Karnataka High Court
Jayanthi vs Dinesh Kumar N C on 16 July, 2019
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2019
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.4267 OF 2015 (MV)
c/w
MFA NO.3848 OF 2015 (MV)
MFA NO.4267 OF 2015
BETWEEN
1. Jayanthi
W/o Melegowda
Aged about 41 years
2. Melegowda
S/o Late Krishnegowda
Aged about 46 years
Since unsound mind
Rep. by his wife Jayanthi
3. Sridhara M
S/o Melegowda,
Aged about 18 years
All are R/o No.29
Beejagatta Village
Chikka Arakalagodu Post
Mallapatna Hobli
Arakalgodu Taluk, Hassan Dist.
... Appellants
(By Sri.K.V.Naik, Advocate for
Sri.Shripad V Shastri, Advocate)
2
AND
1. Dinesh Kumar N C
Major by age
S/o Chowdappa
R/o Narayanapura
Bettahalasur Post
Bangalore-560 057.
2. The New India Assurance
Co. Ltd., D.O. Unit
VI(671400), No.202
Brigade Plaza, North Wing
2nd Floor, S.C.Road
Ananda Rao Circle
Bangalore-560 009
By its Divisional Manager.
... Respondents
(By Sri.R Jaiprakash, Advocate for R2
Vide order dated 13.07.2016 notice to R1 is
Dispensed with)
This MFA filed under Section 173(1) of MV Act
against the judgment and award dated 07.02.2015
passed in MVC No.117/2014 on the file of the XX
Additional Small Causes Judge, Member, MACT,
Bangalore, partly allowing the claim petition for
Compensation and seeking enhancement of
Compensation.
3
MFA NO.3848 OF 2015
BETWEEN
New India Assurance Co.Ltd.,
D.O Unit VI, (641400)
No.202, Brigade Plaza
North Wing, II Floor, SC Road
Ananda Rao Circle
Bangalore 560009
Representing
New India Assurance Co.Ltd.,
No.9, M.G. Road, Bangalore
By its Manager.
... Appellant
(By Sri.R Jaiprakash, Advocate)
AND
1. Sri. Dineshkumar N.C
Major in age
S/o Chowdappa
R/at Narayanapura
Bettalasur Post
Bangalore- 560057.
2. Smt.Jayanthi
Aged 41 years
3. Sri.Male Gowda
Aged 46 years
Since unsound mind
Rep. by his wife Jayanthi
4. Sri Sridhar M
Aged 18 years
4
All are R/at No.29
Beechaghatta Village
Chikka Arakalagudu post
Mallapatna Hobli,
Arakalagudu Taluk
Hassan District.
... Respondents
(By Sri. Shripad V Shastri, Advocate for R2 & R3
R4-Served; Vide order dated 23.11.2015- notice
to R1 dispensed with)
This MFA filed under Section 173(1) of MV Act
against the judgment and award dated 07.02.2015
passed in MVC No.117/2014 on the file of the 20th
Additional Small Causes Judge, Member, MACT,
Bengaluru, awarding a Compensation of Rs.7,46,000/-
with interest @ 8% P.A from the date of petition till
realization.
These MFAs coming on for hearing, this day, the
court delivered the following:
JUDGMENT
Though these matters are listed for admission, with the consent of learned counsel for both parties, the matters are taken up for final disposal.
2. MFA 4267/2015 is preferred by the appellants/claimants against the judgment and award 5 dated 07.02.2015 passed by the Tribunal in MVC No.117/2014 seeking enhancement of compensation.
MFA 3848/2015 is preferred by the Insurance Company against the judgment and award dated 07.02.2015 passed by the Tribunal in MVC No.117/2014 questioning the liability as well as the quantum of compensation awarded by the Tribunal.
