IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.558/2015 (MV-I) BETWEEN:
1. SMT. USHA W/O LATE YOGISH AGED ABOUT 33 YEARS 2. KUMARI VIDYASHREE D/O YOGISH AGED ABOUT 8 YEARS 3. MASTER DHANUSH D/O YOGISH AGED ABOUT 6 YEARS 4. KUMARI MALAVIKA D/O YOGISH AGED ABOUT 12 YEARS APPELLANT NO.2 TO 4 ARE MINORS REP. BY THEIR GUARDIAN MOTHER SMT.USHA W/O LATE YOGISH ALL ARE R/AT D NO.4-108 KUNTAPADAVU HUHAKUVAKALLU NARINGANA, KASARGOD-671322.
5. SMT. LAXMI W/O LATE AMMU AGED ABOUT 58 YEARS R/AT S.C. COLONY MANGALPADY, BANDIYOD KASARGOD DISTRICT PIN-671324.
...APPELLANTS (BY SRI.G RAVISHANKAR SHASTRY, ADV.) AND:
1. MARTIN BESLAY S/O BESLAY JEAN AGED ABOUT 53 YEARS DIRECTOR KANNHAN BEACH RESORT PVT., LTD., 22/164A, KANHANGAD OZHINHA VALAPPU, KANHANGAD KERALA, PIN-671121.
2. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., 1ST FLOOR, PERUMAL BUILDING PERUMBA, PAYYANNUR KANNUR, KERALA PIN-670307.
(BY SRI.A N KRISHNASWAMY, ADV. FOR R2 R1- NOTICE D/W V/O DT:31.07.2017) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.06.2014 PASSED IN MVC NO.508/2012 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, MACT-II, D.K., MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This is claimants’ appeal seeking enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 19.06.2014 passed in MVC No.508/2012 on the file of MACT-II and I Addl. District and Sessions Judge, D.K. Mangalore.
2. The claimants are wife and children of one deceased Yogish. The claim petition was filed under Section 166 of the Motor Vehicle Act claiming compensation for the death of Yogish in a road traffic accident. It is stated that on 09.12.2011 when the deceased was standing on NH-17 at Bandiyod junction Mangalpady, at that time Innova Car bearing Reg.No.KL-60/A-911 driven in high speed, rash and negligent manner, lost control over the vehicle and dashed to the deceased, due to the impact deceased sustained severe head injuries. Immediately he was shifted to Unity Hospital Mangalore, subsequently he succumbed to the injuries on 10.01.2011. It is stated that he was aged 35 years. The deceased was earning Rs.600/- per day by working as a coolie.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared before the Tribunal and filed its objection denying the petition averments. Further it stated that the accident had taken place solely due to the negligence of the deceased himself and not due to the negligent driving by the driver of the Innova Car. It is also stated that the driver of the Innova Car was not having valid and effective driving licence as on the date of accident.
4. The first claimant – wife of the deceased examined herself as PW.1 and also examined PWs.2 and 3 apart from marking Exs.P1 to P17. The 2nd respondent – Insurer marked Ex.R-1 – Insurance Policy. The Tribunal on assessing the material on record both oral and documentary awarded total compensation of Rs.6,45,000/- with interest at the rate of 6% p.a. from the date of petition till the date of realization on the following heads :-
1. Funeral expenses 10,000-00 2. Medical expenses 13,650-00
While awarding the above compensation the Tribunal assessed the income of the deceased at Rs.4,500/- per month and deducted 1/3rd towards personal expenses of the deceased. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal, are before this Court in this appeal seeking enhancement of compensation.
4. Heard the learned counsel for the appellants and learned counsel for the 2nd respondent - Insurer. Perused the entire material on record.
5. The learned counsel for the appellants would submit that the quantum of compensation awarded by the Tribunal is on the lower side and prays for enhancement of compensation. It is his submission that the income of the deceased assessed at Rs.4,500/- per month is on the lower side. He submits that the deceased was earning Rs.600/- per day. It his submission that PW.3 employer is examined before the Tribunal, who states that he was paying Rs.600/- per day to the deceased and has also produced Ex.P.15 – the Salary Certificate issued by PW.3 – the employer. The Tribunal without considering the evidence of PW.3 and Ex.P.15 assessed the income at Rs.4,500/-, which is wholly erroneous. Further the learned counsel submits that there are five dependants and the Tribunal ought to have taken the deduction of 1/4th towards personal expenses of the deceased in stead of 1/3rd. The learned counsel further submits that the Tribunal has failed to award any compensation on the head ‘future prospects’ for which the claimants would be entitled at 40% of the assessed income. The claimants 2 to 4 are children and claimant No.5 is the mother of the deceased, who would be entitled for compensation on the head of filial and parental consortium. Thus he prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation which requires no interference. It is his submission that the income assessed by the Tribunal is just and proper. PW.2 who was employer of the deceased stated that he was paying Rs.600/- per day. In his cross-examination he has admitted that he is a private contractor and not having any records regarding payment made to the deceased nor any document to prove that he was contractor by profession. In the absence of believable material on record, the Tribunal has rightly assessed the income of the deceased notionally. But the income assessed by the Tribunal at Rs.4,500/- per month is on the lower side. The accident is of the year 2011. In the year 2011 even a coolie earned Rs.200/- per day. This Court and the Lok Adalath while settling the accident claims of the year 2011 would normally take notional income of Rs.6,500/- per month. In the instant case, in the absence of acceptable material to establish the income of the deceased, it would be appropriate to assess the notional income at Rs.6,500/- per month for determining the compensation on the head ‘Loss of dependency’. The claimants are wife, three children and mother of the deceased. Admittedly there are five dependants. As per the decision of the Hon’ble Supreme Court in SARLA VERMA AND OTHERS v/s DELHI TRANSPORT CORPORATION AND ANOTHER reported in AIR 2009 SC 3104 if there are five dependents the deduction towards personal expenses to be taken at 1/4th but the Tribunal committed an error in deducting 1/3rd towards ‘personal expenses’. Thus it is appropriate to adopt deduction at 1/4th. The claimant was aged 35 years as on the date of accident. The Tribunal failed to award any compensation on the head of ‘future prospects’. The Hon’ble Apex Court in the decision of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI A ND OTHERS reported in AIR 2017 SUPREME COURT 5157 has held that wherever the deceased was aged below 40 years the claimants would be entitled for adding 40% of the assessed income towards future prospects. Hence in the instant case, the claimants would be entitled to add 40% of the assessed income towards future prospects. The claimants are wife, children and mother of the deceased. Claimants 2 to 4 are children of the deceased who have lost love, affection, care and concern of their father at a young age. Whereas claimant No.5 – the mother of the deceased has lost love, affection and care of her son. Hence claimants 2 to 5 would be entitled for parental consortium and filial consortium at Rs.40,000/- each respectively. Thus the claimants would be entitled for the following modified compensation :-
a. Loss of dependency including future prospects
(Rs.40,000/- x 4) d. Medical expenses 13,650/-
Total Rs.15,54,050/-
7. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimants are entitled to total compensation in a sum of Rs.15,54,050/- as against Rs.6,45,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization. The apportionment and deposit would be as ordered by the Tribunal.
Sd/- JUDGE NG* CT:bms