IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.10184/2013 [MV] BETWEEN:
UNITED INDIA INSURANCE CO. LTD., ITS REGIONAL OFFICE 5TH FLOOR, KRISHI BHAVAN NRUPATHUGNA ROAD BANGALORE-01 REP. BY ITS ADMIN. OFFICER SRI SANDEEP.
(BY SRI.K.S. LAKSHMINARASAPPA, ADV. FOR SRI.B.C. SEETHA RAMA RAO, ADV.) AND:
1. SRI N JAGADEESHA S/O SRI NARAYANA RAO AGED ABOUT 56 YEARS 2. SMT. D PARVATHI BAI W/O N JAGADEESHA AGED ABOUT 49 YEARS BOTH ARE R/AT NO.6/11 II CROSS, MUTHAPPA BLOCK OPP:BOSTEN SCHOOL GANGANAGAR, R.T.NAGAR POST BANGALORE-32.
...APPELLANT 3. SRI SHASHIKUMAR S S/O SRINIVASA RAO MAJOR NO.338, SAMPIGE ROAD MALLESHWARAM BANGALORE-560003 (OWNER OF TVS WEGO NO.KA-02-HP-8667).
(BY SRI.SHRIPAD V SHASTRI, ADV. FOR R1 R2 IS SERVED R3-NOTICE D/W V/O DT:19.12.2013) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED18.09.2013 PASSED IN MVC NO.5812/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING COMPENSATION OF RS.11,12,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
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 an Insurer's appeal directed against the judgment and award dated 18.09.2013 passed in MVC No.5812/2012 on the file of Court of Small Causes, MACT, Bangalore.
2. The claimants are parents of the deceased Kum.J. Sandhya, who filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of their daughter in a Road Traffic Accident. It is stated that on 18.08.2012 when the claimant was proceeding as pillion rider in TVS Wego bearing Reg.No.KA-02-HP-8667 along with the rider Anusha, the rider of the vehicle due to over speed lost control at a road hump and jumped it. As a result both the rider and pillion rider fell down due to which the deceased sustained multiple injuries and immediately she was shifted to M.S. Ramaiah Hospital, during treatment on the same day she succumbed to the injuries. It is stated that the deceased was aged 20 years and was a student of II year B.Com. It is also further stated that she was working as part time Accountant at State Bank of Mysore, Employees Housing Co-operative Society, earning a sum of Rs.7,500/- per month.
3. On issuance of summons the 1st respondent remained absent and respondent No.2 - Insurer appeared and filed its written statement denying the claim petition averments. But admitted the issuance of policy and stated that the liability would be subject to the terms and conditions of the policy. Claimant No.1 - Father of the deceased examined himself as PW.1 and also examined PW.2, apart from marking the documents Exs.P1 to P19. Respondents have not led any evidence nor marked any documents. The Tribunal on appreciating the material on record awarded total compensation in a sum of Rs.11,12,000/- along with interest at 8% p.a. from the date of petition till the date of realization on the following heads :-
1. Loss of dependency (Rs.6,000 x ½ x 12 x 18) 6,48,000/-
Total Rs.11,12,000/-
4. While awarding the above compensation the Tribunal assessed the income of the deceased at Rs.6,000/- per month and added 50% of the assessed income towards ‘future prospects’. The Tribunal also awarded interest at 8% p.a. on the compensation amount. The insurer is in appeal contending that the Tribunal has awarded excess compensation and excess interest, thus prays for reduction of compensation.
5. Heard the learned counsel for the appellant - Insurer and learned counsel for the respondents- claimants. Perused the entire material on record.
6. Learned counsel for the appellant-Insurer would submit that the tribunal committed an error in adding 50% of the assessed income towards ‘future prospects’. It is his submission that as per the decision of the Apex Court in NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the claimants would be entitled for 40% of the assessed income towards future prospects. He further submits that the tribunal committed an error in awarding Rs.1,20,000/- on conventional heads, whereas the claimants would be entitled for Rs.30,000/- towards conventional heads. Further the learned counsel submits that the Tribunal committed an error in awarding interest at 8% p.a. from the date of petition till the date of realization, whereas the claimants would be entitled to interest at 6% p.a. on the compensation amount as held by this Court. Hence prays for reduction of compensation.
