IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.6663 of 2017 (MV-D) BETWEEN :
UNITED INDIA INSURANCE CO LTD, DIVISIONAL OFFICE, SATHYANARAYANA BUILDING, NSC BOSE ROAD, ROBERTSONPET, KGF-563122.
NOW REPTD BY REGIONAL MANAGER, UNITED INDIA INSURANCE CO LTD, REGIONAL OFFICE, NO.5 & 6TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BENGALURU-560001. ... APPELLANT (BY SRI. A.N. KRISHNASWAMY, ADVOCATE) AND:
1. SMT SUDHA P V W/O LATE MANJUNATHA R, AGED ABOUT 28 YEARS, 2. KUM NAYANA M D/O LATE MANJUNATHA R, AGED ABOUT 4 YEARS, 3. MAST. GOKUL YADAV M D/O LATE MANJUNATHA R, AGED ABOUT 2 YEARS, R2 & R3 ARE MINORS REPTD BY R1.
4. SMT PADMAMMA W/O RAMAPPA, AGED ABOUT 60 YEARS, 5. SRI RAMAPPA S/O LATE MUNIYAPPA, AGED ABOUT 65 YEARS, ALL ARE R/AT BOYANAHALLI VILLAGE, KETHAGANAHALLI POST, BANGARPET TQ, KOLAR DISTRICT-563 114.
6. SRI VISHWANATH S/O BUDDAPPA, MAJOR, R/AT BOORAMKANAHALLI VILLAGE, DODDAVAAGAMADI POST, BANGARPET TQ, KOLAR DISTRICT-563 114.
...RESPONDENTS (BY SRI.N.GOPALKRISHNAN, ADV., FOR R-1 TO R5, R2 & R3 ARE MINORS REP. BY R-1, R-6 – SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED:24.01.2017 PASSED IN MVC NO.557/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE & JMFC, MACT, K.G.F., AWARDING COMPENSATION OF RS.41,49,658/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it was heard finally and listed today for dictating judgment.
2. The Insurance company has preferred this appeal assailing the judgment and award dated 24.01.2017 passed in MVC No.557/2014 by the Additional Senior Civil Judge and JMFC and Motor Accident Claims Tribunal, K.G.F. (hereinafter referred to as ‘Tribunal’ for the sake of brevity).
3. For the sake of convenience, parties shall be referred to in terms of their ranking and status before the Tribunal.
4. The respondents – claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.90,00,000/- on account of death of Manjunatha.R in a road traffic accident that occurred on 08.11.2014. According to the claimants, Manjunatha was proceeding towards his village Boyanahalli, Bangarpet Taluk from Bangarpet Town on motorcycle bearing registration No.KA- 02-EF-1033, by driving the said vehicle slowly and cautiously on the correct side of the road. At about 5.00 p.m. near Ajjappanahalli cross on Bangarpet Kamasamudram Road, one Hero Honda Splendor Plus motorcycle bearing registration No.KA-08-Q-4610, came from the opposite direction i.e., Kamasamudram side, driven by its driver in a rash and negligent manner, lost control over the vehicle and dashed against deceased’s motorcycle. Due to the said impact, the deceased fell down and sustained grievous injuries. Immediately, he was taken to R.L.Jalappa Hospital, Kolar. On 10.11.2014, for advance medical treatment, he was shifted to Columbia Asia Referral Hospital, Bangalore, wherein he was treated as an inpatient. On 14.11.2014, the family members where informed that the deceased is unlikely to survive due to the severe brain injury and instructed them to take him to any other hospital. Accordingly, when the deceased was shifted to Government Hospital, Bangarpet, he succumbed to the injuries. It is contended that Manjunatha was hale and healthy and 29 years of age and he was working as a bus Driver-cum Conductor at BMTC, Bangalore and earning salary of Rs.20,000/- per month and he was eligible for promotion to higher post. That on account of untimely death of Manjunatha, the family had lost his earnings and love and affection of the deceased. Hence, they sought compensation on various heads.
5. In response to the notices issued by the Tribunal, respondents appeared through their counsel and first respondent, the owner of the motorcycle filed its statement of objections admitting that he was the registered owner of the Hero Honda Splendor Plus motorcycle and he also admitted that he was riding the motor cycle on the fateful day. The deceased – Manjunatha who was proceeding from the opposite direction drove his motorcycle in a rash and negligent manner and dashed to first respondent’s vehicle, as a result, first respondent sustained injuries and Manjunatha fell down and succumbed to the injuries. A case in Crime No.2512/2014 came to be registered against first respondent, even though he was not responsible in causing the accident. It was contended that if the Tribunal held that he was rash and negligent in driving his motorcycle, then he would be indemnified by the second respondent – Insurance Company, as the motorcycle bearing No.KA-08-Q-4610 was covered under a valid insurance policy. With the aforesaid averments, first respondent sought for dismissal of the petition.
