Karnataka High Court
Smt. Nagamma, W/O Late Ramachandra vs The Manager on 25 June, 2019
Author: K.Somashekar
Bench: K. Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
MFA NO. 2297/2013 (MV)
BETWEEN
1. SMT. NAGAMMA, W/O LATE RAMACHANDRA
AGED 28 YEARS
2. NANDEESHA, S/O LATE RAMACHANDRA
AGED 12 YEARS
3. NANDEEPA, D/O LATE RAMACHANDRA
AGED 10 YEARS
4. BABY AKSHAYA, D/O LATE RAMACHANDRA
AGED 08 YEARS
5. MUNIYAPPA, S/O LATE MENASAPPA
AGED 72 YEARS
6. RAMAMMA, W/O MUNIYAPPA
AGED 70 YEARS
ALL ARE R/AT AMBEDKAR
COLONY, ATTIBELE, ANEKAL
BENGALURU-562 106
(SINCE APPELLANTS NOS.2 TO 4
ARE MINORS, THEY ARE
REPRESENTING THROUGH
APPELLANT NO 1, THEIR MOTHER)
... APPELLANTS
(BY SRI. PRAKASH. M. H., ADVOCATE)
2
AND
1. THE MANAGER
THE NATIONAL INSURANCE CO. LTD.
REGIONAL OFFICE
NO.144, SHUBHARAM COMPLEX
M.G.ROAD, BENGALURU-01
2. PALANISWAMY
S/O SEELAPPAN
NO.1-A, THATTANKUTTAI
KEERAMBUS POST
RASAMPALYAM, NAMAKKAL
TAMIL NADU-637 207 ... RESPONDENTS
(BY SRI. K. S. LAKSHMINARASAPPA, ADV. FOR
SRI. B. C. SEETHARAMA RAO, ADV. FOR R-1;
NOTICE TO R-2 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
02.11.2012 PASSED IN MVC NO.1995/2011 ON THE FILE
OF THE IV ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, MEMBER MACT, BENGALURU CITY, 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 the learned Counsels appearing on both sides, the matter is taken up for final disposal.
2. This appeal is filed by the aggrieved legal heirs of one Ramachandra, who died in a road accident, challenging the judgment and award dated 02.11.2012 3 passed by the Member MACT: IV Addl. Judge, Court of Small Causes, Bengaluru City, ( for short, 'Tribunal') allowing the claim petition in part and awarding compensation of Rs.8,09,840/- with interest at 6% pa. from the date of petition till the date of deposit.
3. The brief matrix of the case of the claimants is that, on 27.03.2011 at about 11.30 a.m., when the deceased Ramachandra was moving as a pedestrian on Bengaluru-Hosur Main Road, NH.7 Cross Road by observing all traffic rules, when he was crossing the road near Chikkanahalli Road Cross, Attibele Town, Anekal, suddenly a loaded lorry bearing No. TN.28.AD.1013 came from Bengaluru in rash and negligent manner with high speed and hit Ramachandra, as a result of which, the Ramachandra fell down and the wheels of the said lorry ran over him and he succumbed to the injuries on the spot. Immediately, he was shifted to Primary Health Centre, Anekal and after post mortem, funeral ceremony was conducted by his family members by spending Rs.20,000/-.
4. It is also the case of the claimants that, the deceased Ramachandra was aged 33 years as on the date 4 of the accident and he was hale and healthy and he was working as a painter and earning Rs.10,000/- pm. and he was maintaining the family members viz., his wife, three children and his parents (Claimants- 1 to 6). It is the further case of the claimants that the accident took place due to the negligence of the driver of the lorry and in this regard, Attibele Police have registered a case against the driver of the offending lorry in Crime No.73/2011 for the offences mentioned therein and also laid a charge sheet against him. Therefore, the Respondent-Owner and respondent No.2-insurer of the offending lorry are jointly and severally liable to pay compensation to the petitioners/claimants. Being aggrieved by the inadequacy of compensation, the claimants have filed a claim petition in MVC No.1995/2011 before the MACT, Bengaluru, seeking enhancement of compensation.