3. The factual matrix of the appeals is as under:
It is stated in the claim petition that on 25.10.2013 when the deceased Shashikumar @ Yeshavanta Gowda was proceeding on his motor cycle bearing Regn.No.KA-41-X-6873 on Mysore Road, Jnanabharathi, in front of petrol pump near Jnanabharathi Junction, Bangalore, a Traveller Mini bus bearing Regn.No.KA-50-8597 came from behind in a rash and negligent manner and dashed against the deceased vehicle. Due to the impact, he fell down and sustained grievous injuries and was treated at Mathru Hospital and then to Nimhans and further to D.G. 6 Hospital, Bangalore, but however, he succumbed to the injuries on 02.11.2013. The parents of the deceased had incurred huge medical expenses and funeral and obsequies expenditure. Prior to the accident, Shashikumar was hale and healthy and was a driver and farmer and was earning Rs.10,000/- per month.
His family members being his parents and younger brother were wholly dependent on his income for their livelihood and they having lost their bread earner of the family, filed a claim petition against the respondents seeking compensation.
4. In pursuance to issuance of notice, respondent no.1 - owner of Traveller Mini Bus remained absent and hence was placed exparte. However, Respondent no.2 - Insurer appeared through counsel and filed its objections denying all the averments in the petition in so far as accident and death of Shashikumar due to the injuries sustained and contended that the driver of the offending vehicle did not possess a valid and effective driving licence to drive the same and the vehicle as well 7 did not have a valid permit and FC and therefore, it was not liable to pay any compensation. Further, that the insurance was subject to the terms and conditions of the policy.
5. Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, petitioner no.1 got examined herself as PW.1 and got examined one witness as PW.2 and got marked 15 documents as per Exs.P1 to P15. Respondents did not let in any evidence. The Tribunal after hearing the learned counsel for the parties, and on an evaluation of oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.7,46,000/- with interest @ 8% p.a. from the date of petition till the date of realisation. It is this judgment which is challenged in these appeals by the claimants seeking enhancement of compensation and by the Insurer questioning the liability as well as the quantum, by urging various grounds.
8
6. Learned counsel for the appellant in MFA No.4267/2015 - claimants vehemently contends that the accident being of the year 2013, the Tribunal should have adopted the notional income of the deceased at Rs.8,000/- per month as per the settled norms of the Lok Adalath instead of Rs.6,000/- adopted by the Tribunal.
It is the further contention of the learned counsel that the Tribunal has erred in taking the age of the younger parent of the deceased to adopt the multiplier. Whereas in the case decided by the Apex Court in M/S. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD. vs. MANDALA YADAGARI GOUD AND OTHERS (AIR 2019 SC 1825), the Apex Court has held that it is the age of the deceased and not such of the dependants in the case of the death of a bachelor which is to be the basis for the multiplier. In view of the same, the learned counsel seeks that the compensation towards 'Loss of dependency' be re-assessed by this court by taking the income of the deceased at Rs.8,000/- per month and 9 multiplier at '18' applicable to the age of the deceased who was 20 years as on the date of the accident.
Further, the learned counsel contends that the compensation granted by the Tribunal towards 'Funeral expenses' at a meager amount of Rs.10,000/- is also on the lower side and seeks that the same be enhanced suitably.
It is the further contention of the learned counsel for the appellants in MFA 4267/2015, 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), filial consortium may be awarded to the claimants who are the parents as well as brother of the deceased. On all these grounds, learned counsel for appellants prays for allowing the appeal and enhancing the compensation awarded by the Tribunal suitably.
7. Per contra, learned counsel for the appellant in MFA No.3848/2015 - Insurance Company contends that having regard to the fact that there was no 10 evidence for the income, the Tribunal has rightly adopted the income at Rs.6,000/- per month and has awarded just and fair compensation, which aspect does not require any interference. But however, the learned counsel contends that the Tribunal erred in adding 50% of the income towards 'Future prospects', though the deceased did not have a permanent job. Having regard to the decision of the Apex Court in National Insurance Company Limited -vs- Pranay Sethi (AIR 2017 Supreme Court 5157), he contends that only 40% of his income ought to have been added towards future prospects. Hence, he contends that the said error committed by the Tribunal requires to be rectified by this Court. Hence, the learned counsel for the Insurer contends that the compensation awarded by the Tribunal be scaled down considerably.
