IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4589 OF 2014 (MV) CONNECTED WITH MFA NO. 4221OF 2014 (MV) IN MFA NO.4589 OF 2014(MV) BETWEEN The Manager Reliance General Insurance Co. Ltd., Kruthika Arcade Holenarasipura road N.R.Circle, Hassan – 573201 Now rep by its Legal Manager Reliance General Insurance Co. Ltd., Regional Office 6th Floor, Centenary Building M.G. Road Bangalore – 560026.
... Appellant (By Sri. B. Pradeep , Advocate – for Appellant) AND 1. Channaveeregowda S/o Sanne gowda Now aged about 47 years 2. Manjula W/o Channaveeregowda Now aged about 42 years 3. Swetha D/o Channaveeregowda Now aged about 18 years All are R/at Chikkabemmatti Village Mallipattana Hobli Arakalagud Taluk Hassan Dist., Now R/at Kadavinakote Village Halekote Hobli, Holenarasipura Taluk Hassan Dist – 573201.
4. Swamygoda D.K S/o Kalegowda R/at Doddagavanahalli Village Bichenahalli Hobli, Arkalgud Taluk Hassan Dist-573201.
... Respondents (Respondents served but unrepresented ) This MFA is filed under Section 173(1) Of MV Act against the judgment and award dated 16.11.2013 passed in MVC No. 1931/2012 on the file of the Senior Civil Judge and Judicial Magistrate First Class, Holenarasipur, awarding compensation of Rs.1,88,750/- with interest @ 6% p.a. from the date of petition till deposit.
IN MFA NO. 4221 OF 2014(MV) BETWEEN 1. Channaveeregowda S/o Sannegowda Aged about 47 years 2. Manjula W/o Channaveeregowda Age43 years House hold 3. Shwetha D/o Channaveeregowda 18 years Student All are R/at Chikka Bemmathi Village Mallepattana Hobli Arakalagud Taluk Dist: Hassan -573201 Present R/o Kadavinakote Village Tq: Holenarasipur Dist : Hassan– 573201.
... Appellants (By Sri. Syed Akbar Pasha for Sri Mahantesh .S. Hosmath - Advocate for appellants) AND 1. Swamy gowda D.K S/o Kalegowda Doddagavanahalli Bychenahalli hobli Tq: Arkalgud Dist: Hassan -573201.
2. Manager Reliance Insurance Co., Kruthika Orchard Holenarasipura Road N.R.Circle Hassan – 573201.
(By Sri B. Pradeep – Advocate for R-2; R-1 served ) ... Respondents This MFA is filed under Section 173(1) Of MV Act against the judgment and award dated 16.11.2013 passed in MVC No. 1931/2012 on the file of the Senior Civil Judge, JMFC, MACT, Holenarasipura, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs’ coming on for hearing, this day, the court delivered the following:
JUDGMENT These appeals are directed against the judgment and award dated 16.11.2013 rendered by the MACT, Holenarasipur in MVC No.1931/2012. MFA No. 4589/2014 is filed by the appellant/insurance company on the question of contributory negligence and MFA No.4221/2014 is filed by the appellants/claimants seeking enhancement of compensation.
2. The factual matrix of the appeals is as under:
It is stated in the claim petition that deceased Sachin being the son of claimant Nos.1 and 2 and brother of claimant No.3, on 5.9.2012 at about 8.30 – 9.00 p.m., after completion of the work at Holenarsipura, on Holenarasipura – Arkalgud Road near poultry Farm of Habeeb Sab of Kalkere, the driver of Tractor bearing No.KA-12-T-5161 had parked the Tractor and Trailer in middle of the road, and deceased Sachin while coming on Hero Honda Splendor motor bike bearing No.KA-13-N-4142 hit to the said Tractor and Trailer, due to which he sustained grievous injuries and died at the spot. Prior to accident, deceased - Sachin was hale and healthy and earning Rs.10,000/-
p.m. from agriculture and milk vending. The claimants who are the dependants have lost the financial assistance to eak out their livelihood due to the untimely death of deceased, filed the claim petition before the Tribunal seeking compensation.
3. After service of notice, respondents entered appearance before the Tribunal. Respondent No.1 did not file any objections. Respondent No.2 filed objections, denying the petition averments and sought for dismissal of the petition.
