IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN M.F.A. No.2112/2015 c/w M.F.A. No.4967/2014 (MV-D) IN M.F.A. No.2112/2015 BETWEEN:
1. SMT. RAMAKKA, AGED ABOUT 55 YEARS, W/O. LATE NARAYANASWAMY @ KYWARA, REPRESENTED BY 2ND PETITIONER, SINCE SHE IS SUFFERING FORM UNSOUND MIND.
2. RAMANJANEYA, AGED ABOUT 35 YEARS, S/O. LATE NARAYANASWAMY @ KYWARA, BOTH THE PETITIONERS ARE RESIDING OF KAIWARA, AMBEDKAR VEEDHI, KAIWARA HOBLI, CHINTAMANI TALUK, CHIKKABALLAPURA. ... APPELLANTS (BY SRI A. RAMANJANAPPA, ADVOCATE) AND:
1. C. NARAYANASWAMY S/O. CHANNARAYAPPA, K.G. CHIKKABALLA, JAGAMANAKATE POST, SIDLAGATTA TALUK, CHIKKABALLAPURA DISTRICT. (R.C. OWNER OF GOODS TEMPO BEARING REG. NO.KA-40-2436) 2. UNITED INDIA INSURANCE CO. LTD., D.O.V. NO.25, SHANKARNARAYANA BUILDING, M.G. ROAD, BANGALORE – 560 001.
(POLICY NO.070500/31/08/01/00001031, VALID FROM 11.4.2008 TO 10.4.2009) 3. SMT. PILLAMMA W/O. LATE M NARAYANASWAMY, AGED ABOUT 47 YEARS, 4. SRI N. SRINIVAS S/O. LATE NARAYANASWAMY, AGED ABOUT 29 YEARS, 5. KUMARI RUKMINIYAMMA D/O. LATE NARAYANASWAMY, AGED ABOUT 27 YEARS, 6. SRI SATISH S/O. LATE NARAYANASWAMY, AGED ABOUT 25 YEARS, ALL ARE RESIDING AT MANCHADAHALLI VILLAGE, KOLAR TALUK AND DISTRICT. ... RESPONDENTS (BY SRI K.S. LAKSHMINARASAPPA, ADVOCATE FOR SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R-2; SRI N. GOPALAKRISHNA, ADVOCATE FOR R-2-R-6) ***** THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.03.2014 PASSED IN MVC NO.4566/2008 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. No.4967/2014 (MV-D) BETWEEN:
1. SMT. RAMAKKA AGED ABOUT 54 YEARS, W/O. LATE NARAYANASWAMY @ KYWARA, REPRESENTED BY 2ND PETITIONER, SINCE SHE IS SUFFERING FROM UNSOUND MIND.
2. RAMANJANEYA, AGED ABOUT 28 YEARS, D/O. LATE NARAYANASWAMY @ KYWARA, BOTH THE PETITIONERS ARE RESIDENT OF KAIWARA, AMBEDKAR VEEDI, KAIWARA HOBLI, CHINTAMANI TALUK, CHIKKABALLAPURA. ... APPELLANTS (BY SRI H.V. MANJUNATHA, ADVOCATE) AND:
1. C. NARAYANASWAMY S/O. CHANNARAYAPPA, K.G. CHIKKABALLA, JAGAMANAKATE POST, SIDLAGATTA TALUK, CHIKKABALLAPURA DISTRICT. (R.C.OWNER OF GOODS TEMPO BEARSING REG. NO.KA-40-2436) 2. UNITED INDIA INSURANCE CO. LTD., D.O.V. NO.25, SHANKARANARAYANA BUILDING, M.G. ROAD, BANGALORE – 560 001.
(POLICY NO.070500/31/08/01/ 00001031, VALID FROM 11.4.2008 TO 10.04.2009) ... RESPONDENTS (BY SRI K.S. LAKSHMINARASAPPA, ADVOCATE FOR SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R-2) ****** THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.03.2014 PASSED IN MVC NO.6234/2008 ON THE FILE OF THE 18TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though these appeals are listed for admission, with the consent of learned counsel appearing on both sides, they are heard finally.
2. MFA.No.2112/2015 has been filed by the claimants in MVC.No.6234/2008 challenging the award of compensation in MVC.No.4566/2018 to the claimants therein, while, MFA.No.4967/2014 has been filed by the very same claimants seeking enhancement of compensation claimed in MVC.No.6234/2008. Both these appeals assail the judgment and award dated 25/03/2014, passed by the Motor Accident Claims Tribunal (MACT), Court of Small Causes, Bengaluru, (hereinafter, referred to as the “Tribunal”, for the sake of brevity).
