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 MISCELLANEOUS FIRST APPEAL NO.7937 OF 2014 (MV) BETWEEN:
1. S. SUMALATHA W/O. LATE SHANTHACHAR, AGED ABOUT 23 YEARS.
2. CHIRANJIVI S/O. LATE SHANTHACHAR, AGE ABOUT 4 YEARS, MINOR, REPRESENTED BY HIS NATURAL GUARDIAN MOTHER S. SUMALATHA.
3. SMT. JAYAMMA W/O. PUTTACHAR, AGED ABOUT 61 YEARS.
ALL ARE RESIDING AT GHATAKINAKERE VILLAGE, TIPTUR TALUK, TUMKUR DISTRICT.
NOW RESIDENT OF YALLAMMA EXTENSION, NEAR GAVIRANGANATHA COLLEGE, KOTE, HOSADURGA.
... APPELLANTS (BY SRI M.R. SURESH, ADV.) AND:
1. AHAMED ALIKHAN S/O. ISMAIL KHAN, MAJOR, RESIDENT OF NO.472, 2ND MAIN, AZAD NAGAR, 5TH DIVISION, CHITRADURGA.
2. THE BRANCH MANAGER RELIANCE GENEAL INSURANCE COMPANY LTD., NO.1 AND 2, 1ST FLOOR, MAGANUR COMMERCIAL COMPLEX, B.D. ROAD, CHITRADURGA.
... RESPONDENTS (BY SRI H.C. BETSUR, ADV., FOR R-2; & R-1: NOTICE DISPENSED WITH VIDE ORDER DATED 22-11-2017) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 20-9-2014 PASSED IN M.V.C. NO.70 OF 2013 ON THE FILE OF THE ITINERARY SENIOR CIVIL JUDGE & ADDITIONAL M.A.C.T., HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, NATARAJAN, J., DELIVERED THE FOLLOWING:
J U D G M E N T Though the appeal is listed for Admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is preferred by the appellants-claimants being aggrieved by the judgment and award passed by the Itinerary Senior Civil Judge and Additional Motor Accident Claims Tribunal, (for short, ‘Tribunal’) Hosadurga, in M.V.C. No.17 of 2013 dated 20-9-2014.
3. For the sake of convenience, parties shall be referred to in terms of their status before the Tribunal.
4. Case of the petitioners is that they have filed claim petition under Section 166 of the Motor Vehicles Act, 1988, (for short, ‘Act’) claiming compensation of Rs.26,00,000/- for the death of G.P. Shanthachar in a road traffic accident that occurred on 4-1-2013 at about 6:00 p.m. when deceased was traveling in a motorcycle, bearing Registration No.KA 27- J-5245 towards Bokikere Village. When deceased reached Tarikere road, in front of Ragi Shivalingappa Bricks Factory, Hosadurga, at that time, a lorry, bearing Registration No.KA-16 A-2009, driven by its Driver, in a rash and negligent manner came from opposite direction and dashed to the deceased, due to which, deceased sustained grievous injuries and succumbed to the injuries. Petitioners contended that deceased was the bread earner of the family. He was working as a Carpenter as well as a Driver in a Call- Centre at Bengaluru and earning Rs.25,000/- per month. He used to contribute entire amount to the family. They incurred Rs.2,00,000/- towards funeral, death ceremony, car hire charges and other expenses. Petitioners are the wife, child and mother of deceased. Accident occurred due to negligent driving by Driver of the lorry. Respondent No.1, being the owner and respondent No.2, being the insurer of the said lorry, both are jointly and severally liable to pay compensation.
5. In pursuance of the notice, respondent No.1 did not appear and was placed ex-parte. However, respondent No.2 appeared and filed statement of objections by denying the averments made in the petition and also rash and negligent driving by the lorry Driver. They also took a specific contention that deceased had no valid Driving Licence to drive the motorcycle, however, they admitted the insurance policy of the vehicle in question.
6. On the aforesaid pleadings, the Tribunal framed the following three issues:
i. “Whether the petitioners prove that, Shanthachar S/o Puttachar, died due to injuries sustained in a road traffic accident on 04.01.2013 at 6.00 p.m. on Tarikere Road, In front of Ragi Shivalingappa Bricks Factory, Hosadurga Taluk, due to rash and negligent driving of the lorry bearing reg.no.KA-16-A- 2009 by its driver?
ii. Whether the petitioners are entitled for compensation? If so, how much and from whom?
iii. What Order or Award?
7. Petitioner No.1 examined herself as PW.1 and got marked seven documents as per Exs.P1 to P7. Respondent No.2 was not examined, but marked Ex.R1-Policy copy. After hearing the arguments, the Tribunal awarded compensation as under:
Heads Compensation Awarded by the Tribunal
8. Being not satisfied with the award, the petitioners have preferred this appeal.
9. We have heard learned counsel on both sides and perused the material on record as well lower Court record.
10. Learned counsel for the appellants-claimants has contended that deceased was working as a Driver as well as a Carpenter and was earning a sum of Rs.25,000/- per month, but the Tribunal considered his income only as Rs.5,000/- which is meager. The Tribunal has also not considered his future prospects and the Tribunal could have taken 40% of the income towards future prospects. The Tribunal also granted meager amount towards the head ‘loss of consortium’ and ‘loss of love and affection’ which is against the judgments in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 and in the case of MAGMA GENERAL INSURANCE CO. LTD. v. NANU RAM ALIAS CHUHRU RAM AND OTHERS reported in 2018 ACJ 2782 (SC). Therefore, he prayed for enhancing the compensation.
