IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL No.7070 / 2015 (MV) BETWEEN:
1. SMT. MINA LIMBU, AGED ABOUT 30 YEARS W/O LATE KAILASH LIMBU 2. MASTER KARAN LIMBU, S/O. LATE KAILASH LIMBU, AGED ABOUT 11 YEARS, 3. MASTER KABIR LIMBU, S/O. LATE KAILASH LIMBU, AGED ABOUT 7 YEARS, APPELLANTS 2 AND 3 ARE SINCE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN THE APPELLANT NO.1 HEREIN AND ALL ARE RESIDING AT NO.3 TENKIBASTI (V) KALIKHOLA POST DIMAKUCHI TALUK UDAIGURI DISTRICT 784526 ASSAM STATE YADIGIRE TALUK AND ALSO C/O MUNIYAPPA NO. 265 3RD CROSS 5TH MAIN KADUBISANAHALLI BANGALORE 560 037 (BY SRI. NAGARAJA REDDY D ADV.,) ... APPELLANTS AND:
1. M/S SHRIRAM GENERAL INSURANCE CO. LTD., NO. 5, 3RD FLOOR, MONARCH CHAMBERS INFANTRY ROAD BANGALORE 560 001.
2. GOWRI STEELS, NO.457/2, CHINNA ELASAGIRI SIPCOT PHASE ONE, HOSUR 635 109. ... RESPONDENTS (BY SRI. B.C. SHIVANNEGOWDA ADV. R1.
R2- SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:04.08.2014, PASSED IN MVC NO.1875/2013 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, 26TH ACMM (SCCH-09), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellants and learned counsel for respondent No.1 and perused impugned judgment and award passed in M.V.C.No.1875/2013 dated 04.08.2014 rendered by the Tribunal.
2. This appeal is preferred by the claimants/appellants against the judgment and award passed by the Court of Small Causes & XXVI A.C.M.M., Bengaluru in M.V.C. No.1875/2013 seeking enhancement of compensation.
3. First respondent is the insurer of the vehicle involved in the accident and second respondent is the owner. For the purpose of convenience, parties will be referred to hereafter with their ranks before the Tribunal.
4. The factual matrix of the appeal is as under: It is stated in the claim petition that petitioner No.1 is wife of deceased Kailash Limbu, petitioner Nos.2 and 3 are the minor children of the deceased. On 28.12.2012 at about 6.30 p.m. when the deceased Kailash Limbu was proceeding by walk as a pedestrian on outer ring road, Kadubisanahalli, Bangalore, a Canter bearing No.TN-70-C-5249 came in a rash and negligent manner and dashed against the deceased, due to which, he sustained grievous injuries and immediately he was shifted to Victoria Hospital, therein the doctor declared as brought dead. The deceased Kailash Limbu was working as a House keeper and earning Rs.10,000/- p.m. The claimants were solely dependent on the income of the deceased for their livelihood. Due to the untimely death of Kailash Limbu, entire family members have lost their bread earner to life and put to irreparable loss and hardship. The family of the deceased consisted of his wife aged 28 years and minor children namely Karan Limbu aged about 9 years and Kabir Limbu aged about 5 years. Petitioners being the dependants of the deceased filed a claim petition before the Tribunal seeking compensation.
5. In pursuance to issuance of notice, respondent No.1 appeared through counsel and participated in the proceedings, whereas, the respondent No.2 failed to appear before the Court of law therefore, placed exparte. Respondent No.1 filed objection statement in detail, admitting that the offending vehicle was insured with them and the insurance policy was in force on the date of the accident. Respondent No.1 denied their liability to pay the compensation on the ground that the driver of the Canter was not having valid driving licence and the accident was not due to the rash and negligent driving of Canter by its driver and the deceased has also contributed for the cause of accident by trying to cross the road negligently and sought for dismissal of the petition.
6. Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, petitioner No.1 got examined herself as P.W.1 and got marked 9 documents - Exs.P.1 to P.9. On behalf of the respondent, respondent No.1 examined as R.W.1 and got marked Exs.R.1 and R.2.
7. The Tribunal after hearing the learned counsel for the petitioners as well as counsel for the respondent and on evaluation of oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.6,50,000/-. 25% of the negligence is contributed on the part of the deceased by the Tribunal and 75% negligence decided on the part of the driver of the offending vehicle. In all the claimants were granted compensation in a sum of Rs.4,87,500/- with interest @ 6% p.a. from the date of petition till the date of deposit. Being aggrieved, the claimants are before this Court in this appeal urging various grounds.
