Bangalore District Court
Hemavathi vs K.S.R.T.C on 31 January, 2024
KABC020080182022
BEFORE THE COURT OF SMALL CAUSES AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, AT
BENGALURU
(SCCH-16)
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
& Member, MACT, Bengaluru.
MVC No.1344/2022
Dated: 31st January 2024
Petitioner Smt. Hemavathi,
W/o K. Kumar,
Aged about 46 years,
Residing at Rupesh Nilaya,
Pavan Paint Road,
Krishnappa Garden,
Chikkabidarakallu,
Nagasandra,
Bengaluru North,
Bengaluru - 560 073.
(Sri T. Mohan, Advocate)
Vs.
Respondents 1. The Manager,
KSRTC Transport House,
Central Offices, K.H. Road,
Shanthinagar,
Bengaluru - 560 027.
(Bearing No.KA-06-F-1186)
(Sri Mahadevaiah, Advocate)
2. Sri Kumar K.,
S/o Chaluve Gowda,
2 (SCCH-16) MVC 1344/2022
Aged about 48 years,
R/o Rupesh Nilaya,
Pavan Main Road,
Krishnappa Garden,
Chikkabidarakallu,
Nagasandra Post,
Bengaluru - 560 073.
(Owner of two-wheeler
bearing No.KA-04-HF-0568)
(Sri Puttaraju, Advocate)
3. The Manager,
New India Assurance Co. Ltd.,
No.9/2, 2nd Floor, Mahalakshmi
Chambers, M.G. Road,
Bengaluru - 560 001.
(Insurer of the two-wheeler
bearing No.KA-04-HF-0568)
Policy
No.67230031200100005504
valid from 25-03-2021 to
24-03-2022
(Sri T. Ramesh, Advocate)
JUDGMENT
The petitioner has filed this petition under Section 166 of M.V. Act 1989, seeking compensation of Rs.39,00,000/- from respondents for the accidental death of Jagadish, who died due to the accident caused by the driver of the KSRTC Bus bearing No.KA-06-F-1186.
2. The facts in brief stated in the petition are as under;
On 22-01-2022, at about 5.50 p.m., the deceased Jagadish K., was traveling as a pillion rider along with 3 (SCCH-16) MVC 1344/2022 rider Adarsha in his two-wheeler bearing No.KA-04-HF- 0568 from Madanayakanahalli towards Nelamangala. When he reached Bengaluru-Tumkur NH-48 service road, near Arishinakunte H.P. Petrol Bunk, at that time the driver of the KSRTC Bus bearing No.KA-06-F-1186 drove the vehicle in rash and negligent manner and dashed the said two-wheeler from the back side. Thereby he has caused the accident. Due to the said accident, Jagadish K., sustained grievous injuries all over his body. Immediately after the accident, he was shifted to Magnus Hospital, Nelamangala. On the same day at about 6.10 p.m., he was succumbed to the injuries in the hospital. After postmortem, the dead body was handed over to the petitioner. The petitioner has incurred Rs.1,00,000/- towards hospitalization and funeral ceremony. The Nelamangala Traffic Police have registered criminal case against the driver of the offending vehicle as per Crime No.30/2022 for the offences punishable under Section 279, 337 and 304(A) of IPC. Prior to the accident, the deceased was hale and healthy and he was doing the work as packers and movers at S.V. Packers and Movers, 4 (SCCH-16) MVC 1344/2022 Makali. He was earning Rs.25,000/- per month. The family members of the petitioner were dependent on the deceased. Now the family members are put to great hardship and mental agony. The petitioner has sought for compensation of Rs.39,00,000/- together with interest at the rate of 12% per annum. She has prayed to allow the petition.
3. Initially, petitioner has filed this petition against the respondent No.1 only, but later the petitioner No.2 was transposed as respondent No.2 and respondent No.3 who is insured of the respondent No.2 was impleaded in this case. In response to the notice, the respondent No.1 to 3 appeared through their counsel. The respondent No.1 and 3 have filed the separate written statements. The respondent No.2 did not choose to file written statement.
