IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN M.F.A. No.1100/2019 C/W M.F.A. No.663/2019 (MV-D) In M.F.A. No.1100/2019:
BETWEEN:
1. SRI SHIVARAJU S/O. BOREGOWDA, AGED ABOUT 50 YEARS, 2. SMT. SARASAMMA K.P. W/O. SHIVARAJU, AGED ABOUT 46 YEARS, 3. SHRUTHI .S D/O. SHIVARAJU, AGED ABOUT 25 YEARS, ALL ARE R/AT HOODIKEHOSAHALLI VILLAGE, KASABA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT. ... APPELLANTS (BY SRI S. RAJU, ADVOCATE) AND:
1. SRI SHIVALINGEGOWDA .S S/O. SHIVALINGEGOWDA, R/AT HOODIKEHOSAHALLI VILLAGE, KASABA HOBLI, HONGANUR, CHANNAPATNA TALUK, RAMANAGARA DISTRICT – 572 159.
2. THE ORIENTAL INSURANCE CO. LTD., NO.6, ANNAPURNA COMPLEX, 80 FEET ROAD, 3RD BLOCK, KORAMANGALA, BANGALORE – 560 078.
REPRESENTED BY ITS BRANCH MANAGER. ... RESPONDENTS (BY SRI S.V. HEGDE MULKHAND, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2018 PASSED IN MVC. NO.317/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
In M.F.A. No.663/2019:
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD., NO.6, ANNAPURNA COMPLEX, 80 FEET ROAD, THIRD BLOCK, KORAMANGALA THROUGH ITS BENGALURU REGIONAL OFFICE, NO.44/45 LEO SHOPPING COMPLEX, RESIDENCY ROAD, BENGALURU – 560 025 REP. BY ITS DEPUTY MANAGER. ... APPELLANT (BY SRI S.V. HEGDE MULKHAND, ADVOCATE) AND:
1. SHIVARAJU S/O. BOREGOWDA AGED ABOUT 52 YEARS, 2. SMT. SARASAMMA K.P. W/O. SHIVARAJU, AGED ABOUT 48 YEARS, 3. SHRUTHI D/O. S. SHIVARAJU, AGED ABOUT 28 YEARS, ALL ARE R/O. HOODIKEREHOSAHALLI VILLAGE, CHANNAPATNA TALUK, RAMANAGARA DISTRICT – 562 160.
4. SHIVALINGEGOWDA .S S/O. SHIVALINGEGOWDA, R/O. HOODIKEHOSAHALLI VILLAGE, KASABA HOBLI, HONGANUR, CHANNAPATNA TALUK , RAMANAGARA DISTRICT – 562 160. ... RESPONDENTS (BY SRI S. RAJU, ADVOCATE FOR R-1 TO R-3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2018 PASSED IN MVC. NO.317/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ADDITIONAL MACT, CHANNAPATTANA, AWARDING COMPENSATION OF RS.22,18,205/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though these appeals are listed for orders, with the consent of learned counsel on both sides, they are heard finally.
2. The insurance company has preferred M.F.A. No.663 of 2019 assailing the judgment and award dated 03/12/2018 in MVC No.317 of 2017 passed by the Senior Civil Judge and JMFC and Additional MACT, Channapatna (hereinafter referred to as ‘the Tribunal’ for the sake of convenience) seeking reduction in the quantum of compensation awarded by the Tribunal, while M.F.A. No.1100 of 2019 is filed by the claimants seeking enhancement of compensation.
3. For the sake of convenience, the parties shall be referred to as per their status before the Tribunal.
4. Briefly stated the facts are that, the claimants being the parents and sister of Prashant S. who had filed a petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’), seeking compensation on account of the death of Prashanth in a road traffic accident that occurred on 22/05/2017. On the said date at 11.45 p.m., when Prashanth was proceeding on his Hero Honda Splendor motor cycle bearing registration No.KA-42/R- 9801, near Channappa’s land of Hoodikehoshalli village, the rider of a Pulsar Motor cycle bearing No.KA-42/W-5555 came in a high speed and rash and negligent manner, and dashed against Prashanth’s motor-cycle. As a result, Prashanth fell down from the motor-cycle he was riding. As he had sustained grievous injuries, he was shifted to Government Hospital, Channapatna, where first aid was administered and later, he was shifted to NIMHANS Hospital, Bengaluru for better treatment, but he died on 23/05/2017. Contending that Prashanth was a hale and healthy youth aged about 27 years and doing business in the name and style as “Sri Sai Traders Business concern” and was also having an agency for re-charge of Tata Sky DTH link and also working as a driver earning Rs.50,000/- per month, his parents and sibling filed the claim petition seeking compensation of Rs.50,00,000/- on account of his death in the road traffic accident.
