Karnataka High Court
Deepika M vs The Manager on 28 March, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
M.F.A. NO.4308/2016(MV)
BETWEEN:
1. DEEPIKA M.,
W/O LATE SRINIVAS,
AGED 26 YEARS,
2. TANUSHREE.S
D/O LATE SRINIVAS
AGED 1 YEAR,
3. NINGAMMA,
W/O LATE KRISHNAPPA,
AGED 48 YEARS,
ALL ARE R/AT:
NO.12, HOSADODDI VILLAGE,
BOLARE POST,
KANAKAPURA-BANGALORE MAIN ROAD,
UTTARAHALLI HOBLI,
BANGALORE SOUTH,
BANGALORE-82.
SINCE APPELLANT NO.2 IS MINOR
AND REPRESENTED BY HER
MOTHER APPELLANT NO.1
... APPELLANTS
(BY SRI PRAKASH M. H., ADVOCATE)
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AND:
1. THE MANAGER
UNITED INDIA INSURANCE CO. LTD.,
NO.40, LAKSHMI COMPLEX,
K. R. ROAD, FORT,
BANGALORE-02.
2. AZEEM BAIG,
S/O KHASIM BAIG,
R/A NO.193, 1ST MAIN ROAD,
2ND CROSS, MYSORE ROAD,
TIPPUNAGAR,
BANGALORE-68.
... RESPONDENTS
(BY SRI O. MAHESH, ADVOCATE FOR R1;
R2 SERVED)
****
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
19/1/2016 PASSED IN MVC NO.1494/2015 ON THE FILE
OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE,
MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The present appeal has been preferred by the appellants/ claimants being aggrieved by the judgment and award passed by the XII Addl. Small Causes Judge and Member, MACT, Bengaluru, in MVC No.1494/2015 dated 19.01.2016.
2. Heard.
3. Though the appeal is listed for orders, with the consent of the learned counsel appearing for the parties, same is taken up for final disposal.
4. The brief facts of the case are that, on 22.03.2015 at about 7 pm, Srinivas, Udayakumar and Renuka were proceeding on a motor cycle bearing registration No. KA- 05/EH-06 from Hosadoddi village towards Bolare side and at that time, a car bearing registration No.KA- 04/MM 7000 came in a rash and negligent manner and dashed against the motor cycle due to which, the said -4- Srinivas, Udayakumar and Renuka, fell down and sustained grievous injuries. Immediately, Srinivas was shifted to NIMHAS Hospital, wherein first aid was given and then he was shifted to BGS Global hospital. Inspite of giving best treatment, he succumbed to the injuries, on 24.03.2015.
5. It is the contention of the claimants that the deceased was doing bar bending work and was earning `12,000/- per month. For having lost the bread earner, the wife, child and the mother filed claim petition under Section 166 of the Motor Vehicles Act. In response to the notice, respondent No.1, owner of the car did not appear and was placed ex-parte. The respondent No.2/insurer appeared and filed written statement, denying the contents of the claim petition. It was contended that the liability is subject to the terms and conditions of the policy and the owner of the vehicle has not complied the provisions of Sections 134 (C) and 158(6) of the M.V.Act. He also contended that the -5- deceased and other two were proceeding on the motor cycle and the alleged accident has taken place due to rash and negligent riding of the motor cycle. It was contended that the compensation claimed is exorbitant and the deceased was not holding a valid and effective driving licence to drive the motor cycle and therefore, the deceased also contributed to the alleged accident. On these grounds, he prayed for dismissal of the claim petition.
6. On the above pleadings, the Tribunal framed the following issues:
(i) Whether the petitioners prove that deceased Srinivas was died in a road traffic accident on 22.03.2015 at about
7.00 pm in front of Twinkle School, Nettigere, Kanakapura-Bengaluru Road, Uttarahalli Hobli, Bengaluru-82 due to the rash and negligent driving of the driver of the Santro car bearing registration No.KA- 04/MM-7000?
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(ii) Whether the petitioner is entitled for any compensation? If so to what extent and from whom?
(iii) What order or award?
7. In order to prove their case, the first claimant came to be examined as P.W.1 and one more witness as P.W.4 got marked Exs.P.1 to P.17 and P.29. The other injured claimants are also eye witnesses to the alleged accident. After hearing the parties to the lis, the impugned judgment and decree came to be passed. Being not satisfied with the compensation awarded, the claimants are before this Court.
8. The main grounds urged by the learned counsel appearing on behalf of the appellants/claimants are that the deceased was working as bar bender and was earning `12,000/- per month and the family members are dependents on him. But the Tribunal, by taking notional income at `7,000/- per month, has awarded compensation on the lower side. On these grounds, he -7- prayed for allowing the appeal by enhancing the compensation.
