IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH 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.10018 of 2018 (MV) BETWEEN :
1. SMT.VEENA.C W/O.LATE SHIVARAJU AGED ABOUT 40 YEARS 2. SRI.PRAVEEN KUMAR.S S/O.LATE SHIVARAJU AGED ABOUT 22 YEARS 3. KUM.ASHA.S D/O.LATE SHIVARAJU AGED ABOUT 19 YEARS ALL ARE RESIDING AT ARCHAKARAHALLI WARD NO.31 RAMANAGARA TOWN – 562 159. (BY SRI.S.RAJU, ADVOCATE) ... APPELLANTS AND:
1. SRI.SATHYANARAYANA SINGH.H.B. S/O.BALAJI SINGH R/AT NO.160, 3RD CROSS TELECOM LAYOUT, ASHWATH NAGAR DR.SHIVARAMAKARANTH NAGAR THANISANDRA, BENGALURU – 560 077.
2. THE UNITED INDIA INSURANCE CO. LTD., 1ST FLOOR, R.V.R.COMPLEX OPP: LIC OFFICE, BEHIND KSRTC BUS STAND, IJOOR RAMANAGARA – 562 159.
REPRESENTED BY ITS BRANCH MANAGER ...RESPONDENTS (BY SRI.C.SHANKAR REDDY, ADVOCATE FOR R-2, V/O DATED 26.11.2019, NOTICE TO R-1 DISPENSED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO PASS AWARD, ENHANCING THE COMPENSATION / MODIFYING JUDGMENT AND AWARD PASSED IN M.V.C.NO.333/2015, DATED 06.04.2018, ON THE FILE OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL AND ADDL. SENIOR CIVIL JUDGE AT RAMANAGARA AND ETC., THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS THIS DAY, JYOTI MULIMANI J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for orders, with the consent of learned counsel on both sides, it is heard finally 2. The claimants have preferred this appeal assailing the judgment and award dated 06.04.2018 passed in MVC No.333/2015 by the Court of Additional Motor Accident Claims Tribunal and Additional Senior Civil Judge at Ramanagara (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 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.50,00,000/- on account of death of Shivaraju in a road traffic accident that occurred on 03.05.2015 at about 9.30 p.m. According to the claimants, when the deceased – Shivaraju was walking on B.M.Road opposite ABR Bar and Restaurant, at that time an Innova Car bearing registration No.KA-04-ML-9784 came from Mysore towards Bangalore and the driver of the car drove the vehicle in a rash and negligent manner and hit Shivaraju. On account of the same, he sustained head injuries and injuries to other parts of the body. Immediately, he was shifted to BGS Hospital. Therafter, he was shifted to NIMHANS Hospital and when he was undergoing treatment in RVM Hospital, Bangalore on 10.05.2015, he succumbed to death. It is further stated that prior to the accident the deceased was hale and healthy and he was a well known painter and earning a sum of Rs.1,000/- per day. That on account of untimely death of Shivaraju, 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, first respondent filed statement of objections and denied the petition averments. It is stated that the accident has caused due to the fault of the deceased. It is also further stated that he was having a valid driving licence to drive the car and the vehicle had been insured with second respondent. Hence, he is not liable to pay any compensation. Therefore, he prayed for dismissal of the petition.
6. The second respondent – Insurance Company filed the written statement and denied the petition averments. It is stated that the policy was valid from 25.03.2015 to 24.03.2016 in respect of the Innova Car bearing No.KA-04-ML-9784 subject to the terms and conditions. It is also stated that the petitioners have not lodged the complaint at the time of accident. The police Officer – Girish of Ramanagara had lodged a complaint on 05.05.2015. In the police record and postmortem report the deceased’s name has not been mentioned. The police record state that the deceased has not been identified and there are no legal heirs of the deceased. The police department themselves buried the deceased on 11.05.2015. Further, it is contended that the driver of the Innova Car was not having a valid driving licence to drive the vehicle at the time of accident. Hence, it prayed for dismissal of the petition.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioners prove that on 03.05.2015 at about 9.30 a.m. when deceased was walking beside the road in Ramanagara Town B.M. Road, near M.B.R. Bar and Restaurant at the same time Innova Car bearing Reg.No.KA-04-ML-9784 drove by its driver coming from Mysuru drove the vehicle in rash and negligent manner and endangering to human life and dashed to the petitioner as a result of which the deceased suffered grievous injuries all over the body, head and subsequently while under going treatment in NIMHANS and R.V.M. Hospital he died on 10.05.2015 due to the accident?
ii. Whether the respondent No.2 proves that driver of the Innova Car bearing reg. No.KA-04-ML-9784 had no valid driving license at the time of accident?
iii. Whether the petitioners are entitled for the compensation? If so, how much and from whom?
iv. What order or Award?
8. In order to substantiate their case, Sri.K.H.Gangadharaiah was examined as P.W.1 and produced 20 documents which were marked as Exs.P.1 to P.20. The respondents examined three witnesses as RW.1 to RW.3 and produced documents which were marked as Exs.R1 to R4. On the basis of the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 in the negative and issue No.3 partly in the affirmative and awarded compensation of Rs.9,10,000/- with interest at the rate of 7% per annum from the date of claim petition till its realization. Being aggrieved by the same, the appellants have preferred this appeal.