6. The second respondent – Insurance Company also filed its statement of objections contending that it was not aware whether it had insured the vehicle belonging to the first respondent and that the policy was in force subject to the terms and conditions. Further, second respondent denied the averments in the claim petition and sought for dismissal of the same.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioners prove that the deceased – Sri.Manjunatha.R is the victim of the motor vehicle accident caused on account of the rash and negligence riding of Hero Honda Splendor Plus bearing reg.No.KA-08-Q-4610 on 08.11.2014 at 5.00 p.m. on Bangarpet – Kamasamudram Road near Ajjappanahalli Cross, Bangarpet and succumbed to the injuries as pleaded in the petition?
ii. Whether petitioners are entitled for compensation? It so, at what amount?
iii. Whether the respondent No.2 proves that it is not liable to pay compensation as pleaded in its objections statement?
iv. To what order?
8. In order to substantiate their case, the claimants examined two witnesses namely, P.W.1 and P.W.2. P.W.1 being the widow of the deceased – Manjunatha and P.W.2 – S.Ashok Kumar, EST Assistant at B.M.T.C. Depot, Bangalore, produced 36 documents which were marked as Exs.P.1 to P.36. The respondents did not lead any evidence. On the basis of the evidence on record, the Tribunal answered Issue Nos.1 and 2 in the affirmative and Issue No.3 in the negative and awarded compensation of Rs.41,49,658/- with interest at the rate of 9% per annum from the date of claim petition till its realisation. Being aggrieved by fastening of liability on the insurance company and also contending that the quantum of compensation awarded by the Tribunal is exorbitant, the insurance company has preferred this appeal.
9. We have heard Sri.A.N.Krishnaswamy, learned counsel for the appellant – insurance company and Sri.N.Gopal Krishna, learned counsel for respondent Nos.1 to 5. Respondent No.6 is the owner of the offending vehicle, is served and unrepresented. We have perused the material on record.
10. Appellant’s counsel drew our attention to the impugned judgment and contended that the award of compensation on each of the heads is exorbitant. He submitted that the Tribunal has awarded a sum of Rs.36,03,847/- on the head of ‘loss of dependency’ and compensation of Rs.1,00,000/- awarded towards ‘loss of consortium’ and ‘loss of love and affection’ which are on the higher side. He contended that it is a fit case where the award of compensation must be scaled down by making reassessment. He also placed reliance on the recent dictum of the Hon’ble Supreme Court in the cases of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 and SARALA VERMA v. DELHI TRANSPORT CORPORATION AND ANR. reported in AIR 2009 SC 3104, to contend that the compensation may be reduced in the instant case.
11. Per contra, learned counsel for the respondents – claimants supported the impugned judgment and award and contended that there is no merit in this appeal. He further relied upon MAGMA GENERAL INSURANCE CO. LTD. v. NANU RAM AND OTHERS reported in 2018 ACJ 2782 (SC), to contend that on the head of ‘loss of consortium’, the Hon’ble Supreme Court has explained various facets of the said expression and therefore, the Tribunal is right in awarding compensation on the heads of ‘loss of consortium’ and ‘loss of filial consortium’ to each of the claimants, as the case may be and that there is no merit in this appeal.
12. Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration:
i. Whether the quantum of compensation awarded by the Tribunal calls for any interference?
ii. What order?
13. Respondents – claimants have established the fact that Manjunatha died in a road traffic accident that occurred on 08.11.2014, when he was proceeding to his village Boyanahalli, Bangarpet Taluk from Bangarpet Town by riding his motorcycle bearing No.KA-02-EF-1033 and when he was near Ajjappanahalli Cross on Bangarpet – Kamasamudram Road, the rider of the motor cycle bearing No.KA-08-Q-4610 namely, the first respondent came in a rash and negligent manner, lost control over the vehicle and dashed against Manjunatha’s vehicle. However, the controversy in this appeal is with regard to the quantum of compensation awarded by the Tribunal. The Tribunal awarded Rs.41,49,658/- with interest at the rate of 9% per annum from the date of claim petition till realization on the following heads:-
Heads Compensation awarded by the Tribunal (in Rs.) Loss of dependency 36,03,847.00 Loss of consortium of first petitioner 1,00,000.00 Loss of estate 10,000.00 Loss of love and affection to petitioner No.2 Loss of love and affection to petitioner No.3 Loss of love and affection to petitioner No.4 Loss of love and affection to petitioner No.4 Towards medical expenses from the date of accident till the death of the deceased Expenses towards transportation of dead body and funeral expenses 1,00,000.00 1,00,000.00 50,000.00 50,000.00 2,15,811.00 20,000.00 Total 41,49,658.00 14. It is noted that the deceased was 29 years of age and he was working as a Driver cum Conductor in Bangalore Metropolitan Transport Corporation (BMTC) and his monthly gross salary was Rs.17,459/- at the time of his death. But as per Ex.P.11, the Tribunal has assessed the gross salary of the deceased at Rs.15,703/-. Considering the said amount, the appropriate multiplier of ‘17’ has been taken, by applying the judgment of the Hon’ble Supreme Court in SARALA VERMA. Further, in terms of the judgment of the Hon’ble Supreme Court in PRANAY SETHI, 50% of the said salary has been added towards future prospectus and thereby, total salary is taken as Rs.1,88,436/- (15,703X12=1,88,436) and after adding 50%, it has been computed as Rs.2,82,654/- (1,88,436+50%=2,82,654). Thus, gross income of the deceased was assessed at Rs.2,82,654/-. Thereafter, 1/4th of the income of the deceased is deducted towards personal expenses of the deceased, it comes to Rs.70663/- and by applying the multiplier ‘17’, compensation of Rs.36,03,847/- (2,82,654 X 1/4 X 17 =36,03,847/-) has been awarded on the head ‘loss of dependency’. We do not think the said computation calls for any interference in the instant case as far as ‘loss of dependency’ is concerned.
15. Having regard to the dictum of the Hon’ble Supreme Court in the case of PRANAY SETHI and bearing in mind another dictum of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY, a sum of Rs.40,000/- is awarded on the head of ‘loss of consortium’. But has explained in the case of MAGMA GENERAL INSURANCE COMPANY the expression ‘loss of consortium’ cannot be restricted towards ‘loss of spousal consortium’ only and it would even cover ‘loss of filial consortium’ as well as ‘loss of parental consortium’. ‘Loss of parental consortium’ is awarded to children particularly, minor children who lose their parents and ‘loss of filial consortium’ would apply to parents who would lose their child or children in a road traffic accident.
16. In the instant case, it is noted that claimant No.1 is the spouse of the deceased – Manjunatha. Therefore, she is entitled to Rs.40,000/- towards ‘loss of spousal consortium’. Claimant Nos.2 and 3 are minor children of the deceased and they are entitled to Rs.30,000/- each towards ‘loss of parental consortium’ and claimant Nos.4 and 5, being the parents of the deceased – Manjunatha are entitled to Rs.30,000/- each towards ‘loss of filial consortium’ or ‘loss of love and affection’. In all, we propose to award Rs.1,60,000/- towards ‘loss of consortium’ in toto. The claimants are entitled for Rs.15,000/- towards ‘loss of estate’ and another sum of Rs.15,000/- towards ‘loss of funeral expenses’ as stipulated by the Hon’ble Supreme Court in the case of PRANAY SETHI. Further a sum of Rs.2,15,811/- has been awarded by the Tribunal towards the ‘medical expenses. The same is retained. In all, the claimants are entitled for compensation of Rs.40,09,658/-. The reassessed
17. The said compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization instead of 9% per annum which has been awarded by the Tribunal.
18. The directions regarding apportionment issued by the Tribunal that claimant Nos.1 to 3 are entitled to 25% each of the compensation amount and claimants Nos.4 and 5 are together entitled to remaining 25% of the compensation amount with proportionate interest is affirmed. However, insofar as directions regarding deposit is concerned, we feel that the entire compensation of the minor children has to be deposited in any Post Office or Nationalised Bank till they attain the age of majority and 50% of the compensation awarded to the widow of the deceased must be deposited in any Post Office or Nationalized Bank for an initial period of ten years and she shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released in her favour. Insofar as, compensation awarded to claimant Nos. 4 and 5 are concerned, 60% of the said compensation shall be released to them after due identification and 40% of the compensation amount shall be deposited for a period of three years in any Post Office or Nationalized Bank in their joint names and they are entitled to draw periodical interest on the said deposit.
19. In the result, the appeal filed by the Insurance Company is allowed-in-part.
20. Parties to bear their respective costs.
21. The amount in deposit to be transmitted to the concerned Tribunal.
22. In view of the disposal of the main appeal, I.A.No.2/2017 stands disposed.
Sd/- JUDGE Sd/- JUDGE VMB