9. Per contra, learned counsel appearing on behalf of the respondent No.1/insurer vehemently argued by contending that the notional income which has been taken at the rate of `7,000/- per month is just and proper. He further contended that the method of notional income taken before the Lok Adalath is not a precedent and while taking notional income, the minimum wages which is prevailing as per the notification notified by the State Government has to be considered and accordingly, the notional income taken by the Tribunal is more than the minimum wages and on the higher side and there are no good grounds to take notional income as per the settlement of cases before the Lok Adalath. He also contended that, by taking into consideration the overall compensation awarded by the Tribunal under the conventional heads, -8- it is on the higher side and therefore, sought to dismiss the appeal.
10. The accident in question is not in dispute, so also the involvement of the offending vehicle being insured by the respondent No.1. As could be seen from the judgment and award passed by the Tribunal, it is the contention of the claimants that the deceased was working as a bar bender and was earning `12,000/- per month. But, in order to substantiate the said fact, the claimants have not produced any material documents. In the absence of any material documents, the Tribunal, by taking the notional income at `7,000/-, after deducting 1/3rd towards personal expenses of the deceased and after applying the multiplier 16, has awarded `8,96,000/- towards loss of dependency. Though under normal circumstances, compensation awarded by the Tribunal appears to be justifiable. But while taking the notional income, the Tribunal ought to -9- have taken into consideration the year of accident and the wages prevailing at that particular period. Though the learned counsel for the insurer would contend that the notional income taken in Lok Adalath is higher than the minimum wages prevailing during the said period, but as could be seen from the notification issued periodically by the Government is more or less par with the notional income fixed in settlement of cases before the Lok Adalath. At this juncture, I feel it relevant to refer to the minimum rates of wages showing the basic wages and variable dearness allowance payable w.e.f. 01.10.2015. For the purpose of brevity, the same is extracted as below.
Area Rates of wages plus V.D.A. Per Day
Basic wages V.D.A. Total
(`) (`) (`)
A 180.00 + 173.00 = 353.00
B 150.00 + 144.00 = 294.00
C 120.00 + 116.00 = 236.00
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11. By going through the said index which has been provided, if the income of the deceased is taken at `10,000/-, it will be same as prevailing as on 01.10.2015. In that light, the contention taken up by the learned counsel for the insurer is not acceptable, when the minimum wages falls nearly to `10,000/-. In that light, the Tribunal ought to have taken the income of the deceased at `10,000/- per month. Keeping in view the above facts and circumstances, I feel it just and proper to take the notional income at `10,000/- per month and after deducting 1/3rd towards personal expenses of the deceased and by applying the multiplier 16, claimants are entitled to `12,80,064/- under the head, 'loss of dependency'.
12. As could be seen from the impugned judgment and award, the Tribunal has awarded an amount of `1,00,000/- towards loss of consortium, `1,20,000/- towards love and affection, `10,000/- towards loss to
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estate and `30,000/- towards transportation of dead body and funeral expenses. The compensation awarded under the said conventional heads appears to be on the higher side.
13. In view of the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd.- vs- Pranay Sethi and Others reported in AIR 2017 SC 5157, the claimants are entitled to a sum of `70,000/- under the conventional heads.
14. It is the contention of the learned counsel for the claimants that the decision of the Hon'ble Court is having a prospective effect, not retrospective and the said ratio has been laid down subsequently after trial Court decided the case, same is not binding and this Court cannot reduce the compensation awarded by the Tribunal under conventional heads. But, under Article 142 of the Constitution of India, the law laid down by the Hon'ble Apex Court is binding on all the Courts
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subordinate to it. While discussing and deciding the compensation, Court not only look into that fact which is beneficial one. Appeal is continuation of the original proceedings. While deciding the case, the law prevailing has to be followed. The Hon'ble Apex Court, while granting the compensation under conventional heads, it took into consideration the previous decisions and in order to have a common guidelines in awarding compensation under conventional heads, the guidelines have been issued. In the light of the discussion held, the compensation awarded under the conventional heads to the extent of `70,000/- appears to be just and proper and the contention taken up by the learned counsel for the claimants in this behalf is not having any force and same is not sustainable in law.
15. Even as could be seen from the evidence which has been produced, it indicates that the accident has taken place on 22.03.2015 and Srinivas died on
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24.03.2015, as per Ex.P.15. The amount of `40,000/- spent towards medical expenses has not been considered by the Tribunal. In that light, an amount of `40,000/- has been awarded under the head medical expenses.
16. Keeping in view the above facts and circumstances of the case, the claimants are entitled to a total compensation of `13,90,064/- as against `11,56,000/- awarded by the Tribunal. Accordingly, after deducting the compensation awarded by the Tribunal, the claimants are entitled to an additional compensation of `2,34,064/- with interest at 6% per annum from the date of petition till realization.
17. Accordingly, the appeal is allowed in part. The judgment and award passed in MVC No.1494/2015 is modified as indicated above. The respondent No.1/ insurer is directed to deposit the enhanced
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compensation awarded by this Court within a period of six weeks from the date of receipt of certified copy of this order, before the Tribunal. The disbursement of compensation shall be as per the orders of the Tribunal. The registry is directed to draw the award, accordingly.
Sd/-
JUDGE kcm