IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A. No.6301 of 2015 (MV) c/w M.F.A. Crob No.109 of 2019 In MFA No.6301/2015:
BETWEEN:
Shriram General Ins. Co. Ltd., #5, II Floor, Monarch Chambers, Infantry Road, Bengaluru – 560 001. Now represented by its Deputy Manager Legal, Shriram General Ins. Co. Ltd., #5/4, 3rd Floor, S.V. Arcade, Bilakalli Main Road, Off: B.G. Road, IIM Post, Bengaluru – 560 076. ... Appellant (By Sri. A.N. Krishnaswamy, Advocate) AND:
1. Smt. Faheemunnisa, W/o. Mahaboob Pasha, Aged about 45 years, 2. Mahaboob Pasha @ Shaik Mahaboob Pasha, S/o. late Sattar Sab, Now aged about 55 years, Both R/o No.1360, I Main Road, Near Clock Tower, Kolar Town – 563 101.
3. V. Redappa, S/o. V. Varadappa, Major, R/o Byappanahalli Village, Byrakur Post, Mulbagal Taluk, Kolar District – 563 131. ... Respondents (By Sri. N. Gopalakrishna, Adv. for R1 & R2; Notice to R3 is dispensed with vide order Dated 15.06.2017.) This Appeal is filed under Section 173 (1) of MV Act against the Judgment and Award dated 29.05.2015 passed in MVC No.139/2013 on the file of the 1st Additional Senior Civil Judge, MACT, Kolar, awarding the compensation of `.13,45,000/- with interest at 6% p.a. from the date of petition till the deposit.
In MFA Crob No.109/2019: BETWEEN:
1. Smt. Faheemunnisa W/o Mahaboob Pasha, Aged about 49 years, 2. Mahaboob Pasha @ Shaik Mahaboob Pasha, S/o late Sattar Sab, Aged about 59 years, Both are R/at No.1360, 1st Main Road, Near Clock Tower, Kolar Town. ... Cross-Objectors (By Sri. N. Gopalakrishna, Advocate) AND:
1. Shriram General Insurance Company Ltd., No.5, 2nd Floor, Monarch Chambers, Infantry Road, Bengaluru – 560 001. Rep. by its Manager.
2. V. Reddappa S/o V. Varadhappa, Major, R/at Byappanahalli Village, Byrakur Post, Mulbagal Taluk, Kolar District – 563 131. ... Respondents (By Sri. A.N. Krishnaswamy, Advocate for R1; Notice dispensed with V/O dated 04.09.2019) This MFA Crob is filed under Order 41 Rule 22 of the Code of Civil Procedure read with Section 173 (1) of Motor Vehicles Act, 1988, against the judgment and award dated 29.05.2015 passed in MVC No.139/2013 on the file of the MACT and I Additional Senior Civil Judge, Kolar partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFA and MFA Crob coming on for Admission this day, the Court delivered the following:-
J U D G M E N T Insurer has preferred MFA No.6301/2015 and claimants have preferred MFA Cross Obj. No.109/2019 against the judgment and award dated 29.05.2015 in MVC No.139/2013 passed by I Additional Senior Civil Judge and MACT, Kolar.
2. Claim petition was filed under Section 166 of the Indian Motor Vehicles Act, claiming compensation for death of one Naveed Pasha in a road traffic accident. It is stated that on 24.12.2012, when deceased was walking on the footpath on Bengaluru-Kolar NH-4 service Road, a lorry bearing No.KA-07-A-460 came in a rash and negligent manner and dashed to Naveed Pasha, due to which, he sustained grievous injuries to his head. He was taken to R.L. Jalappa Hospital, where he succumbed to the injuries. It is stated that the deceased was aged about 29 years as on the date of the accident. It is also stated that he was earning `.25,000/- per month and he was owning lorry bearing No.KA-05-A-689.
3. On issuance of notice, respondent No.2/Insurer appeared before the Tribunal and filed objections contending that it is a false claim but, admitted the issuance of policy. It is also stated that the driver of the offending vehicle had no valid and effective licence. The involvement of the lorry in the accident is denied. Further, it is stated that the compensation claimed by the claimants is highly excessive. Claimant No.2 examined himself as PW.1 and got marked Exs.P.1 to P.11. The Tribunal appreciating the material placed on record, awarded total compensation of `.13,45,000/- under the following heads:-
a) Loss of dependency `.11,70,000 b) Loss of love and affection `.1,00,000 c) Loss of estate `.50,000 d) Transportation and Funeral Expenses `.25,000 Total `.13,45,000 While awarding the above compensation, the Tribunal assessed the income of the deceased at `.10,000/- per month and added 50% of assessed income towards future prospects and applied multiplier ‘13’ by taking into consideration the age of the younger parent.