5. In response to the claim petition, respondent No.1-owner of the offending vehicle and respondent No.2- insurance company appeared through their respective counsel and filed their separate written statement denying the petition averments and contending that the accident had occurred due to the negligence of Prashanth and that the rider of the insured vehicle was not at all negligent. However, they admitted the coverage of the insurance policy as on the date of accident so far as the motor cycle bearing registration No.KA-42/W-5555 is concerned. They sought for dismissal of the claim petition.
6. On the basis of rival pleadings, the Tribunal framed the following issues for its consideration:
“1. Whether the petitioners prove that Prashanth S. succumbed in a road traffic accident that occurred on 22.05.2017 at about 11.45 p.m. near Channappa’s land, Hodikehosahalli village, Channapatna Taluk which was due to rash and negligent riding of Pulsar Motor Cycle bearing No.KA- 42/W-5555?
2. Whether the petitioners are entitled for compensation? If so, how much and from whom?
3. What order or award? ”
7. In order to substantiate their case, the father of deceased Prashanth examined himself as PW-1. He produced nineteen documents which were marked as Exs.P-1 to 19. The respondents did not lead any evidence. On the basis of the evidence on record, the Tribunal awarded compensation of Rs.22,18,205/- with interest at the rate of 6% per annum from the date of claim petition till realisation. Not being satisfied with the award, the claimants have filed their appeal seeking enhancement, while the insurance company has sought for reduction in the compensation awarded by the Tribunal.
8. We have heard learned counsel Sri.S.Raju for the appellant-claimants and Sri.S.V.Hegde Mulkhand, learned counsel for respondent No.2-insurer and perused the material on record.
9. Learned counsel for the appellant/insurer contended that the Tribunal has awarded an exorbitant compensation of Rs.22,18,205/- with interest at 6% p.a. from the date of claim petition till deposit. That on the head of loss of dependency, a sum of Rs.21,42,000/- has been awarded. It is the plea of the claimants that the deceased Prashanth was doing business in the name and style of M/s. Sri Sai Traders and also having an agency of recharge of Tata Sky DTH connection and was also working as a driver and earning Rs.50,000/- per month, but there has been no corroboration of the said evidence, even then the Tribunal has considered the notional income at Rs.15,000/- per month which is on the higher side. Further, 40% of the income has been added towards future prospects and the total monthly income has been reckoned at Rs.21,000/-, which is exorbitant. He submitted that in the absence of there being any categorical evidence, the notional income of the deceased Prashanth could not have been assessed at Rs.15,000/- per month. That the same would call for a scaling down in this appeal. He further submitted that the award of compensation on the other heads is also exorbitant and hence, on a re-assessment of the same, the appeal filed by the insurance company may be allowed by reducing the said compensation.
10. Per contra, learned counsel for the claimant/appellants has filed the connected appeal and contended that the Tribunal has assessed the notional monthly income, which is on the lower side though the deceased was earning Rs.50,000/- per month even in the absence of there being any corroborative evidence in that regard. The Tribunal ought to have assessed a reasonable notional income and not Rs.15,000/- only per month. He contended that the accident occurred on 22/05/2017 and having regard to the said date, the notional income of the deceased must have been assessed bearing in mind the avocation of the deceased, his earnings and the inflational trends. That if the notional income of the deceased is enhanced, then the income on the head of loss of dependency would be on the higher side. He further contended that the award of compensation towards conventional heads is also on the lower side and having regard to the dictum of the Hon’ble Supreme Court in the case of Magma General Insurance Co.Ltd. vs. Nanu Ram [2018 ACJ 2782] (Magma General Insurance), particularly on the question of award of compensation on the head of loss of parental and filial consortium and loss of love and affection compensation, may be enhanced on the conventional heads. In this regard, he also drew our attention to the judgment of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi and others [(2017)16 SCC 680] (Pranay Sethi).
