IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR M.F.A NO.2775/2012 (MV) BETWEEN:
1. Sri R.Venkateshappa S/o late Ramappa Aged about 37 years.
2. Sri R.Subbarayappa S/o late Ramappa Aged about 32 years.
Both the appellants are Residing at Bhattarahalli Village, Alanguru Post, Mulbagal Taluk, Kolar District.
…Appellants (By Sri N.Gopalakrishna & Sri N.G.Kumbar, Advocates) AND:
1. Sri G.V. Varadappa S/o G.V.Venkatesh Major in Age, Residing at Varadapura Village Virupakshi Post, Mulbagal Taluk, Kolar District.
2. The United India Insurance Co. Ltd., Regional Office:
5th Floor, Krushi Bhavan, Nrupatunga Road, Hudson Circle, Bengaluru-560 001 Represented by its Manager.
…Respondents (By Sri Y.P.Venkatapathy, Advocate For R2) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 4.11.2011 passed in MVC No.5145/2010 on the file of MACT-V, VIII Additional Judge, Court of Small Causes, Bengaluru City, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Admission this day, the Court delivered the following:
J U D G M E N T Though this appeal is listed for admission, with consent of the learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is preferred against the judgment and award rendered by the tribunal in MVC No.5145/2010 dated 4.11.2011, whereby the tribunal has awarded the global compensation in a sum of Rs.50,000/- with interest at 6% per annum. The compensation awarded by the tribunal is found to be inadequate and also on the lower side. Hence, the claimants seeks for enhancement of compensation.
3. The factual matrix of this appeal are as under: It is evident in the claim petition that on 14.3.2010 at about 10.00 p.m. the deceased Narayanamma said to be the mother of the claimants was sitting on the mud foot path on the road in front of Savithramma’s house in their village, on Alanguru Kappalamadugu road. At the relevant point of time Mahindra Jeep bearing registration No.KA.07 M.601 came in a rash and negligent manner and hit against the aforesaid Narayanamma. Due to the said impact, Narayanamma sustained grievous injuries, and succumbed to the injuries. Subsequently, the claimants said to be the sons of the deceased have filed the claim petition before the tribunal seeking compensation.
4. In pursuance of notice on the respondents in the claim petition, respondent No.1 did not participate in the proceedings all through out. The second respondent has put in appearance through the counsel and filed objections in detail and admits the issuance of policy in respect of the aforesaid jeep involved in an accident and caused death of the deceased Narayanamma and further taken the contention that the policy is subject to the terms and conditions mentioned therein and has taken further contention that the insured has violated the condition of the policy and the driver was not holding valid and effective driving licence, there are violation of conditions, thereby they have claim that they are not liable to pay compensation. These are all the contentions taken on the part of the respondent No.2 and seeks for dismissal of the claim petition.
5. Based upon the pleadings of the parties, the tribunal has framed the issues. In support of the contention, petitioner No.2 is examined as PW1 and produced the documents Ex.P1-FIR with complaint, Ex.P4- IMV report issued by the concerned authorities, Ex.P5- the inquest proceedings held over the dead body of Narayanamma, Ex.P6 – Post Mortem report. The Investigating Officer has laid the charge sheet against the accused as per Ex.P7. These are all the documents produced by the claimants in order to substantiate their case against the respondents seeking suitable compensation.
6. In this appeal learned counsel for the appellants has taken me through the evidence of PW1- Subbarayappa who is neither than the son of the deceased Narayanamma. The Tribunal has not appreciated the evidence of PW1, so also not considered the appropriate age of the deceased, but erroneously considered her age was more than 65 years, though in the post mortem report which is said to be issued by the doctor, it is held that the age of the deceased was 53 years. This fact has not been properly considered by the Tribunal, but globally awarded the compensation in a sum of Rs.50,000/- with interest at 6% per annum, which requires to be enhanced.
7. The appellants’ counsel has placed reliance in the case of AIR 2009 SCW 2340 in the case of National Insurance Company Limited Vs. Meghji Naran Soratiya and Others wherein paragraphs 11 and 12 reads as under:
“11. The claim related to the death of a mason aged 58 years in a motor accident which occurred in the year 1991. His son and daughter-in-law were the claimants and claimed a compensation of Rs.3 lakhs. The Tribunal after considering the evidence, held that the deceased was aged 55 to 58 years, that his income was Rs.2,250/- per month and that he was contributing Rs.1,500/- per month to the family. It however restricted the annual loss of dependency to Rs.15,000/- per month instead of Rs.18,000/- and by applying a multiplier of 10, arrived at the loss of dependency as Rs.1,50,000/-. It awarded Rs.15,000/- towards loss of estate, Rs.5,000/- for funeral expenses, Rs.5,000/- towards medicines/treatment (as he deceased underwent treatment for a short period in a hospital before death). Thus it determined the compensation payable as Rs.1,75,000/- and awarded the same with interest @ 15% per annum from the date of petition.
