IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 3366 OF 2015 (MV) BETWEEN 1. VIJAYANIRMALAMARY @ VIJI W/O LATE SEBASTIAN AGED ABOUT 28 YEARS 2. SHARMILA @ SHARMILAMARY D/O LATE SEBASTIAN AGED ABOUT 8 YEARS 3. MESIYA S/O LATE SEBASTIAN AGED ABOUT 6 YEARS 4. S. MADALYE MUTTU S/O SEBASTIAN AGED ABOUT 61 YEARS 5. RANJITAMARY W/O S. MADALYE MUTTU AGED 58 YEARS APPELLANT NOS.2 AND 3 BEING MINOR REP. BY THEIR NATURAL GUARDIAN MOTHER 1ST APPELLANT VIJAYANIRMALAMARY @ VIJI ALL ARE RESIDING AT CONVENT LAYOUT RAMASWAMY LAYOUT CHAMARAJANAGARA TOWN, CHAMARAJANAGARA DISTRICT - 571301.
... APPELLANTS (BY SRI. SANATH KUMAR K.M., ADVOCATE) AND 1. KUMAR S/O SHANKAREGOWDA NO. 557/1, THALAGATAPURA KANAKAPURA MAIN ROAD BENGALURU 560 068 2. DIVISIONAL MANAGER ICICI LOMBARD GERERAL INSURANCE CO., LTD. NO. 89, SVR COMPLEX 2ND FLOOR, HOUSE ROAD, BENGALURU – 560 068 DIVISIONAL OFFICE NO. 204 MYTRI ARCADE NEAR SARASWATHI THEATER KANTARAJ URS ROAD SARASWATHIPURAM MYSURU - 57000 ... RESPONDENTS (BY SRI. B. C. SHIVANNEGOWDA, ADV. FOR R-2; NOTICE TO R-1 IS DISPENSED WITH.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.10.2014 PASSED IN MVC NO.25/2014 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE AND MACT, CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is preferred by the appellants/claimants against the judgment and award dated 16.10.2014 rendered by the District Judge and Member, MACT, Chamarajanagar, in MVC No.25/2014 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 16.01.2014 at about 3.00 p.m. deceased Sebastian was riding his motor cycle with one pillion rider from Prakashpalya towards Shantinagar of Jageri. At Sattegala cross on Bangalore-Kollegal road, a bus bearing Regn.No.KA-51-6077 driven by its driver in a rash and negligent manner dashed against the motor cycle in which the deceased Sebastian and his father-in- law Savariyappan were traveling. As a result of the accident, the deceased sustained grievous injuries to his head and on the way to the hospital he died. After post mortem, the body of the deceased was shifted to his native place for cremation. Prior to the accident, the deceased was hale and healthy and by avocation was doing Motor Rewinding Mechanic work and earning income of Rs.15,000/- p.m. and contributed the same for the welfare of his family. Due to the untimely death of deceased, petitioners were put to great hardship and lost the love and affection and they were entirely depending upon his income to eke out their livelihood. On all these grounds, the claim petition was filed by the claimants seeking compensation.
4. After service of notice, respondent no.1 remained absent all throughout the proceedings and he was placed exparte. The second respondent entered appearance through his counsel and filed objection statement denying the petition averments and sought for dismissal of the claim petition.
5. Based upon the pleadings of the parties, the Tribunal framed the issues for consideration. In order to prove their case, petitioner no.1 examined herself as PW.3 and got marked documents as per Exs.P1 to P6. On behalf of the respondents, RW.1 was examined and Exs.R1 to R4 were got marked. After hearing arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence on record, the Tribunal rendered the impugned judgment, awarding compensation of Rs.9,53,000/- with interest @ 9% p.a. from the date of petition till the date of realisation of award amount. Being not satisfied with the quantum of compensation awarded by the Tribunal, the claimants/appellants are before this Court seeking enhancement on various amongst other grounds.
6. Learned counsel for the appellants contends that the Tribunal erred in assessing the income of the deceased at Rs.200/- per day whereas the deceased was working as Motorwinding mechanic and was earning Rs.15,000/- p.m. Hence, the income of the deceased is on lower side and the same is required to be enhanced. He further contends that the Tribunal has committed a mistake in deducting 1/3rd of his income towards personal expenses instead of 1/4th as there are four dependants. The same has to be reconsidered in this appeal while computing the compensation under the head ‘loss of dependency’ . Further, the Tribunal has erred in not considering the future prospects of the income of the deceased. The compensation awarded by the Tribunal towards loss of consortium and love and affection is on lower side and the same requires to be enhanced and further, no compensation has been awarded towards loss of estate. On all these grounds, learned counsel for the appellants seeks for allowing the appeal by modifying the judgment and award passed by the Tribunal.
