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.9265/2015 (MV) BETWEEN:
1. SMT. MARIAMMA W/O ABOOBAKKAR AGED ABOUT 56 YEARS 2. SHAKIR K.A.
S/O ABOOBAKKAR AGED ABOUT 27YEARS BOTH ARE RESIDING AT KARIMBILA HOUSE, YEDAMANGALA VILLAGE, SULLIA TALUK, D.K.574239. …APPELLANTS (By SRI KARUNAKAR, ADV.,) AND:
1. SMT. KAMALAKSHI W/O THIMMAYYA GOWDA, R/O BLOCK 20, ROOM NO.12, MADRAS QUARTERS, POLICE LANE, MANGALORE, D.K.DIST-575003.
2. DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE, CENTENARY BUILDING, 2ND FLOOR, G.H.S. ROAD, MANGALORE, D.K.575003. ... RESPONDENTS (BY SRI S.V.HEGDE MALKHAND, 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 06.11.2014 PASSED IN MVC NO.1763/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, M.A.C.T. PUTTUR, ITINERATE AT SULLIA, D.K. MACT, SAKALESHPUR, 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 same is taken up for final disposal.
2. This appeal is preferred by the appellants/claimants being the wife and son of the deceased-Aboobakkar against the judgment and award dated 06.11.2014 passed by the Additional Senior Civil Judge and Member, M.A.C.T., Puttur in MVC No. 1763/2012 seeking enhancement of compensation, whereby the Tribunal has awarded compensation in a sum of Rs.1,95,000/- with interest at 6% p.a. which found to be inadequacy and also on lower side in support of the income held by the Tribunal so also other head of compensation awarded by the Tribunal.
3. The factual matrix of the appeal is as under: It is evident in the claim petition that on 11.10.2012 at about 9.30 a.m. when the deceased- Aboobakkar was proceeding on extreme left side of Yedamangala-Alakkady public road, that too on mud portion of the road and when he reached near place called Karimbila, a rider of Honda Activa bearing Reg.No.KA-19-V-4249 drove the same in a rash and negligent manner with great speed and hit to the deceased, as a result, he fell down and succumbed to the injuries while he was on the way to the hospital.
4. Deceased-Aboobakkar was businessman by profession, earning Rs.10,000/- per month. But untimely death of the deceased, his wife has lost her companion, son has lost his beloved father’s love and affection. Claimants were depending upon the sources of deceased to eke out their life and they are under depression and also mental agony. The claimants being the dependants of the deceased filed claim petition against the respondents seeking compensation.
5. In pursuance of the service of notice, respondent Nos. 2 appeared through his counsel and resisted the claim petition by filing separate written statements, denying the petition averments. First respondent remained absent throughout the proceedings and was placed as exparte.
6. Based upon the pleadings of the parties, the Tribunal framed the issues for its consideration. In order to substantiate their case, petitioner No.2 got himself examined as PW.1 and got examined one more witness as P.W.2 and got marked Exs.P1 to P.9.
Respondent No.1 got marked insurance policy as Ex.R1. After hearing arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence on record, the Tribunal passed the impugned judgment awarding compensation of Rs.1,95,000/- with interest @ 6% p.a. from the date of petition, till deposit. It is this judgment which is challenged under this appeal seeking enhancement of compensation.
7. Whereas, learned counsel for the appellants has taken me the evidence of P.Ws.1 and 2 and so also negligence on part of the rider of the offending vehicle. Because of the rash and negligent riding of the offending vehicle by the rider, the deceased succumbed to the injuries. There is no dispute with regard to the age and occupation of the deceased but same has not been considered by the tribunal in a proper perspective. On all these grounds, the learned counsel seeks for intervention of this Court and prays to set aside the judgment and award of the Tribunal.