4. The facts in brief stated in the written statement of the respondent No.1 are as follows;
The respondent No.1 has denied the allegations in the petition. He has denied that the accident was due to rash and negligent driving of the driver of the KSRTC Bus 5 (SCCH-16) MVC 1344/2022 bearing No.KA-06-F-1186. He has denied the age, avocation and the income of the deceased. He has denied that the deceased was having income of Rs.25,000/- per month. He has denied the manner of accident stated by the petitioner in the petition. He has stated that the compensation amount claimed by the petitioner is exorbitant. He has stated that as per the say of the driver of the bus, when his driver was slowly proceeding at the accident spot, the rider and pillion rider of the two-wheeler vehicle came in rash and negligent manner. The said rider was proceeding on the left side of the KSRTC Bus without wearing helmet. The rider of the said two-wheeler vehicle along with the pillion rider was proceeding on the left side of the road. At that time another two-wheeler vehicle came from opposite side of the former two-wheeler vehicle. The rider of the two- wheeler bearing No.KA-04-HF-0568 took to its right turn and the handle of the two-wheeler touched the KSRTC Bus. The rider and pillion rider of the said two-wheeler fell down and sustained injuries. The driver of the bus took them to the hospital. It has further stated that the 6 (SCCH-16) MVC 1344/2022 jurisdictional authorities have refused to receive the complaint of the diver of the bus. Hence, the driver of KSRTC bus has sent complaint through the RPAD. He has further stated that the accident was due to rash and negligent riding of the rider of the two-wheeler. Hence, he prayed to dismiss the petition.
5. The facts in brief stated in the written statement of the respondent No.3 are as follows;
The respondent No.3 has admitted the existence of the policy at the time of accident. It has stated that the owner has not submitted the documents and furnished for informations regarding the accident. Hence, he has violated Section 134(c) of IMV Act. It has further stated that the police have violated the Section 158(6) of IMV Act by not sending the records to it. It has admitted the manner of accident stated by the petitioner in the petition. It has stated that the jurisdictional police have filed a charge sheet against the driver of the bus of respondent No.1. It has further stated that the rider of the two-wheeler vehicle did not possess the valid driving licence at the time of accident and the respondent No.2 7 (SCCH-16) MVC 1344/2022 has entrusted the vehicle to the person who did not possess valid licence. Hence, the respondent No.2 has made breach of the policy condition. It has denied the relationship of the petitioner with the deceased. It has denied the age, avocation and income of the deceased. It has stated that the petitioner has not complied the provisions of Income Tax Act. Hence, it has prayed to dismiss the petition.
6. Based on the pleadings the following issues came to be framed:
1. Whether the petitioner proves that deceased Jagadish K., succumbed to the injuries sustained in vehicular accident alleged to have occurred on 22-01-2022 at about 5.50 p.m., due to the rash and negligent driving of the drivers of the KSRTC Bus, bearing registration No.KA-
06-F-1186 and Two-wheeler bearing No.KA-04-HF-0568?
2. Whether the petitioner is entitled to compensation? If so, what is the quantum and from whom?
3. What order or Award?
8 (SCCH-16) MVC 1344/2022
7. In order to prove her case, the petitioner got herself examined as PW1 and got marked documents as Ex.P1 to Ex.P9. The respondent No.1 has got examined its driver as RW1 and marked documents in Ex.R1 to Ex.R5. The respondents No.2 and 3 have not adduced any defence evidence.
8. Perused the pleadings and evidences, on the basis, findings on the issues are as under:
Issue No.1 : Partly in the Affirmative Issue No.2 : Partly in the Affirmative Issue No.3 : As per final order for the following REASONS ISSUE No.1:
9. The petitioner has stated that deceased was proceeding as pillion rider in the two wheeler vehicle bearing No.KA-04-HF-0568. It is further stated by the petitioner that the bus bearing No.KA-06-F-1186 was driven by its driver in rash and negligent manner and dashed against the back side of the two wheeler vehicle. It is the further contention of the petitioner that the deceased sustained injuries in the accident and 9 (SCCH-16) MVC 1344/2022 succumbed to the injuries. It is further contended by the petitioner that Nagamangala Traffic Police have registered criminal case against the driver of the offending vehicle for the offences punishable under Sec.279, 337 and 304(A) of IPC.
