IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.2724 of 2017 (MV) BETWEEN:
1. SHAHANAZ BANU W/O.ABDUL MAJID AGED ABOUT 43 YEARS 2. ABDUL MAJID S/O.MEHABOOB SAB AGED ABOUT 48 YEARS 3. SUMAYA BANU D/O.ABDUL MAJID AGED ABOUT 27 YEARS 4. RAZIYA SULTHANA D/O.ABDUL MAJID AGED ABOUT 23 YEARS 5. KURSHID BANU D/O.ABDUL MAJID ALL ARE R/O ALUR TOWN, ALUR.
(BY SRI.BYRA REDDY.G.S., ADVOCATE FOR SMT.KAVITHA.H.C. ADVOCATE) ... APPELLANTS AND:
1. PUTTASWAMY S/O.ERAIAH R/O MASAVALLI VILLAGE HALASULAGE POST SAKLESHPURA TALUK.
(OWNER OF THE LORRY BEARING REG.NO.KA-34-5859) 2. THE MANAGER UNIVERSAL SOMPO GENERAL INSURANCE COMPANY LTD., CRYSTAL PLAZA, INFRONT OF INFINITY MAHAL, LINK ROAD MUMBAI – 58. ...RESPONDENTS (BY SRI.B.C.SHIVANNEGOWDA, ADV., FOR R-2, V/O DATED 15.11.2017, NOTICE TO R-1 DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT PRAYING TO ALLOW THIS APPEAL BY MODIFYING THE JUDGMENT AND AWARD DATED 01.12.2016 PASSED BY THE II ADDITIONAL SENIOR JUDGE & MACT HASSAN, IN M.V.C. NO.581 OF 2014 AND ETC., THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JYOTI MULIMANI 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. The claimants have preferred this appeal assailing the judgment and award dated 01.12.2016 passed in MVC No.581/2014 by the II Additional Senior Civil Judge and Motor Accident Claims Tribunal, Hassan (hereinafter referred to as ‘Tribunal’ for the sake of brevity).
3. For the sake of convenience, parties herein shall be referred to in terms of their ranking and status before the Tribunal.
4. Claimant Nos.1 and 2 are the parents and claimant Nos.3 to 5 are the sisters of the deceased, Nadeem, who died in a road traffic accident that occurred on 05.08.2013.
5. It is the case of the appellants/claimants that on 05.08.2013 when deceased - Nadeem had been to Sakaleshpura for masonry work along with his friends, after completion of his work, while returning home, he was waiting for the bus at Sakaleshpura. At that time, the driver of the lorry bearing registration No.KA-34-5859, drove the same in a rash and negligent manner and hit the Innova Car bearing registration No.KA-02-AB-5687, which was proceeding from the opposite direction and later hit Nadeem and he sustained grievous injuries. Immediately, Nadeem was taken to Government Hospital, Sakalespura and as per the advice of the Doctor, he was admitted to Government Hospital, Hassan. Further, he was shifted to NIMHANS Hospital, Bengaluru. In spite of best treatment given, he succumbed to the injuries. It is also stated that a case in Crime No.202/2013 was registered by the Sakaleshpura Town Police for the offence punishable under Section 279, 304(A) of the Indian Penal Code. It is further stated that the first respondent – being the owner and second respondent being the insurer are jointly and severally liable to pay compensation to the petitioners. The deceased was the only earning member in the family. Due to his untimely death, they suffered socially and economically. Hence, they sought compensation on various heads.
6. In response to the notices issued by the Tribunal, respondent Nos.1 and 2 entered appearance and filed their statement of objections. In the statement of objections, the first respondent denied the petition averments and contended that the vehicle was insured with the second respondent, thereby the Insurance Company was liable to indemnify him.
7. The second respondent in his objection statement denied the petition averments. He also denied the incident, age, occupation, income, involvement of the lorry and also negligence on the part of the driver of the lorry in the accident. But he admitted the insurance coverage of the vehicle and contended that the satisfaction of the award would be subject to the policy conditions. On these grounds, he prayed for dismissal of the petition.
8. On the basis of the above pleadings, the Tribunal framed the following issues for its considerations.
1. Whether the petitioners are the legal heirs of the deceased and further proves that on 05.08.2013 at about 5.30 p.m. when deceased Nadeem Pasha was waiting for bus near Donigal, Sakleshpur on NH-48, deceased died in a road traffic accident on account of rash and negligent driving of lorry bearing registration No..KA-13-5859 by its driver?
2. Whether the petitioners are entitled for compensation? If so, at what quantum and from whom?
3. What order?
9. In order to substantiate their case, claimant No.1 was examined as PW.1 and produced eight documents which were marked as Exs.P1 to P8. The respondents have not chosen to lead their 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.7,28,000/- with interest at the rate of 8% per annum from the date of petition till realization.
10. Being aggrieved by the compensation awarded by the Tribunal, the claimants have preferred this appeal seeking enhancement of compensation.
11. We have heard Sri.Byra Reddy G.S., learned counsel for Smt.Kavitha H.C., learned counsel for the appellants, Sri.B.C.Shivannagowda, learned counsel for second respondent and perused the material on record.
