IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 2033 OF 2014 (MV) BETWEEN 1. SMT. YASHODAMMA W/O NAGARAJU AGED ABOUT 46 YEARS 2. KUM. LAXAMI D/O NAGARAJU AGED ABOUT 22 YEARS 3. KUM. SOWMYA D/O NAGARJU AGED ABOUT 18 YEARS ALL ARE RESIDENTS OF P. CHITTANAHALLI, DODDABALA POST NAGAMANGALA TALUK – 571432 DIST: MANYDA.
... APPELLANTS (BY SRI. NAIK RAMACHANDRA RAMA - ADVOCATE) AND 1. SRI C ARJUN S/O CHINNASWAMY RESIDENT OF 2/83 B. GUNDALPATTI SEMMANDAKUPPAM POST DHARMAPURI – 636702 TAMILNADU STATE.
2. THE INDIA ASSURANCE COMPANY LTD., 2ND CROSS, ASHOKNAGARA, MANDYA TALUK AND DIST MANDYA-571432 REP. BY ITS GENERAL MANAGER POLICY ISSUED AT DHARMAPURI BRANCH TAMILNADU STATE.
... RESPONDENTS (BY SRI. M. NARAYANAPPA – ADVOCATE FOR R-2 VIDE ORDER DATED 16.01.2015, NOTICE TO R-1 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.09.2013 PASSED IN MVC NO. 62/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, NAGAMANGALA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellants – claimants and the learned counsel for respondent No. 2 – Insurance Company and perused the records. Notice to Respondent No.1 has been dispensed with.
2. The legal heirs, who are the dependents of the deceased Raju C.N. have preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in the impugned judgment dated 30.09.2013 in MVC No.62/2011, seeking enhancement of compensation.
3. The factual matrix is that on 26.3.2011 at about 2.00 p.m., when the deceased Raju C.N. was proceeding towards P. Chittanahally on his motor bike bearing Regn.No.KA-01-EM.8976 near Puttappanadoddi ‘U’ turn on Mysore – Bangalore Highway, a canter lorry bearing Regn.No.TN-72/T-5979 which had come in a rash and negligent manner had suddenly stopped it without giving any signal. As a result, the deceased who was behind the canter lorry hit the said canter lorry since it had suddenly stopped without any signal. As a result, he fell down and sustained grievous injuries and he succumbed to injuries on the way to the hospital. The deceased was aged 22 years and was hale and healthy prior to the accident and was a driver by profession earning Rs.8,000/- p.m. In view of the untimely death of the deceased as a bachelor, his mother and his two younger siblings being the legal representatives of the deceased, filed a claim petition before the Tribunal seeking compensation.
4. On issuance of notice, respondent No.1 – owner of the canter lorry remained absent and was placed exparte. Respondent No.2 – Insurance Company appeared and filed objections denying the averments in the claim petition but however admitting the Insurance Policy and its coverage with the said respondent. Based upon the pleadings, the Tribunal framed the issues. In order to prove the case, first and second appellants got examined themselves as PW.1 and PW.2 and they got marked 8 documents as per Exs.P1 to P8. Though no witnesses were examined on behalf of the respondents, copy of the Insurance Policy was got marked as Exhibit R1.
5. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. After hearing the arguments of learned counsel for the petitioners and learned counsel for second respondent-insurer and after recording the findings, the Tribunal passed the impugned judgment and awarded compensation of Rs.4,30,000/-. However, it opined that the deceased as well had contributed to the occurrence of the accident and hence held his contributory negligence at 25% and directed the Insurer to pay only 75% of the compensation awarded, i.e. Rs.3,97,500/- to the claimants along with interest @ 6% p.a. from the date of petition. It is this judgment which is under challenge in this appeal.
6. The learned counsel for the appellants vehemently contended that though the deceased was working as a driver and the accident was of the year 2011, the Tribunal has erred in assessing the income of the deceased at Rs.5,000/- per month. Though any salary certificate has not been produced to evidence the said fact, having regard to the fact that the accident had occurred in the year 2011, as per the settled norms adopted in the Lok Adalath chart, the Tribunal ought to have taken his monthly income at least at Rs.6,000/- per month in order to arrive at the compensation towards ‘Loss of dependency’. Hence, the learned counsel contends that the assessment of the income by the Tribunal is on the lower side and needs to be enhanced. It is the further contention of the learned counsel that the Tribunal has not added any income towards his future prospects though he was 22 years at the time of the accident. But however, in view of the decision of the Apex Court in National Insurance Company Limited –vs- Pranay Sethi (AIR 2017 Supreme Court 5157), 40% of his income ought to have been added towards future prospects, which has not be done. Further, towards ‘Transportation of dead body and funeral expenses’, the Tribunal has awarded only an amount of Rs.16,000/- and towards ‘Loss of consortium love and affection’ as well the Tribunal has awarded a meager amount of Rs.10,000/-, which heads require enhancement by this court suitably.
The order of the Tribunal reveals that the age of the mother has been taken to arrive at the multiplier to be adopted, which is opposed to the recent decision of the Apex Court in the case of Royal Sundaram Alliance Insurance Company Ltd. vs. Mandala Yadagari Goud & Ors. (AIR 2019 SC 1825). Hence, the learned counsel contends that the age of the deceased may be taken into consideration to arrive at the multiplier.
