IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD M.F.A. NO.8883 OF 2017 (MV) BETWEEN :
UNITED INDIA INSURANCE CO LTD DIVISIONAL OFFICE NO.1 CODE NO.07100, PB NO.2743/2 JELLITTA TOWERS, MISSION ROAD, BENGALURU-27 NOW REPTD BY THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE, NO.5 AND 6TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BENGALURU-560001 ... APPELLANT (BY SHRI A N KRISHNA SWAMY, ADVOCATE) AND :
1. SMT. PAVITHRA W/O DECEASED Y.M.SRINIVAS AGED ABOUT 37 YEARS 2. KUMARI Y.S. VAISHNAVI D/O DECEASED Y.M.SRINIVAS AGED ABOUT 15 YEARS R2 IS MINOR REP BY R1 R/AT DOOR NO.2585 KRISHNA NILAYA, SANTHE BEEDHI, SOMESHWARAPALYA, MULBAGAL TOWN, KOLAR DISTRICT-563131 3. SRI. N. ANANDA S/O LATE RAMAIAH, HAROHALLI GARDENS, NO.190/A, MADERAHALLI POST, KOLAR TALUK AND DISTRICT-563101 ... RESPONDENTS (BY SHRI BASAVARAJ S. SAPPANNAVAR, ADVOCATE FOR R-1 AND R-2; NOTICE TO R-3 IS DISPENSED WITH V/O DATED 22.03.19) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 18.11.2015 PASSED IN M.V.C. NO.2283/2006 ON THE FILE OF THE XXI A.C.M.M. AND XXIII ADDITIONAL SMALL CAUSES JUDGE, M.A.C.T., COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS.25,53,800/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS M.F.A. COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for condonation of delay of 644 days in filing the appeal, we have nevertheless heard learned counsel for the respective parties and on condoning delay, with the consent of the learned counsel for the respective parties, the appeal is disposed of.
2. Since the Insurance Company has admitted its liability and respondent Nos.1 and 2 are represented by counsel, notice to respondent No.3 is dispensed with.
3. This appeal is directed against the judgment and award dated 18.11.2015 passed in MVC No.2283/2006 by the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (hereinafter referred to as the “Tribunal” for the sake of brevity).
4. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
5. Respondents-claimants filed the claim petition under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as the “Act” for the sake of brevity) seeking compensation on the account of death of Dr.Y.M.Srinivas, husband of claimant No.1, father of claimant No.2 and son of claimant No.3. According to them, on 31.10.2005 at 7.00 p.m., Dr.Y.M.Srinivas was proceeding in Guttahalli on motorcycle bearing Registration No.KA-08/H-399 and when he reached near Guttahalli-Venkatapura junction on Mulbagal-KGF Road, Bangarpet Taluk, Kolar District, at that time, another motorcycle bearing Registration No.KA-40/H4902 was driven in a rash and negligent manner and hit the motorcycle, which was driven by Dr.Y.M.Srinivas. As a result of the impact, he fell down and sustained grievous injuries. He was immediately shifted to R.L.Jalappa Hospital. But the doctor declared him as dead. Contending that they had lost the sole bread earner of the family, the claimants filed the claim petition seeking compensation on various heads.
6. Bethamangala Police registered a case against the driver of the offending vehicle for the offences punishable under Sections 279, 304A of IPC.
7. The claimants contended that the deceased was aged 30 years and he was working as a Doctor at Primary Health Centre, Doddachinnahalli, Bangarpet Taluk and was having his own clinic in the name and style of Banashankari Clinic and that he was earning Rs.11,000/- per month as consolidated salary and Rs.1,200/- to Rs.1,400/- per day from his private practice and that he was utilizing the entire amount for maintenance of his family. Therefore, they sought for compensation on various heads.
8. In response to the notice issued, respondent No.1/owner of the offending vehicle appeared and contended that respondent No.2 insurer was jointly and severally liable to pay compensation.
9. The Insurance Company/respondent No.2 filed its written statement contending that the rider of the motorcycle bearing Registration No.KA-04-H-2702 caused the accident and not the rider of motorcycle bearing Registration No.KA-40-H-4902. The Insurance Company contended that the claim petition was not maintainable as against the Insurance Company and sought for dismissal of the same.
