IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE R. DEVDAS MISCELLANEOUS FIRST APPEAL NO.8045 OF 2012 (MV) BETWEEN:
1. SMT VAANI W/O. LATE KESHAVA ACHARYA AGED ABOUT 41 YEARS 2. DIVYA D/O. LATE KESHAVA ACHARYA AGED ABOUT 18 YEARS 3. DIRAJ S/O. LATE KESHAVA ACHARYA AGED ABOUT 7 ½ YEARS 4. RAMANNA ACHARYA S/O. LATE KRISHNAYYA ACHARYA AGED ABOUT 75 YEARS 5. SEETHAMMA W/O. RAMANNA ACHARYA AGED ABOUT 68 YEARS APPELLANT No.3 SINCE MINOR REPRESENTED BY HIS NATURAL GUARDIAN MOTHER, THE APPELLANT No.1.
ALL ARE RESIDING NEAR SADHU BEEDI COMPANY BANGRA KULOOR D.K., MANGALORE - 575 009. ... APPELLANTS (BY SRI G. RAVISHANKAR SHASTRY, ADVOCATE) AND:
1. MANAGING DIRECTOR M/S. VIJAYANANDA ROAD LINES LOGISTICS LTD., GIRIRAJ ANNEXE CIRCUIT HOUSE ROAD HUBLI – 580 028 2. THE NEW INDIA ASSURANCE CO. LTD. SRINATH COMPLEX 2ND FLOOR, NEW COTTON MARKET HUBLI REPRESENTED BY ITS BRANCH MANAGER PIN – 580 028. ... RESPONDENTS (BY SRI VISHWANATH R. HEGDE, ADVOCATE FOR R1; SRI M. NARAYANAPPA, ADVOCATE FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 PRAYING TO SET-ASIDE/MODIFY THE JUDGMENT AND AWARD DATED 27.04.2012 IN MVC No.1797/2009 PASSED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, D.K., MANGALORE AND ALLOW THIS APPEAL AS PRAYED FOR IN THE CLAIM PETITION IN THE ENDS OF JUSTICE.
THIS MISCELLANEOUS FIRST APEPAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T R. DEVDAS J., (ORAL):
The appellants herein are the claimants before the tribunal. The appellants are seeking enhancement of the compensation awarded by MACT, D.K., Mangalore in MVC No.1797/2009 dated 27.04.2012. Since the accident is not denied, the factual aspects about the accident need not be gone into.
2. The main ground on which the appeal is preferred is that the appellants contended before the tribunal that the deceased was working as a Black Smith at A.R. Auto Works and salary certificate has been produced and marked as Ex.P10. The proprietor of A.R. Auto Works entered the witness box and was examined as PW-3. PW-3 has spoken about the deceased, that he was working as Black Smith for the past 10 years and the average salary of the deceased was about Rs.15,000/- p.m. In order to prove the fact that PW-3 was indeed running the A.R. Auto Works, a receipt dated 28.02.2011 for having paid the license fee to run the industry has been produced and marked as Ex.P16. A copy of the trade license for the year 2010-11 was also produced. It is therefore submitted by the learned counsel for the appellants that the tribunal could not have disagreed with the contention of the appellants that the deceased was earning a sum of Rs.15,000/- per month, approximately, as salary. The tribunal has taken a notional income of Rs.6,000/- p.m.
3. Learned counsel for respondent No.2 - Insurance Company submits that the tribunal cannot be faulted for having taken the notional income since the appellants were not able to produce all the required documents to substantiate their contention that the deceased was working as a Black Smith and was earning of Rs.15,000/- as salary per month.