It is the further contention of the learned counsel that in view of the decision of the Apex Court in MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), the Tribunal ought to have granted ‘filial consortium’ to the mother as well as siblings of the deceased. It is his further contention that the finding of contributory negligence fixed at 25% on the deceased may be set aside. On all these grounds, the learned counsel for the appellants – claimants contends that the appeal be allowed and the compensation awarded by the Tribunal be re-assessed suitably.
7. Per contra, the learned counsel appearing for the insurer submitted that the Tribunal, on proper appreciation of the evidence on record has rightly assessed the income of the deceased and awarded just and fair compensation and has rightly fixed 25% contributory negligence on the deceased in view of the reason of he himself having dashed against the offending vehicle and caused the accident, which does not call for interference and prays for dismissal of the appeal.
8. On a careful evaluation of the material on record, I find that there is no dispute with regard to the accident that occurred on 26.3.2011 and the death of Raju C.N. It is seen that the claimants being the mother and two siblings of the deceased, are the dependents of the deceased who was aged 22 years.
Prior to his death, the deceased was working as a driver and was said to be earning Rs.8,000/- per month. There being no proof of his income, in view of the settled norms adopted in the Lok Adalath chart, the accident being of the year 2011, his income is hereby taken at Rs.6,000/- per month as against Rs.5,000/- taken by the Tribunal in order to re-assess the compensation awarded by the Tribunal. Further, I find that the Tribunal has committed an error not adding any amount towards his future prospects. In view of the fact that the deceased was aged 22 years, as per the decision in Pranay Sethi (supra), I find it appropriate to add 40% of the income towards future prospects. Hence, taking the income of the deceased at Rs.6,000/- and adding 40% towards his future prospects the income comes to Rs.8,400/-. Deducting one-half towards his personal expenses, the income would be Rs.4,200/- per month. Further, in view of the decision of the Apex Court in Royal Sundaram Alliance Insurance Company Ltd. vs. Mandala Yadagari Goud & Ors. (AIR 2019 SC 1825), I hereby take the age of the deceased to adopt the multiplier instead of the age of the mother as adopted by the Tribunal. Since the deceased was aged 22 years, the appropriate multiplier to be adopted would be ‘18’. With Rs.4,200/- p.m. as the income and applying multiplier ‘18’ considering the age of the deceased at 22 years, in view of the decision in Sarla Verma vs. Delhi Transport Corporation (2009 ACJ 1298), the compensation towards Annual Loss of dependency is re- assessed at Rs.9,07,200/- (4200 x 12 x 18) as against Rs.4,04,000/- awarded by the Tribunal.
Further, I find that the compensation awarded by the tribunal under ‘Loss of consortium’ and ‘Transportation of dead body and Funeral expenses’, totally amounting to Rs.26,000/- is on the lower side and hence the same is enhanced by an amount of Rs.4,000/-.
9. Having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM (2018 SCC ONLINE SC 1546), it is just and proper to grant ‘filial consortium’ to the mother and siblings of the deceased. The relevant paragraph reads as under:
“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.”
Hence, ‘Filial consortium’ is required to be granted to the mother and siblings of the deceased, i.e., appellants 1 to 3. In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- each to Appellants 1 to 3, in all amounting to Rs.1,20,000/- under the head “Loss of filial consortium to Appellants 1, 2 & 3”.
As regards the 25% contributory negligence fixed by the Tribunal is concerned, since the deceased himself had ridden his motor cycle speedily and had dashed the offending canter lorry from behind and caused the accident and subsequently was the reason for his own death, I find that the Tribunal was justified in fixing 25% contributory negligence on the deceased, which does not call for interference in this appeal. However, the compensation granted by the Tribunal in respect of all other heads requires no interference.
10. In view of the discussion made above and with the altered factors, the compensation is hereby re- worked out as under:-
Particulars Compensation awarded by MACT Compensation enhanced by this Court Total Loss of dependency Transportation of dead body 4,04,000 5,03,200 9,07,200 16,000 4,000 30,000 Loss of consortium Filial consortium to Appellants 1 to 3 10,000 Nil 1,20,000 (40,000 x 3) 1,20,000 TOTAL 4,30,000 6,27,200 10,57,200 Contributory negligence – 25% = Rs.2,64,300/- Liability fastened on Insurer – 75% = Rs.7,92,900/-
Thus, in all, the total compensation comes to Rs.10,57,200/- as against Rs.4,30,000/- awarded by the tribunal. But however, the claimants are entitled to 75% of the said compensation, i.e., Rs.7,92,900/- along with interest. Accordingly, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 30.09.2013 passed by the Tribunal in MVC No.62/2011, the compensation payable to the claimants is enhanced from Rs.3,97,500/- to Rs.7,92,900/-. The enhanced compensation would come to Rs.3,95,400/- which shall carry interest at 6% p.a. from the date of petition till the date of realisation. The second Respondent- The India Assurance Company Limited shall deposit the entire compensation with interest before the tribunal within four weeks from the date of receipt of a certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
Sd/- JUDGE KS