IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.7150 of 2018 (MV) C/W MISCELLANEOUS FIRST APPEAL No.5297 of 2018 (MV) IN M.F.A. No.7150 of 2018 BETWEEN :
1 . SMT.MARGARETE D’SOUZA (MOTHER OF DECEASED) W/O.JERALD D’SOUZA AGED ABOUT 53 YEARS 2 . JERALD D’SOUZA (FATHER OF DECEASED) S/O.EDWARD D’SOUZA AGED ABOUT 56 YEARS 3 . JAMES MANOJ D’SOUZA (BROTHER OF DECEASED) S/O.JERALD D’SOUZA AGED AOBUT 28 YEARS 4 . JOYLINE MARIYA D’SOUZA (UNMARRIED SISTER OF DECEASED) D/O.JERALD D’SOUZA AGED ABOUT 23 YEARS 5 . JOSLINE MARINA D’SOUZA (UNMARRIED SISTER OF DECEASED) D/O.JERALD D’SOUZA AGED ABOUT 25 YEARS ALL ARE R/A H.NO.5-70 BELANJALE MANE POST KATTINAGERI SHIRVA GRAMA VIA MOODUBELLE UDUPI TALUK AND DISTRICT – 576 101. ... APPELLANTS (BY SRI.S.P.SHANKAR, SENIOR COUNSEL A/W SRI.SRIKANTH.N.V. FOR SACHIN B.S., ADVOCATE) AND:
1 . RAVINDRA PRABHU S/O.LATE NARAYANA PRABHU AGED ABOUT 51 YEARS R/A H.NO.4-106-1 “SHARADA NILAYA”
KANJARAKATTE, SANTHOORU VILLAGE AND POST UDUPI TALUK AND DISTRICT – 576 101.
2 . THE UNITED INDIA INSURANCE CO., LTD., REP. BY ITS DIV. MANAGER, JEWEL PLAZA, MARUTHI VITHIKA ROAD UDUPI – 576 101. ...RESPONDENTS (BY SRI.SHOBHITH.N.SHETTY, ADVOCATE FOR R-1, SRI.P.B.RAJU, ADVOCATE FOR R-2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 03.04.2018, PASSED IN MVC NO.1010/2016, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC., IN M.F.A. No. 5297 of 2018 BETWEEN :
THE UNITED INDIA INSURANCE CO., LTD., REP. BY ITS DIV. MANAGER, JEWEL PLAZA MARUTHI VITHIKA ROAD, UDUPI BY ITS DIVISIONAL MANAGER M/S.UNITED INDIA INSURANCE CO., LTD., DIVISIONAL OFFICE, BAJAJ COMPOUND 1ST FLOOR, POST BOX - 11 MANIPAL – 576 104.
UDUPI DISTRICT. ... APPELLANT (BY SRI.P.B.RAJU, ADVOCATE) AND:
1. SMT.MARGARETE D’SOUZA (MOTHER OF THE DECEASED) AGED ABOUT 53 YEARS W/O.JERALD D’SOUZA 2 . JERALD D’SOUZA (FATHER OF THE DECEASED) AGED ABOUT 56 YEARS S/O.EDWARD D’SOUZA 3 . JAMES MANOJ D’SOUZA (BROTHER OF DECEASED) AGED AOBUT 28 YEARS S/O.JERALD D’SOUZA 4 . JOYLINE MARIYA D’SOUZA (UNMARRIED SISTER OF DECEASED) AGED ABOUT 23 YEARS D/O.JERALD D’SOUZA 5 . JOSLINE MARINA D’SOUZA (UNMARRIED SISTER OF DECEASED) AGED ABOUT 23 YEARS D/O.JERALD D’SOUZA S/O.GOOLAIAH ALL ARE RESIDING AT H.NO.5-70 BELANJALE MANE POST KATTINAGERE SHIRVA GRAMA VIA MOODUBERLLE UDUPI TALUK AND DISTRICT – 576 101.