5. Before the Tribunal, in order to prove the case, petitioner No.1 got herself examined as PW.1 and in support of her case, she got marked the documents Exs.P1 to P.25 and also got examined one Muniyappa- PW.2, who is the complainant and also an eye witness to the incident, and she also got marked Ex.P26. On behalf of 5 Respondent No.2-Insurer, no evidence was adduced, however he got marked the Insurance Policy as Ex.R1.
6. PW.2-Muniyappa, the complainant, who stated to have witnessed the accident, in his cross-examination has clearly and specifically admitted that, there was no pedestrian crossing at the place where the said Ramachandra was crossing the road at the time of the accident. Ex.P5 also does not reveal that there any pedestrian crossing or Zeebra Crossing prevailing at the place where the deceased was crossing the road. Ex.P3 reveals existence of the road divider in the middle of NH-7 and the place of accident is a straight road. The evidence of PW.2 corroborates with the contents of Exs.P3 and P5 regarding the topography of the place where the accident took place, which shows that the place of accident is not meant for pedestrian crossing.
7. Learned counsel for the Respondent No. 2- National Insurance Co.Ltd. has appeared before the Tribunal and filed a written statement denying the averments of the petition, as false. In the written statement it is averred that, the driver of the offending vehicle was driving the lorry with moderate speed by 6 observing the traffic rules and regulations, and it is only the unmindful act of the deceased Ramachandra in crossing the busy road without observing the vehicles is the cause for the accident and therefore, there is contributory negligence on the part of the deceased for cause of accident in question and hence, he sought for dismissal of the petition.
8. The aspects of causing of accident in question and the deceased Ramachandra sustaining injuries and died due to the impact of the accident are not in dispute. Therefore, after considering the grounds urged by both sides, the Tribunal, relying upon a decision of this Court reported in ILR 2004 KAR 1104 [Koosappa Poojari Vs. K. Badabba & Ors.], wherein it has been observed that, 'If a pedestrian crossing over a road at any place other than which is meant for pedestrian cross, he cannot claim any specific precedence and the responsibility for causing the accident. Pedestrian has to share the negligence along with the driver", and also considering the contents of Ex.P3, which reveals that the petitioner was crossing the road at a place, which is not meant for pedestrian crossing, held that the deceased Ramachandra 7 contributed his negligence for cause of accident. Accordingly, the Tribunal apportioned the negligence of the Ramachandra and the driver of the offending lorry in the ratio of 25:75 respectively.
9. While arriving to the figure of compensation as noted above, the Tribunal has taken into consideration the fact that, though the claimants have stated that the deceased Ramachandra was working as a painter and earning a sum of Rs.10,000/-, they have not produced any document relating to his occupation and income, but according to the information collected by the Investigating Officer, the deceased was working as a painter. As per Ex.P6, Claimant/Petitioner No.1 is the wife, claimants- 2 to 4 are children and claimants- 5 & 6 are the parents of the deceased Ramachadra. According to the information collected by the Investigating Officer at the time of inquest Mahazar (Ex.P6), the deceased Ramachandra was working as a painter and Petitioner No.1 is the wife, and the accident has occurred while he was returning to his house along with primer used for mixing the paint. Though Ex.P17-ID Card reveals that the age of the deceased was 33 years, but according to the Post-Mortem Report, the 8 age of the deceased is 37 years. Though Ex.P23-Notarized copy reveals the age of PW.1 as 29 years as on the date of the accident in question, but, according to Ex.P25 (Voter ID) issued by Election Commission of India in respect of PW.1, her age is 26 years. Considering all the above aspects and relying upon Exs.P6 and P9, the Tribunal held that the deceased Ramachandra was aged 37 years as on the date of the accident and the same was taken into consideration for assessing the compensation under the head of 'Loss of Dependency'. On taking the income of the deceased at Rs.150/- per day, which works out to Rs.4,500/- pm., and according to the decision reported in 2012 AIR SCW 2892 (Santhosh Devi Vs. National Insurance Co.Ltd. & Another) by taking 30% raise on the monthly income of Rs.4,500/-, it calculated the monthly income at Rs.5,850/- and after deducting 1/4th towards personal expenses of the deceased out of Rs.5,850/- which works out to Rs.4,388/- and by applying the multiplier of '15', awarded 'Loss of Dependency' at Rs.7,89,840/-. In addition to that amount, the Tribunal awarded a sum of 5,000/- towards transportation of dead body, Rs.5,000/- towards funeral expenses and 9 Rs.10,000/- towards loss of consortium to Petitioner No.1. In all, the Tribunal has awarded 75% of compensation amount of Rs.8.09,840/- with interest at 6% pa., from the date of petition till the date of deposit, to the claimants in the ratio of 50:15:15:15:05