7. Per contra, learned counsel for respondent – insurance company contends that the accident in question occurred due to rash and negligence riding of the motor cycle by the deceased. He further denies the place, date and time of accident. He contends that even if the petitioners prove the insurance policy, it is subjected to certain terms and conditions laid down in the policy and if there is violation of policy conditions, the insurer is not liable to indemnify the first respondent. It is further contended that the Tribunal, on appreciation of oral and documentary evidence on record, has rightly assessed the income of the deceased and awarded just and fair compensation, and the same does not call for interference of this Court and accordingly, prays for dismissal of the appeal.
8. In the context of the contentions as taken by the learned counsel for the appellants and so also, learned counsel for respondent – insurance company, it is not in dispute that the accident occurred due to actionable negligence on the part of the driver of the offending bus bearing Regn.No.KA-51-6077 and deceased Sebastian succumbed to the accidental injuries. Ex.P1 is the FIR, Ex.P2 is the complaint, Ex.P3 is the spot mahazar, Ex.P4 is the MV report, Ex.P5 is the PM report, Ex.P6 is the charge sheet and Ex.P7 is the PM report.
9. PW.3 being the wife of deceased, in her evidence has reiterated the petition averments and contended that due to the rash and negligent act of the driver of the offending Bus, the accident has occurred and deceased Sebastian succumbed to the injuries. Petitioners No.2 and 3 are the minor children of deceased and Petitioners No.4 and 5 are the parents.
10. PW.3 has stated that as on the date of accident, deceased was aged 32 years and he was doing motor rewinding mechanic work and earning income of Rs.15,000/- p.m. Due to his untimely death, the family of the deceased is put to untold hardship and great difficulty. In the absence of definite and positive evidence regarding the income, the Tribunal held the income of the deceased at Rs.6,000/- p.m. The accident is of the year 2014. In the absence of proof of income, there are certain guidelines and illustrations as per the Lok Adalath chart. Therefore, for the year 2014, the notional income of the deceased should be taken at Rs.8,500/- p.m. The Tribunal has rightly considered the age of deceased at 34 years and adopted multiplier of ‘16’. Further, the Tribunal erred in deducting 1/3rd towards the personal expenses. In this case, there are four dependants, petitioner no.1 being the wife, petitioner no.2 being the son of the deceased and petitioner nos. 3 and 4 being parents of the deceased. Therefore, it would be just and proper to deduct 1/4th towards personal expenses of the deceased. Further, as per the decision of Hon’ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi (AIR 2017 SC 5157) future prospects requires to be added to the income of the deceased. Accordingly, the compensation towards loss of dependency is re-worked out as under:
Further, as per the law laid down by the Hon’ble Apex Court in Pranay Sethi’s case (supra), the compensation under the conventional heads shall not exceed Rs.70,000/-. But the Tribunal has awarded compensation of Rs.1,85,000/- under the conventional heads. Accordingly, the same is scaled down to Rs.70,000/- towards conventional heads.
11. In a decision of Hon’ble Apex Court in Magma General Insurance Co.Ltd v. Nanu Ram reported in 2018 SCC Online SC 1546, it is held as under:
“8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband- wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection, and aid of the other in every conjugal relation.
Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.”
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. the amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial consortium.
Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.”
12. Keeping in view the observations made in the said ruling, it is relevant to state that in the present appeal, the claimants are the wife, two minor children and parents of deceased Sebastian. The deceased was aged 34 years at the time of accident. The minor children have lost the aid, protection, affection, society, discipline, guidance and training of their father Sebastian at their tender age. Therefore, a sum of Rs.40,000/- each, is awarded to claimant nos.2 and 3 towards parental consortium and a sum of Rs.40,000/- each, is awarded to claimant nos.4 and 5, being the father and mother of the deceased towards filial consortium for having lost love, affection and companionship of their son.
13. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Transportation of dead body and funeral and obsequies Loss of consortium Loss of filial consortium Loss of parental consortium Total Thus, in all, the claimants are entitled to total compensation of Rs.19,43,600/- as against Rs.9,53,000/- awarded by the Tribunal. The enhanced compensation would be Rs.9,90,600/-.
For the reasons and findings as stated above, I proceed to pass the following:
ORDER The appeal filed by the appellants/claimants is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.9,90,600/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 16.10.2014 passed by the Tribunal in MVC No.25/2014, is modified accordingly.
Respondent - Insurance Company shall deposit the compensation enhanced by this Court, along with interest accrued, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to interest, apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
DKB Sd/- JUDGE