IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4936 OF 2017 (MV) BETWEEN 1. SUBBAMMA W/O LATE NINGASHETTY AGED ABOUT 47 YEARS 2. MANJUNAHTA S/O LATE NINGASHETTY AGED ABOUT 28 YEARS 3. LEELAVATHI D/O LATE NINGASHETTY AGED ABOUT 25 YEAS 4. GAJENDRA H.N.
S/O LATE NINGASHETTY AGED ABOUT 22 YEARS ALL ARE RESIDENTS OF:
HOSAHALLI VILLAGE KASABA HOBLI NANJANGUD TALUK MYSURU DISTRICT MYSURU-571124. ... APPELLANTS (BY SRI. H. V. BHANUPRAKASH - ADVOCATE) AND 1. BABU .C.U.
S/O ULAHANAN.C.K.
AGED ABOUT 41 YEARS CHATHOTH HOUSE MENANGADI PO WAYANAD, KERALA STATE-673121 DRIVER OF BUS BEARING REGISTRATION NO.KA-15-A-281.
2. CHAIRMAN AND MANAGING DIRECTOR KSRTC, TRANSPORT BHAVAN FORT THIRUVANANTHAPURAM KERALA STATE-695023 OWNER OF THE BUS BEARING REGISTRATION NO.KA-15-A-2810.
3. NEW INDIA ASSURANCE COMPANY LIMITED TRIVANDRUM, DO-II (761400) 2ND FLOOR, REMA PLAZA NEW AYYAPPAN COIL SS COIL ROAD THAMPANCOR, KERALA-695001 [POLICY NO. 76140031150100001919] ... RESPONDENTS (BY SRI. K. POORNABODHA RAO – ADVOCATE FOR R-3; NOTICE TO R-1 AND R-2 DISPENSED WITH VIDE COURT ORDER DATED 14.08.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.01.2017 PASSED IN MVC NO. 106/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AND MOTOR ACCIDENT COMPENSATION TRIBUNAL, NANJANGUD, 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:
JUDGMENT Heard the learned counsel for the appellants – claimants and the learned counsel for respondent no.3 – Insurance Company and perused the records. Notice to Respondents 1 and 2 has been dispensed with vide order dated 14.08.2018.
2. Though the matter is listed for admission, with consent of the learned counsel for both the parties, the same is heard finally and is disposed of by this judgment.
3. The legal heirs, who are the dependents of the deceased Ningashetty have preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in the impugned judgment dated 16.01.2017 in MVC No.106/2016, seeking enhancement of compensation.
4. The factual matrix is that on 20.05.2015 at about 7.30 p.m., when one Ningashetty was proceeding by walk on the footpath of Mysuru-Ooty Road beside the bridge near Hosahalli Gate, Hosahalli Village, Kasaba Hobli, Nanjangud Taluk, at that time, the driver of the Kerala State KSRTC bus bearing Registration No.KL-15- A-281 is said to have come at a high speed in a rash and negligent manner and is said to have dashed Ningashetty and caused the accident. Due to the said accident, Ningashetty sustained grievous injuries and died on the spot. Hence, the legal representatives of the deceased Ningashetty filed a claim petition before the Tribunal claiming compensation for his death.
5. After service of notice, the driver of the bus remained absent and was placed exparte. However, the owner of the offending vehicle – Respondent No.2 herein as well as the insurer – Respondent No.3 filed their written statements and contested the claim petition. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending bus and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
6. Based upon the pleadings of the parties, the Tribunal framed issues. Subsequently, the first claimant who is the widow of the deceased got herself examined as PW.1 and got marked documents at Exhibits P1 to P8. However, the Insurance Company had not examined any witness on its behalf and also did not get marked any documents. Subsequently, on evaluating the entire oral and documentary evidence on record, has held that the accident had occurred due to rash and negligence of the offending Kerala state bus. Taking the notional income of the deceased at Rs.6,000/- per month and deducting one-third towards his personal expenses and since the deceased was aged 55 years, applied the multiplier ‘11’ and awarded total compensation of Rs.6,33,000/- with interest at 6% per annum from the date of petition till the date of deposit. It is this judgment which is under challenge in the present appeal.
7. The learned counsel for the appellants – claimants vehemently contended that the deceased was aged 55 years at the time of the accident and was working as an agriculturist and coolie and was earning Rs.18,000/- per month. Hence, he contends that the Tribunal was not justified in taking Rs.6,000/- as his monthly income. Moreover the Tribunal was also not justified in deducting 1/3rd towards his personal expenses, since the deceased had left behind four dependants namely his wife and three children. Moreover, the compensation awarded towards conventional heads, loss of consortium and loss of love and affection are very much on the lower side and hence prays for enhancement in the compensation awarded by the Tribunal.
Further, the learned counsel for the appellants – claimants contends that though a sum of Rs.30,000/- though on the lower side, has been awarded by the Tribunal towards ‘Loss of consortium’ in respect of the wife of the deceased, however, the children of the deceased who are three in number, who had lost their father, ought to have been granted ‘parental consortium’, as laid down by the Apex Court in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546). On all these grounds, the learned counsel contends that the compensation awarded by the Tribunal may be suitably enhanced by this Court.
8. Per contra, the learned counsel appearing for the insurer submitted that the Tribunal, on appreciation of the evidence on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
9. On careful evaluation of the material on record, it is seen that the claimants being wife and three children of the deceased are the dependents of the deceased who was aged 55 years and prior to his death, he was working as an agriculturist and a coolie and was said to be earning a sum of Rs.18,000/- p.m. Under such circumstances, the Tribunal having regard to the fact that the accident was of the year 2015, ought to have taken the notional income of the deceased at Rs.9,000/-. Hence, the accident being of the year 2015, I find that as per the settled norms, it is just and proper to take the monthly income of the deceased at Rs.9,000/- in order to compute the compensation. Further, since he was aged 55 years, I find it appropriate to add 15% of his income towards future prospects. After adding 15%, the income comes to Rs.10,350/- (9000 + 1350). Then deducting one-third towards his personal expenses, the income comes to Rs.6,900/-. With Rs.6,900/- as his monthly income with multiplier ‘11’, the compensation towards ‘loss of dependency’ would come to Rs.9,10,800/- as against Rs.5,28,000/- awarded by the Tribunal.
Further, the compensation of Rs.30,000/- awarded by the Tribunal towards ‘Loss of consortium’ in favour of the first appellant being slightly on the lower side, is hereby enhanced by another Rs.10,000/-.
Further, as contended by the learned counsel for the appellant, having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), I find it is just and proper to grant ‘parental consortium’ to Appellants 2, 3 and 4 who are the children of the deceased, in view of the death of their father at an unexpected age. In the said judgment, the Apex Court has held thus:
“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.”
In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- each to Appellants 2, 3 and 4, in all amounting to Rs.1,20,000/- under the head “Loss of Parental consortium”.
8. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Loss of Estate Funeral Expenses 25,000 Nil 25,000 20,000 Nil 20,000 TOTAL 6,33,000 5,12,800 11,45,800 However, the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference. Thus, in all, the claimants are entitled to a total compensation of Rs.11,45,800/- as against Rs.6,33,000/- awarded by the Tribunal.
Accordingly, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 16.01.2017 rendered by the Tribunal in MVC No.106/2016, the compensation payable to the claimants is enhanced from Rs.6,33,000/- to Rs.11,45,800/-. The enhanced compensation would come to Rs.5,12,800/- The third respondent-insurer shall deposit the enhanced compensation with interest in addition to the amount already awarded by the Tribunal with interest, before the Tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS