IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI M.F.A. No.8720/2017 (MV-D) BETWEEN:
UNITED INDIA INSURANCE CO., LTD., SAMPIGE ROAD MALLESHWRAM, BENGALURU.
THROUGH ITS REGIONAL OFFICE KRISHI BHAVAN BUILDING NRUPATHUNGA ROAD BENGALURU – 560 009 REP. BY ITS DEPUTY MANAGER SMT.SUDHA D RAO. ... APPELLANT (BY SRI K.S. LAKSHMINARASAPPA., ADVOCATE FOR SRI SEETHARAMA RAO B C., ADVOCATE) AND:
1. SMT. NARASAMMA AGED ABOUT 26 YEARS, W/O LATE NARAYANASWAMY, 2. CHI. KRISHNA AGED ABOUT 11 YEARS, S/O LATE NARAYANASWAMY, 3. KUM. AMRUTHA AGED ABOUT 9 YEARS, D/O LATE NARAYANASWAMY, SINCE THE RESPONDENTS 2 & 3 ARE MINORS REP.BY THEIR MOTHER AND NATURAL GUARDIAN SMT. NARASAMMA 4. SRI DODDA PEGULAPPA AGED ABOUT 64 YEARS S/O LATE NARAYANAPPA 5. SMT. JAYAMMA AGED ABOUT 49 YEARS W/O SRI. DODDA PEGULAPPA 6. SRI R.N MURALI PRASAD MAJOR IN AGE, S/O R.B.NARAYANASWAMY R/O MELURU, SIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT – 562 122 7. SMT. A. LAKSHMI MAJOR IN AGE, W/O SRI A.MANI C/O RAM TRANSPORT D-29, INDUSTRIAL SUBURB YESHWANTHAPUR, BENGALURU – 560 022.
8. THE ORIENTAL INSURANCE CO., LTD., NO.20-23, HIG III PHASE YELAHANKA NEW TOWN BENGALURU – 560 064.
9. SMT. SHAKUNTALAMMA AGED ABOUT 32 YEARS W/O LATE NARASYANASWAMY 10. MISS. LALITHA AGED ABOUT 17 YEARS D/O LATE NARAYANASWAMY 11. CHI. ANAND AGED ABOUT 14 YEARS S/O LATE NARAYANASWAMY RESPONDENTS 1 TO 5 AND RESPONDENTS 9 TO 11 ARE RESIDENTS OF NO.97 CHIKKA THATTAMANGALA VILLAGE MANDIBELE POST DEVANAHALLI TALUK BENGALURU DISTRICT – 562 102. ... RESPONDENTS (BY SMT. RADHA Y. AND SRI. MUNIYAPPA D. NAVEEN ADVOCATE FOR R-1 TO R-5; R-2 AND R-3 ARE MINORS REP.
BY R-1; VIDE ORDER DATED 13.04.2018 NOTICE TO R-6 TO R-8 DISPENSED WITH; R9 – SERVED; R-10 AND R-11 ARE MINORS REP. BY R-9) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.10.2017 PASSED IN MVC NO.1970/2013 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE & XXIV & A.C.M.M., MEMBER, M.A.C.T. COURT OF SMALL CAUSES, MAYO HALL UNIT BENGALURU. AN AWARDING A COMPENSATION OF RS.31.80,000/- WITH 9% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The insurance company has filed this appeal assailing the quantum of compensation awarded by the Motor Accident Claims Tribunal & V Addl. Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru (hereinafter referred to as “the Tribunal” for the sake of convenience) by judgment and award dated 06/10/2017, passed in MVC.No.1970/2013.
3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
4. Briefly stated, the facts are that the widow, minor children and parents of Narayanaswamy filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (“the Act” for short) seeking compensation on account of his death in a road traffic accident that occurred on 04/02/2013. In the said claim petition, respondent Nos.5 to 7 were arrayed as the second wife and minor children of deceased Narayanaswamy. According to the claimants, on the fateful day at about 8.15 a.m., Narayanaswamy was traveling in a private bus bearing No.KA-40-5519 on Vijayapura Main Road, when the bus approached Kurubarakunte nursery, it proceeded in a rash and negligent manner and the bus driver overtook the lorry bearing No.KA-41-B-9382 on the right side and suddenly crossed speed breakers. At that time, Narayanaswamy lost balance and fell down from the bus to the right. Immediately thereafter, the lorry ran over him. On account of the said impact, Narayanaswamy sustained grievous injuries and died on the spot. His body was shifted to Devanahalli Government Hospital, wherein postmortem was conducted, thereafter dead body of Narayanaswamy was handed over to petitioners and they performed his funeral rites and obsequies. Contending that Narayanaswamy was hale and healthy and he was the bread earner of the family and that they had lost a member of their family resulting in mental agony, financial penury, loss of social and economic status, the claimants filed the claim petition under Section 166 of the Act seeking compensation on various heads. They also contended that Narayanaswamy was aged about 35 years. He was working in house keeping department at Club Kabana and was earning Rs.8,000/- per month and contributed the entire amount towards the maintenance of the family. Therefore, they sought compensation on account of his death.