8. Per contra, Sri. S.V.Hegde Mulkhand, learned Counsel for respondent No.2 has contended that after considering the materials placed on record, the Tribunal has awarded the suitable compensation under the heads of loss of dependency, conventional heads etc. The Tribunal has also taken the income of the deceased at Rs.4,500/- per month even though there is no specific material to show the income. The compensation awarded by the Tribunal is just and proper. Therefore, he seeks to dismiss the appeal by confirming the judgment and award passed by the Tribunal.
9. In this backdrop of the contentions taken by the learned Counsel for the appellants and counter made by the learned Counsel for respondent No.2, I find that there is no dispute with regard to the death of the deceased, who met with an accident on 11.10.2012 at about 9.30 a.m. when the deceased-Aboobakkar was proceeding on extreme left side of Yedamangala- Alakkady public road, that too on mud portion of the road and when he reached near place called Karimbila, a rider of Honda Activa bearing Reg.No.KA-19-V-4249 drove the same in a rash and negligent manner with great speed and hit to the deceased, as a result, he fell down and succumbed to the injuries while he was on the way to the hospital. The same has been proved by the oral evidence of P.W.2 and documentary evidence produced by the claimants. Autopsy was conducted over the dead body as per Ex.P4. Ex.P3 is the mahazar conducted by the Investigating Officer relating to the rider of the offending vehicle, inquest report is at Ex.P6. It requires to be considered as to whether the Tribunal has rightly considered the income of the deceased at Rs.4,500/-p.m. The deceased was having earning capacity of Rs.10,000/- per month but there is no proof to substantiate the same. The accident occurred on 11.10.2012. When there is no proof of income, notional income has to be taken. Therefore, for the year 2012- 13, the income has to be taken at Rs.7,000/- to Rs.8,000/-. As the accident has occurred in October, 2012, the income of the deceased is taken at Rs.7,000/- per month as against Rs.4,500/- taken by the Tribunal. Keeping in view of the age factors of the deceased, the Tribunal has considered the multiplier ‘5’ as per the decision in Sarla Verma’s case which is just and proper. After deducting 1/3rd income for personal and living expenses of the deceased, it would be Rs.4,667/- Accordingly, the compensation towards loss of dependency is re-worked out as under:
10. Hence, the appellants are entitled for compensation of Rs.2,80,020/- as against Rs.1,80,000/- towards loss of dependency awarded by the Tribunal. The enhanced compensation would be Rs.1,00,020/-.
11. In view of ratio of laid down in Pranay Sethi’s case as stated supra, the compensation awarded under the conventional heads should not exceed Rs.70,000/-. However, the Tribunal has awarded the compensation of Rs.15,000/- under the conventional heads which is on lower side. Therefore, additional sum of Rs.55,000/- 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:
“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.
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.”
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.
13. In the instant appeal, the deceased has left behind his son who is appellant No.2. He has lost love and affection of his father and there is a reciprocity in between the family and deceased. Hence, in accordance with the above said ruling, a sum of Rs.40,000/-, is awarded to claimant No. 2 towards loss of parental consortium.
14. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
15. In terms of the aforesaid reasons and findings, it is stated that the appellants are said to be the legal representatives of the deceased and claimant No.1 had also lost her husband and claimant No.2 had lost his father. Therefore, the legal representatives of the deceased are entitled for the enhanced compensation of Rs.3,90,020/- with interest @ 6% p.m. as against Rs.1,95,000/- awarded by the Tribunal. Accordingly, I proceed to pass the following order:
ORDER Appeal is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.3,90,020/- with interest @ 6% p.a. from the date of petition, till realisation.
The impugned judgment and award dated 06.11.2014 passed by the Additional Senior Civil Judge and Member, MACT, Puttur in MVC No.1763/2012, is modified accordingly.
Respondent No.2-New India Assurance Co.Ltd. shall deposit the entire amount awarded by the Tribunal as well as the compensation enhanced by this Court, along with interest accrued, within a period of four 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 rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Registry is directed to draw decree accordingly.
Sd/- JUDGE JS/-