IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN M.F.A. NO.7401 OF 2014 (MV) BETWEEN :
1. SMT RATHNAMMA W/O LATE NAGARAJ AGED ABOUT 32 YEARS.
2. KUM. KEERTHANA D/O. LATE NAGARAJ AGED ABOUT 14 YEARS.
3. KUM. SINCHANA D/O. LATE NAGARAJ AGED ABOUT 9 YEARS.
4. SRI SIDDALINGAIAH S/O. L. PITTAIAH AGED ABOUT 60 YEARS.
5. SMT. MAHADEVAMMA W/O. SIDDALINGAIAH AGED ABOUT 55 YEARS.
SINCE APPELLANT NOS.2 AND 3 ARE MINORS, REPRESENTED BY MOTHER RATHNAMMA.
ALL ARE R/A. 2ND MAIN, 5TH CROSS PIPELINE ROAD, PREMA NAGAR BANGALORE-560058.
... APPELLANTS (BY SMT. B. H. SUNITHA FOR SRI SURESH M LATUR, ADVOCATE) AND :
1. UNITED INDIA INSURANCE CO., LTD., NO.40, LAKSHMI COMPLEX, K R ROAD BANGALORE-560002 2. MOHAMMED ALI NO.77/2, 9TH MAIN ROAD 17TH CROSS, PADARAYANAPURA BANGALORE-560026.
... RESPONDENTS (BY SRI JWALA KUMAR, ADVOCATE FOR R1;
R2 – NOTICE DISPENSED WITH V/O. DATED 14.11.2017) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2013 PASSED IN MVC NO.1685/2012 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.
THIS M.F.A. COMING ON FOR FURTHER ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed to consider I.A. No.1 of 2014 which is an application filed seeking condonation of delay, on condoning the same, with the consent of learned counsel on both sides, it is heard finally.
2. The legal representatives of Nagaraj have filed this appeal seeking enhancement of compensation, by assailing the judgment and award passed by the M.A.C.T. (Court of Small Causes, Bangalore) in M.V.C. No.1685 of 2012 dated 15.07.2013.
3. For the sake of convenience, the parties shall be referred to in terms of the status before the Tribunal.
4. The appellant claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the Act’) seeking award of compensation on account of the death of Nagaraj in a road traffic accident that occurred on 19.12.2011. On the said day at about 9.30 a.m., Nagaraj was waiting for a bus in front of Thirumala Palace, Premanagar, Bangalore, and at that time the driver of a three wheeler luggage tempo bearing No.KA-40-3583 was driving in a high speed, rash and negligent manner and dashed against Nagaraj. As a result, he fell down and sustained grievous injuries. He was admitted in a hospital, where he took treatment. Despite that, he succumbed to his injuries. He was aged 40 years and was a plumber by profession and he is said to have been earning Rs.10,000/-
p.m. Contending that they had lost bread earner of the family, they filed a claim petition seeking compensation on various heads to an extent of Rs.25,00,000/-.
5. In response to the service of notices from the Tribunal, respondent No.2 owner of the offending vehicle did not appear and was placed ex parte. While the insurance company appeared through counsel and filed its written statement denying the material averments made in the claim petition by contending that there was no negligence on the part of the three wheeler Luggage tempo bearing No.KA-40-3583. The insurance company further contended that in the event any liability was fastened on it, the same would be subject to the terms and conditions of the policy issued in respect of the vehicle in question. The insurance company sought for dismissal of the petition. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration :
1. Whether the petitioners prove that Nagaraj died due to injuries sustained in an accident occurred on 19.12.2011 at about 9.30 a.m. at outer ring road, Near Thirumala Palace, Premanagar, Bangalore-560 079 which was due to rash and negligent driving of the Tempo bearing No.KA-40-3583 by its driver?
2. Whether the petitioners are entitled for compensation? If so, at what amount and from respondent?
3. What award or order?
6. In support of their case the claimants examined the widow of Nagaraj as P.W.1. She produced 17 documents which were marked as Exs.P-1 to P-17. The respondents did not let-in any evidence. On the basis of the evidence on record, the Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and awarded compensation of Rs.9,85,173/- with costs and future interest at 6% p.a. from the date of claim petition till deposit. Not being satisfied with the said award, the claimants have preferred this appeal.
7. We have heard learned counsel for the appellants and learned counsel for the respondent insurer. Notice to the second respondent has been dispensed with vide order dated 14.11.2017. We have perused the material on record.
