IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No.665/2017 C/W M.F.A. No.2276/2015 (MV-D) IN M.F.A. No.665/2017 BETWEEN:
1. SRI. SUDARSHAN NAYAK S/O GURUCHARAN NAYAK AGED AGOUT 65 YEARS R/AT NO.12, 1ST FLOOR 3RD CROSS, ANNASANDRA PALYA HAL POST, BENGALURU – 560 017.
2. HARAMANI NAYAK W/O SUDARSHAN NAYAK AGED ABOUT 60 YEARS R/AT NO.12, 1ST FLOOR 3RD CROSS, ANNASANDRA PALYA HAL POST, BENGALURU – 560 017. ... APPELLANTS (BY SRI B.S. RAGHUPRASAD, ADVOCATE) AND:
1. AZEEMULLA KHAN S/O OBEDULL, K/G.N. TRANSPORT MUZAWAR MOHALLA MULBAGAL POST AND TALUK KOLAR DISTRICT – 563 101.
2. THE NEW INDIAN ASSURANCE CO. LTD REGIONAL OFFICE NO.9/2 MAHALAKSHMI, CHAMBERS M.G. ROAD, BENGALURU – 560 001.
REP. BY ITS GENERAL MANAGER. ... RESPONDENTS (BY SRI K.S. LAKSHMINARASAPA, ADVOCATE FOR SRI B.C. SETHARAMA RAO., ADVOCATE FOR R-2; R-1 - SERVED) ***** THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED : 27.01.2015 PASSED IN MVC NO.1248/2014 ON THE FILE OF THE XIX ADDITIONAL SENIOR CIVIL JUDGE MACT AND XLI ACMM, BENGALURU(SCCH-17) PARTLY ALLOWING THE CLAIM PETITON FOR AWARDING COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. No.2276/2015 BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE MAHALAKSHMI CHAMBERS M.G. ROAD, BENGAURU – 560 001 REP. BY ITS MANAGER MR. A.R. LAKSHMINARAYANA. ... APPELLANT (BY SRI K.S. LAKSHMINARASAPPA, ADVOCATE FOR SRI B.C. SEETHARAMA RAO, ADVOCATE) AND:
1. SRI SUDARSHAN NAYAK AGED ABOUT 66 YEARS W/O LATE GURUCHARAN NAYAK R/AT NO.12, I FLOOR, 3RD CROSS ANNASANDRA PALYA, H.A.L. POST BENGALURU – 560 017.
2. SMT. HARAMANI NAYAK AGED ABOUT 61 YEARS W/O SRI SUDARSHAN NAYAK R/AT NO.12, I FLOOR, 3RD CROSS ANNASANDRA PALYA, H.A.L. POST BENGALURU – 560 017. ... RESPONDENTS (BY SRI B.S. RAGHUPRASAD, ADVOCATE FOR R-1 & R-2; SRI N. CHANNAKRISHNAPPA, ADVOCATE FOR R-3) ***** THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED : 27.01.2015 PASSED IN MVC NO.1248/2014 ON THE FILE OF THE XIX ADDITIONAL SENIOR CIVIL JUDGE MACT AND XLI ACM, BENGALURU AWARDING COMPENSATION OF RS.20,70,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. MFA.No.665/2017 has been filed by the parents of deceased Niranjan Nayak, while MFA.No.2276/2015 has been filed by the insurance company, both assailing the judgment and award of the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as “the Tribunal” for the sake of convenience), dated 27/01/2015, passed in MVC.No.1248/2014.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of death of their son, Niranjan Nayak in a road traffic accident that occurred on 07/01/2014. According to the claimants, on the said date at about 9.50 a.m., deceased Niranjan Nayak was proceeding on his TVS Victor Motorcycle bearing Registration No.KA-03- EM-4842, on old Madras Road, and when he reached near KEB Office, K.R.Puram, Bengaluru, a lorry bearing Registration No.KA-07-A-230 came from behind in a high speed and in a rash and negligent manner, endangering human life and dashed against the motorcycle of the deceased Niranjan Nayak. The wheel of the lorry ran over the deceased and the lorry also dashed against another motorcycle bearing registration No.KA-53-J-2499. As a result, Niranjan Nayak died on the way to the hospital. After the postmortem, the dead body of Niranjan Nayak was handed over to the claimants and he was cremated as per their custom any rites. The claimants contended that they had lost their only son, who was doing plumbing work on contract basis in the name and style of M/s.V.K. Building Services Pvt. Ltd., and was earning Rs.2.00 lakh (Rupees two lakh only) per month and that he was an income-tax assessee. On account of the untimely death of their son, they were put to undue hardship and mental agony. They contended that the accident occurred on account of negligence on the part of the driver of the lorry. Hence, they sought compensation for the death of their son by filing the claim petition.