6. RAVINDRA PRABHU AGED ABOUT 51 YEARS S/.LATE NARAYANA PRABHU R/AT H.NO.4-106-1 “SHARADA NILAYA” KANJARKATTE, SANTHOORU VILLAGE AND POST UDUPI TALUK AND DISTRICT – 576 101. ...RESPONDENTS (BY SRI.SHOBHITH.N.SHETTY, ADVOCATE FOR R-6, SRI.S.P.SHANKAR, SENIOR COUNSEL A/W SRI.SRIKANTH.N.V. FOR SACHIN B.S., ADVOCATE FOR R-1 TO R-5) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 03.04.2018, PASSED IN MVC NO.1010/2016, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.1,15,96,800/- WITH INTEREST AT THE RATE OF 6% FROM THE DATE OF THE PETITION TILL FULL AND FINAL REALIZATION AND ETC., THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with consent of the learned counsel on both sides, they are heard finally.
2. MFA 7150/2018 has been filed by the legal representatives/claimants of deceased Johnson Michael D’Souza in MVC No.1010/2016, while MFA 5297/2018 has been filed by the Insurance Company both assailing the judgment and award passed by the Additional Motor Accidents Claims Tribunal and Principal Senior Civil Judge, Udupi (hereinafter referred to as the ‘Tribunal’ for the sake of convenience), at Hassan, dated 3rd April, 2018 passed in MVC No. 1010/2016. Both the appeals have been filed on the issue of quantum of compensation, awarded by the Tribunal.
3. For the sake of convenience, parties shall be referred to in terms of their status and ranking before the Tribunal.
4. The claimants, being the legal representatives of Johnson Michael D’Souza, filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act, for brevity), claiming compensation of Rs.1,81,92,925/- on account of the death of Johnson Michael D’Souza in a road traffic accident that occurred on 02.08.2016. It is the case of the claimants, who are his parents and siblings, that on the fateful day at about 10.30 a.m., Johnson Michael D’Souza was riding his motor cycle bearing registration No. KA-20-V-4981 from Kattingeri towards Moodubelle in a slow and cautious manner. When he was near Ganapanakatte cross, at that time, a Tipper lorry bearing registration No. KA-51-1488 came from the opposite direction and the same was driven by its driver in a rash and negligent manner and dashed against the motor cycle of the deceased. As a result, Johnson Michael D’Souza sustained grievous injuries. He was shifted to KMC Hospital, Manipal, in an ambulance, but despite best medical treatment, he succumbed to the injuries on the same day at about 9.30 p.m.
5. Contending that Johnson Michael D’Souza was hale and healthy, that he was a bachelor and an ITI Diploma holder, and he was working in the Gulf from the year 2009 onwards, and at the relevant point of time, was working at Victory Events and Modelling at Dubai, on securing better prospects, and that he was also constructing a house, and had come to India on leave, his legal representatives filed the claim petition. That he was working as a Sales Promoter and Sales Executive in Victory Events and Modelling at Dubai and his salary was AED 3,500 Dirhams plus commission. That on account of his death in the road traffic accident, the family was in great agony and penury. Therefore, they sought for compensation from the respondents.
6. In response to the notice issued by the Tribunal, the first respondent appeared through an Advocate, but did not file any written statement, whereas, the second respondent – insurer filed its written statement denying the material averments in the claim petition and contending that there was no negligence on the part of the driver of the Tipper lorry and that the deceased was negligent and was the cause of his death. The Insurance Co. sought for dismissal of the claim petition with costs.
7. On the basis of the rival pleadings the Tribunal framed the following issues for its consideration :
1) Whether the petitioners prove that, on 02.08.2016 at about 10.30 a.m., while the deceased was riding his motor cycle bearing registration No. KA-20-V-4981, from Kattingeri side towards Moodubelle side and when he reached near Ganapanakatte cross, one Tipper bearing registration No. KA-51-1488 driven by its driver, came from opposite direction from wrong side in rash and negligent manner and dashed motor cycle of the deceased, and in the result he succumbed to the injuries ?