11. By way of reply, learned counsel for the insurance company drew our attention to another judgment of the Hon’ble Supreme Court in the case of Kishan Devi & others vs. Oriental Insurance Company Limited, [2019 ACJ 1366], (Kishan Devi), which is a three Judge Bench decision rendered subsequent to Magma General Insurance, wherein it has been held that over all, a sum of Rs.70,000/- only ought to be granted towards loss of conventional heads and therefore, the award of Rs.40,000/- towards loss of love and affection, Rs.15,000/- towards loss of estate and Rs.15,000/- towards transportation of the dead body and funeral expenses is just and proper, which would not call for enhancement.
12. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(I) Whether the award of compensation of Rs.22,18,205/- with interest at the rate of 6% p.a. from the date of claim petition till realisation calls for any interference in this appeal?
(II) What order?
13. The fact that Prashanth died in a road traffic accident that occurred on 22/05/2017 at about 11.45 p.m., when he was proceeding on his Hero Honda Splendor Motorcycle bearing registration No.KA-42/R-9801 and reached near Channappa’s land of Hoodikehosahalli, when the rider of Pulsar Motorcycle bearing No.KA-42/W-5555 came in a high speed and rash and negligent manner and dashed against the motorcycle on which Prashanth was proceeding and caused the accident resulting in Prashanth falling down from the motorcycle, sustaining grievous injuries and succumbing to the same, has been established by the claimants.
14. However, the controversy is with regard to the award of compensation in the instant case. The claimants have contended that Prashanth was aged 27 years at the time of accident. He was hale and healthy and was doing business in the name and style of Sri Sai Traders having an agency of recharge of Tata Sky DTH connection and was also working as a driver and was earning Rs.50,000/- per month. Therefore, they sought compensation of Rs.50,00,000/-, but there is no evidence in corroboration of the said fact though Ex.P-10 being the notarized copy of Tata Sky agency I.D. card; Ex.P-11 is PAN Card; Ex.P-12 copy of D.L.; Ex.P-13 is the Aadhar Card copy; Ex.P-14 is the rent agreement; Ex.P-15 is the Karnataka Bank statement of account; Ex.P-16 is Syndicate Bank statement of account and Ex.P-17 is the VAT registration certificate have been marked in the evidence. Even on consideration of the same, it has not been established that deceased Prashanth was earning Rs.50,000/- per month. In the circumstances, the Tribunal assessed the notional monthly income at Rs.15,000/-. But having regard to the fact that deceased Prashanth was having an agency of recharge of Tata Sky DTH connection and was also earning as a driver or at any rate had the potential to earn as a driver of a vehicle and bearing in mind the fact that the accident occurred in May 2017, the notional income must be assessed above Rs.15,000/- per month. On perusal of the aforesaid evidence, it is noted that deceased Prashanth indeed received amounts from M/s.Tata Sky Limited towards the agency commission and the cash received by him from the customers is also deposited in the Bank accounts. Thus, the fact that he was running an agency business for M/s.Tata Sky Limited has been established. In our view, in the absence of there being any categorical evidence with regard to the actual income earned by deceased Prashanth, the notional income is assessed at Rs.20,000/- per month. 40% of the said income is added towards his future prospects as the deceased was only 27 years of age at the time of accident. Thus, the total income is assessed at Rs.28,000/- and as deceased Prashanth was a bachelor, 50% of the said income is deducted towards his personal expenses which would come to Rs.14,000/-. The same is annualized and 17 multiplier is applied as deceased Prashanth was only 27 years of age and hence, the compensation on the head of loss of dependency would be Rs.28,56,000/- (14,000/- x 12 x ‘17’).
15. Further, a sum of Rs.30,000/- each is awarded to the parents and sibling of deceased Prashanth on the head of loss of filial consortium and loss of love and affection. In Pranay Sethi’s case, the Constitution Bench of the Hon’ble Supreme Court has held that towards loss of consortium, a sum of Rs.40,000/- has to be awarded. In Magma General Insurance, the meaning of expression “consortium” has been explained in the following terms:
“Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.”
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium’ as laid down in Pranay Sethi (supra).”
16. In the said case, a sum of Rs.40,000/- each was awarded towards loss of filial consortium to the father and sister of the deceased, but in the instant case, we deem it proper to award a sum of Rs.30,000/- each to the parents of the deceased as well as the sister of the deceased, which would be totally to Rs.90,000/-.