5. In response to the notices issued by the Tribunal, respondent No.1/owner of the vehicle remained absent and was placed ex parte, while insurance company appeared through its advocate and filed the written statement denying the material averments in the claim petition and contended that there was no negligence on the part of the driver of the lorry. That if the Tribunal is to hold that the driver of the lorry in question was the cause of accident, then the award shall be subject to the terms and conditions of the insurance policy. It was contended that the accident occurred on account of negligence on the part of the deceased himself. The insurance company sought dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
(i) Whether the petitioner proves that on 07/01/2014 at about 9.50 a.m. the deceased Niranjan Nayak was proceeding on his motorcycle bearing No.KA-03-EM-4842 near Old Madras Road, when he reached near KEB Office, a lorry bearing No.KA-07-A-230 came with high speed in a rash and negligent manner and dashed against the motorcycle of deceased and run over on the body. As a result of which he died as alleged?
(ii) Whether the petitioner is entitled for compensation? If so, at what rate and from whom?
(iii) What order or decree?
7. In order to substantiate their case, Sudarshan Nayak, father of the deceased Niranjan Nayak, got examined himself as PW.1 and produced sixteen documents marked as Exs.P-1 to P16. The respondents examined four witnesses and produced seven documents marked as Exs.R-
1 to R-7. On the basis of the evidence on record, the Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and awarded compensation of Rs.20,70,000/- with interest at the rate of 6% per annum from the date of the claim petition till realization and directed the respondents jointly and severally to satisfy the award. Not being satisfied with the compensation awarded by the Tribunal, the claimants preferred MFA.No.665/2017 seeking enhancement thereof, while the insurance company has filed MFA.No.2265/2015 seeking reduction in the compensation amount awarded by the Tribunal.
8. We have heard learned counsel for the appellant/claimants and learned counsel for the respondent/insurer and perused the material on record as well as the original record.
9. Appellants’ counsel contended that the Tribunal was not right in considering the age of mother for the purpose of choosing the multiplier while awarding compensation on the head of loss of dependency. He submitted that having regard to the judgment of the Hon’ble Supreme Court, in the case of Sarla Verma vs. Delhi Transport Corporation [(2009)6 SCC 121] (Sarla Verma), the age of the deceased has to be taken into consideration even if the deceased is a bachelor. He further contended that the award of compensation on the conventional heads is on the lower side and the same may be enhanced.
10. Per contra, learned counsel for the insurance company contended that the award of Rs.20,25,000/- on the head of loss of dependency is excessive and exorbitant. That the Tribunal has assessed the income of the deceased Niranjan Nayak at Rs.25,000/- per month, which is contrary to the evidence on record. He contended that Exs.P-13 to P-16 do not in any way indicate the monthly income of the deceased. Even though it might have been established that the deceased was a plumber and eking out his livelihood as a sub-contractor, but no where in the said documents it is indicated that his monthly income was Rs.25,000/-. He submitted that the assessment of monthly income of the deceased Rs.37,500/- had to be scaled down. He further contended that the deceased did not have a permanent job. Hence, 50% of the said amount could not be construed for the purpose of calculating the total income towards future prospects. He submitted that at best, it could be 40% since the deceased was only 29 years old. He submitted that on the head of funeral expenses, the compensation has to be reduced. Learned counsel also submitted that there is no merit in the appeal filed by the claimants and the same may be dismissed, while the appeal filed by the insurance company may be allowed.
11. By way of reply, learned counsel for the appellants/claimants contended that the Tribunal has rightly assessed Rs.25,000/- as monthly income of the deceased and 50% of the said amount has been added towards future prospects, which would not call for any interference in this appeal. He submitted that the multiplier of 17 has to be applied instead of 9 as the deceased was 29 years of age and the age of the mother cannot be considered for the purpose of application of multiplier. He contended that the award of compensation on the head of loss of dependency may be enhanced by deducting only 1/3rd of the monthly income of the deceased towards his personal expenses as the claimants are senior citizens and they were depending on their only son for their living expenses.
12. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the quantum of compensation awarded by the Tribunal calls for any interference in these appeals?
(ii) What order?
