Karnataka High Court
Ningavva W/O Madivalappa Hebbal vs S Govardhanan on 14 July, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
MFA NO.21875/2012 (MV)
BETWEEN:
1. SMT. NINGAVVA W/O. MADIVALAPPA HEBBAL,
AGE: 44 YEARS, OCC:HOUSEHOLD WORK,
R/O: MAREWAD VILLAGE,
TQ & DIST: DHARWAD.
2. KUMARI MANJULA D/O. MADIVALAPPA HEBBAL,
AGE: 19 YEARS, OCC:STUDENT,
R/O: MAREWAD VILLAGE,
TQ & DIST: DHARWAD.
3. KUMARI SAVITA D/O. MADIVALAPPA HEBBAL,
AGE: 17 YEARS, OCC:STUDENT,
R/O: MAREWAD VILLAGE,
TQ & DIST: DHARWAD.
4. KUMARI PAVITRA D/O. MADIVALAPPA HEBBAL
AGE: 14 YEARS, OCC:STUDENT,
R/O: MAREWAD VILLAGE,
TQ & DIST: DHARWAD.
5. KUMAR BASAVARAJ S/O. MADIVALAPPA HEBBAL
AGE: 12 YEARS, OCC:STUDENT,
R/O: MAREWAD VILLAGE,
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TQ & DIST: DHARWAD.
....APPELLANTS
(SINCE APPELLANTS NO.3 TO 5 ARE MINORS,
REPRESENTED BY M/G APPELLANT NO.1)
(BY SRI.HANMANT R. LATUR, ADV.)
AND:
1. S.GOVARDHANAN
AGE: 50 YEARS, OCC: BUSINESS AND OWNER
OF THE LORRY BEARING NO.TN31/AB-8788,
R/O.EL 7918, NO.11, SUBRAMANIAM KOIL,
ST PUDUPALAYAM CUDDALORE,
TAMILNADU-607001.
2. THE DIVISIONAL MANAGER,
ROYAL SUNDRAM ALLIANCE
INSURANCE CO.LTD., SUNDRAM TOWERS,
45 & 46, WHITE ROAD, CHENNAI-4.
... RESPONDENTS
(By SRI. M.Y.KATAGI, ADV. FOR R2;
R1-NOTICE IS DISPENSED WITH)
MFA FILED U/SEC.173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED 31.12.2011
PASSED IN MVC.NO.576/2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-III AT
DHARWAD, PARTLY ALLOWING THE CLAIM PETITION
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FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
RESERVED FOR JUDGMENT ON : 09.07.2020.
JUDGMENT PRONOUNCED ON : 14.07.2020
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT PASSED THE FOLLOWING:
JUDGMENT
The appellants/claimants preferred this appeal aggrieved by the impugned judgment and award dated 31.12.2011 passed in MVC No.576/2010 on the file of the Presiding officer, Fast Track Court-III, Dharwad (hereinafter referred to as the 'Tribunal') awarding compensation of Rs.3,30,680/- in their favour, while holding that the deceased had contributed upto 30% to the accident and therefore the claimants before the Tribunal who are claiming compensation for the death of the deceased have to 4 forego 30% and entitled only for 70% of the compensation.
2. The brief facts of the case are that the appellants herein, referred to as the claimants in MVC No.576/2010, claimed compensation for the death of the deceased-Madivalappa who died in the road traffic accident that occurred on 24.04.2010 at 10.00 p.m., when he along with others was returning to Madanbhavi village in a tractor and trailer bearing registration No.MYY-7937 and No.MES-6594. It is stated that when the tractor trailer was proceeding near Neeralagi Cross, the Ashok Leyland lorry bearing registration No.TN-31/AB-8788 driven by its driver in a rash and negligent manner, came from backside and dashed to the left hind side of the tractor trailer, as a result of which, Madivalappa who was traveling in the trailer, had sustained grievous injuries and succumbed to the same.
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3. It is stated that claimant No.1 is the wife and claimants No.2 to 5 are his children and claimant No.6 before the Tribunal was the mother of the deceased- Madivalappa, who was aged 52 years at the time of the incident. It is stated that the deceased was working as mason and was earning Rs.10,000/-p.m. and therefore the claimants have claimed compensation for the death of the deceased Madivalappa.
4. Respondent No.1 before the Tribunal being the owner of the lorry bearing registration No.TN- 31/AB-8788 remained ex parte. Respondent No.2 being the insurer of the offending lorry appeared before the Tribunal, represented by its advocate and contested the claim of the claimants on various grounds. The age, income and avocation of the deceased was disputed. It is contended that the driver of the tractor trailer was also negligent and therefore 6 claimants are not entitled for the compensation. The liability of the insurance company was also disputed.