12. Learned counsel appearing for appellants /claimants drew our attention to the evidence of PW.1 and also pointed out that the compensation awarded under the head of ‘loss of dependency’ is on the lower side. It was also contented that the deceased was earning a sum of Rs.25,000/- per month by doing agricultural and masonry work, but the Tribunal without considering the same, proceeded to assess the income of the deceased at Rs.6,000/- per month and awarded compensation of Rs.6,48,000/- under the head ‘loss of dependancy’. He also submitted that the compensation awarded by the Tribunal under the head ‘loss of love and affection’ is too meager. He further submitted that the award of compensation on the conventional heads is very meager and that having regard to the dictum of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. v. NANU RAM AND OTHERS reported in 2018 ACJ 2782 (SC), compensation on the head of loss of parental consortium ought to be awarded at Rs.40,000/- and that compensation awarded towards ‘loss of estate’ as well as ‘funeral expenses’ may be enhanced by allowing this appeal. Hence, he prayed for enhancing the compensation by allowing the appeal filed by the claimants.
13. Per contra, learned counsel for the second respondent supported the impugned judgment and award and contended that the compensation awarded by the Tribunal on all the heads is just and proper. Therefore, there are no good grounds to entertain this appeal and prayed for dismissal of the appeal.
14. Having heard learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration:-
1. Whether the claimants are entitled to enhanced compensation?
2. What order?
15. The fact that on 05.08.2013 when Nadeem was waiting for the bus at Sakaleshpura, at that time, the driver of the lorry bearing registration No.KA-34-5859, drove the same in a rash and negligent manner and hit the Innova Car bearing registration No.KA-02-AB-5687, which was proceeding in the opposite direction and later hit the deceased has been established. Due to the accident Nadeem sustained grievous injuries and on account of the impact, he succumbed to the injuries has also been established by the claimants. However, the controversy is only with regard to quantum and enhancement of compensation.
16. The Tribunal awarded compensation of Rs.7,28,000/- with interest at the rate of 8% per annum from the date of claim petition till realization on the following heads:-
Heads Compensation awarded by the Tribunal (in Rs.) Loss of dependency 6,48,000.00 Loss of love and affection 50,000.00 Transportation of dead body and funeral expenses 30,000.00 Total 7,28,000.00 17. The Tribunal has considered the income of the deceased only at Rs.6,000/- per month which is on the lower side. The deceased was engaged in masonry work which is a skilled labour. Skilled labour is generally characterized by higher education, expertise levels attained through training and experience and will likewise correspond with higher wages. Skilled labour refers to highly trained, educated or experienced segments of the work force that can complete more complex, mental or physical on the job. Skilled labour which can be contrasted with unskilled or low skilled workers usually command higher incomes. Taking into consideration these facts, we propose to the reckon the income of the deceased at Rs.8,000/- per month as the accident occurred in the year 2013.
18. As per the 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, 40% of the income shall have to be added towards future prospects. If 40% of the income is added towards future prospects to the monthly income of Rs.8,000/-, it comes to Rs.11,200/- per month. The deceased was aged 22 years and a bachelor. The claimants are five in number. Therefore, 50% of the income of Rs.11,200/- has to be deducted towards personal expenses of the deceased, it comes to Rs.5,600/-. When the same is annualized and multiplied by ‘18’, it comes to Rs.12,09,600/-. Hence, we propose to award Rs.12,09,600/- as against Rs.6,48,000/- awarded by the Tribunal on the head of ‘loss of dependency’.
19. Further a sum of Rs.30,000/- each is awarded to the parents of the deceased towards ‘loss of filial consortium’, on the basis of the dictum of Hon’ble Supreme Court in Pranay Sethi as well as in Magma General Insurance Company Limited. Also, a sum of Rs.15,000/- each is awarded to the siblings of the deceased towards ‘loss of love and affection’. A sum of Rs.15,000/- is awarded towards ‘loss of estate’ and another sum of Rs.15,000/- is awarded towards funeral expenses. In all, the claimants are entitled for compensation of Rs.13,44,600/-. The reassessed compensation is as follows:
Rs.13,44,600/-. The enhanced compensation of Rs.6,16,600/- shall carry interest at the rate of 6% p.a. from the date of claim petition till realization. However, the compensation of Rs.7,28,000/- awarded by the Tribunal shall carry interest at the rate of 8% per annum from the date of claim petition till realization as awarded by the Tribunal.
21. The direction regarding apportionment made by the Tribunal in the ratio of 50:20:10:10:10 is retained. 75% of the compensation amount awarded to the mother of the deceased shall be deposited in any Post Office or Nationalized Bank for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit.
22. The compensation awarded to the father and siblings of the deceased shall be released to them after due identification.
23. The appeal is allowed-in-part in the aforesaid terms.
24. The respondent/insurer to deposit the compensation amount with up-to-date interest within a period of four weeks from the date of receipt of certified copy of this judgment after deducting the amount deposited by them, if any.
25. Parties to bear their respective costs.
26. Registry is directed to transmit the original records to the Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE VMB