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. MVC.No.6234/2008 was filed by Ramakka and her son while MVC.No.4566/2008 was filed by Pillamma and her children, both under Section 166 of the Motor Vehicles Act, 1988 [hereinafter, referred to as “the Act”], seeking grant of compensation on account of death of M.Narayanaswamy @ Kywara Narayanaswamy, in a road traffic accident that occurred on 22/05/2008 at about 12.00 p.m.
5. At this stage itself, it may be mentioned that Ramakka and Pillamma are the two wives of M.Narayanaswamy.
6. It is the case of the claimants that on 22/05/2008 at about 12.00 p.m., when M.Narayanaswamy was riding TVS-XL bearing Regn.No.KA- 02-S-3832 on the extreme left side of the road between Madiwala gate and Kyalnuru cross, Vemgal Hobli, at that time, driver of the goods tempo bearing Regn.No.KA-40- 2436 came from opposite direction with high speed, in a rash and negligent manner and dashed against TVS-XL vehicle driven by M.Narayanaswamy. As a result of which, he sustained grievous injuries and took treatment at the hospital, but ultimately succumbed to the said injuries. That M.Narayanaswamy was aged about 42 years at the time of his death. He was doing agricultural work cum milk vending business and was earning a sum of Rs.50,000/- per month. Contending that on account of the death of M.Narayanaswamy, the family was in great pain and mental agony, respective claimants of M.Narayanaswamy filed their claim petitions seeking compensation on various heads.
7. In response to the notices issued by the Tribunal, the owner of the offending vehicle did not appear and was placed ex-parte. Learned counsel for respondent No.2 – Insurance Company appeared on issuance of notice and filed the written statement denying any negligence on the part of the driver of the goods tempo bearing Regn.No.KA-40-2436. The Insurance Company contended that any liability to satisfy the awards would be subject to the terms and conditions of the insurance policy. The Insurance Company sought for dismissal of the claim petition.
8. Further, respondent Nos.3 and 4 in MVC.No.4566/2008 contended that the claimants in the said case are utter strangers to the deceased M.Narayanaswamy, that they were shocked and surprised when they came to know about the filing of the above claim petition. That respondent No.3 was the only legally wedded wife of late M.Narayanaswamy and respondent No.4 was the only son. That respondent Nos.3 and 4 are the only legal heirs of the deceased and only they are entitled to compensation in the claim petition filed by them namely, MVC.No.6234/2008. Therefore, they contended that the claim petition MVC.No.4566/2008 filed by Pillamma and her children was not maintainable.
9. On the basis of the rival pleadings, Tribunal formulated the following Issues for its consideration in both the cases:-
“ISSUES IN MVC.Nos.6234 AND 4566 OF 2008”
1. Whether the petitioners prove that Narayanaswamy @ Kywara Narayanaswamy succumbed in an RTA that occurred on 22/05/2008 at about 12.00 p.m. in between Madivala gate and Kylnuru cross, Vemgal hobli due to rash and negligent driving of goods tempo bearing No.KA-40-2436?
2. Whether the petitioners are entitled for compensation? If so, at what amount and from whom?
3. What award or order?”
10. In support of their case, the claimants examined four witnesses, one of whom was Dr.Sundarnaga Ganjekar. They produced 29 documents, which were marked as Exs.P.1 to P.29. The respondents did not let in any evidence.
11. On the basis of the evidence on record, the Tribunal answered Issue No.1 in both the cases in the affirmative and Issue No.2 in both the cases partly in the affirmative and awarded compensation of Rs.6,60,000/- with cost and future interest at 6% p.a. from the date of claim petition till the date of realization and issued directions regarding apportionment and deposit on the compensation.
12. Being aggrieved by the judgment and awards of the Tribunal, the claimants in MVC.No.6234/2008 have preferred these appeals.
13. We have heard learned counsel for appellants, learned counsel for respondent – Insurer, learned counsel for claimants in MVC.No.4566/2008 and perused the material on record.
14. At the outset, learned counsel for appellant in MFA.No.2112/2015 submitted that the appellants would not press the said appeal, as the claimants in MVC.No.4566/2008 have established that they are also wife and children respectively, of deceased M.Narayanaswamy. Submission of learned counsel for appellants in MFA.No.2112/2015 is placed on record. Accordingly, MFA.No.2112/2015 is dismissed as not pressed.