8. Learned counsel for the appellants has taken me through the evidence of P.W.1 and so also the documents as placed by her in order to establish her case against the respondent and also averments made in the claim petition for seeking enhanced compensation. The Tribunal has not appreciated the evidence, and has inadequately awarded compensation. Therefore, appeal requires intervention of the impugned judgment and award passed by the Tribunal. Under the head of loss of dependency, the Tribunal has calculated and assessed the income of the deceased at Rs.5,000/-
p.m. which is on the lower side, though the claimants- appellants contended that deceased was working as a house keeper in Om Sai Intex Pvt. Ltd and earning Rs.10,000/- p.m.
9. It is further contended by the learned counsel that the Tribunal ought to have added 50% of the salary of the deceased towards future prospects while calculating the compensation under the head ‘loss of dependency’, as per the law laid down by the Hon’ble Apex Court. Therefore, considering the age of the deceased and also considering the salary drawn by the deceased and the amount of Rs.10,000/- awarded under the head ‘Loss of Consortium’ is also very meagre, which requires to be enhanced suitably. The compensation awarded under the conventional heads are also on the lower side and the same needs to be enhanced. The Tribunal has not appreciated the evidence of P.W.1 relating to contributory negligence of 25% which has been fastened on the part of the deceased which has resulted in injustice to the claimants-appellants. He contended in respect of fastening 25% contributory negligence on the part of the deceased, that though it is stated that the deceased crossed the road wherein there was no zebra crossing or any other marks according to the Traffic Rules, however, respondents have not produced any evidence nor brought any witnesses to give any evidence regarding that aspect to prove their contention. On all these grounds, learned counsel for appellants prays for allowing the appeal.
10. Per contra, the learned counsel appearing for the respondent No.1-insurer mainly contended relating to Ex.P.2 said to be the sketch drawn by the concerned authorities in order to file the charge sheet against the driver of the offending vehicle, where it reveals that deceased had crossed the road without taking precautions, and because of his negligence only the accident had occurred, which resulted in his death. Further the learned counsel contended that Ex.R.2 which is also a Sketch goes to show that the accident occurred when deceased was about to cross the road, the offending vehicle hit him and due to which he succumbed to the injuries. There is contributory negligence on the part of the deceased in causing the accident. Therefore, the Tribunal has rightly come to the conclusion of fastening 25% contributory negligence on the deceased based upon the Ex.P.2 and Ex.R.2 the sketch said to be produced by the parties in the claim petition. Therefore the impugned judgment does not require any interference relating to contributory negligence on the part of the deceased. He further submitted that the tribunal, on appreciation of the evidence of P.W.1 and the documents produced by her, has rightly assessed the income of the deceased and has awarded just and fair compensation under all the heads, which does not call for interference and prays for dismissal of the appeal.
11. In the background of the contentions taken by learned counsel for the appellants and learned counsel for the respondent-insurer as stated supra, it is relevant to state that there is no dispute that on account of rash and negligent driving of the driver of the offending Canter bearing Reg.No.TN-70/C-5249 on 28.12.2012 the deceased – Kailash Limbu died due to grievous injuries, the same has been revealed in Ex.P.6 Post mortem report by the doctor who conducted autopsy over the dead body. It is relevant to state that Ex.P.4 is inquest proceedings over the dead body of the deceased by the concerned authorities in order to file the charge sheet against the accused being the driver of the offending vehicle as per Ex.P.7. But the contributory negligence on the part of the deceased as well as driver of the offending vehicle which revealed in the Ex.P.2 and Ex.R.2 sketch, these documents play a vital role in order to decide the negligence even on the part of the deceased as well as the driver of the offending vehicle.
12. Further, there is no dispute that the deceased was working as house keeper in a private firm and earning Rs.10,000/- p.m., but there are no specific documents produced on behalf of the claimants/petitioners for seeking compensation. In the absence of any such documents, the Tribunal has assessed notional income of Rs.5,000/- p.m. for the accident that occurred on 28.12.2012. There are suitable guidelines relating to notional income which has to be considered for the year 2012-2013 which is between Rs.7000/- to 8,000/-. When there are guidelines relating to the consideration of notional income for awarding compensation suitably, the same has not been considered by the Tribunal. The notional income taken by the Tribunal at Rs.5,000/- p.m. is on the lower side and the same is enhanced by Rs.2,000/-
p.m. in addition to Rs.5,000/-. In all, it comes to Rs.7,000/- p.m.
