IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.53 of 2019 (MV-D) BETWEEN :
1. SMT.NETHRAVATHI.H.M. W/O.NARAYANAGOWDA.H.P. AGED ABOUT 42 YEARS 2. SRI.NARAYANAGOWDA.H.P. S/O.PUTTEGOWDA AGED ABOUT 47 YEARS BOTH ARE RESIDING AT HULLENAHALLI NONAVINAKERE HOBLI TIPTUR TALUK.
NOW RESIDING AT: SATHYAMANGALA, KASABA HOBLI TUMKUR TALUK AND DISTRICT – 572 101.
... APPELLANTS (BY SRI.M.B.RYAKHA, ADVOCATE) AND:
1. M/S.PATEL TRADING CORPORATION R/AT NO.85/1, 1ST MAIN 3RD CROSS, NEW TIMBER YARD LAYOUT BENGALURU – 560 026.
2. THE MANAGER ORIENTAL INSURANCE CO. LTD., NO.20, 2ND FLOOR, JAYANAGARA 3RD BLOCK, BENGALURU – 560 083.
SERVICE ADDRESS THE MANAGER ORIENTAL INSURANCE CO. LTD., J.C.ROAD, TUMAKURU – 577 101.
(BY SRI.P.B.RAJU, ADVOCATE FOR R-2 V/O DATED 06.11.2019, NOTICE TO R-1 DISPENSED WITH) ...RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED: 02.11.2017, PASSED IN MVC NO.1249/2016, ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, AMACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC., THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The appellants, being claimants in MVC.No.1249/2016, have sought for enhancement of compensation by assailing the judgment and award dated 02.11.2017 passed by the VI Addl. District and Sessions Judge and Member, Addl. Motor Accident Claims Tribunal at Tumakuru (hereinafter referred to as ‘the Tribunal’ for the sake of convenience).
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.30,00,000/- on account of death of their daughter, Kum.Aishwarya N.Gowda in the road traffic accident that occurred on 25.10.2016 at about 1.30 p.m. According to the claimants, on the fateful day, at about 1.30 p.m. deceased - Kum.Aishwarya N.Gowda was traveling as a pillion rider on a two wheeler motor cycle bearing registration No.KA-44-L-1956 which was driven by Jagadish at Mattihalli gate turn, N.H.206, Tiptur Taluk. The rider of the said bike was riding the same with care and cautiously on the left side of the road and during that time, the driver of the car bearing registration No.KA-05-MR-7490 drove the same in a rash and negligent manner and in a high speed and hit the motorcycle and ultimately, caused the accident. Due to the said accident, Kum.Aishwarya sustained multiple injuries. She was taken for first aid treatment at Government Hospital, Tiptur and then referred to Hassan Hospital for higher treatment. But on the way to the hospital, she succumbed to the injuries. Thereafter, post mortem was conducted and the body was handed over to the family to perform the funeral ceremonies. The claimants stated that the deceased was aged about 21 years and was a student pursuing B.Sc.
degree. It was also stated that she was working at Infotech Computer and earning a sum of Rs.20,000/- per month. As such the deceased was the only bread earner in the family and the claimants were entirely depending on her income. Due to the sudden demise of their daughter, they have been put to mental shock and agony. The claimants stated that the first respondent, being the owner of offending vehicle and the second respondent, being its insurer, are jointly and severally liable to pay compensation to them. Hence, they filed the claim petition before the Tribunal seeking compensation of Rs.30,00,000/-.
5. In response to the notices issued by the Tribunal, respondent No.1 appeared through his counsel and filed objections and denied the age, injuries and occurrence of the accident, income, profession and the amount spent for funeral expenses. He also denied that the accident occurred due to rash and negligent driving by the driver of the car. Further, it was stated that the second respondent being the Insurance Company was liable to pay the compensation as the policy was in force as on the date of the accident and thus sought to contend that he was not liable to pay any compensation amount and accordingly, prayed for dismissal of the claim petition. The second respondent did not appear and hence, he was placed ex parte.
6. On the basis of the aforesaid pleadings, the Tribunal framed the following issues for its consideration:
1. Whether the claimants prove that on 25.10.2016 at 1.30 p.m. when Aishwarya N.Gowda was traveling in a two wheeler bearing Reg.No.KA-44-L-1956 as pillion rider, near Mattihalli gate turn, NH-206, Honnavalli – Tiptur road, the driver of the car bearing Reg.No.KA-05-MR-7490 drove in a high speed, rash and negligent manner and has dashed it to the two wheeler bearing Reg.No.KA-44-L- 1956 and has caused the accident?
2. Whether the claimants prove that Aishwarya N.Gowda had died due to the injuries sustained to her as a result of the said accident?
3. Whether the claimants are entitled to the compensation as prayed from the respondents?
4. What award?
7. In order to prove the case, claimant No.1– Nethravathi was examined as PW-1 and one Ramesha was examined as PW.2 and they produced eighteen documents which are marked as Exs.P.1 to P.18. The respondents did not lead in any evidence. On the basis of the said evidence, the Tribunal answered issue Nos.1 and 2 in the affirmative and issue No.3 partly in the affirmative and allowed the claim petition in part by awarding compensation of Rs.7,43,000/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization. Assailing the award passed by the Tribunal, appellants have filed this appeal.