2) Whether the petitioners are entitled for compensation ? If so, what is the quantum ? From whom payable ?
3) What award or order ?
8. In order to substantiate their case, the claimants examined the brother of the deceased - James Manoj D’Souza as P.W.1 and produced 28 documents before the Tribunal, which were marked as Exs. P.1 to P.28. The driver of the Tipper lorry – Suresh was examined as R.W.1. Ex.R.1 – copy of the Insurance Policy was marked on behalf of the respondent – insurer.
9. On considering the evidence on record, the Tribunal answered Issue No.1 in the affirmative, Issue No.2 partly in the affirmative and awarded compensation of Rs.1,15,96,800/- along with interest at 6% per annum from the date of the claim petition till complete realization.
10. Being aggrieved by the quantum of compensation awarded by the Tribunal, both the Insurance Company as well as the claimants have preferred their respective appeals, seeking reduction in the compensation and enhancement thereof respectively.
11. We have heard learned Senior counsel appearing for the claimants and learned counsel for the Insurance Company and perused the material on record.
12. Learned Senior counsel appearing for the claimants drew our attention to the computation of compensation under the head of ‘loss of dependency’. He submitted that the Tribunal has, in the first instance, deducted 50% from the monthly salary of the deceased towards his personal expenses and thereafter added 40% towards future prospects after the said deduction. He contended that the said approach is erroneous as it would result in lowering the compensation under the head of ‘loss of dependency’.
13. He drew our attention to Ex.P9 – salary certificate, and submitted that the deceased was receiving 4,500 AED or Dirhams. That on the date of the accident, the exchange rate was Rs.18.1967 per Dirham. The said exchange rate has been rightly applied by the Tribunal, but the mathematical error which has occurred on account of the approach of the Tribunal may be rectified. In this regard, he contended that the amount towards future prospects must be added to the monthly salary before deducting the amount towards the personal expenses of the deceased, and as a result, the compensation would be enhanced on the head of ‘loss of dependency’.
14. He next contended that the future prospects must be 50% and not 40%, as applied by the Tribunal, having regard to the recent dictum of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680. He further drew our attention to the fact that only Rs.30,000/- has been awarded towards conventional heads, including ‘loss of estate’, ‘loss of consortium’ and towards ‘funeral expenses’, which is meager and that no amount has been awarded towards the medical expenses for treatment and that a reasonable amount may be awarded on that head. Thus, the contention is that the appeal would call for enhancement of compensation, which may be allowed.
15. Per contra, learned counsel for the Insurance Company firstly, contended that the deceased – Johnson Michael D’Souza was working in Dubai which is a Gulf country, where the personal and living expenses are very high. Therefore, at least 65% of the amount ought to have been deducted towards the personal and living expenses of the deceased instead of 50%. He further contended that having regard to the high quantum of compensation that is awarded in the instant case, there ought not to be any consideration towards future prospects. He next contended that there is no evidence with regard to the amount the deceased was contributing to his family. That there is no documentary evidence of remittances that were made by the deceased, and therefore, there is no substance in the contention of the claimants that there was any ‘loss of dependency’. Hence, the Tribunal ought not to have awarded a huge compensation of Rs.1,15,96,800/- to the claimants.
16. Learned counsel for the Insurance Company also contended, no doubt also the claimants have lost an earning member of the family, but however, the compensation which is now being awarded, being over a crore and in lumpsum, would call for a conventional approach in the matter, as the claimants would not have been able to acquire such an amount, or have the benefit of such an amount, had the deceased continued to live. He therefore contended that the appeal filed by the claimants be dismissed and the Insurance Company’s appeal be allowed, by reducing the compensation awarded in the instant case.
