Karnataka High Court
Smt. Shrilatha vs Manjunatha Virupakshappa Purad on 24 June, 2019
Author: K.Somashekar
Bench: K.Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO. 5127 OF 2013 (MV)
BETWEEN
1. Smt Shrilatha
W/o Late K V Ramanathan
Aged about 38 years
2. Virajlal
S/o Late K V Ramanathan
Aged about 17 years
3. Vidishlal
S/o Late K V Ramanathan
Aged about 16 years
Appellants 2 and 3 are minors
Represented by their natural guardian
Appellant No.1.
All are residing at Kuthrijlal House
Neriya Village, Thotathadi Post
Belthangady Tq.,
Presently residing at Jeppu
Majila, 3rd Cross, Valencia
Mangalore Taluk.
4. Smt. Subhadra
W/o Late K R Velayudhan
Aged about 78 years
R/at Kacherikandka House
Thotathadi Post, Charmady Village
Belthangady Taluk.
... Appellants
(By Sri Guruprasad B .R- Advocate for Appellants)
2
AND
1. Manjunatha Virupakshappa Purad
S/o late Virupakshappa
Aged about 41 years
Lakkundi House
Betageri Hobali, Kumbara Lane
Gadaga Taluk and District-582101.
2. The New India Insurance Co. Ltd.,
Tuppad Bunglow
Near Gandhi Circle, Gadag-582101.
... Respondents
(By Sri K Poornabodha Rao - Advocate for R-2;
Sri K N Mahabaleshwara Rao - Advocate for R-1)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 09.11.2012
passed in MVC No. 757/2010 on the file of the
II Additional District Judge, Member, MACT-3, 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
Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
3
2. This appeal is preferred against the judgment and award dated 09.11.2012 rendered by the II Addl. District Judge, Member, MACT-3, D.K. Mangalore, in MVC No.757/2010 seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that the husband of petitioner no.1 by name K.V.Ramanathan was having autorickshaw bearing Reg.No.KA-21/9471 and he himself was running the said autorickshaw on hire basis and on 25.4.2010, the said Ramanathan took the passenger in the autorickshaw from Thotathadi to a place called Hara in Kokkada village and after leaving them, he was returning from Thotatadi by driving the said autorickshaw and when he came near the Boodujalu in Nidle village, Belthangady taluk, at that time at about 6.30 p.m., a Toofan trax bearing Regn.No.KA.27/7135 driven by its driver in a very high speed and in a rash and negligent manner came from opposite direction directly from Nidle and dashed to the 4 Autorickshaw. Due to the said impact, deceased sustained grievous injuries and later succumbed to the injuries.
4. It is contended by the petitioners that prior to the accident, the deceased was hale and healthy and was aged 40 years and he was a registered owner cum driver of the autorickshaw and was earning Rs.500/- per day. Having lost the financial assistance, dependency, love and affection of the deceased, the petitioners being the wife, children and mother, filed the claim petition seeking compensation.
5. After service of notice, respondent no.1 remained absent and was placed exparte all through the proceedings. Respondent no.2 entered appearance and filed written statement denying the petition averments and sought for dismissal of the claim petition.
6. Based on the pleadings of the parties, the Tribunal framed the issues. In order to prove their case, petitioner no.1 got examined herself as PW.1 and got 5 examined two witnesses as PW.2 and PW.3 and got marked Exs.P1 to P26. On behalf of respondents, the insurance company got examined the driver of the offending vehicle as RW.1 and got marked Ex.R1. After hearing arguments of learned counsel for the parties on both sides and on appreciation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.7,68,000/- with interest @ 6% p.a. from the date of petition till the date of deposit. Being not satisfied with the quantum of compensation awarded by the Tribunal, the appellants/petitioners are before this Court seeking enhancement by urging various grounds.
7. Learned counsel for appellants contends that the award passed by the Tribunal is on lower side, inadequate and contrary to the facts, evidence and probabilities of the case. Hence, the same is liable to be modified by this Court. Further, he contends that the deceased was aged 40 years as on the date of accident and by driving his own autorickshaw was earning an 6 income of Rs.500/- per day, but the Tribunal erred in taking monthly income of Rs.5,000/- of the deceased while calculating loss of dependency. Further, the Tribunal also erred in adopting multiplier of 14 instead of 15, as the age of the deceased was 40 years and not 41 years. Further, the compensation awarded under the conventional heads is also inadequate and the same needs to be enhanced. On all these grounds, learned counsel for the appellants seeks for interference of this Court and prays for allowing the appeal by enhancing the compensation.
8. Per contra, Sri K.Poornabodha Rao, learned counsel for the insurance company contends that the accident occurred due to rash and negligent driving of the autorickshaw by deceased himself and he came in high speed and came to wrong side and dashed to the said toofan trax vehicle. The deceased is also guilty of contributory negligence. The driver of the offending vehicle was not holding valid driving licence to drive the vehicle as on the date of accident. It is further 7 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 any interference and prays for dismissal of the appeal.
