IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT MISCELLANEOUS FIRST APPEAL NO.2303/2015 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.7708/2014 (MV) M.F.A.NO.2303/2015 BETWEEN:
1. SRI B.G GANESH S/O LATE B.K. GOPAL AGED ABOUT 55 YEARS 2. SMT. KAMALAKSHI W/O B G GANESH AGED ABOUT 49 YEARS 2. SRI RAVI KUMAR C G S/O B G GANESH AGED ABOUT 31 YEARS 3. SRI VIJAY C G S/O B G GANESH AGED ABOUT 29 YEARS ALL ARE R/AT 1332, 1ST CROSS 1ST MAIN, YESHWANTHPUR BANGALORE-23.
(BY SRI.KALYAN R, ADV.) ... APPELLANTS AND:
1. THE NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE, NO.144 M G ROAD BANGALORE-560001.
2. SRI A SRIKANTH S/O A SAMMA RAO NO.5465, RAVINDRA NAGAR HASSAN-573201.
... RESPONDENTS (BY SRI.S SRISHAILA, ADV. FOR R1 R2- NOTICE D/W V/O DT:12/07/2016) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.08.2014 PASSED IN MVC NO.3087/2013 ON THE FILE OF THE 18TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.NO.7708/2014 BETWEEN:
THE NATIONAL INSURANCE COMPANY LTD., REP. BY ITS AUTHORISED SIGNATORY AT REGIONAL OFFICE, NO.144 SHUBHARAM COMPLEX M G ROAD BANGALORE-560001.
... APPELLANT (BY SRI.S SRISHAILA, ADV. FOR) AND:
1. B.G GANESH S/O LATE B.K. GOPAL AGED 54 YEARS 2. KAMALAKSHI W/O B G GANESH AGED ABOUT 48 YEARS 3. RAVI KUMAR C G S/O B G GANESH AGED ABOUT 30 YEARS 4. VIJAY C G S/O B G GANESH AGED ABOUT 28 YEARS R1 TO R4 ARE R/AT NO.1332 1ST CROSS, 1ST MAIN YESHWANTHPUR BANGALORE.
5. A SRIKANTH S/O A SAMMA RAO NO.5465, RAVINDRA NAGAR HASSAN-573201.
... RESPONDENTS (BY SRI.KALYAN R, ADV. FOR R1 TO R4 R5–NOTICE D/W V/O DATED 26.03.2019) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.08.2014 PASSED IN MVC NO.3087/2013 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BANGALORE, AWARDING COMPENSATION OF RS.9,48,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both the claimants and Insurer are before this Court assailing the judgment and award dated 14.08.2014 passed in MVC No.3087/2013 on the file of the Motor Accidents Claims Tribunal, Court of Small Causes, Bangalore.
2. The claimants are before this Court seeking enhancement of compensation, whereas the Insurer is before this Court questioning the quantum of compensation awarded by the Tribunal.
3. Brief facts of the case are that the claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of death of their son C.G. Ajay in a road traffic accident that occurred on 06.01.2013. On 06.01.2013 when deceased was riding motor cycle bearing No.KA-04-HK-
2005, a Car bearing No.KA-13-M-4928 came in high speed, rash and negligent manner and dashed against the motor cycle. As a result the deceased fell down and succumbed to injuries. It is stated that the deceased, who was aged 26 years was working and earning Rs.12,000/- per month.
4. On issuance of notice, the 1st respondent - Insurance Company appeared and filed its statement contending that the driver of the offending vehicle did not have valid and effective licence as on the date of accident. PW.1 - the father of the deceased examined himself and got marked Exs.P1 to P15. The Tribunal on assessing the material on record awarded total compensation of Rs.9,48,000/- taking the income of the deceased at Rs.6,000/- per month and granted 50% towards future prospects. The claimants not being satisfied with the quantum of compensation are before this Court in MFA No.2303/2015, whereas the Insurance Company is before this Court in MFA No.7708/2014 questioning the quantum of compensation granted by the Tribunal.