10. In Kusum and Others vs Satbir and Others reported in (2011) SCC 646, the Hon'ble Supreme Court has held that in a case relating to the Motor Accident Claims, the claimants are not required to prove the case as needs required to be done in a criminal trial.
11. In Parameshwari vs. Amir Chand and others reported in (2011) SCC 635, the Hon'ble Supreme Court has held that a road accident claims the strict principle of proof in a criminal case are not required.
12. In Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 513, the Hon'ble Supreme Court has held that the claimants were merely to establish their case on touch stone of preponderance of probability and 10 (SCCH-16) MVC 1344/2022 that standard of proof on beyond reasonable doubt could not have been applied.
13. In Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another ruling reported in (2013) 10 SCC 6, the Hon'ble Supreme court has held as follows:
"7.It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt."
14. In Anita Sharma and others vs. The New India Assurance Co. Ltd., and another, ruling reported in (2021) 1 SCC 171, the Hon'ble Supreme Court has held as follows:
"Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to 11 (SCCH-16) MVC 1344/2022 find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true."
15. Therefore, from the above rulings of the Hon'ble Supreme Court it is clear that the strict proof of accident is not required and preponderance of probability is to be applied in all the MVC cases. The concept of beyond reasonable doubt is not applicable in deciding the MVC cases by the Tribunal.
16. In order to prove her case, the petitioner has produced as many as 9 documents. Out of the said documents, Ex.P1 is the FIR, Ex.P2 is the complaint, Ex.P3 is the spot mahazar, Ex.P4 is the IMV report, Ex.P5 is the Sketch, Ex.P6 is the inquest, Ex.P7 is the PM report, Ex.P8 is the copy of charge sheet and Ex.P9 is the Aadhar cards of the deceased and the petitioner. Originally, the respondent No.2 was petitioner No.2. Since he was the owner of the vehicle in which deceased was traveling, he was transposed as respondent No.2. In Ex.P1, it is stated that when deceased was travelling in two wheeler vehicle as pillion 12 (SCCH-16) MVC 1344/2022 rider. Then the driver of the KSRTC bus came in rash and negligent manner and dashed the vehicle of the deceased from the back side. It is further stated that the deceased sustained injuries due to the said accident and succumbed to the injuries on the way to the hospital. In Ex.P3, the accident spot is described. In Ex.P5, the accident spot is shown in the sketch. According to Ex.P3 and Ex.P5, the accident spot is in the service road and it is in left side of the both vehicles. It is further shown that the KSRTC bus has dashed to the two-wheeler vehicle from the back side of the two-wheeler vehicle. There is no brake mark found in the accident spot at the time of alleged accident. Therefore, from Ex.P3 and Ex.P5, it can be informed that the accident took place in the left side of the road. In Ex.P6 and Ex.P7, the injuries to the deceased were stated. In Ex.P7, the doctor has conducted the postmortem has opined that death was due to neurogenic shock as a result of injuries to vital organ i.e., left brain. The injuries stated in these documents tally with the manner of accident stated by the petitioner. In Ex.P8, it is stated that the driver of the 13 (SCCH-16) MVC 1344/2022 bus bearing No.KA-06-F-1186 and rider of the two wheeler vehicle bearing No.KA-04-HF-0568 both were rash and negligent at the time of accident. The charge sheet is filed against the driver of the KSRTC bus as well as the rider of the two-wheeler vehicle in which the deceased was the pillion rider.
17. The main arguments of the learned counsel for the respondent No1 is that the charge sheet is filed against the both the vehicles viz, the driver of the KSRTC and rider of the two wheeler. Hence, there is a contributory negligence of both the drivers of the both the vehicles. The learned counsel for the respondent No.1 has relied upon the ruling of the Hon'ble High Court of Orissa reported in 1994 ACJ 1303 in the case of Mataji Bewa and others Vs. Hemanth Kumar Jena and another, and ruling of Hon'ble High Court of Karnataka in ILR 2003 KAR 409 in the case of P. Varalakshmi Reddy and others Vs. KSRTC and in the Judgment of Hon'ble High Court of Karnataka, MFA No.62/2018 in the case of Branch Manager Vs. Shruthi and others. He has argued 14 (SCCH-16) MVC 1344/2022 that argued that when the rider of the vehicle of the deceased was moving in the wrong direction at the time of accident. He has argued that in this case the charge sheet filed against the driver of bus and the rider of the two-wheeler vehicle.