17. Thus, even in the case of Pranay Sethi, a sum of Rs.40,000/- was awarded towards loss of consortium, but in the case of Magma General Insurance, the expression consortium has been elaborated. It is not limited to the compensation awarded only to the widow of the deceased, that would be towards loss of spousal consortium, but towards loss of filial consortium, compensation would have to be awarded separately. In Magma General Insurance, the Hon’ble Supreme Court awarded Rs.40,000/- each to the sister and father of the deceased.
18. In Kishan Devi, one of the questions considered was whether towards loss of estate, loss of love and affection and funeral expenses, a sum of Rs.25,000/-, Rs.1,00,000/- and Rs.25,000/- respectively could have been awarded. In the said case, it was observed that so far as loss of estate, loss of consortium and funeral expenses are concerned, in Pranay Sethi, it has been held that an appropriate amount of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively could be awarded.
19. In the instant case, there is no controversy with regard to award of Rs.15,000/- each towards loss of estate and funeral expenses. However, learned counsel for the insurance company emphasized on the fact that totally a sum of Rs.70,000/- only could be awarded in respect of all the conventional heads including loss of consortium, but in the instant case, it is on the higher side i.e., Rs.90,000/-.
20. In fact, the expression “loss of consortium”, which had been used in general terms all along including in the case of Pranay Sethi but applied specifically to loss of consortium by the wife of the deceased has been elucidated in Magma General Insurance. In that decision it has been explained that loss of consortium is not just loss of spousal consortium, but would also include loss of parental consortium as well as loss of filial consortium. In fact, in Magma General Insurance, the Hon’ble Supreme Court awarded Rs.40,000/- towards loss of parental and filial consortium respectively to each of the claimants, but in the instant case, considering that there are three claimants, we have awarded a sum of Rs.30,000/- only towards loss of filial consortium to the parents of the deceased and a sum of Rs.30,000/- to the sister of the deceased towards loss of love and affection. Since there are three claimants and in view of the elucidation of the expression consortium in Magma General Insurance and having regard to the fact that a maximum amount of Rs.40,000/- only could be awarded towards loss of consortium, which is towards loss of filial consortium and loss of love and affection respectively. We award only Rs.30,000/- each to the claimants in this appeal.
21. What has been stated in paragraph No.9 in Kishan Devi would apply only if there is one claimant, who is entitled to compensation on the head of loss of consortium, but if the judgment of Magma General Insurance is also to be followed, which is in consonance with Pranay Sethi, then the compensation on the head of loss of consortium could be upto a maximum of Rs.40,000/- per claimant and it cannot exceed that amount. The same cannot be understood to mean that the total compensation to be awarded on the head of loss of consortium ought to be only Rs.40,000/- even when there is more than one claimant entitled to compensation on the said head. In Kishan Devi’s case, a sum of Rs.25,000/- was awarded towards loss of estate, Rs.25,000/- towards funeral expenses and a huge compensation of Rs.1,00,000/- was awarded towards loss of love and affection by the High Court without bearing in mind the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi. Hence, the Hon’ble Supreme Court reduced the award of compensation to Rs.70,000/- on all conventional heads in the said case. The same is based on the decision in Pranay Sethi, but Magma General Insurance has given a meaning and content to the expression consortium to include loss of spousal consortium, loss of parental consortium as well loss of filial consortium. The maximum that could be awarded on the head of loss of consortium is Rs.40,000/- only as per Pranay Sethi. Therefore, we have followed the judgment of the Hon’ble Supreme Court in Pranay Sethi as well as Magma General Insurance and have awarded Rs.30,000/- only to each of the claimants towards loss of parental consortium and loss of filial consortium in the instant case. The award made by us in this case is in consonance with both Pranay Sethi as well as Magma General Insurance and neither is it contrary to what has been observed in Kishan Devi as in that case also, the Hon’ble Supreme Court awarded Rs.40,000/- on the head of loss of consortium.
22. Further, we do not think that in Pranay Sethi, there is any restriction on conventional heads to Rs.70,000/- only. What has been stated in paragraph No.9 in Kishan Devi is on the facts of that case and the total compensation on conventional heads arrived at therein was Rs.70,000/- in all. The same cannot be understood to mean a cap on the amount of compensation to be awarded totally towards conventional heads in all cases, rather the reasonable figures on conventional heads stated in paragraph No.59.8 of Pranay Sethi could be understood to be the maximum that could be awarded subject to escalation stated therein.
