No.3 and 4 said to be the elder and younger sister od deceased Raju. However, under the concept of filial consortium it is the right of the parents for compensation as well as the sisters of the deceased Raju. Accordingly, they are entitled for compensation in a sum of Rs.40,000/- each as it would come to Rs.1,60,000/- but the Tribunal has awarded compensation in a sum of Rs.1,05,000/- in respect of pain and suffering as well as mental shock and agony. Accordingly, this amount is to be worked out and also awarded under the head ‘filial consortium’ of the claimants said to be the family members of the deceased Raju, namely, parents as well as the sisters. Accordingly, another sum of Rs.55,000/- is awarded under the head of filial consortium. Insofar as transportation and funeral ceremonies are concerned, the Tribunal has awarded a sum of Rs.25,000/- but placing reliance on Pranay Sethi’s case, it should not exceed Rs.30,000/- as he being an unmarried person. Therefore, another sum of Rs.5,000/- is awarded in addition to Rs.25,000/- awarded by the Tribunal.
9. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation awarded under the heads Hospital and medical expenses Mental Shock and agony and loss of love and affection & pain and suffering Transportation and funeral and obsequies Loss of income Food and nourishment Medical Attendant Expenses Total 10. In terms of the aforesaid reasons and findings, I proceed to pass the following:
ORDER M.F.A.No.2556/2015 and M.F.A.Crob.No.109/2017 are hereby partly allowed to the extent where the legal representatives of the deceased Raju said to be the claimants are entitled for enhanced compensation of Rs.4,81,200/- with interest at 6% per annum. Accordingly, the judgment and award passed by the tribunal in MVC No.205/2014 is hereby modified.
The Insurance Company is directed to deposit the aforesaid enhanced compensation amount with interest at 6% per annum before the Tribunal in MVC.No.205/2014 within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the same shall be disbursed to the claimants, on proper identification.
The judgment and award of the Tribunal insofar as it relates to rate of interest, apportionment and deposit is concerned, shall remain unaltered.
The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith.
The office is directed to draw decree accordingly.
Sd/- JUDGE nv