R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.3996 OF 2013 [MV] BETWEEN 1. Shanthveerappa s/o Erappa aged about 32 years.
2. Baby Sannafveeramma d/o Shanthveerappa Aged about 4 years.
Appellant No.2 is minor hence represented by her natural guardian father, appellant No.1.
Both are r/o Pagadalabande Challakere Taluk, now r/o 2nd Cross Prashanth Nagar, Jogimatti Road Chitradurga – 577501. ... Appellants [By Sri Spoorthy Hegde N, Advocate] AND 1. M/s.ICICI Lombard General Insu. Co. Ltd., the Branch Manager, Branch Office Mayura Complex Opp. KSRTC Bus Stand Bellary – 583 101.
2. District Health and Welfare Officer, owner of ambulance No.KA-42-G-210, Ramanagaram Bangalore-577511.
3. District Health and Welfare Officer, Chitradurga-577501 vehicle in charge of KA-42-G-210.
4. GVK Emergency Management and Research Institute Basaveshwara Nagara Entrance Opposite Govt. Unani Medical College, GMS Compound Magadi Road, Bangalore-560079. ... Respondents [By Sri A M Venkatesh, Advocate for R1, Smt.Rafeeunisa, HCGP for R2 and R3, R4 v/c/o dated 18.6.2013 impleaded And v/c/o dated 24.7.2015 service of notice is dispensed with) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 9.11.2012 passed in MVC No.879/2010 on the file of the II Additional Senior Civil Judge, Additional MACT-6, Chitradurga, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT Being aggrieved by the inadequacy of compensation awarded in MVC No.879/2010 on the file of the II Additional Senior Civil Judge, Additional MACT-6, Chitradurga, vide judgment dated 9.11.2012, the claimants have preferred this appeal seeking enhancement of compensation.
2. I have heard the learned counsel appearing for the appellants and learned counsel appearing for respondents.
3. The appellants/claimants are the husband and minor daughter of the deceased, Radhamma, who died in a road traffic accident, which occurred on 1.3.2010. It is their case that when the deceased, Radhamma was being taken to Government Hospital, Parashurampura for delivery and on the advice of doctor, when she was being taken to the Government Hospital at Chitradurga in an ambulance van bearing Regn. No.KA-42-G-210, the said vehicle met with an accident near Junjurugunte Gate, on account of rash and negligent driving by its driver, as a result of which, Smt.Radhamma sustained grievous injuries all over her body and immediately she was shifted to Basaveshwara Hospital, Chitradurga. She was an inpatient for a period of three days. Unfortunately, on 2.3.2010, she delivered a stillborn baby and on 3.3.2010 she too succumbed to the injuries.
4. It is the case of the claimants that the deceased, Smt.Radhamma was doing agricultural work and used to earn a sum of Rs.1,00,000/- p.a. and at the time of accident, she was aged about 22 years. A total compensation of Rs.17 lakhs was claimed before the Tribunal, for the death of both mother and the stillborn baby.
5. To substantiate their claim, the claimant No.1 was examined as PW1 and two other witnesses were examined as PWs.2 and 3 and got marked Exs.P1 to P14. The claim was disputed by the Insurance Company. The respondents got examined RW-1 to RW-6 and got marked Exs.R1 to R23. Exs.C1 and C2 are marked through Court.
6. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.4,62,000/- with interest at 6% p.a. for the death of Radhamma under the following heads:
1. Loss of dependency - Rs.4,32,000/-
2. Towards love and affection - Rs. 10,000/-
3. Towards consortium - Rs. 10,000/-
4. Towards transportation of dead body - Rs. 5,000/-
5. Towards funeral and obsequies ceremonies - Rs. 5,000/-
In all total Rs.4,62,000/-
7. Seeking enhancement of compensation awarded by the Tribunal, learned counsel appearing for the appellants contended that the compensation awarded is on the lower side in as much as the Tribunal has taken monthly income of the deceased at Rs.3,000/- p.m, which is contrary to the evidence on record. It is further contended that the compensation awarded under other heads are also very meager and the same needs to be enhanced. Learned counsel further submits that though the claim petition was filed seeking compensation even for the death of baby, however, the Tribunal has failed to award any compensation. He placed reliance on a judgment of this Court in the case of Divisional Controller, BTS Division, Karnataka State Road Transport Corporation, Bangalore –vs- Vidya Shindhe reported in Laws (KAR) 2003 7 49 and submitted that in the said case, in a similar circumstances, this Court awarded a sum of Rs.1,50,000/- for a stillborn child. Further, by placing reliance on a decision in the case of New India Assurance Co. Ltd. –vs- Krishnaveni reported in ACJ 2011 Vol. 4 page 2200, contends that for a stillborn baby, a sum of Rs.2 lakhs was awarded in the said case. Accordingly, he prays to award appropriate compensation by modifying the judgment and award passed by the Tribunal.