18. The charge sheet and other police records are piece of evidences in the M.V.C. cases. It is a settled law that such documents would be tested in the M.V.C. cases. In the 1st ruling relied by respondent, it is held that charge sheet alone is not sufficient but it should be proved in the proceedings of the M.V.C. cases. From the documentary evidence produced by the petitioner, it is clear that the driver of the KSRTC bus as well as the rider of the two-wheeler were rash and negligent at the time of accident. The learned counsel for respondent No.3 has argued that the driver of the bus alone is rash and negligent at the time of accident and the rider of the two-wheeler vehicle is not negligent. In the police records, it is stated that the rider of the two-wheeler vehicle was also negligent at the time of the accident. The respondent No.3 has not adduced any evidence to 15 (SCCH-16) MVC 1344/2022 show that the rider of the two wheeler vehicle was not negligent at the time of the accident. The records produced by the petitioner would show that the rider of the two-wheeler vehicle where the deceased was pillion rider was also negligent at the time of accident. Therefore, the rider of the two-wheeler vehicle has contributed to the accident. In the opinion of the court, the driver of the bus has contributed 90% of the accident and the rider of the two-wheeler vehicle has contributed 10% of the said accident. Neither the respondent No.2, nor the respondent No.3 have adduced any oral evidence in this case. They have not examined the independent witnesses to show that there is no negligence on the part of the rider of the two-wheeler vehicle in the accident. They have not got examined the driver of the two-wheeler vehicle to show the absence of any contributory negligence. The driver of the bus bearing No.KA-06-F-1186 has contributed 90% of the accident and rider of the two wheeler vehicle of the deceased has contributed 10% of the accident. The deceased sustained injuries in the accident and 16 (SCCH-16) MVC 1344/2022 succumbed to injuries. Hence, I answer issue No.1 in the affirmative.
ISSUE No.2:
19. As discussed above, the petitioners have shown that the vehicle of the respondent No.1 has caused the accident and the accident is due rash or negligent driving of the driver of the offending vehicle.
As discussed above it s clear that the rider of the two wheeler of the respondent No.2 has also contributed to the accident. The respondent No.3 is the insurance company of the vehicle of the respondent No.2. The petitioner has produced her Aadhar cards and the Aadhar cards of the deceased to show her relationship with the deceased. From these documents, it is clear that the petitioner is the mother of the deceased. Hence, the petitioner is a legal representative of the deceased. Since the petitioner is a legal representative of the deceased, she is entitled to the compensation.
In the case of National Insurance Co. vs. Birender ruling reported in (2020) 11 SCC 356, the Hon'ble Supreme Court has held as follows: 17 (SCCH-16) MVC 1344/2022 "12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative.
Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:
"9. In terms of clause (c) of subsection (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents.
Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates 18 (SCCH-16) MVC 1344/2022 to the entitlement of compensation by a person who claims for the same.
11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g)
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino vs. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC vs. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle 19 (SCCH-16) MVC 1344/2022 accident and need not necessarily be a wife, husband, parent and child.
13. In Manjuri Bera (supra), in paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on 20 (SCCH-16) MVC 1344/2022 the deceased and not to limit the claim towards conventional heads only."
According to the ratio laid down in this ruling the legal representatives though not fully dependent on the deceased are entitled to claim compensation under all the heads i.e., under both conventional and non- conventional heads. The total compensation is to be calculated in the following manner:
The compensation towards loss of dependency : The petitioner No.1 is the mother of the deceased Jagadish K. The petitioner has stated that she was depending upon the deceased. She has shown that she is a legal representative of the deceased, hence, she is entitled to compensation under the head of loss of dependency.In order to calculate the loss of dependency, the first step is to determine the age and income of the deceased.
The determination of age and income of the deceased : The petitioners have stated that the age of the deceased as on the date of accident is 24 years. To substantiate this point, the petitioners have produced the copy of the Aadhar Card of the deceased, wherein 21 (SCCH-16) MVC 1344/2022 the date of birth of the deceased is mentioned as 10-7- 1997. Admittedly, the accident took place on 22-1- 2022. Therefore, as on the date of accident the age of the deceased was about 24 years.