5. Petitioner No.1 was examined as PW1 and got marked 16 documents. Respondent No.2 has not led any evidence but got marked Ex.R1 i.e. the copy of insurance policy.
6. Considering the rival contentions of the parties, the Tribunal passed the impugned judgment and award, holding that the claimants are entitled for only 70% of the compensation, since the driver of the tractor trailer had contributed upto 30% for the accident and therefore the appellants have to forego 30% of the compensation. Loss of dependency was determined as Rs.4,22,400/-, after taking monthly income of the deceased at Rs.4,000/-p.m. deducting 1/5th of the amount towards his personal expenses. Rs.25,000/- was awarded towards loss of love and affection, Rs.10,000/- towards loss of consortium and 7 Rs.10,000/- towards transportation and funeral expenses, Rs.5,000/- towards loss of estate was also granted and it was held that the appellants are entitled for total compensation of Rs.3,30,680/-.
7. Heard the learned advocate for the appellants/claimants and respondent No.2-insurer. Perused the materials on record including the trial Court records.
8. After hearing the learned advocate for the claimants and insurer, it is found that there is no serious dispute about the age of the deceased as mentioned in the postmortem report as 52 years. The factum of accident is also not disputed as occurred on 24.04.2010.
9. It is contended by the appellants that the finding of the Tribunal regarding the contributory negligence on the part of the driver of the tractor trailer is erroneous.
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10. Admittedly, the FIR was registered against the driver of the lorry in Crime No.20/2010 of Tadas police station, for the offences punishable under Sections 279, 337, 338 and 304 of IPC and under Section 134 read with Section 187 of Motor Vehicles Act.
11. On the basis of the first information lodged by the informant-Basavaraj Kundagol, the FIR is as per Ex.P2. Ex.P1-First information was lodged by the said informant-Basavaraj Kundagol wherein he has stated that the driver of the lorry in question was driving the same in a rash and negligent manner and dashed from behind. The spot panchanama which is as per Ex.P4 discloses that the lorry in question was proceeding from behind and dashed to the hind portion of the tractor. Ex.P6 is the charge sheet filed by the investigating officer against the driver of the offending lorry for the above said offences. Therefore it is clear that the accident in question had occurred 9 only due to rash and negligent driving of the driver of the offending lorry and there is no iota of evidence to contend that there is contributory negligence on the part of the driver of the tractor trailer.
12. The Tribunal opined that since the deceased was traveling as an unauthorized passenger, contributory negligence at the rate of 30% by the driver of the tractor trailer is to be taken into consideration. The said finding of the Tribunal is without any basis and it has no support. If at all the deceased and others were traveling as unauthorized passengers, it may be a good ground for the insurer of the tractor trailer to disown its liability to compensate the owner of the tractor trailer, but definitely it cannot be a ground to deny the compensation to the claimants who are claiming compensation for the death of the deceased, from the offending vehicle which had caused the accident and further when the records disclose that 10 the accident was solely due to rash and negligent driving of the driver of the lorry, it cannot be attributed to the driver of the tractor trailer. Moreover none of the parties have taken such a stand before the Tribunal.
13. Under such circumstances, I am of the opinion that the said finding of the Tribunal that there is contributory negligence to the extent of 30% on the driver of the tractor trailer, is erroneous and the same is liable to be set aside. Accordingly it is held that the accident in question had occurred due to the rash and negligent driving of the lorry and therefore respondent No.1 being the owner and respondent No.2 being the insurer of the offending lorry, are liable to pay compensation jointly and severally.
14. It is the contention of the claimants that the deceased was working as mason and was earning Rs.10,000/- p.m. but in the absence of any material 11 to prove the said fact, the notional income during 2009-2010 could be reasonably taken at Rs.5,500/- p.m., as this is the amount that is being considered as income of an unskilled labourer during the said period for settlement of disputes before the Lok Adalath.
15. Admittedly the deceased was having in all six dependants i.e. mother, wife and 4 children. As per Sarla Verma's case 1, 1/5th of the amount is to be deducted towards personal expenses of the deceased. Since the deceased was aged 52 years at the time of the incident, the appropriate multiplier would be 11. Therefore the loss of dependency (including future prospects of life) for the appellants would be Rs.6,38,880/-{Rs.5,500+10%=6,050-1/5=4,840x12x11}.
16. The claimants are entitled for compensation under the conventional heads i.e. funeral expenses, loss of consortium and loss of estate at the reasonable 1 (2009) 6 SCC 121 12 amount of Rs.70,000/- as held in National Insurance Company Limited Vs. Pranay Sethi 2 and others and in Sebastiani Lakra and Others Vs. National Insurance Co. Ltd. and another 3.
