IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.751 OF 2014 (MV) BETWEEN SHRIRAM GENERAL INSURANCE CO LTD REGIONAL OFFICE, #4, II FLOOR MONARCH CHAMBERS, INFANTRY ROAD BANGALORE-560001.
NOW REPRESENTED BY LEGAL OFFICER SHRIRAM GENERAL INSURANCE CO LTD 3RD FLOOR, S & S CORNER BUILDING OPP:BOWRING & LADY CURZON HOSPITAL SHIVAJI NAGAR, BANGALORE-560001.
(BY SRI. A N KRISHNA SWAMY, ADVOCATE) AND 1. SMT. R JAYALAKSHMI W/O LATE SHANKAR C NOW AGED ABOUT 32 YEARS 2. MASTER AKASH S S/O LATE SHANKAR C NOW AGED ABOUT 14 YEARS 3. MASTER SRIVATSA S S/O LATE SHANKAR C NOW AGED ABOUT 8 YEARS ... APPELLANT RESPONDENTS No.2 & 3 HEREIN SINCE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER, THE 1ST RESPONDENT HEREIN.
ALL R/A #224, I MAIN, 7TH CROSS AMBEDKARNAGAR, WHITEFIELD BANGALORE-560066.
4. CHIKKAANJANAPPA S/O CHIKKAANJANAPPA NOW AGED ABOUT 72 YEARS 5. SMT. MANGAMMA W/O CHIKKAANJANAPPA AGE: MAJOR BOTH RESPONDENTS No.4 & 5 HEREIN R/A NAGADEVANAHALLI VILLAGE, RONURU HOBLI, SRINIVASAPURA TALUK, KOLAR DISTRICT-563 101.
6. GOPI N M S/O MUNIYAPPA N G AGE: MAJOR #538, NANDAGUDI VILLAGE & POST HOSKOTE TALUK, BANGALORE RURAL-563 101.
... RESPONDENTS (BY SRI. S N SAMEER, ADVOCATE FOR R1 TO R3 R4 TO R6 – SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: 26.10.2013 PASSED IN MVC NO.6552/2012 ON THE FILE OF THE XIII ADDL. SMALL CAUSES JUDGE, MEMBER, MACT, METROPOLITIAN AREA, BANGALORE, (SCCH.NO.15), AWARDING A COMPENSATION OF RS.11,77,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALISATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The Insurance Company is before this Court, assailing the judgment and award dated 26-10-2013 in MVC.No.6552/2012 on the file of the XIII Additional Small Cause Judge & Member, MACT, Bangalore.
2. The appellant is Insurance Company in this appeal, respondent Nos.1 to 5 are claimants before the Tribunal.
3. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the death of Shankar.C in a road traffic accident. The deceased Shankar.C is husband of claimant No.1 and father of claimant Nos.2 and 3. It is stated that on 02-6-2011 at about 10.00 p.m., the deceased was proceeding on the motorcycle bearing Reg.No.KA-53-S- 6758 on the extreme left side on Nandagudi-Hoskote main road. When he reached Chokkahalli gate, the driver of Tata 407 vehicle bearing Reg.No.KA-06-B-9144 came in a rash and negligent manner and dashed against the motorcycle of the deceased. Due to the impact, the deceased fell down and suffered injuries and subsequently, succumbed to the injuries. It is further stated that initially the deceased was taken to M.V.J. Hospital wherein first aid treatment was given. Due to severe head injuries, he was referred to NIMHANS Hospital, Bengaluru and after conservative treatment for further management, he was shifted to Victoria Hospital. Subsequently as per Doctor Advice, the deceased was again shifted to NIMHANS Hospital. Thereafter he succumbed to injuries. The claimants claim that the deceased-Shankar.C was working as mason as well as building contractor and was earning Rs.15,000/- per month. He was aged about 37 years as on the date of death.
4. On service of notice, the respondents appeared before the Tribunal and the Insurance Company filed its statement of objections contending that the driver of the offending vehicle was not holding a valid and effective driving licence to drive the vehicle in question as on the date of accident. Further contended that Tata 407 was also not having valid permit to ply over the accident spot. But the issuance of policy in respect of Tata 407 was admitted.
