IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST 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.8255 OF 2016 (MV-D) C/W M.F.A.NO.8189 OF 2016 (MV-D) IN M.F.A.NO.8255 OF 2016:
BETWEEN:
1. SMT. SHIVARUDRAMMA, W/O LATE SRINIVASA, AGED ABOUT 54 YEARS.
2. SMT VASANTHA, D/O LATE SRINIVASA, AGED ABOUT 30 YEARS, BOTH ARE R/AT NO 72/2, WARD NO 7, AGRAHARA ROAD, NEAR ANJANEYASWAMY TEMPLE, RAMANGARA TOWN. ... APPELLANTS (BY SRI RAJU S, ADVOCATE) AND:
1. SRI. NASARUDDIN, S/O SUBUDDIN, AGE : MAJOR, R/ATNO 989, IDIGARA ROAD, CHANNAPATTANA TOWN NILAYA, RAMESHWARA, RAMANAGARA DISTRICT – 562159.
2. THE NEW INDIA INSURANCE COMPANY LIMITED, NO 224/1, GIRIYAMMA SHAMBUGOWDA COMPLEX, CHURCH ROAD, CHANNAPATNA – 562159, BRANCH MANAGER. ... RESPONDENTS (BY SRI R JAI PRAKASH, ADVOCATE FOR R2; R1 SERVED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.04.2016 PASSED IN MVC NO.450/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, AND CJM, MEMBER OF MACT, RAMANAGARAM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.NO.8189 OF 2016:
BETWEEN:
NEW INDIA ASSURANCE COMPANY LIMITED, NO.2241/GIRIYAMMA COMPLEX, CHURCH ROAD, CHANNAPATNA – 652160, REP.BY NEW INDIA ASSURANCE COMPANY, M.G.ROAD, BANGALORE – 560 001. …APPELLANT (BY SRI R.JAIPRAKASH, ADVOCATE) AND:
1. SRI NASARUDDIN, S/O SABUDDIN, MAJOR, NO.989, IDIGA ROAD, CHANNAPATNATOWN – 562160, RAMANAGARAM DISTRICT.
2. SMT.SHIVARUDRAMMA, AGED ABOUT 54 YEARS, W/O LATE SRINIVAS.
3. SMT.VASANTHA, AGED ABOUT 32 YEARS, D/O SRINIVAS, THE II RESPONDENT IS MOTHER AND THIRD RESPONDENT IS SISTER OF DECEASED PRASANNA KUMAR, BOTE ARE RESIDING AT NO.72/2, WARD NO.7, AGRAHARA ROAD, NEAR ANJENEYA TEMPLE ROAD, RAMANAGARA TOWN – 571 511. …RESPONDENTS (BY SRI S.RAJU, ADVOCATE FOR R2 AND R3; VIDE ORDER DATED 21.03.2018 – NOTICE TO R1 – DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.04.2016 PASSED IN MVC NO.450/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, AND CJM AND MEMBER OF MACT, RAMANAGARA, AWARDING COMPENSATION OF RS.16,75,362/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, ASHOK G. NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel for both sides, they are heard finally.
2. MFA No.8189/2016 is filed by the Insurance Company for setting aside the judgment and award dated 23.04.2016 passed in MVC No.450/2014 by the Principal Senior Civil Judge & CJM and Member of MACT., at Ramanagaram.
3. MFA No.8255/2016 is filed by the claimants for enhancement of compensation and modification of the judgment and award dated 23.04.2016 passed in MVC No.450/2014 by the Prl. Senior Civil Judge & CJM and Member of MACT., at Ramanagaram.
4. The facts briefly stated are that on 10.06.2014 at about 11.00p.m., the deceased Prasanna Kumar along with his friend Vydesh was proceeding on the motorcycle bearing Reg.No.KA-05/EC-6351 on Kanakapura- Ramanagara Road near Annajawadi village, at that time, a tempo bearing Reg.No.KA-03/A-9889 came from the opposite direction in rash and negligent manner and dashed against the motorbike. Due to the said accident, Prasanna Kumar and his friend sustained grievous injuries. They were taken to Bangalore Pulse Hospital. Then, Prasanna Kumar was taken to B.G.S Hospital for further treatment and thereafter, he was shifted to Kempegowda Hospital. On 22.06.2014 he succumbed to the injuries sustained in the accident. Due to untimely death of Prasanna Kumar, his family members viz., mother and sister have become orphans and have lost financial support. With these assertions, the legal representatives of the deceased Prasanna Kumar had filed the petition before the Tribunal seeking compensation.