8. Learned counsel for the appellants contended that the Tribunal was not right in assessing the notional income of the deceased as Rs.5,000/- p.m. She contended that the accident occurred in December 2011. The deceased was a skilled employee earning about Rs.10,000/- p.m. But in the absence of there being any corroborative evidence, the notional income could not have been assessed at a meager sum of Rs.5,000/- p.m. She contended that if the accident is of the year 2011 even for an unskilled employee the notional income assessed by this Court is Rs.6,500/- p.m. Therefore, atleast the said amount could be taken into consideration. She further submitted that having regard to the latest dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017)16 SCC 680, the enhanced amount would have to be considered on account of future prospects. That the deceased was aged about 42 years and hence 40% must be added towards future prospects and further one-fourth of the amount would have to be deducted towards personal expenses of the deceased since the claimants are five in number. Having regard to the judgment of the Hon’ble Supreme Court in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another reported in (2009)6 SCC 121, she further contended that the award of compensation on the head of loss of consortium and other conventional heads are very meager. Therefore, compensation may be enhanced in the instant case.
9. Per contra, learned counsel for the insurer supported the judgment and award of the Tribunal and contended that the appeal is devoid of any merit and no compensation may be enhanced in the appeal.
10. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
1. Whether the appellants are entitled to enhanced compensation?
2. What order?
11. The claimants have established before the Tribunal that Nagaraj died on account of a road traffic accident that occurred on 19.12.2011 at about 9.30 a.m.
on account of the driver of the three wheeler luggage tempo bearing No.KA-40-3583 dashing against him causing grievous injuries resulting in his death. The claimants are, however, not satisfied with the award of compensation awarded by the Tribunal. The Tribunal awarded compensation on various heads in the following manner :
Loss of dependency Rs. 6,30,000/-
Transportation of the dead body and funeral expenses Loss of consortium to the 1st petitioner Rs. 10,000/-
Rs. 10,000/-
Loss of estate Rs. 10,000/-
Cost of medical treatment of the deceased before his death Rs. 3,25,173/-
Total Rs. 9,85,173/-
12. According to the learned counsel for the appellant, total award of compensation Rs.9,85,173/- is meager. Therefore, she contended that the compensation may be enhanced on all heads in terms of the latest dicta of the Hon’ble Supreme Court. We find that it has been established by the claimants that the deceased Nagaraj was working as a plumber that he was not an unskilled employee, but a skilled plumber. The accident occurred in December 2011. In the absence of there being any concrete material on record with regard to the actual income that he earned on a monthly basis, the notional income could be safely assessed at Rs.6,500/-p.m. 40% of the said amount would have to be added towards future prospects in which event the total notional income would be Rs.9,100/-. Since the claimants are five in number, one-fourth of the said amount would have to be deducted towards personal expenses of the deceased, resulting in Rs.6,825/- which has to be multiplied by ‘12’ (as annual income) and appropriate multiplier of ‘14’ has to be considered and reckoned as the deceased Nagaraj was 42 years of age. Consequently, the award of compensation on the head of loss of dependency would be Rs.11,46,600/- instead of Rs.6,30,000/- awarded by the Tribunal.
13. Having regard to the judgment of the Hon’ble Supreme Court in the case of Pranay Sethi (supra), a sum of Rs.40,000/- is awarded towards loss of spousal consortium to the widow of the deceased. Having regard to another judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited v. Nanu Ram and Others, reported in 2018 ACJ 2782, a sum of Rs.30,000/- each is awarded towards loss of parental consortium to the two children of Nagaraj. Similarly a sum of Rs.30,000/- is awarded to each of the parents of deceased Nagaraj towards loss of filial consortium and love and affection. A sum of Rs.15,000/- is awarded towards loss of estate and a sum of Rs.15,000/- is awarded towards transportation of dead body, funeral and obsequies expenses. Medical expenses of Rs.3,25,173/- has been awarded by the Tribunal, which is retained. Consequently, total compensation could now be ‘Rs.16,61,773/-’ instead of ‘Rs.9,85,173/-’. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of claim petition till realization except for a period of 394 days which is the delay caused in filing the appeal.
14. The enhanced compensation shall be apportioned in the same manner in which the compensation awarded by the Tribunal has been apportioned between the parties. The enhanced compensation is Rs.6,76,600/- (Rs.16,61,773 - Rs.9,85,173).
15. Out of the compensation award, 75% of the enhanced compensation awarded to the first appellant widow of deceased Nagaraj shall be deposited in any Post Office or Nationalised Bank deposit for an initial period of five years. She shall be entitled to draw periodical interest on the said deposit. The balanced amount shall be released to her. Similarly the same direction shall follow in respect of the second appellant Kum. Keerthana. The amount awarded to Kum.Sinchana shall be in a fixed deposit till she attains the age of majority. The enhanced compensation awarded to appellant Nos.4 and 5 being the parents of deceased Nagaraj shall be released to them. The appeal is allowed in part in the aforesaid terms.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE hnm