8. In the background of the contentions taken by learned counsel for the appellants in MFA 4267/2015 and the learned counsel for the appellant - insurer in MFA No.3848/2015, as stated supra, it is relevant to 11 state that there is no dispute with regard to the death of deceased - Shashikumar who met with an accident on 25.10.2013, wherein the driver of the offending Traveller drove the same in a rash and negligent manner at high speed without observing traffic rules and dashed against the deceased from behind as a result of which he sustained grievous injuries all over the body and succumbed to injuries in the hospital. The claim petition is supported by the oral and documentary evidence such as FIR, Complaint, spot sketch, mahazar, IMV report, inquest report, PM report and charge sheet, etc. The appellants in MFA 4267/2015 have claimed that deceased was a driver and farmer and used to earn Rs.10,000/- per month, but the Tribunal has taken notional income of the deceased as Rs.6,000/- and by adding 50% towards 'future prospects' and thereafter taking 11 multiplier as per Sarla Verma's case and deducting one-half towards his personal expenses, has awarded Rs.5,94,000/- towards 'loss of dependency'. Having regard to the avocation of the deceased and his earnings, the accident being of the year 2013, as per the 12 settled norms of the Lok Adalath Chart, I find it just and proper to take his notional income at Rs.8,000/-. But, however, as contended by the learned counsel for the Insurer - appellant in MFA No.3848/2015, the Tribunal erred in adding 50% of his income towards 'Future prospects'. Though the deceased was aged 20 years, since he did not have a permanent employment, it is proper to add 40% of his income towards 'Future prospects'. Hence, taking his income at Rs.8,000/- and adding 40% towards 'Future prospects', his income comes to Rs.11,200/-. Then deducting one-half towards his personal expenses, his income comes to Rs.5,600/-. Thereafter taking '18' multiplier considering the fact that the age of the deceased was 20 years as per the decision in M/S. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD. vs. MANDALA YADAGARI GOUD AND OTHERS (AIR 2019 SC 1825), the compensation towards 'Loss of dependency' is arrived at Rs.12,09,600/- (5600 x 12 x 18) as against Rs.5,94,000/- awarded by the Tribunal. 13
Further, I hereby enhance the compensation towards 'Funeral and obsequies ceremony' by another Rs.20,000/- in addition to Rs.10,000/- awarded by the Tribunal.
Further, as contended by the learned counsel for the appellants in MFA 4267/2015, 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), I find it is just and proper to grant 'filial consortium' to Appellants 1, 2 and 3 who are the parents and younger brother of the deceased. In the said judgment, the Apex Court has held thus:
"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."14
In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- each to Appellants 1, 2 and 3 in MFA No.4267/2015, in all amounting to Rs.1,20,000/- under the head "Loss of filial consortium". As a result, the compensation of Rs.20,000/- granted by the Tribunal towards 'Loss of love and affection' is merged to the above 'filial compensation'. However, the compensation granted by the Tribunal in respect of other heads remains undisturbed.
9. 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 enhanced by Total
MACT this Court
Loss of 5,94,000 6,15,600 12,09,600
dependency
Loss of love
and affection
/ Now - Filial 1,00,000
consortium
20,000 (Rs.40,000/- 1,20,000
to Appellants
1, 2 & 3 in each)
MFA
4267/2015
15
For Funeral 10,000 20,000 30,000
and
obsequies
ceremony
For medical
1,22,000 Nil 1,22,000
expenses
TOTAL 7,46,000 7,35,600 14,81,600
Thus, in all, the claimants are entitled to a total compensation of Rs.14,81,600/- as against Rs.7,46,000/- awarded by the tribunal. The enhanced compensation would come to Rs.7,35,600/- which shall carry interest at the rate of 6% per annum.
Accordingly, I proceed to pass the following:
ORDER MFA No.4267/2015 and MFA No.3848/2015 are allowed in part. The impugned judgment and award dated 07.02.2015 passed by the Tribunal in MVC No.117/2014 is hereby modified. The claimants/appellants are entitled for enhanced compensation of Rs.7,35,600/- with interest @ 6% p.a. 16 from the date of petition till realisation. The total compensation comes to Rs.14,81,600/-.
Respondent-insurer shall deposit the entire compensation with interest before the tribunal within four weeks from the date of receipt of 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, shall remain unaltered.
Any amount in deposit in MFA 3848/2015 shall be transmitted to the concerned Tribunal, forthwith. Office to draw the decree accordingly.
Sd/-
JUDGE KS