5. On service of notice, respondent Nos.1 and 2 have appeared through their counsel and filed written statement denying the averments made in the claim petition. Respondent No.2 has taken up a specific contention that the provisions of Section 158(1)(c) and Section 134(c) of Motor Vehicles Act 1988 have not been complied with. The insured vehicle has been falsely implicated in this case and the driver had no valid driving licence as on the date of accident.
6. On these rival pleadings, the Tribunal has framed the following issues:
“1. Does the petitioners prove that the deceased Prasanna Kumar S/o late.Srinivas died due to the injuries sustained by him in an accident said to have been occurred due to rash and negligent driving of driver of vehicle bearing No.KA-03-A-9889?
2. Whether the petitioners prove that they are entitled for the compensation? If so, how much and from whom?
3. What order or award?”
7. To substantiate their contentions, petitioner No.2 has got examined herself as P.W.1 and another witness as P.W.2, the documents are marked as Exs.P-1 to P-11. The official of the respondent No.2-insurance company has been examined as R.W.1 and documents are marked as Exs.R-1 to R-4.
8. On appreciating the oral and documentary evidence placed on record, the learned Tribunal has come to the conclusion that the accident was due to the rash and negligent driving of the driver of the tempo bearing Reg.No.KA-03/A-9889 and has further awarded the compensation as detailed below:
Compensation towards loss of dependency Compensation towards medical expenses Compensation towards loss of love and affection Compensation towards loss to estate Compensation towards funeral and obsequies ceremony expenses Compensation towards transportation of dead body Rs.11,88,096/- Rs. 3,67,266/- Rs. 50,000/-
Rs. 40,000/-
Rs. 20,000/-
Rs. 10,000/-
Total Rs.16,75,362/-
9. Being aggrieved the quantum of compensation awarded, the claimants have preferred MFA No.8255/2016 contending that the Tribunal has failed to consider the evidence in proper perspective and has erred by taking the income of the deceased as Rs.12,375/- per month when there was sufficient evidence to show that he was earning Rs.20,000/- per month. The compensation awarded towards loss of dependency, loss of love and affection, loss of estate, medical expenses and other heads is meager and disproportionate. The appellants-claimants are entitled for interest at the rate of 18% p.a.
10. The insurance company has preferred the MFA No.8189/2016 on the grounds that the Tribunal has failed to consider that the mother was the only dependent on the deceased and has committed error in applying the multiplier. The Tribunal has grossly erred in awarding higher compensation towards loss of affection, loss of estate, transportation, funeral expenses etc., The Tribunal ought to have exonerated the insurance company from any liability.
11. Reiterating the contentions made in the respective appeal memo, the counsel for the claimants and insurance company have submitted their arguments. In view of the contentions urged by them, the points that would arise for our consideration are as follows:
1. Whether the Tribunal has committed error in fastening the liability on the insurance company to pay the compensation?
2. Whether the claimants are entitled for enhancement of compensation?
3. What order?
12. There is no dispute regarding the accident in question. Learned counsel appearing for both parties have admitted that the deceased Prasanna Kumar died in a road traffic accident occurred on 10.06.2014 when the tempo bearing Reg.No.KA-03/A-9889 insured with the respondent No.2-Insurance Company dashed against the vehicle driven by Prasanna Kumar.
13. The main contention of the learned counsel for the insurance company is that the driver of the tempo had no valid driving licence and the said vehicle has been falsely implicated in this case, but in order to prove the said defence, no cogent evidence has been placed on record by the insurance company. The oral evidence and the charge sheet records which are marked as Exs.P-1 to P-7 disclose that the accident was due to rash and negligent driving of the driver of the tempo. Considering the evidence placed on record, the Tribunal has rightly come to the conclusion that the accident was due to rash and negligent driving of the driver of the tempo and fastened the liability on the insurance company to pay the compensation. Hence, point No.1 is answered in the ‘negative’.
14. The next point is regarding computation of compensation. In the present case, the deceased Prasanna Kumar was working as Assistant in an Electrical Company by name Mahadeswara Electrical and Electronics, which is a private limited company, and was getting a salary of Rs.12,000/- per month and batta Rs.15/- per day. P.W.2, the representative of the private limited company, where the deceased Prasanna Kumar was working, has given evidence, wherein he has stated about the salary certificate issued by him as per Ex.P-8.