7. Per contra, learned counsel for the respondents - claimants submits that the Tribunal has awarded just compensation, which needs no interference. He further submits that the claimants, who are parents of the deceased Kum.J. Sandhly would be entitled for filial consortium of a sum of Rs.40,000/- each as they have lost their grown up daughter as per the decision of the Hon'ble Apex Court in MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS, reported in 2018 ACJ 2782. Thus he prays for dismissal of the appeal.
8. Having heard the learned counsel for the parties and on perusal of the material on record, the following points fall for consideration :-
a. Whether the Tribunal is justified in adding 50% of the assessed income towards future prospects ?
b. Whether the claimants would be entitled for compensation of Rs.40,000/- each on the head Filial consortium ?
c. Whether the Tribunal is justified in awarding interest at 8% p.a. on the compensation amount ?
The points (a and c) are answered in the negative and point (b) is answered in the affirmative respectively for the following reasons :-
The accident occurred on 18.08.2012 involving TVS Wego bearing Reg.No.KA-02-HP-8667 and the accidental death of Kumari J. Sandhya daughter of the claimants are not in dispute in this appeal. The insurer is in appeal being aggrieved by the quantum of compensation awarded by the Tribunal. Admittedly the deceased was aged 20 years as on the date of accident.
The Hon'ble Apex Court in PRANAY SETHI's case cited supra has held that the claimants would be entitled for adding 40% of the assessed income towards future prospects, wherever the deceased was aged below 40 years. In the instant case, the deceased was aged 20 years. Hence the claimants would be entitled for adding 40% of the assessed income towards future prospects and not 50% of the assessed income as awarded by the Tribunal. The Tribunal has awarded Rs.1,20,000/- on conventional heads, whereas the deceased was aged 20 years and she was unmarried. In such circumstances, the claimants would be entitled for only Rs.30,000/- on conventional heads. The claimants are parents of the deceased having lost their young daughter aged 20 years, they have lost her love and affection and care and concern. They would be entitled for Rs.40,000/- each towards filial consortium as held by the Hon'ble Apex Court in the case of MAGMA GENERAL INSURANCE COMPANY cited supra. The Tribunal has awarded interest at 8% p.a. on the compensation amount, whereas the learned counsel for the insurer contends that in the facts and circumstances of the case, the Tribunal ought to have awarded interest at 6% p.a. on the compensation amount. It is his submission that the claimants would be entitled to interest only at 6% p.a. This Court in the case of VIJAY ISHWAR JADHAV AND OTHERS Vs. ULRICH BELCHIOR FERNANDES AND ANOTHER reported in AIR 2018 (3) AKR 690 at paragraphs 14 and 15 has held as follows :-
14. I have carefully considered the rival contentions of the counsel for the Insurance Company for the claimants. It is true that the provisions of Civil Procedure Code are not Proprio vigor applicable to the procedure and powers of claims Tribunal, except to the extent mentioned in sub-Section (2) of Section 169 of the Act. Sub- sections (1) & (2) of Section 169 read as under:
“169. Procedure and powers of Claims Tribunals-
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objections and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) 15. However, the provisions of Section 149(1) of the Act to the extent they speak of interest payable on the compensation amount is in the nature of an exception to the general law enacted n 169 of the M.V.Act and therefore, the provisions of Section 34 of the CPC to that extent become invocable on the general principles of construction of statutes namely the special law overrides the general law. Therefore, in the absence of any other law relating to interest on judgments, the MACT has to follow the provisions of Section 34 of CPC, 1908. Thus, in the given circumstances of this case, interest at the rate of more than 6% could not have been awarded.”
9. Following the above decision I am of the view, that the Tribunal committed an error in awarding interest at 8% p.a. instead of 6% p.a. Thus the claimants would be entitled to modified compensation on the following heads :-
a. Loss of dependency -
Rs.6,000/- + Rs.2,400/- (40%) = Rs.8,400/- Rs.8,400 Less 50% = 4,200/-
10. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent. The claimants are entitled to reduced compensation of Rs.10,37,200/- as against Rs.11,12,000/- awarded by the Tribunal, with interest at 6% p.a. from the date of petition till the date of realization.
The amount in deposit be transmitted to the concerned tribunal.
Sd/- JUDGE NG* CT:bms