5. In response to the notices issued by the Tribunal, respondent No.1 did not appear, while respondent Nos.2 to 7 appeared through their advocates and filed their written statement.
6. Respondent No.2/insurance company contended that there was no negligence on the part of the driver of the bus bearing No.KA-40-5519. That the accident had occurred due to the negligence of the deceased himself. Denying various averments in the claim petition, the insurance company sought dismissal of the same. Alternatively, it contended that in the event the liability is fastened on the insurer, it would be subject to the terms and conditions of the policy.
7. Respondent No.3/owner of the lorry filed the written statement denying all the material averments and sought dismissal of the case.
8. Respondent No.4/insurer of the lorry also filed its written statement and sought dismissal of the claim petition.
9. Respondent Nos.5 to 7 contended that respondent No.5 is the first wife of deceased and respondent Nos.6 and 7 are his minor children. That the claim petition filed by the claimants was not maintainable. They sought dismissal of the claim petition.
10. On the basis of the rival pleadings, the Tribunal framed the following issues and additional issue for consideration:
(i) Whether the petitioners prove that they are the legal heirs of deceased Narayanaswamy?
(ii) Whether the petitioners further prove that, the deceased Narayanaswamy succumbed to the injuries in the R.T.A. which occurred on 04/02/2013 at about 8.20 p.m., on Vijayapura Main Road, Near Nursery, Kurubarakunte, Bangalore, on account of the rash and actionable negligence on the part of the driver of lorry bearing Reg.No.KA-41-B- 9382?
(iii) Whether the petitioners are entitled for compensation? If so, how much and from whom?
(iv) What order or award?
Additional Issue:
(i) Whether respondent Nos.5 to 7 prove that they are the legal heirs of the deceased Narayanaswamy?
11. In order to substantiate their case, the first claimant/Smt. Narasamma examined herself as PW.1. She produced twenty documents, which were marked as Exs.P- 1 to P-20. The respondents examined three witnesses as RWs.1 to 3. They produced five documents marked as Exs.R-1 to R-5. On the basis of the evidence on record, the Tribunal answered issue Nos.1, 2 and additional issue No.1 in the affirmative and issue No.3 partly in the affirmative and awarded compensation of Rs.31,80,000/- with interest at the rate of 9% per annum from the date of claim petition till realization and apportioned the said amount to the wives and children of deceased Narayanaswamy.
12. Contending that the award amount is excessive and exorbitant the insurance company has preferred this appeal.
13. We have heard learned counsel for the appellant/insurer, learned counsel for respondent Nos.1 to 5. Notice to respondent Nos.6 to 8 is dispensed with as there is no liability on them to satisfy the award. Respondent Nos.9 to 11 are served and unrepresented.
14. We have perused the material on record.
15. Appellant’s counsel contended that the Tribunal was not right in awarding a huge compensation of Rs.31,80,000/- that too, with interest at 9% per annum from the date of claim petition till realization. He contended that claimants had averred that the monthly income of the deceased was Rs.8,000/-. However, the Tribunal has erroneously assessed the income at Rs.12,000/- in the absence of there being any evidence to that effect. He submitted that the accident occurred in the year 2013 and in the absence of any concrete evidence with regard to income of the deceased, the notional assessment of Rs.8,000/- per month is just and proper. He therefore, contended that the said income may be taken into consideration and the award of compensation may be reduced. He contended that the huge amount of Rs.27,64,800/- awarded on the head of loss of dependency may be scaled down after taking into consideration a sum of Rs.8,000/- as the monthly income and adding 40% towards future prospects in accordance with the dictum of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & others [(2017)16 SCC 680] (Pranay Sethi). He further submitted that the award of compensation on the conventional heads is also excessive particularly on the heads of loss of consortium and loss of love and affection as well as loss of estate and the same may be scaled down. It was further emphasized that the Tribunal was not right in awarding interest at 9% per annum on the said amount.
16. Per contra, learned counsel for the respondent/claimants supported the judgment and award and submitted that the Tribunal has taken into consideration the fact that the deceased would have earned tips from the club members where he was working and hence the assessment of monthly income of the deceased was calculated and the same would not call for any reduction. She further contended that deceased Narayanaswamy had to maintain two families and he had two sets of children from two wives and parents and having regard to large number of dependents, the Tribunal has been liberal in awarding compensation on conventional heads, which is justified. She submitted that there is no merit in the appeal and the same may be dismissed.
17. Having heard learned counsel for the 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 in the instant case calls for any interference? In other words, whether the quantum of compensation of Rs.31,80,000/- requires reduction?
