IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.3986/2015 [MV] C/W M.F.A. CROB.NO.111/2017 M.F.A.No.3986/2015 BETWEEN:
M/S.SHRIRAM GENERAL INSURANCE COMPANY LTD., E-8 EPIP, RIICO INDUSTRIAL AREA SITAPUR, JAIPUR, RAJASTHAN NOW REPRESENTED BY ITS M/S. SHRIRAM GENERAL INSURANCE COMPANY LTD., NO.302, 3RD FLOOR, S & S CORNER BUILDING OPP. BOWRING AND CURZON HOSPITAL SHIVAJINAGAR, BANGALORE-560001 REP. BY ITS LEGAL OFFICER.
...APPELLANT (BY SRI. B C SHIVANNE GOWDA, ADV.) AND:
1. SMT. FOUZIYA W/O LATE MOHAMMED ARREF AGED ABOUT 31 YEARS 2. FATHIMATHUL AREFA D/O LATE MOHAMMED ARREF AGED ABOUT 11 YEARS 3. AFRA S/O LATE MOHAMMED ARREF AGED ABOUT 8 YEARS 4. ALFIYA D/O LATE MOHAMMED ARREF AGED ABOUT 6 YEARS RESPONDENT NO.2 AND 4 ARE MINOR REPRESENTED BY NATURAL GUARDIAN AND 1ST RESPONDENT -MOTHER.
ALL ARE R/O KOYANAGAR NAVUNDA VILLAGE KUNDAPURA TALUK-576201.
5. ABDUL KHADER S/O HUSSAINAR AGED ABOUT 35 YEARS R/O H.NO.2-96-4 MARAVANTHE VILLAGE KUNDAPURA TALUK-576201.
(BY SMT. NIVEDITHA SHETTY, ADV. FOR SRI.NAGARAJA HEGDE, ADV. FOR R1 R2 TO 5 –SERVED & UNREPRESENTED) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.12.2014 PASSED IN MVC NO.652/2012 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, UDUPI, (SITTING AT KUNDAPURA), KUNDAPURA, AWARDING COMPENSATION OF RS.8,03,800/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A. CROB.NO.111/2017 BETWEEN:
1. SMT. FOUZIYA W/O LATE MOHAMMED AREEF AGED ABOUT 33 YEARS 2. FATHIMATHUL AREFA D/O LATE MOHAMMED AREEF AGED ABOUT 13 YEARS 3. AFRA D/O LATE MOHAMMED AREEF AGED ABOUT 10 YEARS 4. ALFIYA D/O LATE MOHAMMED AREEF AGED ABOUT 8 YEARS APPELLANT NO.2 TO 4 ARE MINOR REPRESENTED BY NATURAL GUARDIAN AND 1ST APPELLANT-MOTHER.
ALL ARE R/AT KOYANAGAR NAVUNDA VILLAGE KUNDAPURA TALUK-576201 UDUPI DISTRICT.
… CROSS-OBJECTORS (BY SMT. NIVEDITHA SHETTY, ADV. FOR SRI.NAGARAJA HEGDE, ADV. FOR CROSS OBJECTORS) AND:
1. SRI. ABDUL KHADER S/O HUSSAINAR AGED ABOUT 37 YEARS R/O H.NO.2-96-4 MARAVANTHE VILLAGE KUNDAPURA TALUK-576201 UDUPI DISTRICT.
2. SHRI RAM GENERAL INSURANCE CO.LTD., DIVISIONAL OFFICE NO.E-8, EPIP, RIICO INDUSTRIAL AREA SITAPUR, JAIPUR RAJASTHAN-302016 REP. BY ITS DIVISIONAL MANAGER.
… RESPONDENTS (BY SRI. B C SHIVANNE GOWDA, ADV. FOR R2 R1- NOTICE D/W V/O DT:27/09/2019) THIS MFA.CROB IN MFA NO.3986/2015 PASSED UNDER ORDER XLI RULE 22 (1) OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 17.12.2014 PASSED IN MVC NO.652/2012 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, UDUPI, (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA AND MFA.CROB COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The insurer is in appeal, being aggrieved by the quantum of compensation awarded under the judgment and award dated 17.12.2014 passed in MVC No.652/2012 on the file of the Additional District and Sessions Judge and Additional MACT, Udupi sitting at Kundapura (hereinafter referred to as 'the Tribunal' for short) whereas the claimants are in cross-objections praying for enhancement of compensation.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Mohammed Areef in a road traffic accident. The claimants are wife and children of late Mohammed Areef. It is stated that on 14-01-2010, when the deceased was proceeding on his motorcycle bearing registration No.KA-20/S-3738, a lorry bearing registration No.KA-20/C-6786 came in a high speed and in rash and negligent manner and dashed to the motorcycle on which, the deceased was proceeding. Due to which, the deceased fell down and sustained grievous injuries and died on the spot. The deceased was aged 32 years as on the date of accident and was working as a coolie, earning Rs.10,000/- p.m.