8. Per contra, the learned counsel appearing for respondent No.1/Insurance Company justified the award passed by the Tribunal and sought to dismiss the appeal.
9. It is the case of the claimants that the deceased, Radhamma while being taken to the hospital for delivery in an ambulance van, met with an accident, on account of which she sustained grievous injuries and then she was shifted to Basaveshwara Hospital, Chitradurga, wherein she was given treatment as an inpatient for a period of three days. She delivered a stillborn baby on 2.3.2010 and on 3.3.2010 she also died. It is their further case that the deceased was aged about 22 years and she was earning Rs.1,00,000/- per year by doing agricultural work. Claimant No.1 was examined as PW1 before the Tribunal. He has deposed that the deceased was earning Rs.1,00,000/- per annum by doing agricultural work, which was disputed by the respondents. To substantiate that the deceased was earning a sum of Rs.1,00,000/- p.a. by doing agricultural work, there is no satisfactory evidence except the oral testimony of PW1. However, considering that the accident is of the year 2010, to meet the ends of justice, the notional income of the deceased is taken as Rs.5,000/- p.m. as against Rs.3,000/- p.m. taken by the Tribunal.
10. The Hon’ble Apex Court in the case of National Insurance Co. Ltd. –vs- Pranay Sethi and others reported in AIR 2017 SC 5157 has held at para 61 as under:
“(i)……. (ii)…… (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self- employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”
11. In Hemraj –vs- Oriental Ins. Co. Ltd. reported in 2018 ACJ 5, the Hon’ble Apex Court has held as under:
“We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guess work in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly in the present case, addition of 40 per cent to the income assessed by the Tribunal is required to be made. The Tribunal made addition of 50 per cent while the High Court has deleted the same.”
12. In view of the above decisions of the Hon’ble Apex Court, I am of the view that the deceased being aged below 40 years, an addition of 40 per cent to the income should be added towards future prospects.
13. The deceased was aged about 22 years and the multiplier applicable is `18’. After deducting 1/3rd towards personal expenses, the compensation towards loss of dependency comes to Rs.10,08,072/- (Rs.4,667 x 12 x 18) as against Rs.4,32,000/- awarded by the Tribunal.
14. The claimants are entitled for a sum of Rs.70,000/- under the heads loss of consortium, loss of estate and funeral obsequies as against Rs.30,000/- awarded by the Tribunal under the conventional heads. Hence, the claimants are entitled for a total compensation of Rs.10,78,072/- for the death of Radhamma.
15. It is the contention of the learned counsel for the appellants that though on account of accident, Radhamma delivered a stillborn baby, however, no compensation has been awarded by the Tribunal. There is no dispute with regard to the fact that Smt.Radhamma delivered a still born baby after she met with the accident.
16. The Division Bench of this Court in the case of ‘Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation, Bangalore –vs- Vidya Shindhe’ (supra) awarded a sum of Rs.1,50,000/- as compensation towards the death of two days baby. That is a case where the accident took place in the year 1998. Reliance is also placed on a decision in the case of New Insurance Assurance Co. Ltd. –vs- Krishnaveni (supra) wherein a sum of Rs.1,50,000/- awarded by the Tribunal was enhanced to Rs.2,50,000/- for a still born baby.
17. The judgment passed by this court is in a similar situation, wherein this Court has held that the baby died due to the injuries sustained while in the womb. This Court awarded a sum of Rs.1,50,000/-. In the said case the accident is of the year 1998.
Considering the facts and circumstances in the present case, I deem it appropriate to award a sum of Rs.2,00,000/- for the death of the stillborn baby. Therefore, the appellants/claimants are entitled for a total compensation of Rs.10,78,072/- + 2,00,000 = Rs.12,78,072/- as against Rs.4,62,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER Appeal is partly allowed.
The judgment and award dated 9.11.2012 passed in MVC No.879/2010 on the file of the II Additional Senior Civil Judge, Additional MACT-6, Chitradurga, is hereby modified.
The appellants/claimants are entitled for a total compensation of Rs.12,78,072/- with interest at 6% p.a. from the date of petition till its deposit.
The enhanced compensation of Rs.8,16,072/- shall carry interest at 6% p.a. from the date of petition till realization.
The rest of the judgment and award passed by the Tribunal with regard to deposit of the amount is undisturbed.
The respondent No.1/Insurance Company shall deposit the amount awarded within a period of four weeks from the date of receipt of copy of this judgment.
Sd/- JUDGE Bkm.