13. The fact that Niranjan Nayak died in a road traffic accident on 07/01/2014 at about 9.50 a.m. when he was proceeding on his TVS Victor motorcycle bearing registration No.KA-03-EM-4842 on Old Madras Road, near KEB Office, K.R.Puram, Bengaluru, a lorry bearing No.KA- 07-A-230 came from behind in a high speed and rash and negligent manner and dashed against the motorcycle resulting in the death of Niranjan Nayak on the way to hospital has been established by the claimants. The controversy in these appeals is with regard to quantum of compensation that has been awarded by the Tribunal. The Tribunal has awarded a sum of Rs.20,70,000/- on the following heads:
Loss of dependency : Rs.20,25,000/- Funeral and Transportation : Rs. 25,000/- Loss of love and affection : Rs. 20,000/-
Total : Rs.20,70,000/-
============ 14. On the head of loss of dependency, learned counsel for both claimants as well as insurance company have made their respective submissions. Learned counsel for the insurance has contended that a sum of Rs.25,000/- could not have been taken as monthly income of the deceased. That he was aged only 29 years. Even though he may have been working as a plumber in M/s.V.K. Building Services Pvt. Ltd., there is no direct evidence to that effect. It was contended that Exs.P-13 to 16 do not indicate that the monthly income of the deceased Niranjan Nayak was Rs.25,000/-. That the Tribunal could have at best assessed the notional monthly income of the deceased at Rs.8,500/- since the accident occurred on 07/01/2014.
15. We do not think that we can accede to the said contention of learned counsel for the insurance company, but at the same time we find that the Tribunal, in the absence of there being no categorical evidence to the effect that the monthly income of the deceased Niranjan Nayak was Rs.25,000/-, could have assessed the said amount more realistically and taken it as basis for calculating compensation on the head of loss of dependency. It has been established by the claimants that deceased Niranjan Nayak was a plumber. He was a skilled employee. This Court, while considering the notional income of a coolie in an accident that occurred in the year 2014 would assess the said income at Rs.8,500/-, but in the instant case, the deceased was not a coolie or an unskilled employee, but a skilled plumber and therefore, even when we do not accept the monthly income of Rs.25,000/-, nevertheless, we think it just and proper to assess the monthly income at Rs.15,000/- since the accident has occurred in January 2014. Further, having regard to the latest dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi [(2017)16 SCC 680], we think that the Tribunal was justified in adding 50% of the said income towards future prospects although learned counsel for the insurance company contended that normally it should be only 40%, but since the deceased was only 29 years of age and was a skilled employee and a plumber he would have had better prospects, but for the untimely death in the accident, we think that 50% of the income has been rightly added towards future prospects by the Tribunal. The multiplier chosen by the Tribunal is based on the age of the mother of the deceased, which is incorrect. Having regard to the judgment of the Hon’ble Supreme Court in the case of Sarla Verma, the age of the deceased has to be considered for adopting appropriate multiplier. Since the deceased was only 29 years of age the appropriate multiplier of 17 is applied. Consequently, the compensation on the head of loss of dependency is calculated as under:
Monthly income: Rs.15,000/-+50%(7,500/-) towards future prospects = Rs. 22,500/-
50% of the said amount is deducted towards personal expenses of the deceased who was a bachelor. Consequently, the resultant figure is Rs.11,250/-, which has to be annualized and the appropriate multilier 17 should be applied. The compensation under the head loss of dependency could come to Rs.22,95,000/-.
16. In addition, a sum of Rs.30,000/- is awarded to each of the parents of the deceased towards loss if filial love and affection having regard to the dictum of the Hon’ble Supreme Court in Pranay Sethi and Magma General Insurance Company Limited vs. Nanu Ram [2018 ACJ 2782]. In addition, a sum of Rs.15,000/- is awarded towards loss of estate and another sum of Rs.15,000/- is awarded towards loss of funeral expenses. Thus, the total compensation is assessed at Rs.23,85,000/- instead of Rs.20,70,000/- awarded by the Tribunal. The re-assessed compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization except for the delayed period of 614 days, which is the delay in filing the appeal. Accordingly, point Nos.1 and 2 are answered.
17. In the result, MFA.No.665/2017 is allowed in part, while MFA.No.2276/2015 is disposed in the aforesaid terms.
Parties to bear their respective costs.
The insurance company shall deposit the additional compensation with upto date interest within a period of four weeks from the date of receipt of certified copy of this judgment.
The amount in deposit be transmitted to the concerned Tribunal.
The re-assessed compensation with interest shall be apportioned between the parents of the deceased equally. Out of the compensation apportioned to the mother of the deceased 75% shall be deposited in any nationalized bank or post office for an initial period of ten years and she shall be entitled to draw periodical interest on the said deposit. Balance 25% compensation shall be released to her after due identification.
Out of the compensation apportioned to the father of the deceased, 50% shall be deposited in any nationalized bank or post office for an initial period of seven years. He shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to him after due identification.
Parties to bear their respective costs.
Sri B.C. Seetharama Rao, learned counsel appearing for respondent No.2 is permitted to file vakalatnama within four weeks from today.
Office to send the records to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE S*