The petitioners have stated that the deceased was working as pckers and movers at S.V Packers and Movers,Makali and he was having monthly income of Rs.25,000/-. The petitioners have not produced any documents to show the income of the deceased. Therefore, the notional income is to be considered as income of the deceased as per the guidelines of the Karnataka State Legal Services Authority.
In G.T. Basavaraj vs. Niranjan and another in MFA No.7781/2016 judgment dated 11-08-2022, in Ramanna and another vs. Y.B. Mahesh and another in MFA No.140/2017 judgment dated 16- 01-2020, in New India Assurance Co. Ltd., vs. Anusaya and others in MFA No.101195/2014 judgment dated 05-01-2023, the Hon'ble High Court of Karnataka has held that when the income is not proved, then the notional income of the deceased as per 22 (SCCH-16) MVC 1344/2022 the guidelines issued by Karnataka State Legal Services Authority is to be adopted as the income of the deceased. The accident took place in the year 2022. Therefore, the notional income is to be treated as Rs.15,500/- per month. Therefore, his annual income would be Rs.1,86,000/-.
As per the ratio laid down in the ruling of National Insurance Co. Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, the deceased is also entitled to future prospects though he is not a permanent employee. Since the deceased is aged about 38 years and not a permanent employee, the future prospects would be 40% of his income. Therefore, 40% of Rs.1,86,000/- comes to Rs.74,400/-. Therefore, the future prospects of the deceased comes about Rs.74,400/-. If this income is added to the notional income, then it comes about Rs.2,60,400/-. This income is within the limits of the exemption limit under the Income Tax Act.
The deduction of personal expenses and calculating the multiplicand : The family of the 23 (SCCH-16) MVC 1344/2022 deceased consist of 1 person i.e., petitioners No.1 . Therefore, the number of the dependents is 1. Therefore, deduction towards the personal expenses comes about 1/5th of the total income i.e., Rs.1,30,200/-. Therefore, the multiplicand is as follows:
Rs.2,60,400/- - Rs.1,30,200 /- = Rs.1,30,200 /- is the contribution towards the family/multiplicand.
Ascertaining the multiplier : The appropriate multiplier should be applied as per the decision of the Hon'ble Supreme Court in Sarla Verma and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298. The age of the deceased is found as 24 years. Therefore, the appropriate multiplier is 18.
Therefore, the compensation under the head of loss of dependency is calculated as follows :
The age of the deceased is 24 years, number of dependents is 1, the notional income + future prospects is Rs.2,60,400/- per annum. Multiplicand is Rs.1,30,200/-, multiplier is 18. Therefore, the compensation to the petitioners under the head of loss
24 (SCCH-16) MVC 1344/2022 of dependency is Rs.23,43,600/-. Hence, an amount of Rs.23,43,600 /- is awarded to the petitioners towards loss of dependency.
Compensation under conventional heads : As per the judgment of the National Insurance Co. Ltd. vs. Pranay Sethi and others reported in (2017) 16 SCC 680, following conventional heads they are permissible.
1) Loss of estate Rs.15,000/-
2) Loss of consortium Rs.40,000/-
3) Funeral expenses Rs.15,000/-
Six years have been lapsed from the date of the judgment. Therefore, 20% is to be increased on this amount. Therefore, the loss of consortium comes about Rs.48,000/-, funeral expenses comes about Rs.18,000/- and loss of estate comes about Rs.18,000/-.
In Magma General Insurance Co.
Ltd vs Nanu Ram Alias Chuhru Ram and others ruling reported in (2018) 18 SCC 130, the Hon'ble Supreme Court has held as follows:
25 (SCCH-16) MVC 1344/2022 "21. A Constitution Bench of this court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248: (2018) 2 SCC (Cri) 205] 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:
[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 21.1. 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, cooperation, affection, and aid of the other in every conjugal relation":
(Black's Law Dictionary (5th Edn., 1979).
21.2. 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".
21.3. 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.
26 (SCCH-16) MVC 1344/2022
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships.