9. 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 offending Toofan Trax by its driver, as a result of the said accident, K.V.Ramanathan died. Ex.P1 is the FIR, Ex.P2 is the complaint, Ex.P3 is the police notice, Ex.P4 is the spot mahazar, Ex.P5 is the P.M.report, Ex.P6 is the spot sketch, Ex.P7 is the IMV report, Ex.P8 is the inquest report and Ex.P9 is the charge sheet.
10. PW.1 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 Toofan trax the accident has occurred and 8 deceased succumbed to the injuries. She has stated that at the time of accident deceased Ramanathan was having autorickshaw and he himself was driving the said autorickshaw and was earning Rs.500/- per day. In this regard, R.C.extract and D.L. has been produced as Ex.P13 and Ex.P22. The petitioners have also got examined the Bank Manager as PW.3 and he has averred about the pigmy deposit receipt Ex.P24 and also statement of account at Ex.P25 and also account extract taken by Ramanathan in respect of agricultural loan which is marked as Ex.P26. But the Tribunal has taken Rs.5000/- p.m as the income of the deceased after deducting his expenses. The accident is of the year 2010. In the absence of proof of income, there are certain guidelines and illustrations as per the Lok Adalath chart. Hence, for the year 2010, the notional income of the deceased should be taken at Rs.6,500/- p.m.
11. As per Ex.P22 - DL, the age of deceased was 40 years, 05 months and 02 days as on the date of accident, but the Tribunal has wrongly held that he was 9 running 41 years and in that regard, multiplier of 14 was adopted. But the deceased had not completed 41 years as on the date of accident and in this regard only completed year has to be taken into account. Therefore, as per the decision of Hon'ble Supreme Court in Sarala Varma vs. Delhi Transport Corporation reported in 2009 ACJ 1298, the deceased will come under the age group of 36-40 years when his age is taken as 40. Accordingly, the proper multiplier would be '15' instead of '14'.
12. In the petition it is stated that the petitioner no.4 being the mother of the deceased is residing with another son and she is not dependent on the deceased. Considering this aspect, the Tribunal held that dependents are only three and accordingly, deducted 1/3rd towards personal expenses. Merely because the mother is residing with another son, it cannot be said she is not entitled for any compensation. She being widow and having lost her beloved son in an accident has lost love and affection and companionship of the 10 deceased. Therefore, in my opinion, petitioner no.4 being the mother of deceased is also entitled for compensation and instead of deducting 1/3rd toward personal expenses of deceased, I deem it appropriate to deduct 1/4th. Further, as per the decision of Hon'ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi (AIR 2017 SC 5157) future prospects is also to be added to the income of the deceased. Accordingly, the compensation towards loss of dependency is re- worked out as under:
Income per month 6,500
Add: future prospects @ 25% 1,625
8,125
Less: 1/4th personal expenses 2,031
6,094
Rs.6,094 x 12 x 15 = 10,96,920/-
13. Further, as per the law laid down by the Hon'ble Apex Court in Pranay Sethi's case as stated supra, the compensation under the conventional heads shall not exceed Rs.70,000/-. But the Tribunal has awarded 11 compensation of Rs.40,000/- under the conventional heads. Accordingly, the petitioners are entitled for additional sum of Rs.30,000/- towards conventional heads.
14. 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 12 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."
15. 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 mother of deceased K.V.Ramanathan. The deceased was aged 40 years at the time of accident. The minor children have lost the aid, protection, affection, society, discipline, guidance and training of their father K.V.Ramanathan at their tender age. Therefore, a sum 13 of Rs.40,000/- each is awarded to claimant nos.2 and 3 towards parental consortium and a sum of Rs.40,000/- is awarded to claimant no.4, being the mother of the deceased towards filial consortium for having lost love, affection and companionship of her son.
16. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation Compensation Particulars awarded by by this Court MACT Loss of dependency 7,28,000 10,96,920 Loss of consortium 10,000 Loss of love and 10,000 70,000 affection Loss of estate 10,000 Funeral, rituals 10,000 and conveyance Loss of filial
- 40,000 consortium Loss of parental
- 80,000 consortium Total 7,68,000 12,86,920 14 Thus, in all, the claimants are entitled to total compensation of Rs.12,86,920/- as against Rs.7,68,000/- awarded by the Tribunal. The enhanced compensation would be Rs.5,18,920/- rounded off to Rs.5,19,000/-.
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.5,19,000/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 09.11.2012 passed by the Tribunal in MVC No.757/2010, 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 15 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 apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
Sd/-
JUDGE DKB