12. The learned counsel for the appellant submitted that when there was no clear and conclusive evidence that the married son and daughter-in-law were dependent on the deceased, the Tribunal erred in restricting the deduction towards the living/personal expenses of the deceased to only one-third. He also submitted that award of Rs.15,000/- towards loss of estate was excessive. There is some merit in the said contentions. We will therefore reassess the compensation. The Tribunal found that the income of the deceased was Rs.2,250/- per month or Rs.27,000/- per annum. There is no serious challenge to this finding. On the facts and circumstances of the case, 50% should have been deducted towards the personal and living expenses of the deceased and not on-third. Thus, the contribution to the family (or the saving by the deceased even assuming that the claimants were fully dependent) would have been Rs.13,500/- per annum. There is nothing wrong in the multiplier applied (that is 10) as it is in consonance with the principles laid down in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas (1994 (2) SCC 176) and U.P. State Road Transport Corporation Vs. Trilok Chandra (1996(4) SCC 362). Therefore, the total loss of dependency would be Rs.1,35,000/-. By adding Rs.5,000/- each under the heads of loss of estate, funeral expenses and cost of treatment, the total compensation is determined as Rs.1,50,000/-.”
8. The said case is squarely applicable to the present case on hand, where the deceased Narayanamma said to be the source to the family of the claimants. Therefore, the compensation requires to be awarded suitably by appreciating the evidence of PW1 and so also re-appreciating the document as produced by the claimants.
9. The learned counsel namely Sri.Y.P.Venkatapathy, for respondent No.2 has taken me to the evidence of PW1-Subbarayappa said to be the son of the deceased. There is no dispute about the death of the deceased Narayanamma, the dispute is relating to her age. The tribunal by taking the age of the deceased as 65 has awarded global compensation of Rs.50,000/- with interest at 6% per annum.
Claimant No.1 Sri.Venkateshappa and claimant No.2 Sri.Subbarayappa are the sons of the deceased Narayanamma. They did not produce any material document relating to prove the age factor of the deceased, but the Tribunal has considered the contents at Ex.P10 Election Identity Card which reveals that her age was 40 years in the year 1996 itself, the Tribunal has considered the age of the deceased as 65 years which is just and proper and does not call for any interference.
10. On the strenuous contention taken up by the learned counsel for the appellants and counter arguments made by the learned counsel for the respondents, it is relevant to state in this appeal keeping in view the evidence of PW1 who is neither than the son of the deceased Narayanamma that the incident occurred on 14.3.2010 at around 10.00 p.m. when the deceased Narayanamma was sat on the mud footpath road in front of Savithramma’s house situated in their village, but unfortunately at the relevant point of time the offending vehicle such as Mahindra Jeep bearing registration No.KA.07.M.601 driven by its driver came in a rash and negligent manner and dashed against Narayanamma, due to the impact of the said accident the said jeep ran over Narayanamma, as a result of the same she sustained grievous injuries and succumbed to the injuries in the hospital.
11. The tribunal has awarded the compensation globally in a sum of Rs.50,000/- with interest at 6% per annum relating to the loss of estate, though the deceased Narayanamma was aged about 55 years, she being the source in the family in case she has present, but untimely death of the deceased on 14.3.2010 at around 10.00 p.m. cause loss to the family. Accordingly, even the proof of income taken into consideration in the year 2010-11 in between Rs.5,500/- to Rs.6,500/-, the accident was taken place on 14.3.2010, therefore, her income has to be considered by re-appreciating the evidence of PW1 as she being the source to the family. Accordingly, her income is suppose to be considered as Rs.5,500/- per month, the future prospects of the deceased according to the judgment rendered by the Hon’ble Supreme Court in the case of National Insurance Co. Ltd vs. Pranay Sethi (AIR 2017 SC 5157), the future prospectus be determined based upon the age factor of the deceased. If the age of the deceased Narayanamma is taken into consideration as 55 years, the future prospects be additional 10% of established income be made. Accordingly, monthly income is taken at Rs.5,500/- + 10% future prospects, the claim petition made by the claimants 1 and 2 said to be the sons of the deceased, in case of 2 and 3 dependants, it should be deducted 1/3rd and accordingly keeping in view the evidence of PW1 as well as her age, as well as the claimants 1 and 2 said to be the major sons of the deceased, it should be work it out as, the dependency shall be taken as 50%. Accordingly, by applying multiplier ‘11’ and taking the income of the deceased at Rs.5,500/- per month and after deducting 50% the loss of dependency comes to Rs.3,99,300/-.
12. As per the judgment of Pranay Sethi, the loss of estate, loss of consortium, and funeral expenses should not exceeds Rs.70,000/-. But in the instant case, the tribunal has not granted any compensation towards loss of estate. Hence, Rs.70,000/- is awarded towards loss of estate. Insofar as the judgment of the Hon’ble Supreme Court rendered in MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), the Hon’ble Apex Court has held that:
“In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’.
The right to consortium would include the company, care help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.”
13. However, in the instant case deceased Narayanamma said to be the mother of the claimants, but they have lost parental value of the mother who has lost her breath at the age of 53 years. Therefore, it is just and appropriate to award compensation on the head of parental consortium to the claimants at Rs.40,000/- each.
14. In the instant case the husband of the deceased has already died. Therefore, under the aforesaid conventional head it is extending only in a sum of Rs.15,000/- to each of the claimant plus Rs.80,000/-
15. Accordingly, the appeal is allowed. The appellants are entitled to enhanced compensation in a sum of Rs.4,59,300/- with interest at 6% per annum in addition to the global compensation of Rs.50,000/- awarded by the tribunal.
The respondent/Insurance Company be directed to deposit the aforesaid enhanced compensation amount of Rs.4,59,300/- with interest at 6% per annum before the Tribunal in MVC No.5145/2010 within a period of four weeks from the date of receipt of copy of this judgment.
Accordingly, the above said judgment and award is modified and office to draw the decree.
Sd/- JUDGE AP*