15. During the course of arguments, learned counsel representing the insurance company strenuously contended that except the salary certificate there are no other materials to show that the deceased Prasanna Kumar was working in the said Company. Thus, the evidence given by P.W.2 cannot be relied on as there is no evidence to show his employment and income. As against the said contention, learned counsel for the appellant has submitted that the deceased was working as a Assistant in Mahadeswara Electrical and Electronics company and was earning a sum of Rs.20,000/- per month, but the same has not been considered by the Tribunal.
16. In the present case, the claimants have produced the salary certificate which is marked as Ex.P-8. P.W.2, the representative of the private limited company, has given evidence and has admitted the salary certificate issued regarding payment of salary to the deceased Prasanna Kumar, as such, there is no need for considering other records. There are no doubtful circumstances to disbelieve the evidence of P.W.2 regarding the salary and batta, which was received by the deceased Prasanna Kumar as on the date of accident. Considering the said evidence, the Tribunal has taken the income of the deceased at Rs.12,375/- per month. As per the records available (Ex.P-6), the deceased was aged about 34 years, thus, the appropriate multiplier would be 15. It is an admitted fact that the claimants viz., the mother and sister are the dependants.
17. Considering the guidelines laid down in a decision of the Hon’ble Supreme Court reported in AIR 2017 SC 5157 in the case of National Insurance Company Limited vs. Pranay Sethi and others, additional income of 40% needs to be added to the established income of the deceased. In the instant case, the income is taken as Rs.12,375/- by the Tribunal, if 40% of the income is added, the total would be Rs.17,325/- (Rs.12375 + 4950) and 50% of the said income i.e., Rs.8,662.50/- (Rs.17325 X 50%) shall have to be deducted towards personal expenses, as the deceased was a bachelor. Thus, the net income would be Rs.8,662.50/- (Rs.17325-Rs.8662.50) which would have been contributed to his family. As per necessary calculations, Rs.8,662.50 X 12 X 16 = Rs.16,63,200/- would be the compensation that requires to be awarded under the head loss of dependency.
18. The claimants have placed on record, the medical bills and receipts regarding the treatment given to the deceased Prasanna Kumar in three hospitals. The documentary evidence goes to show that the claimants have spent a sum of Rs.3,67,266/- towards medical expenses of the deceased, this aspect has not been disputed by the insurance company. Thus, the finding given by the Tribunal in awarding a sum of Rs.3,67,266/- towards medical expenses is not interfered with.
19. In view of the ratio laid down in a decision reported in 2018 ACJ 2782 in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram, the mother of the deceased would be entitled to a sum of Rs.30,000/- towards loss of filial consortium and a sum of Rs.30,000/- towards loss of love and affection to the sister. In addition to that the claimants are entitled for a sum of Rs.15,000/- towards loss of estate and a sum of Rs.15,000/- towards funeral expenses. Thus, the total compensation of Rs.21,20,466/- along with interest at the rate 6% p.a. would meet ends of justice. Accordingly, point No.2 is answered in the ‘affirmative’ in favour of the claimants.
20. For the foregoing reasons, we pass the following :
ORDER 1. MFA No.8255/2016 filed by the claimants is allowed-in-part.
2. MFA No.8189/2016 filed by the Insurance Company is dismissed.
3. The impugned judgment and award dated 23.04.2016 passed in MVC No.450/2014 by the Prl. Senior Civil Judge & CJM and Member of MACT., at Ramanagaram, is hereby modified and the compensation is enhanced by a sum of Rs.4,45,104/- (Rs.21,20,466 – Rs.16,75,362) with interest at the rate of 6% p.a. from the date of petition till the date of realization.
4. Out of the total compensation awarded, 10% of the compensation amount shall be paid to appellant No.2 and the balance compensation shall be paid to appellant No.1 viz., the mother of the deceased.
5. Out of the compensation apportioned in favour of the appellant No.1-mother, 75% of the said amount shall be deposited in any Post Office or Nationalized Bank for initial period of ten (10) years and the appellant No.1 shall be entitled to draw periodical interest and the balance 25% of the compensation shall be released to her, on proper identification.
6. 10% of the total compensation, apportioned to appellant No.2, shall be released to her on proper identification.
The Insurance Company shall deposit the balance compensation amount along with interest within a period of four weeks from the date of receipt of certified copy of this judgment.
The amount in deposit shall be transmitted to the trial Court.
Parties to bear their respective cots.
Sd/- JUDGE Sd/- JUDGE BSR