IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.53/2015 [MV] BETWEEN:
SMT. MAHADEVAMMA W/O SRINIVASA AGED ABOUT 38 YEARS R/AT 6TH CROSS LABOUR COLONY MANDYA CITY-571 401.
...APPELLANT (BY SRI. K L SREENIVAS, ADV.) AND:
1. K B KRISHNA S/O BORAIAH AGE MAJOR R/O KONASALE VILLAGE KOPPA HOBLI MADDUR TALUK MANDYA DISTRICT-571 428.
2. THE MANAGER UNITED INDIA INSURANCE CO. LTD., M.C.ROAD MANDYA-571 401.
…RESPONDENTS (BY SRI.K SURESH, ADV. FOR R2 R1- NOTICE D/W V/O DT:30.06.2016) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.09.2014 PASSED IN MVC NO.20/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, CJM, MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal, not being satisfied with the quantum of compensation awarded under the judgment and award dated 19.09.2014 passed in MVC No.20/2014 on the file of the Additional Senior Civil Judge and CJM and Motor Accident Claims Tribunal, Mandya (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Manikanta in a road traffic accident. Claimant is the mother of the deceased Manikanta. It is stated that on 07.11.2013, when the deceased was proceeding in a motorcycle bearing registration No. KA-02/EV-1005, a lorry bearing registration No. KA-03/A-1360 came in a rash and negligent manner and in a high speed and dashed to the motorcycle causing the accident. Due to which, the deceased sustained injuries and he was immediately shifted to the District hospital at Mandya wherein the Doctor declared that Manikanta succumbed to the injuries. It is stated that the deceased was working as mason earning a sum of Rs.9,000/- p.m., and he was aged about 22 years as on the date of accident.
3. On issuance of notice, respondent No.1 remained absent and respondent/insurer appeared before the Tribunal and filed its written statement denying the claim petition averments. But admitted the issuance of insurance policy in respect of the offending lorry. It is further stated that the driver of the lorry bearing registration No.KA-03/A-1360 did not possess the valid and effective driving license to drive particular category of vehicle as on the date of accident.
4. The claimant got examined herself as P.W.1 and also examined P.W.2 apart from marking the documents as Ex.P1 to Ex.P11. The respondent/insurer marked Ex.R1 copy of the policy.
5. The Tribunal based on the material on record awarded total compensation of Rs.4,65,000/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following heads:
1. Loss of dependency :: Rs.4,50,000/-
2. Loss of estate :: Rs. 10,000/-
3. Funeral Expenses :: Rs. 5,000/-
Total Rs.4,65,000/-
While awarding the above compensation, the Tribunal assessed the notional income of the deceased at Rs.5,000/- p.m. and adopted the multiplier of 15 taking the age of the mother of the deceased. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal seeking enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/insurer. Perused the material on record.
7. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side. He submits that the deceased was working as a mason and was earning Rs.9,000/- p.m., whereas the Tribunal has assessed the income of the deceased at Rs.5,000/- p.m., which is on0020the lower side. He submits that the accident is of the year 2013. In the year 2013, a coolie earned Rs.300/- per day which would be Rs.9,000/- p.m. Further, the learned counsel for the appellant would submit that the Tribunal committed an error in taking the age of the mother of the deceased for applying the correct multiplier. It is his submission that it is settled law that while applying the appropriate multiplier, age of the deceased will have to be taken. It is also his submission that the Tribunal has failed to award any compensation on the head of future prospects which the claimant would be entitled at 40% of the assessed income as per the decision of the Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. He further states that the claimant would be entitled for a sum of RS.40,000/- on the head of filial consortium in view of the decision of the Hon'ble Apex Court reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Thus, 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. Further he submits that the compensation claimed itself is Rs.10,00,000/- with interest at the rate of 18% p.a. Therefore, he submits that the enhancement be restricted to Rs.10,00,000/- as claimed by the appellant/claimant. Further, he submits that the claimant has not placed on record any material to indicate the exact income of the deceased. Hence, assessment of monthly income at Rs.5,000/- is proper and correct. Thus, prays for dismissal of the appeal.
9. On hearing the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the monthly income assessed by the Tribunal at Rs.5,000/- of the deceased is proper and correct?
(ii) Whether the Tribunal is justified in adopting multiplier of 15 taking the age of the mother of the deceased/claimant in stead of deceased?
