IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1013 OF 2015 (MV) BETWEEN:
1. MR.VISHWANATHA GOWDA, S/O SHIVANADA GOWDA, AGED ABOUT 55 YEARS, 2. SMT.SUSHEELA, W/O VISHWANATHA GOWDA, AGED ABOUT 50 YEARS, BOTH ARE R/AT MITHODY HOUSE, REKY VILLAGE, ENJIRA POST, BELTHANGADY TALUK, PRESENTLY R/AT VEERQA NAGARA, PADIL POST, MANGALORE TALUK – 575 004.
... APPELLANTS (BY SRI. GURUPRASAD B.R., ADVOCATE) AND:
1. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, SRI.KATHYAYINI, OPP. BUS STAND, BELTHANGADY – 574 214.
2. MR. ANTONY M.O, S/O JOSEPH UNNI, AGED 50 YEARS, R/AT KUNTADY HOUSE, THOTATTADY VILLAGE, BELTHANGADY TALUK – 574 214.
3. MR. JOSEPH UNHI (SINCE DECEASED) S/O VAREED, R/AT KUNTADY HOUSE, THOTATTADY VILLAGE, BELTHANGADY TALUK – 574 214.
3(a) MR. M.O.VARGHESE, S/O LATE MR. JOSEPH UNHI, 3(b) MR. M.O.JOSEPH, S/O LATE MR.JOSEPH UNHI, 3(c) MR. M.O.ANTHONY, S/O LATE MR. JOSEPH UNHI ALL 3(a) TO 3(c) ARE R/AT KUNTADY HOUSE, THOTATTADY VILLAGE, BELTHANGADY TALUK.
4. RAMYA, D/O VISHWANATHA GOWDA, AGED ABOUT 26 YEARS, 5. SOWMYA, D/O VISHWANATHA GOWDA, AGED ABOUT 23 YEARS, BOTH 4 & 5 ARE R/AT MITHODY HOUSE, REKY VILLAGE, ENJIRA POST, BELTHANGADY TALUK, PRESENTLY R/AT VEERQA NAGARA, PADIL POST, MANGALORE TALUK – 575 007.
... RESPONDENTS (BY SRI K.N.SRINIVASA, ADVOCATE FOR R1; R2 TO R5 - NOTICE DISPENSED WITH VIDE ORDER DATED 05.01.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.05.2014 PASSED IN MVC NO.191/2010 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MACT – III, D.K., MANGALORE, 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 The claimants are in appeal under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 14/05/2014 in M.V.C.No.191/2010 on the file of the MACT III & II Additional District & Sessions Judge, D.K., Mangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Praveen Kumar, son of claimant Nos.1 & 2 in a road traffic accident. It is stated that on 16-11-2009, when the deceased was proceeding in a motorcycle bearing Reg.No.KA.19/L.2663 as a pillion rider, Maxi cab bearing Reg.No.KA.21/2752 driven by its driver came from opposite direction in a high speed with rash and negligent manner and dashed to the motorcycle. Due to which, the deceased sustained severe injuries and he was immediately shifted to Mangala Hospital, Mangalore, where he succumbed to the injuries on 17.11.2009. It is stated that the deceased was aged 24 years as on the date of accident and was earning Rs.12,000/- per month as an electrician.
3. On issuance of notice, respondent Nos.1 & 3 remained absent. Respondent No.2-Insurer appeared before the Tribunal and filed its written statement denying the claim petition averments and also denied that the deceased was proceeding as pillion rider in motorcycle bearing Reg.No.KA.19/L.2663. It is further contended that the accident occurred solely due to the rash and negligent driving of the rider of the motorcycle. The insurer also stated that the driver of the maxicab had no valid and effective driving licence as on the date of accident.
4. Claimant No.1-father of the deceased examined himself as PW-1 and got marked documents Exs.P-1 to P-18. Whereas, respondent-insurer marked document Ex.R-1-copy of insurance policy.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.4,60,000/- with interest
While awarding the above compensation, the Tribunal assessed the notional income of the deceased at Rs.5,000/- per month and took multiplier of ‘14’ based on the age of younger parent. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellants and learned counsel for the respondent-Insurer. Perused the material on record.
