IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.120 OF 2016 (MV-D) BETWEEN:
1. SMT SUJAYA NAMBIYAR, W/O HARIDASAN K.P, AGED ABOUT 48 YEARS.
2. KUMARI AISHWARYA, D/O LATE HARIDASAN K.P, AGED ABOUT 25 YEARS.
3. KUMARI AMRUTHALAKSHMI, D/O LATE HARIDASAN K.P, AGED ABOUT 16 YEARS.
4. SRI. RAMANAKUTTI NAYAR, S/O LATE NARAYAN NAYAR, AGED ABOUT 82 YEARS.
SINCE DEAD BY HIS LRS SMT. SHANTHAKUMARI W/O RAMANKUNTI NAYAR. AGED ABOUT 78 YEARS.
APPELLANT NO.3 IS MINOR REPRESENTED BY HER NATURAL GUARDIAN MOTHER SMT.SUJAYA NAMBIYAR.
ALL RESIDING AT KOCHITHODY HILL, PALLIPURAM POST, PATTAMBI, PALAKAD – 679 305, KERALA STATE. ... APPELLANTS (BY SRI RAJU S, ADVOCATE) AND:
1. SRI BINIL K JOHN, S/O KOORAN JOHN, KOORAN HOUSE, T.B. ROAD, ANGAMALI P.O. ERNAKULAM-683 572, KERALA STATE.
2. THE H.D.F.C. ERGO, GENERAL CO. LTD.
NO.100 & 102 & 2ND FLOOR, JENIVA HOUSE, KANNINGHAM ROAD, BANGALORE-02. ... RESPONDENTS (BY SRI O MAHESH, ADVOCATE, FOR R2; VIDE ORDER DATED:14.12.2016 – NOTICE TO R1 – DISPENSED WITH) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:09.07.2015 PASSED IN MVC NO.184/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CJM, MACT, RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ASHOK G.NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is preferred by the legal representatives of the deceased for enhancement of compensation and for modification of the judgment and award dated 09.07.2015 passed in MVC No.184/2014 by the Additional Motor Accidents Claims Tribunal and Principal Senior Civil Judge & C.J.M. (hereinafter referred to as “Tribunal”, for the sake of brevity) Ramanagara.
3. The facts briefly stated are, on 12.02.2014 at about 09.45p.m. when Haridasan K.P., was standing near Annaporneshwari Daba at Hejjal on B.M Road in order to cross the road, at that time, an Innova Car bearing Reg.No.KL-63-7711, driven by its driver, came from Mysuru side in a rash and negligent manner and dashed to Haridasan, who was standing on the side of the road. Due to the said impact, he sustained grievous injuries. He was shifted to Rajarajeswary Hospital for medical treatment, but he succumbed to the injuries on the same day. Due to the untimely death of the main earning member of the family, the appellants-claimants contended that they have become orphans and have been deprived of financial support. That the accident was due to the rash and negligent driving of the driver of the Innova Car as such, the owner and the insurer of the said vehicle are jointly and severally liable to pay compensation. The deceased Haridasan was working as driver in BPCL Company, Bengaluru and was earning salary of Rs.50,000/- per month. On account of the death of the deceased in the accident, the claimants were put to financial loss. With these assertions, the claim petition came to be filed.
4. On service of notice, the respondent Nos.1 and 2 appeared through their respective counsel and filed statement of objections denying the averments made in the claim petition. Respondent No.1 has specifically denied that the accident was due to rash and negligent driving of the driver of the offending vehicle, which was insured with the respondent No.2-insurance company, and the policy was in force.
Respondent No.2 has taken up a specific defence that the accident was due to the negligence of the deceased himself. The liability of respondent-insurer is subject to terms and conditions of the policy. The insurer is not liable to pay any compensation.
5. On the aforesaid pleadings, the Tribunal framed the following issues:
“1) Does the petitioners prove that the deceased Sri Haridasan K.P. S/o Raman Kutti Nayar died due to the injuries sustained by him in an accident said to have been occurred due to rash and negligent driving of driver of vehicle bearing No.KL-63-7711?
2) Whether the petitioners prove that, they are entitled for the compensation? If so, how much and from whom?
3) What order or award?”
6. In order to prove their claim, petitioner No.1 got examined herself as P.W.1 and produced documents, which were marked as Exs.P-1 to P-8.
The respondents did not adduced any evidence and no documents were marked on their behalf.
7. On appreciating the oral and documentary evidence placed on record, the Tribunal came to the conclusion that the accident was due to rash and negligent driving of the Innova Car and awarded compensation as detailed below:
Compensation towards loss of dependency Compensation towards loss of consortium to petitioner No.1 Compensation towards loss of love and affection Compensation towards loss of estate Compensation towards funeral and obsequies ceremony expenses Compensation towards transportation of dead body Rs.9,36,000.00 Rs.20,000.00 Rs.20,000.00 Rs.10,000.00 Rs.25,000.00 Rs.5,000.00 In total Rs.10,16,000.00 Rupees Ten Lakh Sixteen thousand only.
8. Being aggrieved by the judgment and award passed by the Tribunal in awarding a meager quantum of compensation, the claimants have preferred this appeal contending that the Tribunal has erred in awarding a less compensation on several heads despite there being sufficient evidence to prove the income of the deceased. That the Tribunal has grossly erred in awarding a meager amount towards loss of consortium to appellant No.1 and other family members and also towards medical expenses. At any rate, the compensation awarded is highly disproportionate. Thus, there are valid grounds for enhancement of compensation.