11. Per contra, learned counsel for respondent- Insurance Company supported the judgment and award passed by the Tribunal and contended that there is no proof of income produced by the petitioners. Therefore, the Tribunal rightly considered the income of deceased as Rs.5,000/-. Hence, he prayed for dismissing the appeal.
12. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
i. Whether the appellants are entitled for enhancement of compensation?
ii. If so, what award?
13. It is not in dispute that deceased-G.B.Shanthachar while proceeding on his motorcycle on 4-1-2013 at about 6:00 p.m., when he reached Tarikere road, in front of Ragi Shivalingappa Bricks Factory, Hosadurga, he met with an accident, due to the rash and negligent driving by the lorry Driver, bearing Registration No.KA.16 A-2009. Due to which, deceased sustained grievous injuries and succumbed to the injuries. Though respondent No.2 objected to the petition by taking various contentions, but did not lead any evidence before the Tribunal, except admitting the insurance policy and terms and conditions of the insurance policy. Even respondent has not preferred any appeal in respect of the finding that the accident in question was occurred due to rash and negligent driving of the lorry. Therefore, we are require to consider only the quantum of compensation awarded by the Tribunal. Petitioner No.1 adduced evidence before the Tribunal stating that her husband was a Driver, working in a Call-Centre, but there is no document to show that he was a Carpenter. The Tribunal also considered the avocation of deceased as a Driver. Though petitioners have produced Identity Card of deceased to show that he worked in a private travels and was having Driving Licence, but the Tribunal has taken the notional income of deceased as Rs.7,500/- per month.
14. We are of the view that amount of Rs.7,500/- assessed as notional income of deceased is not correct. The accident occurred in January, 2013. For that period, for a Driver, at least, his income should be considered at Rs.8,000/- per month. If the income of the deceased is taken at Rs.8,000 per month, it is Rs.96,000/- per annum (8,000 X 12). As per the dictum of the Hon’ble Supreme Court in the case of PRANAY SETHI stated supra, the Tribunal ought to have considered the future prospects of deceased. Therefore, 40% of the income is taken as future prospects. If we calculate 40% of 8,000/-, it comes to Rs.3,200/-. Thereby, the income of deceased is considered as Rs.11,200/- per month (8,000 + 3,200). As per dictum of the Hon’ble Supreme Court in the case of SARALA VERMA v. DELHI TRANSPORT CORPORATION reported in 2009 ACJ 1298 (SC), when the dependants are three in number, 1/3rd of the income has to be deducted towards personal expenses. If 1/3rd of Rs.11,200/- is deducted, it comes to Rs.3,733/-. If the said amount is deducted from Rs.11,200/-, it comes to Rs.7,467/- which is net income, multiplied into 12 months, which comes to Rs.89,604/-. The proper multiplier applicable for the age group of a person aged 42 years is ‘16’. Therefore, towards loss of dependency, petitioners are entitled for Rs.14,33,664/- (Rs.89,604/- x 16). Hence, ‘loss of dependency’ awarded by Tribunal requires to be enhanced from Rs.9,60,000/- to Rs.14,33,664/-.
15. As per the dictum of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD.
stated supra, the first petitioner being the wife is entitled for spousal consortium, the second petitioner being the son is entitled for parental consortium and third petitioner being the mother is entitled for filial consortium at the rate of Rs.40,000/-, Rs.30,000/- and Rs.30,000/- respectively. Thereby, we propose to award Rs.1,00,000/- towards ‘loss of consortium’. As per the judgment of PRANAY SETHI and MAGMA GENERAL INSURANCE CO. LTD. stated supra, we propose to award Rs.15,000/- towards funeral expenses and another Rs.15,000/- towards ‘loss of estate’.
16. With regard to amount of Rs.20,000/- awarded by the Tribunal towards ‘loss of love and affection’ requires to be reduced, as we have already awarded consortium to the child. Therefore, amount of Rs.20,000/- awarded by the Tribunal towards ‘loss of love and affection’ is set aside.
17. Thus, appellants-claimants are entitled for total compensation of Rs.15,63,664/- which is as under:
Heads Compensation awarded by this Court (in Rs.) Loss of dependency 14,33,664.00 Loss of consortium
18. In the result, the appeal is allowed-in-part. The compensation now awarded is Rs.15,63,664/- instead of Rs.10,00,000/- awarded by the Tribunal. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realisation.
19. The enhanced compensation shall be apportioned in the ratio of 40:20:20. The compensation awarded to appellant No.2-son of the deceased shall be kept in a Fixed Deposit in any nationalised Bank or a Post Office till he attains majority.
20. 75% of the enhanced compensation apportioned to appellant No.1-wife of the deceased shall be kept in a Fixed Deposit in any nationalised Bank or Post Office. The remaining compensation amount shall be released to her.
21. The compensation awarded to appellant No.3- mother of the deceased shall be released to her.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE kvk