IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD M.F.A.No.1848 OF 2017 (MV) BETWEEN:
1. SMT. RATHNAMMA W/O LATE. NAGANNA 50 YEARS MUDDAHALLI VILLAGE KASABA HOBLI NANJANGUD TALUK-571301.
2. SAVITHA W/O NAGARAJU D/O LATE. NAGANNA 32 YEARS MUDDAHALLI VILLAGE KASABA HOBLI NANJANGUD TALUK-571301.
3. BHAGYA W/O MALLESH D/O LATE. NAGANNA 30 YEARS KIRUGASOORU VILLAGE KASABA HOBLI T.NARASIPURA TALUK-571124.
4. MANJULA W/O UMESHA D/O LATE. NAGANNA 28 YEARS HAKKALAPURA VILLAGE BEGUR HOBLI GUNDLUPET TALUK-571111.
5. MAHADEVAPRASAD S/O LATE. NAGANNA AGE 26 YEARS R/O MUDDAHALLI VILLAGE KASABA HOBLI NANJANGUD TALUK-571301. ... APPELLANTS (BY SMT.B.N.MANJULA, ADVOCATE FOR SRI. NAGARAJA R.C., ADVOCATE) AND:
1. O.SUBAIR S/O ITHALIKUTTY AGE 57 YEARS ORUVANGARA HOUSE P.O.MEDICAL COLLEGE, CALICUT (DRIVER OF THE BUS BEARING REG NO.KL-15-9847) 2. THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN FORT THIRUVANTHAPURAM-23 KERALA-695023.
3. THE NEW INDIA ASSURANCE CO. LTD., DO.1, JLB ROAD CHAMUNDIPURAM MYSURU-4 REP. BY ITS BRANCH MANAGER. ... RESPONDENTS (BY SRI.H.M. MANJUNATH, ADVOCATE FOR R2, SRI. B.C.SHIVANNE GOWDA, ADVOCATE FOR SRI. A.M. VENKATESH, ADVOCATE FOR R3, NOTICE TO R1 IS DISPENSED WITH V/O DATED: 14.11.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 17.09.2016 PASSED IN MVC NO.71/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C, NANJANGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NARENDRA PRASAD 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. This appeal is directed against the judgment and award dated 17.09.2016 passed in MVC No.71/2015 by the Senior Civil Judge & JMFC and Motor Accident Claims Tribunal, Nanjangud (hereinafter referred to as the ‘Tribunal’ for the sake of brevity).
3. For the sake of convenience, parties shall be referred to in terms of their status before the Tribunal.
4. Appellant-claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of the death of Naganna, husband of first claimant and father of claimant Nos. 2 to 5. According to them, on 11.01.2015 at about 10.30 p.m. deceased Naganna was going from Kurahatti village to Muddahalli village on his bicycle and when he was standing on the road side to cross the road near Kadubinakatte, Gundlupet-Mysuru main road, a bus bearing registration No.KL-15/9847 came from Gundlupet side at a high speed, in a rash and negligent manner and dashed against Naganna. Due to the impact, Naganna fell down and sustained grievous injuries. Immediately he was shifted to Government Hospital, Nanjangud and further shifted to K.R.Hospital, Mysuru and thereafter to JSS Hospital, Mysuru, but on 10.02.2015 at 8.45 p.m. injured succumbed to the injuries. Contending that they had lost the sole bread earner of the family, claimants filed the claim petition seeking compensation.
5. The claimants contended that deceased was aged 55 years and he was working as a coolie and that he was earning Rs.15,000/- per month and that he was utilizing the entire amount for maintenance of his family. Therefore, they sought for compensation on various heads.
6. In response to the notice issued, respondent Nos.2 and 3 appeared and filed statement of objections. Respondent No.2 – Kerala State Road Transport Corporation contended that deceased Naganna, without looking around the road had crossed the road hastily and hence he himself was responsible for the alleged accident. The third respondent - Insurance Company filed its objection statement contending that offending bus belonging to Kerala Transport Corporation was insured with this respondent from 29.10.2014 to 28.10.2015, subject to terms and conditions. The driver of the bus had no valid and effective driving licence as on the date of the accident and that the claim petition was not maintainable as against the Insurance Company and sought for dismissal of the same.
7. On the basis of the rival pleadings, the Tribunal framed the following issues:-
“1. Whether petitioners prove that deceased Naganna S/o.Late Kocchimallappa died in a road traffic accident occurred on 11.10.2015 at about 10.30 a.m., near Kadubina Katte Gate, Mysuru-Gundlupet Main road, due to rash and negligent manner of driving bus bearing registration No.KL-15-9847, by the 1st respondent?
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What order or award?”
8. In support of their case, claimants examined wife of deceased as PW1 and they produced 163 documents as Exs.P-1 to P-163. While respondent-insurer neither examined any witness nor produced documents.