17. Having heard learned Senior counsel for the appellants – claimants and the learned counsel for the respective parties, the following points would arise for our consideration :
i) Whether the amount of compensation being Rs.1,15,96,800/- that has been awarded by the Tribunal would call for any interference in this appeal ? In other words, whether the same requires an escalation or a reduction?
ii) What order ?
18. There is no controversy about the fact that Johnson Michael D’Souza died in a road traffic accident that occurred on 02.08.2016 at about 10.30 a.m. while he was riding his motor cycle bearing registration No. KA-20- V-4981 from Kattingeri towards Moodubelle, when at that time when he reached Ganapanakatte cross, the driver of the Tipper lorry bearing registration No. KA-51-1488, came from the opposite direction and collided with the motor cycle, resulting in his death on the same day at about 9.30 p.m. The controversy in this appeal is only with regard to quantum of compensation that has to be awarded to the claimants.
19. The Tribunal, on the basis of Ex.P.9 has awarded compensation of Rs.1,15,66,800/- on the head of ‘loss of dependency’ by considering the monthly income of the deceased at Rs.81,000/- per month, and by deducting 50% of the same towards personal expenses of the deceased and by applying 40% towards future prospects and choosing the multiplier of ‘17’. Further, a sum of Rs.30,000/- only has been awarded towards conventional heads, including ‘loss of estate’, ‘loss of consortium’ and ‘funeral expenses’, totaling Rs.1,15,96,800/-.
20. The arguments of learned Senior counsel appearing for the appellants and learned counsel for the Insurance Co. would not call for reiteration. However, we find that the Tribunal having been convinced that the deceased Johnson Michael D’Souza was earning a sum of Rs.81,000/- per month as Sales Promoter and Sales Executive, on the basis of Ex.P.9, in the first instance itself, deducted 50% of the said amount towards the personal expenses of the deceased. Of course, learned counsel for the Insurance Company submitted that the deduction ought to have been higher, may be, upto 65%, since the deceased was working and living in Dubai, where the personal expenses are on the higher side. But we do not think that we can accept such a contention nor deviate from what has been enunciated by the Hon’ble Supreme Court in the case of Sarla Verma vs. –Delhi Transport Corporation reported in AIR 2009 SC 3104, wherein it has been observed that, where the deceased is a bachelor, 50% must be deducted towards the personal expenses of the deceased. Of course in the said judgment, it has been also observed that, where the father of the deceased is not an earning member, or has already died, the deduction towards personal expenses of the deceased would be even lower may be one-third. But, in the instant case, we do not propose to adopt the said approach since the father of the deceased is alive and the Tribunal, has, in its wisdom, deducted only 50% towards the personal expenses of the deceased. Further, we can take note of the fact that Indians who go abroad, particularly to the Gulf countries, do so for the purpose of earning income for the betterment of their families. Some times, it is for the survival of the family back at home. Therefore, there is a tendency to always save as much as possible by spending less on oneself, abroad. Hence, we think it is just and proper to deduct only 50% towards the personal expenses of the deceased.
21. However, it is necessary to first add the amount towards the future prospects to the monthly income. Although Senior counsel for the claimants contended that it ought to be 50%, as the deceased was only 27 years of age, but we find that he was on a contract employment in Dubai and not in a permanent job as such. His job was subject to contract, but it must be inferred, but for the unfortunate death in the accident, he would have had a bright future, since even at the age of 27 years, he was earning a sum of Rs.81,000/- per month. Hence, 40% of the monthly income has to be added towards future prospects and the same would be Rs.81,855/- + Rs.32,742 = Rs.1,14,597/- which is the monthly income. 50% of the said amount is deducted towards personal expenses of the deceased as the deceased was a bachelor, in which event, the amount would be Rs.57,298/-. The said amount would have to be annualized and the appropriate multiplier of ‘17’ would have to be applied. Consequently, the compensation under the head of ‘loss of dependency’ would be Rs.1,16,88,792/- instead of Rs.1,15,66,800/- awarded by the Tribunal, which we find is only a marginal increase in the instant case.