15. As far as MFA.No.4967/2014 is concerned, the same arises out of MVC.No.6234/2008. Learned counsel for appellant – claimants contended that the appellants are assailing the judgment and award of the Tribunal as they are not satisfied with the quantum of compensation awarded by the Tribunal. He contended that the notional income assessed by the Tribunal in respect of the deceased M.Narayanaswamy is very meager even though accident may have occurred on 22/05/2008. He contended that the deceased was an agriculturist and a milk vendor, but the Tribunal has assessed the notional income at Rs.5,000/- only per month, which may be enhanced. He further submitted that 1/4th of the notional income must be deducted towards the personal expenses of the deceased. Further, the Tribunal has not taken into consideration the future prospects of the deceased as has been enunciated by the Hon’ble Supreme Court in the case of National Insurance Company vs. Pranay Sethi [(2017) 16 SCC 680] (Pranay Sethi) and also the total award of compensation is meager. He therefore submitted that this Court may reassess the compensation to be awarded to the claimants and enhance the same.
16. Per contra, learned counsel for respondent – Insurer supported the judgment and award of the Tribunal and contended that there is no merit in these appeals.
17. Learned counsel for respondent Nos.3 to 6 in MFA.Nos.2112/2015 contended that appropriate orders may be made in the appeals on the question of award of compensation as the respondent Nos.4 to 6 have not sought any enhancement as such.
18. Having heard learned counsel for respective parties, the following points would arise for our consideration:-
1) Whether the appellants – claimants are entitled to enhancement of compensation?
2) If so, what order?
19. The fact that M.Narayanaswamy died in a road traffic accident that occurred on 22/05/2008 at about 12.00 p.m. when he was riding TVS–XL motor cycle bearing Regn.No.KA-02-S-3832 on the left side of the road between Madiwala Gate and Kyalnuru cross, Vemgal Hobli, when he was hit by a goods tempo bearing Regn.No.KA- 40-2436, which came from the opposite direction in a high speed and in a rash and negligent manner and dashed against TVS-XL motor cycle resulting in his death has been established by the claimants.
20. The only controversy is with regard to assessment of compensation. Though learned counsel for appellants contended that deceased was earning a lump sum income from doing agricultural work cum milk vending business, there is no evidence in that regard. Since the accident occurred on 22/05/2008 and bearing in mind the occupation of the deceased, we find that the notional income in the instant case must be assessed at Rs.8,000/-
p.m. instead of Rs.5,000/- as assessed by the Tribunal.
The reason as to why we have assessed income of the deceased at Rs.8,000/- is having regard to the fact that the deceased was engaged in agricultural work and also in milk vending business and under peculiar facts and circumstances of this case, as he had to maintain two wives and four children, who were residing in two separate households.
21. Further, the deceased was aged 42 years and hence, 25% of the said income must be added towards future prospects. The total would come to Rs.10,000/- (i.e., Rs.8,000/- + Rs.2,000/- = Rs.10,000/-). Since there are six dependants, 1/4th of the said income must be deducted towards the personal expenses of the deceased, which would be Rs.7,500/- [i.e., Rs.10,000/- - Rs.2,500/-
= Rs.7,500/-]. The appropriate multiplier of ‘14’ must be applied and hence, it would be Rs.12,60,000/- (i.e., 7,500 x 12 x 14). The compensation shall be apportioned towards Ramakka and her son to an extent of 40% (30% : 10%) and 60% shall be apportioned to Pillamma and her children (30% : 10% : 10% : 10%) having regard to the number of children.
22. Further, a sum of Rs.40,000/- is awarded to the two widows of the deceased towards “loss of spousal consortium” and Rs.30,000/- each is awarded to the children of the deceased towards “loss of filial consortium”, a sum of Rs.15,000/- is awarded towards “loss of estate” and Rs.15,000/- towards “funeral expenses”. Having regard to the latest dictum of the Hon’ble Supreme Court in the case of Pranay Sethi and Magma General Insurance Co. Ltd. vs. Nanu Ram [2018 ACJ 2782]. Thus, the total compensation would be Rs.14,90,000/- and the same shall carry interest at 6% p.a.
23. The compensation awarded to the children of the deceased with proportionate interest shall be released to them on deposit of the same by the Tribunal after due identification. 50% of the compensation awarded to Ramakka and Pillamma, who are the widows of the deceased shall be deposited in any Post Office or Nationalized Bank deposit for an initial period of ten years. They shall be entitled to draw periodical interest on the said deposit and balance amount shall be released to them after due identification.
24. The Insurance Company shall deposit the compensation before the Tribunal within a period of four weeks from the date of receipt of a certified copy of this judgment.
25. In the result, MFA.No.2112/2015 is dismissed as not pressed. While MFA.No.4967/2014 is allowed in part.
Parties to bear their respective costs.
Sd/- JUDGE *mvs Sd/- JUDGE