23. Further, when compensation as awarded on the heads of loss of estate and funeral expenses, it is obviously only one figure, but the compensation on the head of loss of consortium is restricted to a maximum of Rs.40,000/- to a person entitled to such compensation, but it cannot be Rs.40,000/- to be awarded to all the members of the family (legal representatives) entitled to compensation on the said head. The amount of Rs.40,000/- as stipulated in Pranay Sethi must be understood to be a maximum that could be awarded to a claimant towards loss of consortium. The claimant could be a spouse, a child or a parent of the deceased each one of them would have suffered a loss of consortium in his/her in own way. Therefore, the said individual loss must be compensated on the said head, but upto a maximum of Rs.40,000/- only. In the instant case, since there are three claimants, instead of awarding Rs.1,20,000/- at the rate of Rs.40,000/- each on the heads of loss of parental consortium and loss of filial consortium, we are awarding only Rs.90,000/-, which is within the limit prescribed by the Hon’ble Supreme Court which is upto Rs.40,000/- only.
24. Further, it is noted in Pranay Sethi, a sum of Rs.40,000/- is awarded towards loss of consortium, but it is understood as loss of spousal consortium and to the parents and children of the deceased, what used to be awarded was towards loss of love and affection. But in Magma General Insurance, the Hon’ble Supreme Court has given content and meaning to the expression loss of consortium to not only include loss of spousal consortium, but loss of parental consortium and loss of filial consortium also. But the maximum amount towards loss of consortium that could be awarded in terms of Pranay Sethi is Rs.40,000/-. Hence, the judgments of the Hon’ble Supreme Court would indicate that the maximum amount that could be awarded towards loss of spousal consortium, loss of parents consortium, loss of filial consortium wherever they are applicable has to be only Rs.40,000/- maximum per claimant who is entitled to such a consortium.
25. Hence, we do not think that the contention of learned counsel for the insurance company that Rs.40,000/- must be the total compensation awarded on the head of loss of consortium to be paid to all persons entitled to it put together is correct and neither is the submission that in all Rs.70,000/- could be awarded on conventional heads is correct.
26. In the instant case, the parents and sister are the dependents of the deceased. In the circumstances, we deem it proper to award Rs.30,000/- each to the parents and sister of the deceased and thus, the total compensation towards loss of consortium would be Rs.90,000/-. This amount is not over and above what has been enunciated in Pranay Sethi’s case wherein a sum of Rs.70,000/- was awarded towards over all conventional heads, but in the instant case, the award of Rs.30,000/-
each to the parents and sister of the deceased towards loss of filial consortium/love and affection, in our view, is not exorbitant.
27. Further, a sum of Rs.15,000/- is awarded towards loss of estate and a sum of Rs.15,000/- is awarded towards transportation of the dead body and funeral expenses. A sum of Rs.6,205/- is awarded by the Tribunal towards repair of the motorcycle is retained. Thus, the total compensation re-assessed is as under:
Loss of dependency Rs.28,56,000.00 Loss of filial consortium / love and affection (Rs.30,000/- each) Rs. 90,000.00 Loss of estate Rs. 15,000.00 Transportation of dead body and funeral expenses Rs. 15,000.00 Repair of motorcycle Rs. 6,205.00 TOTAL: Rs.29,82,205.00 The said compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realisaton.
28. Out of the said amount, the apportionment of compensation shall be as has been done by the Tribunal in the ratio of 25:60:15. Since we have enhanced the compensation amount from Rs.22,18,205/- to Rs.29,82,205/- with interest at the rate of 6% per annum. We direct that the second claimant being the mother of deceased Prashanth to deposit 75% of the said compensation in any nationalized bank or post office for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The direction with regard to deposit issued by the Tribunal insofar as claimant No.1/father of the deceased and claimant No.3/sister of the deceased are concerned is confirmed.
Thus, the appeal filed by the insurance company is dismissed, while the appeal filed by the claimants is allowed in part.
Parties to bear their respective costs.
The amount in deposit be transmitted to the Tribunal.
Sd/- JUDGE Sd/- JUDGE RK/-S*