22. Learned counsel for the Insurance Co. contended that there is no evidence to show contribution made by the deceased to his family and therefore, the dependency as such would not arise. In view of what we have observed above, and taking note of the fact as to why Indians go abroad to work, and particularly to the Gulf countries, we do not think that the dependency would be meager or for that matter, there would be no dependency on the earnings of a member of the family working abroad, and particularly in the Gulf country. Therefore, the contentions of learned counsel for the insurer cannot be accepted.
23. This takes us to the question of award of compensation on conventional heads. In the case of Pranay Sethi, the Hon’ble Supreme Court has stipulated that, on loss of consortium, a sum of Rs.40,000/- could be awarded. In the case of Magma General Insurance vs.
Nanu Ram and others, reported in AIR 2018 2000 ACJ 2982, the Hon’ble Supreme Court speaking through Indu Malhotra J. has expanded on the meaning and scope of the expression ‘consortium’ by including within its scope not only loss of ‘spousal consortium’, but also loss of ‘parental consortium’ and loss of ‘filial consortium’. In the instant case, the claimants are the parents and siblings of the deceased. They are entitled to compensation on the head of ‘loss of filial consortium’ or ‘loss of love and affection’. Thus, the parents are entitled to a sum of Rs.30,000/- each on the head of ‘loss of filial consortium’ and the siblings of the deceased are entitled to a sum of Rs.30,000/- each on the head of ‘loss of love and affection’. In this regard, we could usefully extract the relevant portion of the judgment in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram and others, as under:
“ 8.7 A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (SC) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse [Rajesh v. Rajbir Singh, 2013 ACJ 1403 (SC)].
Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection, and aid of the other in every conjugal relation.” [Black’s Law Dictionary. 5th Edn., 1979].
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.”
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions the world-over have recognized that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation towards loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where the parent have lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.”
24. Further a sum of Rs.15,000/- is awarded towards ‘loss of estate’ and another sum of Rs.15,000/- is awarded towards ‘funeral expenses’. Although learned counsel appearing for the claimants contended that the award for funeral expenses is very meager, we are bound to follow the judgment of the Hon’ble Supreme Court in Pranay Sethi, where the aforesaid stipulations have been made on the conventional heads.
25. In the result, the reassessed compensation is Rs.1,18,68,792/- instead of Rs.1,15,96,800/-, the difference being Rs.2,71,992/-.
26. The reassessed compensation shall carry interest at the rate of 6% per annum from the date of filing of the claim petition till realization.
27. It is stated at the Bar that a sum of Rs.70,00,000/- has already been deposited by the Insurance Company out of which, a sum of Rs.20,00,000/- is permitted to be withdrawn by the claimants, being 25% of the total compensation.
28. The reassessed compensation shall be apportioned in the following manner :
45% to the mother of the deceased, 40% to the father of the deceased, and 5% to each of the siblings of the deceased.
75% of the compensation awarded to the parents of the deceased shall be deposited in any Post Office and / or Nationalised Bank Deposit, for an initial period of 10 years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
50% of the compensation awarded to the siblings of the deceased shall be deposited in any Post Office and / or Nationalised Bank Deposit, for an initial period of three years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
29. It is needless to observe that having regard to the quantum of compensation awarded, the respective claimants shall utilize the same prudently.
30. The balance compensation amount with up to date interest shall be deposited by the Insurance Company before the Tribunal, within a period of four weeks from the date of receipt of certified copy of this judgment.
31. In the result, the appeal filed by the claimants being MFA 7150/2018, is allowed in part, while the appeal filed by the insurer being MFA 5297/2018, is dismissed.
The statutory amount in deposit before this Court shall be transmitted to the concerned Tribunal.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE Mgn/-