10. On the basis of the original pleadings, the Tribunal framed the following issues:-
“1. Whether the petitioners prove that death on 31.10.2005 at about 7.00 p.m. on Mulabagal- KGF road of Bangarpet Taluk, Kolar district in between Guttahalli-Venkatapura, while the deceased Dr.Srinivas.Y.M. was riding the motorcycle bearing No.KA-08/H-399, the motor cycle bearing No.KA-40-H-4902 respondent No.1 came in a high speed in a rash and negligent manner and dashed to the victim and he sustained injuries and died in the hospital?
2. Whether the petitioners are entitled for compensation? If what is the quantum? From whom payable?
3. What order or award?”
11. In support of their case, the claimants examined three witnesses and they produced ten documents Ex.P-1 to 10, while respondent-insurer examined one witness as RW-1 and produced a copy of the policy as Ex.R-1.
12. On the basis of the said evidence, the Tribunal by judgment and award dated 16.01.2008 awarded compensation of Rs.19,45,000/- with interest at the rate of 7.5% p.a. Being aggrieved by the said judgment and award, the insurance company had filed M.F.A. No.7524 of 2008 before this Court. A Co- ordinate Bench of this Court by judgment dated 17.02.2014 allowed the appeal filed by the insurance company and disposed off M.F.A. Crob. No.133 of 2011 filed by the respondent claimants by setting aside the judgment and award dated 16.01.2008 passed by the Tribunal. The matter was remitted to the Tribunal with a direction to frame an additional issue and to permit the insurance company to adduce evidence and thereafter to permit the claimants to adduce rebuttal evidence and to dispose off the claim petition.
13. Subsequent to the remand, the Tribunal framed following additional issue and examined the matter afresh :
“Whether respondent prove that, the respondent No.2 had issued a policy in respect of vehicle bearing No.KA-04/H- 2702 as pleaded in para 4(a) of written statement?”
14. On considering the evidence on record as well as the evidence of R.W.1, the Tribunal concluded that vehicle bearing No.KA-40/H-4902 was indeed involved in the accident and that there was no evidence on record to show that vehicle bearing Reg. No.KA-04/H-2702 was involved in the accident. Thereafter the Tribunal assessed the compensation to be awarded and has awarded compensation of Rs.25,53,800/- along with interest at 9% p.a. from the date of the claim petition till realization and has passed orders regarding apportionment and deposit. Being aggrieved by the judgment and award passed by the Tribunal, subsequent to remand the insurance company has again filed this appeal.
15. We heard learned counsel for the appellant insurer and learned counsel for the respondent claimants mainly, on the quantum of compensation awarded by the Tribunal and perused the material on record.
16. Learned counsel for the appellant contended that the award of compensation on the head of loss of dependency at Rs.14,96,000/- and towards loss of future prospects at Rs.7,48,000/- is on the higher side. He further submitted on the conventional heads, towards loss of love and affection at Rs.1,00,000/- being awarded and towards loss of consortium another sum of Rs.1,00,000/- being awarded is again on the higher side. He submitted that award of interest at the rate of 9% p.a. is also without any reasons being assigned. He contended that the compensation amount calls for reduction in this appeal.
17. Per contra, learned counsel for the respondent/claimants contended that the accident occurred in the year 2005 and the claimants are yet to realize any compensation as of date. That the award of compensation is just and proper having regard to the young age of the widow and the tender age of minor child. He submitted that the deceased was a Medical Doctor and he had a bright future, but, for the unfortunate demise in the accident. That the award of compensation would not call for any interference in this appeal. He submitted that the appeal may be dismissed in limine.
18. Having heard learned counsel for the respective parties, the following points would arise for our consideration :
i. Whether the award of compensation by the Tribunal, in the instant case, calls for any interference?
ii. If the answer to point No.1 is in the affirmative, what order?