4. Having heard the learned counsels and having perused the lower Court records, this Court is of the opinion that the appellants were able to substantiate their contention that the deceased was indeed working as a Black Smith at A.R. Auto Works. The salary certificate, the identification of the signature of PW-3 in the salary certificate and his oral testimony to the fact that the deceased was indeed working with him cannot be brushed aside. But this Court cannot overlook the fact that the deceased was not actually earning a fixed salary as stated by PW-3. The deceased used to earn Rs.85/- for every work of Rs.100/- as commission, which means if the proprietor of A.R. Auto Works collects Rs.100/- as labour charge, where the deceased carried out the work, the deceased was getting Rs.85/- and Rs.15/- was retained by the proprietor. Therefore, the contention that the deceased was regularly earning Rs.15,000/- may not be correct. In that view of the matter, this Court is of the opinion that the average earning of the deceased should be taken at Rs.10,000/- per month.
5. Learned counsel for the appellants submits that the Tribunal has awarded Rs.20,000/- under the head of loss of consortium, while awarding Rs.20,000/- under the head of loss of love and affection. He placed reliance on the judgment of the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram Alias Chuhru Ram and others in Civil Appeal No.9581/2018 reported in (2017) 16 SCC 680 arising out of SLP(Civil) No.3192/2018 which was disposed of on 18.09.2018. It is submitted by the learned counsel that the decision of the constitution bench of the Supreme Court in the case of National Insurance Company Limited vs. Sri. Pranay Sethi and others reported in (2017)16 SCC 690 regarding compensation to be awarded in death case under the head of loss of consortium was further explained and clarified. It was held by the Hon'ble Apex Court that the right to consortium would include company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to this family. With respect to a spouse, it would include sexual relations with the deceased spouse. Similarly, the right to consortium under three difference heads i.e., spousal consortium, parental consortium and filial consortium were required to be considered under the head loss of consortium. As a result, Rs.40,000/- each was granted to the father and sister of the deceased towards loss of filial consortium. Under the head loss of love and affection, the Award of the tribunal granting Rs.50,000/- each to two children was affirmed by the Supreme Court.
6. Learned counsel for the appellants submits that in the case on hand, the deceased left behind his parents, widow and two children. Therefore, under the head loss of love and affection a sum of Rs.40,000/- each is awarded to the children. Under the head loss of spousal consortium, a sum of Rs.40,000/- is awarded and under the head loss of filial consortium, a sum of Rs.30,000/- each is awarded to the parents of the deceased.
7. Learned counsel for the appellants submits that in terms of the Apex Court in the case of Pranay Sethi (supra), since the deceased was self employed and he was aged about 46 years, an addition of 25% has to be reckoned while determining the income and future prospects.
8. The loss of dependency has to be reworked in the light of the above. Since the income of the deceased is taken as Rs.10,000/- and 25% of Rs.10,000/- is Rs.2,500/-. The income shall be taken as Rs.12,500/-. Therefore, the compensation under the head loss of dependency works out to Rs.14,62,500/- (12,500 X 13 X 12 X 3/4). The total compensation is awarded as under:
Loss of dependency : Rs.14,62,500/-
Medical expenses : Rs. 18,200/-
Loss of consortium:
a) Spousal consortium Rs. 40,000/-
b) filial consortium (30 X 2) Rs. 60,000/- Loss of love and affection (40 X 2) Rs. 80,000/- Funeral transportation and etc., Rs. 15,000/- Loss of estate Rs. 15,000/- TOTAL Rs.16,90,700/-
9. As a consequence, the compensation is enhanced to Rs.9,15,500/- with an interest at the rate of 6% per annum from the date of petition till realization from respondent Nos.1 and 2 jointly and severally. Respondent Nos.1 and 2 are directed to deposit the enhanced compensation amount along with interest before the tribunal within a period of two months from the date of receipt of a copy of this Order.
10. All other aspects regarding apportionment and deposit by way of investment shall be in terms of ratio as awarded by the tribunal. A sum of Rs.3,66,200/- with interest which is apportionable equally amongst the children is ordered to be invested in Fixed Deposit in the name of petitioner Nos.2 and 3 in any Nationalized Bank till they attain majority and to this effect the petitioners shall file a joint memo before the Tribunal.
The Miscellaneous First Appeal is allowed accordingly.
SD/- JUDGE KLV