4. Aggrieved by the application of the multiplier by the Tribunal as 13 instead of 17, the claimants are before this Court in MFA Crob No.109/2019, whereas, the Insurer has preferred appeal being aggrieved by adding 50% of assessed income towards future prospects and also against assessing the income at `.10,000/- per month.
5. Heard the learned counsel for the Insurer and learned counsel for the claimants and perused the material on record.
6. Learned counsel for the insurer submits that the income assessed by the Tribunal at `.10,000/- per month is excessive and on the higher side. He submits that even though the claimants stated that deceased was earning `.25,000/- per month and he was owning lorry bearing No.KA-05-A-689, they have not placed the convincing materials to assess the income at `.10,000/- per month. Only Ex.P.9-Registration Certificate of the lorry is produced, which cannot be the base for assessing the income at `.10,000/- per month. Further, learned counsel for the Insurer submits that the Tribunal committed an error in adding 50% of assessed income towards future prospects. As per the decision of the Hon’ble Apex Court, the claimants are not entitled to add the income towards future prospects since deceased was not having stable job. It is also stated that excessive compensation has been awarded under the conventional head and claimants would be entitled to `.30,000/- under the said head.
7. Per contra, learned counsel for the respondents/claimants would submit that the Tribunal committed an error in applying the multiplier ‘13’. Taking the age of the deceased as 29 years, the Tribunal ought to have applied multiplier ‘17’. Further, he submits that the claimants are the parents of the deceased, who had lost love and affection of their son, would be entitled to filial consortium at `.40,000/- each as per the decision of the Hon’ble Apex Court in Magma General Insurance Company Limited Vs. Nanu Ram and others reported in 2018 ACJ 2782.
8. Having heard the learned counsel for the parties and having perused the material on record, the following points that arise for consideration in this appeal:
a) Whether the Tribunal is justified in assessing the income of the deceased at `.10,000/- per month?
b) Whether the Tribunal is justified in adding 50% of the assessed income towards future prospects?
c) Whether the claimants would be entitled to the enhanced compensation?
Answer to the points are in the Negative for the following reasons:
The accident occurred on 24.12.2012 involving the lorry bearing No.KA-07-A-460 and the accidental death of Naveed Pasha are not in dispute in these appeals. Claimants stated that the deceased was earning `.25,000/- per month and he was owning lorry bearing No.KA-05-A-689, but they have not placed any material to indicate the exact income of the deceased. Ex.P.9 is the Registration Certificate produced to establish that the deceased was owning lorry. But owning the lorry is different from earning income from the said lorry. No material is placed on record to show that he was earning income out of the said lorry. In the absence of material on record, notional income have been determined. The income assessed by the Tribunal at `.10,000/- per month is on the higher side. This Court and Lok-Adalath while settling the accident claims of the year 2010 would normally assess the income at `.7,000/- per month. In the case on hand, Ex.P.9 would indicate that the deceased owned lorry bearing No.KA-05-A-689. Taking note of the same and the notional income that would be adopted by this Court and Lok-Adalath while settling the accident of the year 2012, it is appropriate to assess the income of the deceased at `.7,500/- per month. The Tribunal committed an error in adding 50% of the assessed income towards future prospects. It is settled law as on this day, as per the decision of the Hon’ble Apex Court in the case of National Insurance Company Vs.
Pranay Sethi reported in AIR 2017 SC 5157, the claimants would be entitled to add 40% of the assessed income towards future prospects wherever the deceased was below 40 years of age. In the instant case, the deceased was aged about 29 years as on the date of accident and would be entitled to add 40% of the assessed income towards future prospects. The Tribunal awarded `.75,000/- under the conventional head. Since deceased was bachelor, as per the decision of the Pranay Seths’s case (stated supra) claimants would be entitled to `.30,000/- under the conventional head. The Tribunal awarded `.1,00,000/- under the head Loss of Love and Affection. As per the decision of the Hon’ble Apex Court in Magma’s case (stated supra), the claimants would be entitled to `.40,000/- each towards filial consortium. Thus, both the claimants together would be entitled to `.80,000/- under the said head. The loss of dependency has been re-calculated as below:
Thus, the compensation is as follows:
a) Loss of dependency `.10,71,000 b) Loss of love and affection c) Loss of estate, transportation and funeral expenses `.80,000 `.30,000 Total `.11,81,000 Thus, the claimants would be entitled for total compensation of `.11,81,000/- as against `.13,45,000/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till realization.
The appeal of the Insurer is allowed-in-part reducing the future prospects from 50% to 40% and reducing the assessed income from `.10,000/- per month to `.7,500/- per month.
The appeal of the claimants is allowed-in-part adopting the multiplier 17 instead of 13. Accordingly, the appeals are disposed of.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE MBM