4. Based upon the pleadings of the parties, the Tribunal framed the issues. In order to prove their case, Petitioner No.1 was examined as PW.1 and got exhibited documents as per Exs.P1 to P7. On behalf of respondents RW.1 was examined and Ex.R1 was got marked. After hearing arguments advanced by learned counsel for the claimants and so also, learned counsel for respondents and on evaluation of entire oral and documentary evidence on record, the Tribunal rendered the impugned judgment, fixing contributory negligence in the ratio of 50:50 on both the vehicles which were involved in the accident and awarded compensation of Rs.1,88,750/- with interest @ 6% p.a being 50% of the total compensation of Rs.3,77,500/-. Further, the claim petition against petitioner Nos.1 and 3 came to be dismissed. Hence, these appeals by the claimants seeking enhancement of compensation and insurance company on the question of contributory negligence.
5. Sri B.Pradeep, learned counsel for the appellant/insurer contends that the Tribunal erred in fixing the negligence at 50% as against the driver of Tractor and Trailer, whereas, the deceased himself was solely responsible for the alleged accident and the driver of the Tractor and Trailer was no way responsible. Further, he contends that the Tribunal erred in not noticing the fact that deceased did not possess valid and effective licence to drive the vehicle as on the date of the accident and to that effect police have filed charge sheet against the deceased under Section 3(1) of the M.V.Act. This vital aspect has not been considered by the Tribunal. It is further contended that the deceased was riding an uninsured motorcycle without having valid driving licence. The compensation awarded by the Tribunal is on higher side and the same needs to be scaled down by this Court. On all these grounds, he sought for setting aside the impugned judgment passed by the Tribunal by re-appreciating the entire oral and documentary evidence available on record.
6. Per contra, learned counsel for the claimants contends that the accident occurred due to negligent parking of the Tractor and Trailer in the middle of the road, without putting any signal and at that time when the deceased was proceeding on his motor bike, hit to the Tractor from backside, due to which he fell down and sustained bloodstained injuries all over the body and succumbed to the injuries at the spot. It is only due to the negligent parking of Tractor the accident had occurred.
7. Further, he contends that the Tribunal has erred in assessing the income of the deceased at Rs.45,000/- per annum, whereas, the deceased was doing agriculture and also supplying milk to milk dairy and was earning Rs.10,000/- p.m. and the documentary evidence produced in this regard has not been considered by the Tribunal. Further, he contends that the Tribunal ought to have deducted 1/3rd towards personal expenses instead of 50%. Further, the compensation awarded under the conventional heads is on lower side and the same requires to be enhanced in this appeal. On all these grounds, learned counsel for appellants seeks for enhancement of compensation by allowing the appeal.
8. In the backdrop of the contentions as taken by the learned counsel for the claimants as well as learned counsel for the insurance company, it is not in dispute that deceased – Sachin succumbed to the accidental injuries on the fateful day when he was coming on his motor bike from Holenarasipura to his native place at about 8.30 – 9.00 p.m., after finishing his work near Kalkere Habeeb poultry farm, the first respondent - driver had parked the tractor in middle of the road and went away, and deceased – Sachin without observing the parked tractor, hit the tractor and sustained head injuries and succumbed at the spot. PW.1 being the father of deceased in support of his oral evidence has produced documentary evidence such as Ex.P1 – Notice, Ex.P2 – FIR, Ex.P3 – complaint, Ex.P4 – sketch, Ex.P5 – P.M.report, Ex.P6 – final report. As per the sketch, the deceased hit to the parked vehicle and sustained injuries. It is pertinent to note that after investigation, the IO laid charge sheet against the driver of Tractor- Trailer, owner and also against deceased Sachin. The deceased was made as accused No.2 in the charge sheet. On evaluation of the oral as well as documentary evidence, the Tribunal gave finding that deceased also contributed his negligence in causing the accident and the driver of the Tractor-Trailer parked the vehicle during night without any signal in the middle of the road, due to which accident occurred and fixed liability on both vehicles in the ratio of 50:50. The said finding given by the Tribunal is based upon the evaluation of entire oral and documentary evidence on record. Hence, I do not find any justifiable reasons to interfere with the said finding of the Tribunal. The Tribunal has rightly fixed contributory negligence in the ratio of 50:50 on both the vehicles.