(ii) What order?
18. The claimants have established the fact that Narayanaswamy died in a road traffic accident that occurred on 04/02/2013 at about 8.15 a.m. when he was traveling in a private bus bearing No.KA-40-5519 on Vijayapura Main Road, when it proceeded in a high speed and rash and negligent manner and when the driver of the bus applied sudden brake near the speed breakers resulting in Narayanaswamy falling on the road. As a result of which, lorry bearing No.KA-41-B-9382 ran over him and killing him on the spot. The Tribunal has held that the entire negligence was on the part of the driver of the bus and not on the lorry driver. There is no controversy on that aspect of the matter. However, the controversy is with regard to compensation awarded by the Tribunal. The Tribunal has awarded a sum of Rs.31,80,000/- with interest at 9% per annum from the date of the claim petition till realization on the following heads:
1 Loss of dependency Rs.27,64,800 2 Loss of consortium 50,000x2 Rs. 1,00,000 3 Loss of love and affection Rs.30,000 x 6 4 Towards funeral and obsequies ceremonies Rs. 1,80,000 Rs. 35,000 5 Loss of estate Rs. 1,00,000 TOTAL Rs.31,79,800 19. The contentions raised by the respective counsel on the head of loss of dependency to an extent of Rs.27,64,800/- would not call for reiteration. It is observed that the claimants had averred and proved that the deceased Narayanaswamy was earning Rs.8,000/- per month. Therefore, there was no reason for the Tribunal to assess the notional monthly income at Rs.12,000/- per month. Hence, Rs.8,000/- per month is taken as the monthly income of the deceased and 40% of the monthly income has to be added towards future prospects having regard to the latest dictum in the case of Pranay Sethi which would be Rs.11,200/-. Since the claimants are five in number and it is contended that the deceased had another wife and two other children, we think it just and proper that only 1/5th amount could be deducted towards personal expenses of the deceased. Consequently, the resultant figure is Rs.11,200/- - 2,240=8,960. The said amount would have to be annualized and the multiplier of ‘16’ has to applied consequently the compensation would be Rs.8960x12x16 = 17,20,320/- on the head of loss of dependency.
20. In addition to that, a sum of Rs.40,000/- is awarded towards loss of spousal consortium; Rs.60,000/- is awarded towards loss of parental consortium and a further sum of Rs.60,000/- is awarded towards loss of filial consortium and love and affection to the parents of the deceased. A sum of Rs.15,000/- each is awarded towards loss of estate and funeral expenses. Thus, the total compensation would be Rs.19,10,320/-.
21. The re-assessed compensation shall carry 9% interest per annum from the date of the claim petition till realization as awarded by the Tribunal. We are conscious of the fact that this Court as well as the Tribunals normally would award 6% interest per annum, but in the instant case, no additional compensation has been awarded, than what has been stipulated by the Hon’ble Supreme Court. But the dependents of the deceased are many as it has come on record that the deceased had two families, who are depending on him since he had two wives, four children and parents. Therefore, having regard to the peculiar facts of this case, we deem it just nand proper to confirm the rate of interest awarded by the Tribunal at 9% per annum on the re-assessed compensation, which has in fact been reduced in this appeal. It is needless to emphasize that the award of interest at the rate of 9% per annum is owing to the peculiar facts of this case and it cannot be treated as a precedent in other cases.
22. The re-assessed compensation is reduced to Rs.19,10,320/- from Rs.31,80,000/- and the same shall carry interest at the rate of 9% per annum from the date of the claim petition till realization. In the result, the appeal filed by the insurance company is allowed in part.
23. The appellant and respondent No.8/insurer shall satisfy the award in equal proportion. The apportionment of compensation shall be as under:
The widows of the deceased Narayanaswamy shall be entitled to 20% each of the compensation awarded by this Court, while the four children and the parents of the deceased shall be entitled to 10% each.
50% of the compensation awarded to the widows of the deceased shall be deposited in any nationalized bank or post office for an initial period of ten years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
The entire amount of compensation awarded to the minor children of the deceased shall be deposited in any nationalized bank or post office until they attain the age of majority. If they have already attained the age of majority, 50% of compensation amount shall be deposited in any nationalized bank or post office for an initial period of five years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
50% of the compensation amount awarded to the parents of the deceased shall be deposited in any nationalized bank or post office for an initial period of five years. They shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to them after due identification.
The respective insurance companies shall deposit the re-assessed compensation with upto date interest at 9% per annum within a period of four weeks from the date of receipt of certified copy of this judgment.
The Tribunal to ascertain about the amount of compensation deposited by the appellant/insurer herein and the excess amount, if any, have to be refunded to the appellant/insurer.
Parties to bear their respective costs.
Office to transmit the original records to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE S*