(iii) Whether the claimant would be entitled for 40% of the assessed income towards future prospects? and (iv) Whether the claimant would be entitled for filial consortium?
10. The accident occurred on 07.11.2013 involving the motorcycle bearing registration No.KA-02/EV-1005 and a lorry bearing registration No.KA-03/A-1360 and the accidental death of son of the claimants is not in dispute in this appeal. Claimant’s appeal is for enhancement of compensation. Accident is of the year 2013. Learned counsel for the appellant/claimant submitted that the income of the deceased assessed by the Tribunal at Rs.5,000/- p.m., is on the lower side. Looking to the standard of living and price index of the year 2013, an unskilled labour would earn Rs.300/- per day, which would be Rs.9,000/- p.m. This Court and Lok Adalath, while settling the accident claims of the year 2013, would normally assess notional income of Rs.8,000/- p.m. As there is no material to indicate the exact income of the deceased, it would be appropriate to assess the income of the deceased at Rs.8,000/- p.m.
11. The deceased was aged 22 years. The Tribunal committed an error in taking the age of the claimant/mother of the deceased for adopting appropriate multiplier. It is settled law as on this date that in view of decision of the Hon'ble Apex Court reported in AIR 2019 SC 3814 in the case of JOGINDER SINGH AND ANOTHER v/s ICICI LOMBARD GENERAL INSURANCE COMPANY to take the age of the deceased to apply appropriate multiplier. In the above decision it is held as follows:
“The issue with respect to whether the Multiplier to be applied in the case of a bachelor, should be computed on the basis of the age of the deceased, or the age of the parents, is no longer res integra. This issue has been recently settled by a three Judge bench of this Court in Royal Sundaram Alliance Insurance Co. Ltd. V/S Mandala Yadagari Goud and others, wherein it has been held that the Multiplier has to be applied on the basis on the age of the deceased.”
In view of the above decision, while applying the multiplier, the age of the deceased will have to be considered. In this case, if the age of the deceased is taken as 22 years, the appropriate multiplier would be 18.
12. The Hon'ble Apex Court in PRANAY SETHI case (supra) has laid down 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, as the deceased was aged 22 years, the claimant would be entitled for adding 40% of assessed income towards future prospects. The claimant is mother who lost her son aged 22 years. The claimant has lost love, affection and care of her son. As such, the claimant would be entitled for a sum of Rs.40,000/- towards filial consortium as held by the Hon'ble Apex Court in MAGMA case (supra). The claimant was bachelor and deduction towards personal expenses would be at 50%. Further, the claimant would be entitled for Rs.30,000/- on conventional heads.
13. Learned counsel for the respondent/insurer submitted that the claim itself is for Rs.10,00,000/- and enhancement of compensation be restricted to Rs.10,00,000/- only. However, while determining the compensation, it is for the Court or Tribunal to determine the compensation which appears to be just compensation taking note of the age of the deceased and nature of avocation carried on by the deceased, along with the evidence on record. The Hon’ble Apex Court in the case of RAMLA AND OTHERS V.
NATIONAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2019) 2 SCC192 at para 5 it is held as follows:
“ Though the claimants had claimed a total compensation of Rs.25,00,000/- in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or court under Section 168 of the Motor Vehicles Act,1988 is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty-bound to award just compensation.”
Accordingly the above decision would make it clear that the compensation to be awarded shall be just and adequate. Thus, the Court need not restrict the compensation to Rs.10,00,000/- in the present case. In appropriate and deserving cases, the tribunal or this court can award the compensation more than what is sought in the claim petition. Thus, the claimant would be entitled for the following modified compensation:
1.Loss of dependency including Future prospects (8000+40% = 3200=11200 11200-50% = 5600 5600x12x18 :: Rs.12,09,600/-
2. Conventional heads :: Rs. 30,000/-
3. Filial Consortium :: Rs. 40,000/-
Total Rs.12,79,600/-
Thus, the claimant would be entitled for compensation of Rs.12,79,600/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.4,65,000/- as awarded by the Tribunal.
14. Accordingly, the appeal is allowed in part. The judgment and award dated 19.09.2014 passed in MVC No.20/2014 on the file of the Additional Senior Civil Judge and CJM, and Motor Accident Claims Tribunal, Mandya is modified and the claimant is entitled to enhanced compensation of Rs.8,14,600/-.
The order of deposit is as ordered by the tribunal.
Sd/-
JUDGE mpk/-* CT:bms