17. The learned advocate for the appellants relied on the decision in Magma General Insurance Co. Ltd. 4 Vs. Nanu Ram and Ors. wherein the Hon'ble Supreme Court considered the claim petition filed by the father, brother and sister of the deceased who died in a road traffic accident and awarded filial consortium (right of the parents for compensation) at Rs.40,000/- each. He submitted that the same principles were reiterated and applied in United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors. 5.
2 (2017) 16 SCC 680 3 2019 ACJ 34 4 2018 ACJ 2782 5 Civil A. No.2705/2020 with C.A.No.2706/2020 order dated on 30/6/2020 (reportable) 13
18. The learned Advocate for the claimant contended that the grant of compensation under conventional head of loss of love and affection, loss of spousal consortium and towards funeral expense at the rate of Rs.70,000/- and grant of parental consortium to the children at Rs.40,000/- each is to be awarded to the claimants. Accordingly, he prays for applying the same principles in the case on hand and award reasonable and just compensation.
19. I have gone through the decisions relied on by the learned advocates for the appellants.
20. In Magma General Insurance Co. Ltd. (supra), the Hon'ble Supreme Court held as under:
"8.2........Parental consortium is awarded to the children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count: Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 (4) RLW 3368 (Raj) and Uttarakhand High Court in Rita Rana v.
Pradeep Kumar, 2014 (3) UC 1687 and Karnataka 14 High Court in Lakshman v. Susheela Chand Choudhary, 1996 ACJ 1265 (Karnataka). However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.
In the present case, we deem it appropriate to award the father and the sister of the deceased an amount of Rs.40,000 each for loss of filial consortium."
21. In the recent decision of the Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors. (supra) the Hon'ble Apex Court relying on Pranay Sethi (supra) and Magma General Insurance Co. Ltd. (Supra) awarded the compensation under conventional head at Rs.70,000/- i.e towards loss of estate at Rs.15,000/-, funeral expenses Rs.15,000/-. spousal consortium at Rs.40,000/- and parental consortium to the children at Rs.40,000/- each. Therefore, the contention of the learned Advocate for the insurer that the amount of compensation under the head consortium should be 15 restricted to Rs.40,000/- only, do not hold good. Now since it is the settled position of law in view of the full Bench decision of the Hon'ble Apex Court in United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors. (supra) the claimants in the present case are also entitled for similar compensation.
22. In view of the discussion held above, I am of the opinion that the claimants are entitled for the following amount as compensation with interest at the rate of 6% p.a. from the date of the petition:-
Loss of dependency Rs.6,38,880/-
(including future prospects
of life)
{(5500+10%=6,050-
1/5=4,840x12x11}
Loss of consortium to Rs.2,00,000/-
claimants 1 to 5 @
Rs.40,000/- each
Loss of estate Rs.15,000/-
Towards transportation & Rs.15,000/-
funeral expenses
Total Rs.8,68,880/-
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Compensation awarded by Rs.3,30,680/-
the Tribunal
Additional Compensation to Rs.5,38,200.00
which the claimants are
entitled to
23. In view of the discussions held above, I am of the opinion that the claimants-appellants are entitled for total compensation of Rs.8,68,880/-. The Tribunal has granted the compensation of Rs.3,30,680/-. Therefore, the claimants-appellants are entitled for the enhanced compensation of Rs.5,38,200/-.
24. I have gone through the impugned judgment and award passed by the Tribunal. It has committed an error in forming the opinion that there was contributory negligence on the part of the driver of the tractor trailer and that the petitioners have to forego 30% of the compensation. It has also failed in determining just and reasonable compensation to the claimants. Therefore the same is liable to be modified 17 by allowing the appeal preferred by the appellants- claimants. Hence, I proceed to pass the following:
ORDER The appeal is allowed. The judgment and award dated 31.12.2011 passed by the Tribunal in MVC No.576/2010 is modified to the extent that the claimants are entitled for total compensation of Rs.8,68,880/- instead of Rs.3,30,680/-, awarded by the Tribunal, with interest @ 6% p.a. from the date petition till realization from the respondents No.1 and 2 jointly and severally.
Apportionment, deposit and disbursement in the amount of compensation would be as ordered by the Tribunal in the same proportion.
The amount if any, already deposited by respondent No.2 is ordered to be transmitted to the Tribunal for release in favour of the appellants- claimants.
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Draw modified award accordingly and send back the Trial Court records with copy of the judgment.
SD/-
JUDGE KGK