5. Heard the learned counsel for the appellants and learned counsel for the respondent – Insurance Company. Learned counsel for the appellants would submit that the Tribunal committed an error in taking the monthly income of the deceased at Rs.6,000/- when Ex.P9 – the appointment order and Ex.P10 - the pay slip, are produced to demonstrate the monthly income of the deceased at Rs.10,990/-. Learned counsel for the appellants also contend that the compensation granted on the head “Loss of love and affection” is on the lower side. Further he submits that the Tribunal has failed to award any compensation towards filial consortium. He relied upon the decision of the Hon’ble Supreme Court in MAGMA GENERAL INSURANCE CO. LTD., V. NANU RAM reported in 2018 SCC ONLINE SC 1546.
6. On the other hand, learned counsel for the 1st respondent - Insurance Company submits that the Tribunal committed an error in awarding 50% future prospects, whereas the claimants would be entitled to only 40% towards future prospects. Further he submits that while determining compensation towards ‘Loss of dependency’, the age of the younger parent ought to have been taken, instead of the age of the deceased.
7. The accident that had taken place on 06.01.2013 involving the motor cycle bearing No. KA-04-HK-2005 and the Car bearing No.KA-13-M-4928, resulted in the death of one Ajay, son of claimant Nos.1 and 2, is not in dispute. The accident is of the year 2013. The Tribunal has taken income of the deceased at Rs.6,000/- per month. The claimants had produced Ex.P9 – the appointment order and Ex.P10 – the pay slip, to show that the deceased was earning Rs.10,990/- per month. In support of their claim, the claimants have failed to examine the author of the documents or any of the persons concerned with the Company, which had issued Exs.P9 and 10. In the absence of genuine documents to indicate the exact income of the deceased, the Tribunal has to assess taking into consideration the notional income of the deceased. Normally this Court for the accidents of the year 2013 would take Rs.8,000/- as notional income. Hence the claimants would be entitled to compensation towards “Loss of dependency” taking into consideration the monthly income of the deceased at Rs.8,000/-.
8. As per the decision of the Hon’ble Supreme Court in PRANAY SETHI’s case the claimants would be entitled for compensation towards “Future prospects”. But the claimants failed to prove that the deceased was having permanent employment and as such claimants would be entitled for 40% of future prospects as against 50% granted by the Tribunal. Thus the claimants would be entitled to compensation towards the head “Loss of dependency” at Rs.5600 x 12 x 17 = Rs.11,42,400/- (Rs.11,42,400/- less compensation awarded by the Tribunal Rs.9,18,000/- = Rs.2,24,000/-).
9. The Tribunal has granted a sum of Rs.10,000/- towards the head “Loss of love and affection”, which is on the lower side. The claimants 1 and 2 are parents of the deceased. Deceased was aged 26 years as on the date of accident. The parents have lost love and affection of their unmarried son. Hence they are entitled for higher compensation on the said head. Accordingly, Rs.50,000/- is awarded in addition to Rs.10,000/- already granted by the Tribunal.
10. Further the learned counsel for the appellants relies on the decision of MAGMA GENERAL INSURANCE CO.LTD., V. NANU RAM to claim compensation towards the head Filial consortium. The Hon’ble Supreme Court in the said case has awarded compensation on the said head for “Loss of care, love and affection and companionship” of the deceased son. The Hon’ble Supreme Court has held where parents have lost minor child, the appellants are entitled to compensation under the head “Filial consortium” in the above decision.
11. Therefore, I deem it proper and appropriate in the facts of the present case to award a sum of Rs.50,000/- towards the head “Loss of love and affection” to claimants 1 and 2 - the parents of the deceased. Thus the claimants are entitled to enhanced compensation of a sum of Rs.2,24,000/- (Rs.11,42,400/- less Rs.9,18,000/-) towards the head “Loss of dependency”. Rs.50,000/- towards the head “Loss of love and affection” and a sum of Rs.1,00,000/- towards the head “Filial consortium”. Thus in all the claimants are entitled to enhanced compensation in a sum of Rs.3,74,000/-, in addition to compensation awarded by the Tribunal, with interest at the rate of 6% per annum, from the date of petition till the date of realization.
12. Accordingly, both the appeals are allowed in part. The amount in deposit before this Court be transmitted to the concerned Tribunal.
Sd/- JUDGE NG* CT:bms