IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.3469 OF 2019 (MV-D) BETWEEN:
THE REGIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., TP HUB, REGIONAL OFFICE, NO.44/45, 4TH FLOOR, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE – 560 025, REPRESENTED BY HIS MANAGER (POLICY NO.412200/31/2018/2509 VALID FROM 07.05.2017 TO 06.05.2018). ... APPELLANT (BY SRI P B RAJU, ADVOCATE) AND:
1. SRI. KOTRESHAPPA A, S/O SRI SIDDAPPA A, AGED ABOUT 55 YEARS.
2. SMT KALAVATHI, W/O SRI SIDDAPPA A, AGED ABOUT 46 YEARS.
3. KUM PRIYANKA K.A D/O SRI KOTRESHAPPA A, AGED ABOUT 17 YEARS, BOTH ARE RESIDING AT: NO.546/4, 10TH CROSS, YOGESHWARA LAYOUT, OPP. VISHWA SAI SCHOOL, BIDADI, RAMANAGARA-562 109. ALSO R/AT RAITHA BHAVAN, INDIRANAGAR, BIDADI, RAMNAGAR.
AS PETITIONER NO.3 IS A MINOR SHE IS REPRESENTED BY HER FATHER SRI KOTRESHAPPA AS A NATURAL GUARDIAN.
4. JANATA ROADWAYS PVT LTD., NO.99, CHANDRAMARI TR CH KOHIMA, NAGALAND-797 001. ... RESPONDENTS **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.02.2019 PASSED IN MVC NO.2525/2018 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND XXXIII ACMM, MEMBER, MACT, BENGALURU (SCCH-5), AWARDING COMPENSATION OF RS.24,18,000/- WITH 9% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS APPEAL COMING ON FOR DICTATION OF JUDGMENT THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT The insurer has preferred this appeal assailing the judgment and award dated 13.02.2019 in MVC No.2525/2018 passed by the Court of the VIII Additional Small Cause Judge and Motor Accident Claims Tribunal (hereinafter referred to as ‘the Tribunal’ for the sake of convenience) at Bengaluru, being aggrieved by the quantum of compensation awarded by the Tribunal.
2. For the sake of convenience the parties shall be referred to in terms of their status before the Tribunal.
3. The respondent claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1999, seeking compensation of Rs.30 lakh on account of the death of Vinay Kumar K A in a road traffic accident that occurred on 14.04.2018. Accordingly to the claimants on the said date at about 2.20 p.m. Vinay Kumar was riding the motorbike bearing No.KA 04 JM 8033 along with Sridhar and were proceeding from Tumakuru towards Bengaluru on Tumakuru Bengaluru National Highway No.4. When they reached Kengal, Kempohalli, Bengaluru District, a container lorry bearing No.NL – 01 – K – 4981 driven by its driver in a rash and negligent manner came from behind and hit the motorcycle. According to the claimants the said container lorry was driven in a high speed, rash and negligent manner endangering human life, as a result of the impact, Vinay Kumar fell down on his right side and the wheel of the lorry ran over the deceased’s head and he succumbed to the injuries on the spot. The dead body was subjected to post mortem examination at Government Hospital, Nelamangala and handed over to the claimants for the performance of the funeral rites. According to the claimants Vinay Kumar was aged about 20 years, he was hale and healthy. He was a B.E. 4th Semester student at Don Bosco College, Kumbalugodu, Bengaluru, and that his parents and younger sister had a high hope in him and they had suffered great mental shock and agony, anguish and frustration on account of the sudden death of the Vinay Kumar in the road traffic accident they filed a claim petition claiming compensation of Rs.30 lakh.
4. In response to the notice issued by the Tribunal, respondent No.1, namely the Insurance Company – appellant herein appeared and filed its written statement while the second respondent owner of the container lorry did not appear and was placed ex-parte. The Insurance Company denied the material averments made in the claim petition and they admitted that an insurance policy was issued in respect of the offending lorry, nevertheless the liability to satisfy the award if any was subject to the terms and conditions of the policy. Respondent No.1 contended that the driver of the offending container lorry did not possess a valid and effective driving license to drive the truck on the date of the accident and therefore the claim petition may be dismissed. On the basis of the rival pleadings, the tribunal framed the following issues for its consideration.
i. Whether the Petitioners prove that deceased Sri Vinay Kumar K.A S/o.Kotreshappa A aged about 20 years, was died in a road traffic accident that occurred on 14.04.2018 at about 2.20 p.m. while deceased was riding in a Bike bearing Reg.No.KA-04-JM-8033, when he reached on Tumkur, Bengaluru NH-4 Road, Kengal, Kempohalli, Bengaluru District, at that time a driver of the Container Lorry bearing Reg.No.NL-01-K-4981 driven in a rash and negligent manner and dashed against the Bike as result of which, he fell down and sustained fatal injuries and dies, as mentioned in the claim petition?
ii. Whether the Petitioners are entitled for compensation as prayed in the petition? If so, from which Respondent?
iii. What order or award?