9. Heard learned counsel for the appellants and learned counsel for respondent No.2-insurance company. Perused the judgment and award passed by the Tribunal and the lower Court records.
10. During the course of arguments, learned counsel for the appellants strenuously contended that the deceased was holding driving licence for driving ‘heavy goods vehicle’, he was working in BPCL Company and his monthly income was Rs.50,000/-, but the same has not been considered by the Tribunal. Even the compensation awarded under other heads is totally disproportionate.
11. Per contra, learned counsel for the respondent No.2-insurance company submitted that there is no iota of evidence to prove that the deceased was working in BPCL Company and there is no satisfactory evidence or document to show that he was employed in the said company and was drawing a salary of Rs.50,000/- per month. Under these circumstances, the monthly income of the deceased was considered as per the guidelines provided under the Minimum Wages Act, 1948 i.e. Rs.8,500 to Rs.9,000/- per month. As far as compensation under other heads are concerned, the findings given by the Tribunal are just and proper and there are no grounds to interfere with the same.
12. Having considered the contentions urged by both sides, the points that would arise for consideration are:
1. Whether the appellants are entitled for enhancement of compensation?
2. What order?
13. In the present case, respondent No.2- insurance company has not disputed its liability and has not raised any objection regarding breach of conditions of the policy. Thus, only point in controversy is regarding quantum of compensation awarded by the Tribunal.
14. In the instant case, the dependants viz., appellants, have not produced any documentary evidence or led any oral evidence of the concerned company, where the deceased was said to have been working as a driver. Under these circumstances, in the absence of any cogent evidence to prove the occupation and income of the deceased, it is pertinent to only note that the appellant was working as driver by holding a valid driving licence to drive ‘heavy goods vehicle’. Thus, it can be safely presumed that he was a skilled labour, as such we are inclined to take the notional income of the deceased at Rs.12,000/- per month. It is an admitted fact that the deceased was aged about 49 years as on the date of accident, thus, the appropriate multiplier applicable would be 13. In view of the principles laid down in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680, 25% of the income needs to be added to the established income of the deceased, which comes to Rs.3,000/-. Thus, total income of the deceased would be 15,000/- (Rs.12,000+3000), out of which, 1/4th is required to be deducted towards his personal expenses, therefore, the net salary that would be contributed towards his family is Rs.11,250/-. Thus, as per necessary calculation (Rs.11,250 X 12 X 13) Rs.17,55,000/- would the compensation towards loss of dependency.
15. In the case of Magma General Insurance Co. Ltd. vs. Nanu Ram, reported in 2018 ACJ 2782, the Hon’ble Supreme Court by referring to the decision of the Constitution Bench in Pranay Sethi (supra) has discussed about granting the compensation under the head of loss of consortium and has also issued guidelines for grant towards loss of ‘spousal consortium’, ‘parental consortium’ and ‘filial consortium’. In the present case, the claimants are wife, two children and parents, but during the pendency of the appeal, the mother of the deceased expired. In view of the ratio laid down by the Hon’ble Apex Court, we deem it appropriate to award a sum of Rs.40,000/- towards loss of spousal consortium; a sum of Rs.30,000/- each to the daughters towards loss of parental consortium and a sum of Rs.30,000/- to the father of the deceased towards loss of filial consortium. In addition to that a sum of Rs.15,000/- towards loss of estate and a sum of Rs.15,000/- towards funeral expenses needs to be awarded.
16. In view of the aforesaid reasons, the reassessed compensation is as detailed below:
Head of compensation Amount Loss of dependency 17,55,000.00 Spousal consortium 40,000.00 Parental consortium 60,000.00 Filial consortium 30,000.00 Loss of estate 15,000.00 Funeral expenses 15,000.00 Total 19,15,000.00 (Rupees Nineteen Lakhs Fifteen Thousand only) 17. Thus, a total compensation of Rs.19,15,000/- is awarded, which carries interest at the rate of 6% p.a from the date of petition till the date of realization. Out of the compensation awarded, the apportionment is as follows:
i. Wife - 50% ii. Father - 20% iii. Daughters - 15% each 18. After deposit of the enhanced compensation, 75% of the compensation apportioned to the widow of the deceased shall be deposited in any Post office/Nationalized Bank/Scheduled Bank for an initial period of ten years and she shall be entitled to withdraw periodical interest on the said deposit and the balance compensation shall be released to her on proper identification and acknowledgment.
19. In respect of other claimants are concerned, 50% of the compensation apportioned to the respective claimants shall be deposited in any Post office/Nationalised Bank/Scheduled Bank for a period of five years in their respective names and they shall be entitled to withdraw periodical interest on the said deposit and the balance compensation shall be released to the claimants on proper identification and acknowledgment.
20. For the aforesaid reasons, we pass the following:
ORDER 1. Appeal is allowed-in-part.
2. The judgment and award dated 09.07.2015 passed in MVC No.184/2014 by the Additional Motor Accidents Claims Tribunal and Principal Senior Civil Judge & C.J.M., Ramanagara is hereby modified.
3. The appellants-claimants are entitled for compensation of Rs.19,45,000/- instead of Rs.10,16,000/- at the rate of 6% p.a. from the date of petition till the date of realization.
The respondent No.2-insurance company is directed to deposit the reassessed compensation within a period of four weeks from the date of receipt of certified copy of this judgment.
Parties to bear their respective costs.
Registry is directed to transmit the records forthwith.
Sd/- JUDGE Sd/- JUDGE BSR