7. Learned counsel for the appellants would submit that the quantum of compensation awarded by the Tribunal is on the lower side. He further submits that the Tribunal committed an error in assessing the income of the deceased at Rs.5,000/- per month. It is his further submission that the claimants have placed on record Exs.P14 to P17-License & receipts of Grampanchayath to establish that the deceased was earning Rs.12,000/- per month working as Electrician. Further learned counsel submits that the Tribunal failed to award any compensation towards ‘Future prospects’, for which the claimants would be entitled for adding 40% of the assessed income in view of the decision of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. Further he submits that the Tribunal committed an error in adopting multiplier of ‘14’ taking the age of the younger parent. As on this day, it is settled law that while applying multiplier, the age of the deceased will have to be taken. It is his further submission that claimant Nos.1 & 2 are parents of the deceased who would be entitled for a sum of Rs.40,000/- each towards ‘parental consortium’ in view of the decision in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent- Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that even though the claimants have placed on record Exs.P14 to P17-License & receipts of Grampanchayath, there is no material to establish the exact income earned by the deceased. He was an electrician and had no permanent job. Hence, the income of the deceased assessed by the Tribunal is proper and correct. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in the facts and circumstances of the case.
a) Whether the income of the deceased assessed by the Tribunal at Rs.5,000/- per month is proper and correct?
b) Whether the claimants would be entitled for compensation on the head of ‘Future prospects’ at the rate of 40% of the assessed income?
c) Whether the Tribunal is justified in applying multiplier of ‘14’ taking the age of the younger parent?
d) Whether the claimants would be entitled for the compensation on the head of ‘parental consortium’?
e) Whether the claimants would be entitled for enhanced compensation?
Answer to the above points would be in the affirmative except point (c) which is in the negative for the following reasons.
10. The accident occurred on 16-11-2009, involving motorcycle bearing Reg.No.KA.19/L.2663, Maxi cab bearing Reg.No.KA.21/2752 and the accidental death of one Praveen Kumar/son of claimant Nos.1 & 2 are not in dispute in this appeal. The claimants are in appeal for enhancement of compensation. The accident is of the year 2009. The claimants state that the deceased was working as electrician and they have placed on record Ex.P13- certificate and Exs.P14 to P17-License & receipts of Grampanchayath to establish that the deceased was an electrician and was earning Rs.12,000/- per month. But the said documents would not establish the exact income earned by the deceased. The claimants have not placed on record any acceptable material to establish the income of the deceased. In the absence of any acceptable material to indicate the exact income of the deceased, the Tribunal rightly assessed the notional income of the deceased at Rs.5,000/- per month, which needs no interference. The claimants state that the deceased was aged 24 years as on the date of accident. The Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, has held that the claimants would be entitled for adding 40% of the assessed income towards ‘Future prospects’ wherever the deceased was aged below 40 years. In the instant case also, the deceased was aged 24 years as on the date of accident. Thus, the claimants would be entitled for adding 40% of the assessed income towards ‘Future prospects’. The Tribunal committed an error in adopting multiplier of ‘14’ by taking the age of the younger parent. It is settled law that while applying proper multiplier, the age of the deceased will have to be taken. In the instant case, if the age of the deceased is taken, the appropriate multiplier would be ‘18’. Claimant Nos.1 & 2-parents of the deceased, who have lost love and affection, care of their only son who was aged 24 years, would be entitled for Rs.40,000/- each as compensation on the head of ‘parental consortium’. Thus, the claimants-appellants would be entitled for modified enhanced compensation as follows:
1. Loss of dependency Amount in (Rs.) 7,56,000
11. Thus, the claimants would be entitled for enhanced modified compensation of Rs.8,66,000/- as against Rs.4,60,000/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal. The apportionment and deposit would remain as it is.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