9. We have heard Sri.S.Raju, learned counsel for the appellants – claimants and Sri.C.Shankar Reddy, learned counsel for second respondent. As the second respondent has admitted its liability to satisfy the award, notice to first respondent is dispensed with.
10. Appellant’s counsel contended that the award of compensation on all other heads is contrary to the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the same has to be re-assessed by this Court. The next contention is with regard to the rate of interest and the counsel for the appellant contends that the grant of interest at the rate of 6% is highly disproportionate and therefore, submitted that the rate of interest also to be modified / enhanced. Accordingly, he prayed that the appeal may be allowed.
11. Per contra, learned counsel for the respondents while supporting the award of the Tribunal submitted that the driver of the Innova car was not having a valid driving licence and that the policy in respect of the Innova car was valid from 25.3.2015 to 24.3.2016 and the same was subject to the terms and conditions of the policy. It was further contended that the accident occurred on 03.05.2015 and that the claimants had not lodged any complaint. On the contrary the Police Officer by name – Girish had lodged a complaint on 5.5.2015. It was also contended that the deceased had not been identified and the officials of the Department of Police had taken necessary steps and have completed the last rituals of the deceased. Hence, the appellants have not made out any good grounds for enhancement of compensation and hence prayed for the dismissal of the appeal.
12. Having heard 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 appellants are entitled for enhanced compensation?
ii. What order?
13. The fact that Shivaraju died in a road traffic accident on 03.05.2015 has been established. It is also established that the offending vehicle Innova car was covered by an insurance policy and it is also established that the accident occurred due to rash and negligent driving by the driver of the offending vehicle and that as per Exs.P8 and P9, which reveals that the death of the deceased was due to multiple injuries. Therefore, Tribunal was justified in holding that the deceased died due to the accident. It is the specific contention of respondent No.2 that the driver of Innova car had no valid driving licence at the time of accident. But in the cross examination of P.W.2 nothing has been suggested in that regard.
Therefore, it is established that respondent No.2 has given go-by with regard to the defence taken by them in the written statement. Therefore, the Tribunal is right in holding that respondent No.2 has failed to establish that the driver of Innova car had no valid licence to drive the said vehicle as on the date of the accident. Further, the Tribunal is justified in holding that the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
14. The controversy in this appeal is with regard to the quantum of compensation awarded by the Tribunal. The Tribunal awarded compensation of Rs.9,10,000/- with interest at the rate of 7% per annum from the date of claim petition till realization on the following heads:-
Heads Compensation awarded by the Tribunal (in Rs.) Compensation towards loss of dependency Compensation towards loss of consortium by 1st petitioner Compensation towards loss to estate Compensation towards funeral and obsequies ceremony expenses 8,40,000.00 40,000.00 15,000.00 15,000.00 Total 9,10,000.00 15. The deceased was doing painting work and was earning Rs.1,000/- per day. The wife of the deceased deposed that her husband was earning a sum of Rs.1,000/- per day. But she did not produce any document to substantiate the same. Therefore, the Tribunal has taken the income of the deceased at Rs.6,000/- per month, which is on the lower side. Painting is a skilled art. It demands more time and attention for details. Therefore, we reckon the income of the deceased at Rs.9,000/- per month, as the accident occurred in the year 2015 and the deceased was aged 45 years. As per the dictum of the Hon’ble Supreme Court in the case of Pranay Sethi, 25% of the income shall have to be added towards future prospects. If 25% of the income towards future prospects is added to the monthly income of Rs.9,000/-, it comes to Rs.11,250/- per month. The claimants are three in number. Therefore, 1/3rd of the income of Rs.11,250/- has to be deducted towards personal expenses of the deceased, it comes to Rs.7,500/-. When the same is annualized and multiplied by ‘14’, it is Rs.12,60,000/- Hence, we propose to award Rs.12,60,000/- as against Rs.8,40,000/- awarded by the Tribunal on the head of ‘loss of dependency’.
16. In the instant case, it is noted that claimant No.1 is the spouse of the deceased – Shivaraju. Therefore, she is entitled to Rs.40,000/- towards ‘loss of spousal consortium’. Claimant Nos.2 and 3 are children of the deceased and they are entitled to Rs.60,000/- towards ‘loss of parental consortium’. In all, we propose to award Rs.1, 00,000/- towards ‘loss of consortium’. The claimants are entitled for Rs.15,000/- towards ‘loss of estate’ and another sum of Rs.15,000/- towards ‘loss of funeral expenses. In all, the claimants are entitled for compensation of Rs.13,90,000/-. The reassessed
17. The said enhanced compensation shall carry interest at the rate of 6% per annum, while the compensation awarded by the Tribunal shall carry interest at the rate of 7% per annum from the date of claim petition till realization.
18. The directions regarding apportionment issued by the Tribunal is affirmed. However, insofar as directions regarding deposit are concerned, we feel that 75% 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 after due identification. 50% of the compensation awarded to the children of the deceased shall be deposited in any Post Office or Nationalized Bank for an initial period of three years and they shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released in their favour after due identification.
In the result, the appeal filed by the claimants is allowed-in-part.
The Insurance Company to deposit the balance compensation amount within a period of four weeks from the date of receipt of copy of this judgment.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE VMB