3. On issuance of notice, the respondents appeared before the tribunal. Respondent No.2/insurer filed its statement denying the claim petition averments. Further, it is stated that the accident occurred solely due to the negligence of the Mohammed Areef, rider of the two wheeler. The claim made is excessive and exorbitant.
4. The first claimant-wife of the deceased got examined herself as P.W.1 also examined P.W.2 to Ex.P4 apart from marking the documents as Ex.P1 to Ex.P15. The respondent/insurer got marked the insurance policy as Ex.R1.
5. The tribunal, appreciating the material on record awarded total compensation of Rs.8,03,300/- with interest at the rate of 8% p.a., on the following heads:
1. Loss of dependency :: Rs.5,76,000/-
2. Loss of future prospects :: Rs.1,72,800/-
3. Loss of consortium :: Rs. 25,000/-
4. Love and Affection :: Rs. 10,000/-
5. Transportation of dead body :: Rs. 5,000/-
6. Cremation obsequies and Religious :: Rs. 15,000/-
Total Rs.8,03,800/-
While awarding the above compensation, the tribunal has assessed the income of the deceased at Rs.4,000/- p.m., and added 30% of the assessed income towards future prospects. The insurer aggrieved by the quantum of compensation is before this Court whereas the claimants are in cross-objections praying for enhancement of compensation.
6. Heard the learned counsel for the insurer and learned counsel for the respondents/claimants. Perused the material on record.
7. Learned counsel for the appellant/insurer attacks the impugned judgment and award on two counts one is that the tribunal committed an error in awarding 30% of the assessed income towards future prospects and another contention is that the tribunal committed an error in awarding interest at the rate of 8% p.a. instead of 6% p.a. Learned counsel also contended that the deceased had also contributed his negligence towards occurrence of the accident. Elaborating his submission, learned counsel submitted that the deceased was not having any permanent avocation and the claimants would not be entitled for future prospects at the rate of 30% of the assessed income as awarded by the tribunal. It is his submission that the Tribunal committed an error in awarding 8% interest per annum on the compensation whereas normally, the claimants would be entitled for only 6% interest p.a., in view of several decisions of this Court and Apex Court. Lastly, learned counsel contended that the accident occurred solely due to the negligence of the deceased who was coming from Bhatkal towards Kundapura whereas the offending lorry was proceeding from Kundapura towards Bhatkal. It is a head on collision and head on collision would take place only due to the negligence of drivers of both the vehicles, which the tribunal failed to assess. Thus, he prays for allowing his appeal.
8. Per contra, learned counsel for the cross- objectors/claimants would submit that the quantum of compensation awarded by the Tribunal is on the lower side. She submits that the income of the deceased assessed by the Tribunal at Rs.4,000/- p.m., is on the lower side. The deceased was working as a coolie and earning more than Rs.10,000/- p.m. Ignoring the evidence of P.W.1, the Tribunal erroneously assessed the income of the deceased at Rs.4,000/- p.m., which needs to be enhanced. The deceased was aged 32 years and the claimants would be entitled for 40% of the assessed income towards future prospects as held by the Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED V/S PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680.. The first claimant would be entitled for Rs.70,000/- towards conventional heads and claimants No.2 to 4 who are children of the deceased would be entitled for Rs.40,000/- each towards parental consortium as per the decision of the Hon'ble Apex Court in a decision reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Thus prays for enhancement of compensation.
9. With regard to negligence or contributory negligence, she submits that the accident occurred solely due to the negligence of driver of the offending lorry. She submits that Ex.P9-charge sheet is filed against the driver of the lorry and there is no material on record to suggest that the accident occurred due to the negligence of the deceased. Further she submits that the insurer has not examined any independent witness in support of their contention. Thus, she prays for dismissal of the appeal filed by the insurer.
10. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the tribunal is justified in saddling entire liability on the driver of the lorry?
(ii) Whether the assessment of income of the deceased at Rs.4,000/- p.m., is proper and correct?
(iii) Whether the claimants would be entitled for adding 40% of the assessed income towards future prospects?
(iv) Whether the claimants would be entitled for enhanced compensation?