13. Insofar as personal expenses of deceased 1/3 is deducted by the tribunal but 40% of future prospectus is to be added, in view of ratio of reliance in the case of National Insurance Company Ltd., -vs- Pranay Sethi reported in AIR 2017 SC 5157. Accordingly, the compensation under the head ‘loss of dependency’ would work out as under:
7000 X 40%= 2,800 7,000+2,800 = 9,800 9,800x 1/3 = 3,267 (9,800-3,267 =6,533) 6,533 x 12 months x 15 multiplier = 11,75,940/- is awarded as against Rs.6,00,000/- towards loss of dependency awarded by the Tribunal.
14. The Tribunal has awarded compensation Rs.15,000/- towards ‘funeral expenses and obsequies ceremony, Rs.10,000/- towards ‘loss of consortium’ and Rs.15,000/- towards ‘loss of estate’. In all, it works out to Rs.40,000/-. However keeping in view the law laid down in Pranay Sethi’s case referred to supra, the compensation under conventional heads shall not exceed in a sum of Rs.70,000/- or shall not be below Rs.70,000/-. However, in the present case, only an amount of Rs.40,000/- is awarded. Therefore compensation under conventional heads is enhanced by another Rs.30,000/- in addition to Rs.40,000/- awarded by the Tribunal. Hence, in all it comes Rs.70,000/-.
15. Keeping in view the ratio of reliance in the case of Union of India and Others –vs- S.K. Kapoor, (2011) 4 SCC 589 relating to the Articles 141 and 145 of Constitution of India-Inter Bench conflicts-Coordinate Benches reiterated, prior decision of a coordinate Bench is binding on subsequent Bench of equal strength. If a subsequent coordinate Bench of equal strength wants to take a different view from prior decision of a coordinate Bench, it can only refer the matter to a larger Bench.
16. In the case of Magnum General Insurance Company vs- Nanu Ram and Others (2018 ACJ 2782) in para No.8.7 of the said judgment it is held as under:
“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, cooperation, affection, and aid of the other in every conjugal relation’. [Black’s Law Disctionary: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 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 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 case of genuine claims. In case where the parents 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 the children who lose their parents in motor vehicle accidents under the Act.”
17. But in the instant case, Kailash Limbu died leaving behind his wife Mina Limbu aged about 28 years and also minor children Karan Limbu aged about 9 years and Kabir Limbu aged about 5 years. The Tribunal awarded compensation in a sum of Rs.10,000/- towards loss of Love and affection. Therefore keeping in view of the reliance of the Magnam General Insurance case stated supra and also in detail by the Hon’ble Apex Court, another sum of Rs.90,000/- is awarded in respect of filial and also consortium in between the claimants said to be the wife and also minor children of the deceased Kailash Limbu. Hence, compensation under the said head comes to Rs.1,00,000/- instead of Rs.10,000/- awarded by the Tribunal.
18. Learned counsel for the respondent- Insurance Company placed reliance on ILR 1988 KAR 1934, Sri Narasimhaiah vs- The General Manager & Anr. wherein it is held that the Motor Vehicles Act of 1939 Section 110-D --Contributory negligence – Pedestrian crossing the road at a point where he ought not to have done- Tribunal held Appellants negligence which contributed to the Accident was 60 per cent- In Appeal the Court held that it could be only 40 per cent.
19. But in the present case on hand, Kailash Limbu was about to cross the road which is revealed in Ex.P.2 of the Sketch and so also Ex.R.20 the sketch which is produced by the parties in the claim petition. Tribunal taking into consideration this aspect held that contributory negligence on the part of the deceased as 25%. Therefore, contributory negligence held by the Tribunal as 25% on the part of the deceased is found to be proper and correct, therefore does not call for any interference on this aspect as per the aforesaid reliance placed by learned counsel for the respondent-insurance company.
20. In terms of the aforesaid reasons and findings, I opine that impugned judgment and award passed by the Tribunal requires to be modified and enhance the compensation suitably. Accordingly, I proceed with the following:
O R D E R The appeal is hereby allowed-in-part.
Appellants are entitled for the compensation in a sum of Rs.13,45,940/- as against Rs.6,50,000/-.
25% negligence on the part of the deceased requires to be deducted out of the total compensation and it works out to:
Rs.13,45,940 – 25%= 3,36,485 Rs.13,45,940- Rs.3,36,485/-= Rs.10,09,455/- as against 4,87,500/- interest @ 6% shall be maintained.
Insurance company shall deposit the enhanced compensation amount of Rs.5,21,955/- with interest at 6% p.a. before the concerned MACT within a period of four weeks from the date of receipt of copy of this order.
Apportionment shall be in terms of the award passed by the Tribunal on proper identification. Office to draw the decree accordingly.
SD/- JUDGE HR