Modern jurisdictions world-over have recognised 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.
As per the ratio laid down in this case, the consortium is to be given under 3 heads i.e., spousal consortium, parental consortium and filial consortium. Therefore, the petitioners No.1 is entitled to Rs.48,000/- each towards filial consortium.
20. The details of compensation proposed to be awarded are as under:
Sl. Head of
Amount/Rs
No. Compensation
1. Loss of dependency Rs. 23,43,600-00
2. Loss of filial consortium Rs. 48,000-00
3. Loss of estate Rs. 18,000-00
4. Funeral expenses Rs. 18,000-00
Total Rs. 24,27,600-00
27 (SCCH-16) MVC 1344/2022
21. In all, petitioners are entitled for compensation of Rs.24,27,600/- with interest at the rate of 6% per annum from the date of petition till its realization. Liability:
22. The respondent No.1 is the owner of the offending bus and respondent No.3 is the insurer of the offending two wheeler. The respondent No.2 is the owner of two wheeler. The insurance policy of the two wheeler was in force at the time of accident. The petitioners have proved the rash and negligent driving of the drivers of the offending vehicles. Therefore, the respondent No.1 and 3 are liable in th 90% and 10% ratio. Hence, the respondent No.1 to 3 are jointly and severally liable to pay the compensation.
Apportionment :
23. The petitioner is the legal representative and she is entitled for the compensation. The petitioner is entitled to total compensation amount.
24. As discussed above, the petitioners have shown that the offending vehicles and the accident was due to rash and negligent driving of the drivers of the 28 (SCCH-16) MVC 1344/2022 said vehicles. They have further shown that they are entitled to total compensation of Rs. 24,27,600 /-. They have further shown that the insurance to the said vehicle was in force as on the date of accident. Therefore, the respondent No.1 to 3 are jointly and severally liable to pay the compensation. Hence, I answer issue No.2 partly in the affirmative.
ISSUE No.3:
25. In view of the findings, the petition deserves to be allowed in part. Hence, the following order is passed:
ORDER The petition is partly allowed with costs.
The petitioner is entitled to compensation of Rs.24,27,600/- (Rupees twenty four lakhs, twenty seventy thousand and six hundred only) with interest at the rate of 6% p.a., from the date of petition till realisation.
The respondent No.1 is liable to pay 90% of the compensation amount. The respondent No.2 and 3 is are jointly and severally liable to pay the 10% compensation amount. However, the
29 (SCCH-16) MVC 1344/2022 primary liability to pay the 10% compensation amount is fastened on respondent No.3 - Insurance Company .The respondent No.1 and 3 are directed to pay the compensation amount within two months from the date of this order.
Out of the compensation amount
awarded to petitioner, 30% of the
compensation amount with
proportionate interest shall be
deposited in her name as FD in any
nationalized bank for the period of two years with liberty to draw the accrued interest periodically and the remaining 70% amount with proportionate interest shall be released to her through E-
payment on proper identification and verification.
Advocate's fee is fixed at Rs.2,000/-. Draw an award accordingly.
(Dictated to the stenographer, directly on computer, typed by him, corrected and then pronounced in the open court this the 31st day of January 2024) (Ganapati Bhat) Member, MACT, Bengaluru.
30 (SCCH-16) MVC 1344/2022 ANNEXURE Witnesses examined on behalf of petitioner:
PW1 Smt. Hemavathi Documents marked on behalf of petitioner:
Ex.P1 Copy of FIR
Ex.P2 Copy of Complaint
Ex.P3 Copy of Spot Mahazar
Ex.P4 Copy of IMV Report
Ex.P5 Copy of Sketch
Ex.P6 Copy of Inquest
Ex.P7 Copy of Postmortem Report
Ex.P8 Copy of Charge Sheet
Ex.P9 Notarized copy of Aadhar Cards (2 in
nos.)
Witnesses examined on behalf of respondents:
RW1 Sri Lakshminarayana M.N. Documents marked on behalf of the respondents:
Ex.R1 to Office copy of the Complaint with postal Ex.R3 receipt and AD Card Ex.R4 7 Photos Ex.R5 CD (Ganapati Bhat) Member, MACT, Bengaluru.