5. In order to substantiate their case the claimants, the mother of the deceased Vinay Kumar, Smt.
Kalavathi was examined as PW.1; she produced 23 documents which were marked as EXs.P1 to P23 while the respondent before the tribunal did not let in any evidence.
6. On the basis of the evidence on record, the tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded compensation of Rs.24,18,000/- with interest at the rate of 9% p.a. from the date of the claim petition till realizatioin. Being aggrieved by the extent of compensation awarded by the Tribunal the Insurance Company has preferred this appeal.
7. We have heard learned counsel for the appellant and perused the material on record.
8. Appellant’s counsel contended that the award of compensation to an extent of Rs.22,68,000/- on the head of loss of dependency is on the higher side. He contended that the deceased was only a student of 4th semester, Bachelor of Engineering. He was not an earning member, but the Tribunal has assessed the notional income of the deceased at Rs.15,000/- per month, which is exorbitant. He next contended that 40% of the said amount has been added towards future prospects which is also incorrect as the deceased was not earning any income as such. He further submitted that the award of compensation to an extent of Rs.40,000/- to each of the claimants under loss of consortium is exorbitant. He submitted that the extent of compensation may be scaled down in this appeal after hearing the respondents. No other contention was raised by the appellant’s counsel.
9. We have perused the impugned judgment of the tribunal in light of the contentions submitted by appellant’s counsel. It is noted that the deceased was a Bachelor of Engineering student pursuing 4th semester in Don Bosco college, Kumbalugodu, Bengaluru. The tribunal has noted that he was a bright student and had backed several awards. The claimants have produced EXs.P11 to P23 in support of the academic and co-curricular achievements of the deceased Vinay Kumar. Since the deceased was pursuing a professional course and was already in the 4th semester the tribunal, in our view was justified in assessing the notional income of the deceased at Rs.15,000/- per month. The accident has occurred on 14.04.2018 and even in respect of an unskilled labour this Court would assess the notional income at Rs.12,500/-, but the deceased would have qualified as an engineer and pursued his avocation as an engineer, but for the unfortunate premature death in the road traffic accident. Therefore, we do not think that the assessment of the monthly income notionally by the tribunal at Rs.15,000/- is exorbitant or excessive. In terms of the dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 680 (Pranay Sethi) 40% of the said income would have to be added towards the future prospects having regard to the fact that there was no established income of the deceased by the claimants. The same has been done by the tribunal. Further, 50% of the said amount has been deducted towards the personal and living expenses of the deceased since he was a bachelor and the appropriate multiplier of ‘18’ has been applied by the tribunal. Consequently, compensation on the head of loss of dependency is Rs.22,68,000/- which we find is just and proper.
10. In Pranay Sethi, the Hon’ble Supreme Court has held that towards loss of consortium a maximum amount of Rs.40,000/- could be awarded, but the expression ‘consortium’ has been elucidated upon in another judgment of the Hon’ble Supreme Court namely, in the case of Magma General Insurance Company Limited vs. Nanu Ram reported in 2018 ACJ 2782 (Magma General Insurance Company) in the following terms :
8.7 “A Constitution Bench of this Court in Pranay Sethi (supra) 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.
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, co- operation, affection, and aid of the other in every conjugal relation.”
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. An accident leading to the 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 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 for loss of the 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 cases of genuine claims. In case where a parent has 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 children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium’ as laid down in Pranay Sethi (supra).
11. Having regard to the above, the tribunal has awarded Rs.40,000/- each to the parents of the deceased in respect of loss of filial consortium and a sum of Rs.40,000/- to the sister of the deceased towards loss of love and affection, totaling Rs.1,20,000/-. We do not think that is so excessive. In fact, it is in accordance with the judgment of the Hon’ble Supreme Court in the aforesaid case. Further, by following the judgment in Pranay Sethi, a sum of Rs.15,000/- is awarded towards loss of estate and a further sum of Rs.15,000/- is awarded towards funeral expenses. Thus, the total compensation awarded by the Tribunal is Rs.24,18,000/-, which we do not think is either excessive or exorbitant.
12. Though no contention has been raised with regard to award of 9% interest on the said sum, we find on a reading of para 35 of the impugned judgment that the said rate of interest has been awarded based on the judgments of the Hon’ble Supreme Court. In the circumstances, we find no merit in the appeal. The appeal is hence dismissed.
The amount in deposit to be transmitted to the tribunal.
In view of the dismissal of the appeal, IA 1/2019 stands dismissed.
Sd/- JUDGE Sd/- JUDGE ykl