19. The fact that Dr. Y.M. Srinivas died in the road traffic accident that occurred on 31.10.2005 at about 7.00 p.m. on Mulbagal-KGF road of Bangarpet taluk, Kolar District has been established. It is also established that the rider of the offending vehicle bearing No.KA-40/H-4902 which is a motor cycle was the cause of the accident which was on account of his rash and negligent driving. The claimants are the widow, minor daughter and the mother of the deceased. Having established the aforesaid facts, the Tribunal has assessed the compensation to be awarded to them. Since the deceased was a Medical Doctor and was aged 30 years, the Tribunal assessed the monthly income of the deceased at Rs.11,000/- and by applying ‘17’ multiplier, after deducting 1/3td of his income towards his personal expenses, compensation of Rs.14,96,000/- has been awarded towards loss of dependency. In addition, a sum of Rs.7,48,000/- has been awarded towards loss of future prospects based on the judgment of the Hon’ble Supreme Court in the case of Rajesh and others v. Rajbir Singh and others reported in (2013) 9 SCC 54 and in the case of Munnalal Jain v. Vipin Kumar Sharma reported in (2015) 6 SCC 347. However, having regard to the latest dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017)16 SCC 680 (Pranay Sethi), the loss of dependency would have to be considered in the light of future prospects. While applying the said dictum to the instant case and having regard to the fact that the deceased had a permanent job and was aged 30 years only, 50% of the annual salary would have to be added towards future prospects. If Rs.11,000/- is the monthly salary, 50% of the same is Rs.5,500/- which has to be added. Thus, the total amount would be Rs.16,500/-; 1/3rd of the said amount would have to be deducted towards personal expenses of the deceased, in which event the amount would be Rs.11,000/-. The annual salary has to be calculated and by applying the appropriate multiplier of ‘17’, compensation under the head of loss of dependency would be Rs.22,44,000/- (Rs.11,000/- x 12 x 17). Having regard to the latest judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited v. Nanu Ram and Others, reported in 2018 ACJ 2782, a sum of Rs.40,000/- atleast would have to be awarded on the head of loss of spousal consortium; on the head of loss of filial consortium or loss of love and affection a sum of Rs.40,000/- has to be awarded to the mother of the deceased and a sum of Rs.40,000/- to be awarded towards loss of parental consortium to the minor child – second appellant. Consequently, the consolidated amount on the head of loss of consortium is Rs.1,20,000/-. Having regard to the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi (supra), a sum of Rs.15,000/- has to be awarded towards funeral expenses and another sum of Rs.15,000/- towards loss of estate. Thus, the total compensation would be Rs.23,94,000/-.
20. There is no reason assigned as to why interest at the rate of 9% p.a. has to be awarded on the said compensation by the Tribunal. Normally this Court would award interest at 6% p.a. only. In the circumstances, interest on the total compensation is awarded at 6% p.a. from the date of the claim petition till realization. Consequently, the re-assessed compensation would be Rs.23,94,000/-. The said compensation shall carry interest at the rate of 6% p.a. from the date of claim petition till realization. Points No.1 and 2 are accordingly answered.
21. The compensation assessed shall be apportioned between respondents No.1 *and 2 in the ratio of *50 : 50 . 75% of the compensation amount awarded to respondent No.1 shall be deposited in any post office or Nationalised Bank deposit for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance amount shall be released to her. The entire amount of compensation awarded to second * Corrected vide Court order dated: 02.07.2021 respondent-minor shall be deposited in any post office or Nationalised Bank deposit until she attains the age of majority. Once she attains the age of majority and should there be any need for utilization of the said amount for any meaningful purpose, then an application shall be filed before this Court stating the said reasons for withdrawal of the said amount. The compensation amount awarded to third respondent shall be released to her after due identification. The appeal is partly allowed in the aforesaid terms.
22. Statutory amount before this Court to be transmitted to the concerned Tribunal.
23. Parties to bear their respective costs.
24. In view of disposal of the appeal, I.A. No.2 of 2017 does not survive for consideration and stands disposed.
25. The compensation amount shall be deposited by the appellant – insurance company within a period of two weeks from the date of receipt of certified copy of this judgment.
SD/- JUDGE SD/- JUDGE DM/hnm