5. The claimant No.1-wife of deceased examined herself as PW-1 and also examined PW-2-colleague of the deceased and got marked documents Ex.P-1 to Ex.P-14. The respondents have not examined any witnesses nor marked any documents on their behalf.
6. The Tribunal on assessment of the material on record and taking monthly income of the deceased at Rs.4,500/- added 50% on the head of ‘Future Prospects’, awarded total compensation of Rs.11,77,000/- with interest at the rate of 8% per annum, on the following heads:
1. Loss of dependency (Rs.4,500x3/4x12x16) Amount in (Rs.) 6,48,000 2. Add 50% of future prospects 3,24,000 3. Loss of Consortium(P-1) 50,000 4. Loss of Love and Affection (P-2 to 5) 60,000
7. The Insurance Company-appellant being aggrieved by the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
8. Heard the learned counsel for the appellant- Insurance Company and learned counsel for respondent Nos.1 to 3-claimants. Perused the material on record.
9. Learned counsel for the appellant submits that the Tribunal committed an error in adopting ‘16’ multiplier for determining the compensation on the head of ‘Loss of Dependency’. He further submits that the deceased was aged about 37 years as on the date of accident, therefore the proper multiplier to be adopted for determination of compensation on the head of ‘Loss of Dependency’ is ‘15’ instead of ‘16’.
10. Learned counsel for the appellant further submits that the Tribunal erred in adding 50% of the established income on the head of ‘Future Prospects’ as noticing that deceased was not a salaried person and was not having permanent income, at the best, the Tribunal could have added 40% towards ‘Future Prospects’ and not 50% since the deceased was aged below 40 years as on the date of accident. It is his further submission that as per the decision of The Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the claimants would be entitled for only Rs.70,000/- on ‘Conventional Heads’ but the compensation granted by the Tribunal on the same head is on the higher side . Hence, he prays for allowing the appeal to the above extent.
11. Per contra, learned counsel for respondent Nos.1 to 3-claimants submits that the compensation awarded by the Tribunal is just and proper and needs no interference by this Court with the judgment and award.
12. The accident is of the year 2011 and the deceased was aged 37 years as on the date of accident. As per the decision of the Hon’ble Apex Court in the case of SMT. SARLA VERMA & OTHERS. vs. DELHI TRANSPORT CORPORATION & ANOTHER reported in AIR 2009 SC 3104, the proper multiplier for determining the compensation would be taken for a person aged 37 years is ‘15’. The Tribunal committed an error in taking multiplier of ‘16’ for determination of compensation. Thus, it is held that the proper multiplier applicable would be ‘15’. It is admitted fact that the deceased was working as mason and it is claimed that he was earning Rs.15,000/- per month but no proof in support of the said claim is produced. In the absence of any material to indicate the exact income of the deceased, the Tribunal has assessed the notional income of the deceased at Rs.4,500/- per month, which needs no interference. The Tribunal committed an error in adding 50% to the notional income as ‘Future Prospects’.
13. The Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, has held that if the deceased was in a profession from which he was not having any fixed income, would be entitled for 40% of the established income on the head of ‘Future Prospects’, wherever the deceased is aged below 40 years. In the instant case, the deceased was aged 37 years and he was not having permanent established income. Thus, the claimants would be entitled for 40% of the established income towards ‘Future Prospects’.
14. Further the Tribunal has committed an error in awarding compensation on ‘conventional heads’. As per Pranay Sethi’s case referred to supra, the claimants are entitled for Rs.70,000/- on ‘Conventional Heads’. Thus, claimants would be entitled for modified compensation as follows:
1. Loss of dependency & Future Prospects Rs.4500+40%=6300x3/4= 4725x12x15=8,50,500/-
3. Loss of Consortium(P-1), Loss of Estate (P-1 to 5) & Transportation of dead body and Funeral Expenses 4. Loss of Love and Affection (P-2 to 5) Amount in (Rs.) 8,50,500 70,000 60,000 Total 9,80,500 15. Thus, the claimants would be entitled for a total compensation of Rs.9,80,500/- as against Rs.11,77,000/- with interest as awarded by the Tribunal. The claimants are entitled for reduced compensation of Rs.9,80,500/- with interest as awarded by the Tribunal.
Accordingly, appeal is allowed in part.
Sd/- JUDGE SMJ