8. Learned counsel for the appellants / claimants contended that the award passed by the Tribunal is opposed to law, facts, probabilities of the case. It was also contended that the Tribunal committed an error in awarding a sum of Rs.7,43,000/- as against the claimed compensation. Further, it was contended that the Tribunal has committed an error in not appreciating the fact that, the deceased was aged about 21 years and she was a first class student and was pursuing B.Sc. degree course and was earning a sum of Rs.20,000/- per month. It is also submitted that the award of the Tribunal is also opposed to the decision of the Apex Court in the case of ASHVINIBHAI JAYANTILAL MODI v. RAMKARAN RAMCHANDRA SHARMA AND ANOTHER - 2015 (3) Civil LJ 114. That the Tribunal has committed an error in not considering future prospects of the deceased as per the dictum of the Hon’ble Supreme Court in the case of HEM RAJ v. ORIENTAL INSURANCE CO. LTD. AND OTHERS – 2018 ACJ 5. Learned counsel also contended that the compensation awarded on other heads is also very meager and the same is liable to be reassessed by this Court. Lastly, he submitted that the Tribunal has committed an error in deducting 50% of the salary towards personal expenses and sought to modify the same to 1/3rd.
9. Per contra, learned counsel for the Insurance company justified the award of the Tribunal and sought for dismissal of the appeal as it is without any merit.
10. Having heard the learned counsel for the respective parties and on perusal of material on record, the following points would arise for our consideration:
i. Whether the claimants are entitled for enhanced compensation?
ii. What order?
11. It is not in dispute that the deceased was aged about 21 years and she was a B.Sc. student. The accident occurred on 25.10.2016 at about 1.30 p.m. The claimants established that the accident occurred on account of rash and negligent driving of the car bearing reg.No.KA-05-MR-
7490. The Tribunal has taken into consideration the documents like Exs.P1, P2 and P8, copies of FIR, complaint and charge sheet which disclose that a criminal case had been registered in Crime No.103/2016 at Honnavalli Police Station on 25.10.2016 and charge sheet was also submitted against K.N.Somashekaran for the offences punishable under Sections 279 and 304(A) of IPC. This aspect of the matter has not been disputed by the respondents. Further, Ex.P3 discloses that the Investigating Officer has prepared the spot mahazar in connection with the said accident. The Tribunal has also taken into consideration the fact that there were no mechanical defects in the said car and motorcycle. Though PWs-1 and 2 were cross-examined at length, nothing incriminating has been elicited to support the case of respondents. Further, the respondents have not challenged the act of the Police in filing the charge sheet. Therefore, the Tribunal is justified in holding that the accident occurred due to the rash and negligent driving of the driver of the said car. On re-appreciation of entire evidence on record, we hold that the deceased died due to the said accident.
12. Now, the controversy is with regard to the quantum of compensation. The Tribunal has awarded global compensation of Rs.7,43,000/-.
13. But the Tribunal while answering issue No.3 has held that the claimants have not substantiated their claim that their daughter was working and was earning a sum of Rs.20,000/- per month. Therefore, in the absence of material evidence on record, the Tribunal considered the avocation of the deceased as a coolie and assessed the income of the deceased at Rs.200/- per day. But, we do not agree with the finding recorded by the Tribunal on the above point as it is not in dispute that the deceased was aged about 21 years and was pursuing B.Sc. degree and she was also working at M/s.Infotech Computer. In the absence of any material to indicate the exact income of the claimant, it is appropriate to assess the income of deceased notionally. Hence, in the instant case, the notional income of the deceased is assessed at Rs.10,000/- per month. 40% of the income shall have to be added towards future prospects. If 40% of the income towards future prospects is added to the monthly income of Rs.10,000/-, (40% of 10000=4000) it comes to Rs.14,000/- per month. The deceased was aged 21 years. Therefore, 50% of the income of Rs.14,000/- is deducted towards personal expenses of the deceased, it comes to Rs.7,000/-. When the same is annualized and multiplied by ‘18’, it comes to Rs.15,12,000/-. Hence, we propose to award Rs.15,12,000/- as against Rs.6,48,000/- awarded by the Tribunal on the head of ‘loss of dependency’.
14. Further, a sum of Rs.30,000/- each is awarded to the parents of the deceased towards ‘loss of filial consortium’, on the basis of the dictum of Hon’ble Supreme Court in NATIONAL INSURNACE COMPANY LIMITED v. PRANAY SETHI AND OTHER reported in (2017) 16 SCC 680. A sum of Rs.15,000/- is awarded on the head ‘loss of estate’ and another sum of Rs.15,000/- is awarded towards ‘funeral expenses’. In the result, the re- assessed compensation is as follows:
15. The enhanced compensation is Rs.8,57,000/-, which shall carry interest at the rate of 6% per annum from the date of petition till its realization. However, the rate of interest of 7.5% awarded by the Tribunal on Rs.7,43,000/- is retained as learned counsel for the insurance company submits that the award has been satisfied. The balance compensation shall be deposited by 2nd respondent/insurance company within a period of four weeks from the date of receipt of certified copy of this judgment.
16. We find that the Tribunal has apportioned the compensation amount in the ratio of 90:10 to the mother and father of the deceased which is highly disproportionate and hence, the same shall be apportioned in the ratio of 60:40.
17. 75% of the enhanced compensation apportioned to the mother of the deceased shall be deposited in any post office and / or nationalized bank for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification.
18. 50% of the enhanced compensation awarded to the father of the deceased shall be deposited in any post office and / or nationalized bank for an initial period of five years. He shall be entitled to draw periodical interest on the said deposit. The balance shall be released to the father of the deceased after due identification.
19. The respondent/insurer to deposit the compensation amount with up-to-date interest within a period of four weeks from the date of receipt of certified copy of this judgment after deducting the amount deposited by them, if any.
20. The appeal is allowed in part in the aforesaid terms.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE VMB