11. The accident occurred on 14.01.2010 involving the motorcycle bearing registration No.KA-20/S-3738 and a lorry bearing registration No.KA-20/C-6786 and the accidental death of one Mohammed Areef are not in dispute in this appeal. The insurer is in appeal on three counts. The first ground urged by the counsel for the insurer is that the deceased also contributed his negligence towards occurrence of the accident. But in support of their contention, no material is placed on record. The insurer has not even examined the driver of the lorry. Sketch of the spot of accident is also not placed on record. Admittedly, Ex.P9-charge sheet is filed against the driver of the lorry. P.W.2 and P.W.3 are the eye witnesses to the accident, who have deposed before the Tribunal that the accident occurred solely due to the negligence on the part of the driver of the lorry. The evidence on record would not remotely suggest the negligence on the part of the deceased. The finding that the accident occurred solely due to the negligence of the driver of the lorry is proper and correct, which needs no interference.
12. As stated above, the accident is of the year 2010.
The income of the deceased assessed by the Tribunal at Rs.4,000/- p.m., is on the lower side. The claimants state that the deceased was working as coolie and was earning Rs.10,000/- p.m., but no material is placed to establish the said income. In the absence of any material to indicate the exact income, notional income will have to be assessed. This Court and Lok Adalath while settling the accidental claims of the year 2010 would normally take notional income at Rs.5,500/- per month. In the instant case also, in the absence of any material to indicate the exact income of the claimant, it is appropriate to assess the notional income of the deceased at Rs.5,500/- p.m.
13. Admittedly, the deceased was aged 32 years, the Tribunal has awarded 30% of the assessed income towards future prospects. But, the Hon'ble Apex Court in the case of PRANAY SETHI (supra) has held that wherever the deceased was aged below 40 years, the claimants would be entitled for adding 40% of the assessed income towards future prospects. The Hon'ble Apex Court in HEM RAJ v/s ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 15 SCC 654 has made it clear that there cannot be any distinction where there is positive evidence of income and minimum income is determined on guesswork both situations stand at same footing. Hence, the claimants would be entitled for adding 40% of the assessed income towards future prospects.
14. The first claimant is the wife of the deceased Mohammed Areef. As per the decision in PRANAY SETHI case, the first claimant wife would be entitled for a sum of Rs.70,000/- towards conventional heads. Claimants No.2 to 4 are minor children of the deceased who have lost love and affection and care and guidance of their father at their young age. Hence, they are entitled to a sum of Rs.40,000/- each, towards parental consortium as per the decision of the Hon'ble Apex Court in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS reported in 2018 ACJ 2782.
15. Learned counsel for the appellant/insurer submits that the Tribunal committed an error in awarding interest at the rate of 8% p.a., on the Compensation amount. It is his submission that in catena of decisions of this Court as well as Hon'ble Supreme Court, it is held that the claimants would be entitled for interest at the rate of 6% p.a. This Court, in a decision reported in 2018 (3) AKR 690 in the case of VIJAY ESHWAR JADHAV AND OTHERS V. ULRICH BELCHIOR FERNANDES AND ANOTHER at paragraphs 14 and 15 has held as follows:
14. I have carefully considered the rival contentions of the counsel for the Insurance Company for the claimants. It is true that the provisions of Civil Procedure Code are not Proprio vigor applicable to the procedure and powers of claims Tribunal, except to the extent mentioned in sub-Section (2) of Section 169 of the Act. Sub- sections (1) & (2) of Section 169 read as under:
“169. Procedure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objections and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) 15. However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted n 169 of the M.V.Act and therefore, the provisions of Section 34 of the CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded.
16. Following the above decision, I am of the view that the claimants would be entitled for interest at the rate of 6% p.a. as against 6% p.a. awarded by the Tribunal on the Compensation amount. Thus, the claimants would be entitled for the following modified Compensation:
1. Loss of dependency including future prospects (5500 + 40%= 2200 7700-1/4th = 5775x12x16 :: Rs.11,08,800/-
2. Conventional heads :: Rs. 70,000/-
3. Parental consortium (40000x3) :: Rs. 1,20,000/-
Total Rs.12,98,800/-
Thus, the claimants would be entitled for total Compensation of *Rs.12,98,800/- with interest at the rate of 6% p.a. as against Rs.8,03,800/- awarded by the Tribunal.
* Corrected vide chamber order dated 29.05.2020 17. Accordingly, the appeal filed by the insurer and the cross-objections filed by the claimants are allowed in part. The judgment and award dated 17.12.2014 passed in MVC No.652/2012 on the file of the Additional District and Sessions Judge and Additional MACT, Udupi sitting at Kundapura is modified to the above extent.
The claimants would not be entitled for interest for the delayed period of 518 days in filing the cross- objections.
The amount in deposit in MFA No.3986/2015 be transmitted to the concerned Tribunal.
Sd/-
JUDGE mpk/-*CT:bms