9. On the basis of the said evidence, the Tribunal by judgment and award dated 17.09.2016 awarded compensation of Rs.10,03,000/- with interest at the rate of 6% p.a. Not being satisfied with the quantum of compensation awarded by the Tribunal, claimants have filed this appeal seeking enhancement of compensation.
10. We have heard learned counsel, Smt. Manjula appearing for the appellant/claimants and learned counsel - for respondent No.3/insurance company and learned counsel - for respondent No.2/Kerala State Road Transport Corporation. Notice to respondent No.1 is dispensed with.
11. Learned counsel for the appellants contended that at the time of the accident deceased was aged about 55 years and he was a coolie, earning Rs.15,000/- per month. The Tribunal was not justified in taking monthly income of the deceased at Rs.6,000/- per month. Secondly she contended that the Tribunal had not considered ‘future prospects’ as per the judgment of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157. Thirdly she submitted that in the very same judgment the Hon’ble Supreme Court has held that under the head of ‘loss of consortium’, compensation to be awarded would be Rs.40,000/-, but the Tribunal has erred in granting a meagre compensation of Rs.25,000/-. Fourthly he contended that as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED vs. NANU RAM AND OTHERS, reported in 2018 ACJ 2782, the compensation granted by the Tribunal under the head ‘loss of love and affection’ is on the lower side. Hence, she sought for enhancement of compensation.
12. Per contra, Sri B.C.Shivanne Gowda, learned counsel for the respondent Insurance Company submits that even though claimants have claimed that deceased was earning Rs.15,000/- per month at the time of the accident by working as a coolie, they have not produced any document to prove their claim. Therefore, Tribunal has rightly taken the notional income of the deceased as Rs.6,000/- per month. He further contended that the Tribunal has granted excess compensation, on the head of ‘loss of estate’ and ‘funeral expenses’ and compensation granted by the Tribunal on the other heads is just and proper. Hence, he sought for dismissal of the appeal.
13. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
i. Whether the appellants have made out a case for enhancement of compensation?
ii. If the answer to point No.1 is in the affirmative, what order?
14. It is not in dispute that Naganna died due to the accident occurred on 11.01.2015 involving bus bearing No.KL-15-9847. As on the date of the accident he was aged about 55 years and even though claimants have claimed that deceased was earning Rs.15,000/-per month, they have not produced any documents to prove the same. Under these circumstances, the Tribunal had no other option but to assess the notional income. Accordingly, it has reckoned the notional income of the deceased at Rs.6,000/- per month, which is on the lower side. In a catena of decisions, this Court, while calculating the notional income, has considered the chart prepared before Lok-Adalat for deciding the cases. As per the said chart, for an accident of the year 2015, notional income of Rs.9,000/- per month has to be taken. Accordingly, notional monthly income of the deceased is assessed at Rs.9,000/- per month. The Hon’ble Supreme Court in PRANAY SETHI (supra) has held that if the deceased was self employed or on a fixed salary, then 10% of established income should be increased towards future prospects where the deceased was between the age of 50 to 60 years. In the case on hand, the deceased was aged about 55 years. Hence, 10% of the income has to be added for future prospects. Accordingly, loss of dependency is recalculated as below:
Monthly income - 9,000/-
Add: 40% towards future prospects - 900/-
Total - 9,900/-
Less: 1/3 towards personal expenses - 3,300/-
Actual income - 6,600/-
Multiplier - 11 Loss of dependency 6,600 x 12 x 11 - 8,71,200/-
15. The Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED vs. NANU RAM AND OTHERS, reported in 2018 ACJ 2782, has held that children of the deceased are entitled for compensation under the category of parental consortium. Claimant Nos. 2 to 5 are children of the deceased. Hence, they are entitled for a sum of Rs.30,000/- each, totaling to Rs.1,20,000/- towards ‘loss of parental consortium and loss of love and affection’.
16. In respect of conventional heads, the Tribunal has awarded Rs.50,000/- under the head ‘loss of estate’ and Rs.30,000/- under the head ‘funeral expenses’ which is on the higher side. As per PRANAY SETHI (supra), claimants are entitled for a compensation of Rs.15,000/- under the head ‘loss of estate’ and Rs.15,000/- under the head ‘funeral expenses’. Points are answered accordingly.
17. For the reasons stated above, the award, dated 17.09.2016, stands modified as under:
18. The compensation is enhanced to Rs.13,81,200/- as against Rs.10,03,000/-. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of claim petition till the date of realisation.
19. The enhanced compensation of Rs.3,78,000/- shall be given to appellant No.1, widow of the deceased Naganna. 75% of the said compensation shall be deposited in any post office or nationalized bank for an initial period of five years. She shall be entitled to draw periodical interest on the said deposit.
The appeal is allowed in part in the aforesaid terms. Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE Cm/-