9. It is said that the deceased – Sachin used to earn Rs.10,000/- p.m. by doing agriculture as well as milk vending. But there being no proof of income, the Tribunal assessed the income of the deceased at Rs.45,000/- per annum as per the minimum wages. It is relevant to note that the accident is of the year 2012. As per the guidelines and illustrations, the notional income for the year 2012-2013 is Rs.7,000-8,000. Having regard to the avocation of the deceased, and the year of accident, it is just and proper to take notional income of the deceased at Rs.7,000/-p.m.
10. Further, keeping in view the ratio of relevance of the judgment rendered by Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi reported in AIR 2017 SC 5157, future prospects has to be added to the income of the deceased. The Apex Court has determined the applicable percentages for determination of future prospects, in case of deceased with a permanent job, and has also added the category where the deceased was self-employed or on a fixed salary, to be as follows:
The deceased Sachin was aged 19 years at the relevant point of time when he met with the accident and taken his last breath. Therefore, in view of the above, it is relevant to add 40% towards future prospects.
11. Further, the Tribunal has erroneously adopted multiplier of ‘15’ by taking the age of younger parent/mother of the deceased who was aged 40 years. But the Hon’ble Apex Court in M/s.Royal Sundaram Alliance Insurance Company Ltd., vs. Mandala Yadagari Goud and others (AIR 2019 SC 1825) has opined that “it is the age of the deceased and not such of the dependents in case of the death of a bachelor which is to be basis for the multiplier”. Keeping in view the said observations, in the instant appeal, it is relevant to note that deceased – Sachin was aged 19 years and also a bachelor. Hence, the appropriate multiplier as per Sarla Verma vs. Delhi Transport Corporation (2009 ACJ 1298) would be ‘18’. Accordingly, compensation under the head loss of dependency is re-worked out as under:
Tribunal has awarded in all a sum of Rs.40,000/-. But as per the ratio of relevance in Pranay Sethi’s case as stated supra, the deceased being a bachelor is entitled to a sum of not exceeding Rs.30,000/-. Accordingly, the compensation under conventional heads is scaled down by a sum of Rs.10,000/-.
13. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), the Hon’ble Apex Court has held as follows:
“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.
14. In the instant appeal, deceased – Sachin has left behind his parents who are claimant nos.1 and 2. 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. Further, the deceased has also left behind an unmarried minor sister. The deceased was contributing his income to the family for their sustenance and survival and there is a reciprocity in between the family and the deceased. Hence, in accordance with the above said ruling, claimant nos.1, 2 and 3 are awarded a sum of Rs.40,000/- each, towards filial consortium.
15. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation awarded by this Court 10,58,400
30,000 Towards filial consortium - 1,20,000 Rs.3,77,500 50% of Total contributory negligence would come to Rs.1,88,750 12,08,400 Thus, in all, the claimants are entitled to total compensation of Rs.12,08,400/- as against Rs.1,88,750/- awarded by the Tribunal. The enhanced compensation would be Rs.8,30,900/-. As already held, the contributory negligence is fixed in the ratio of 50:50 in respect of both the vehicles. Accordingly, the claimants would be entitled to enhanced compensation of 50% of Rs.8,30,900/- which comes to Rs.4,15,450/- rounded of to Rs.4,15,500/-.
For the aforesaid reasons and findings, I proceed to pass the following:
ORDER MFA No.4589/2014 filed by the appellant/Insurance Company Ltd., is hereby allowed in part to the extent of scaling down the compensation in a sum of Rs.10,000/- in respect of conventional heads .
MFA No.4221/2014 filed by the appellants/claimants is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.4,15,500/- with interest @ 6% p.a. from the date of petition till realisation.
The impugned judgment and award rendered by the Tribunal in MVC No.1931/2012 is modified accordingly.
The Reliance General Insurance Company Ltd. shall deposit the compensation awarded by the Tribunal as well as the enhanced compensation, with accrued interest, before the Tribunal, within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award in so far as apportionment and deposit is concerned, shall remain unaltered.
The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith.
Office to draw the decree accordingly.
Sd/- JUDGE DKB