10. Heard the learned counsel for the appellants and the respondents.
11. Learned counsel for the appellants by taking me through the evidence of PW.1 submitted that, the Tribunal has committed an error in not assessing the monthly income of the deceased Ramachandra at Rs.4,500/- and it is on the lower side and even consideration of the age of the deceased as 37 years as on the date of the accident is also not proper and it should be '33' as per his ID Card, therefore, it requires intervention of this court. He further submits that, there is no negligence on the part of the deceased Ramachandra and the driver of the offending vehicle is only responsible for the cause of accident in question, as the deceased Ramachandra was moving as a pedestrian and he was crossing the 60 feet road by observing the traffic condition carefully and at the time of accident, he was almost 10 crossed one side of the road. Therefore, 25% negligence fixed to the deceased Ramachandra is not correct and if the driver has taken care while driving the lorry, the accident could not have happened. Hence, the whole responsibility should be fastened on the driver of the offending lorry. He also submits that, Ex.P5-Sketch drawn by the Investigating Agency also indicates that the negligence is on the part of the driver of the lorry, the said Ramachandra has almost crossed the road of one side and in the accident, and when the deceased fell down, the wheels of the lorry were ran away on the body of the deceased, and . a criminal case has also been initiated against the driver of the lorry. But, these facts have not been appreciated by the Tribunal in a proper perspective.
12. With the above contentions, the learned counsel seeks for intervention of this court to the impugned judgment and award passed by the Tribunal and to modify the same by fastening the whole negligence for cause of the accident in question, on the driver of the offending lorry and awarding suitable compensation under all the heads of compensation.
11
13. Learned counsel for the respondent Sri. B.C. Seetharama Rao, has taken me though the contents of Ex.P5-Sketch and Ex.P9- charge sheet said to have laid by the jurisdictional Police against the driver of the offending lorry and submits that, as per Ex.P5, there was no 'Zeebra Crossing' on cross the road, which the deceased Ramachandra has ventured to cross. Even the driver of the lorry in question has tried his best to avoid the accident, but still it was happened. Therefore, only on the negligence of the deceased Ramachandra, the accident in question has occurred, and there is no negligence on the part of the driver of the lorry for cause of accident in question. The Tribunal considering Ex.P5-Sketch drawn by the Investigating Agency, has rightly fixed 25% negligence on the part of the deceased Ramachandra. Therefore, the impugned judgment and award does not call for any interference by this court.
14. Learned counsel for the respondent-Insurance Company has further submitted that, perhaps the monthly income assessed by the Tribunal at Rs.4,500/- is on the lower side, as contended by the learned counsel for the appellants and that may be considered as per the 12 guidelines and the norms issued by the Hon'ble Apex Court relating to assessing of notional income, particularly when no document has been produced by the concerned legal heirs to substantiate the same. Therefore, the grounds urged by the learned counsel for the appellants in this appeal for enhancement of compensation and also for modification of the judgment and award, does not call for interference and hence, the appeal may be dismissed by confirming the impugned and judgment and award passed by the Tribunal in MVC No.1995/2011.
15. In the context of the contentions urged by the learned counsel for the appellants and countered by the learned counsel Sri. B.C. Seetharama Rao, learned counsel appearing for the respondent-Insurance Company, it is relevant to note that, on filing of the complaint by the complainant as per Ex.P2, the concerned Police have registered a case by recording the first information as per Ex.P1 and subsequent to that, the Investigating Officer has conducted investigation and during investigation, he drew up a spot-sketch as per Ex.P5, which indicates that, the deceased Ramachandra, while crossing the road, has almost crossed the road to reach the median and at that 13 point of time, the driver of the offending lorry hit the deceased Ramachandra and as a result of that, the wheels of the offending lorry ran over the body of the deceased Ramachandra and due to which, he sustained injuries and lost his breath. There is no dispute with regard to death of deceased Ramachandra as indicated in Ex.P9 (PM Report) issued by the doctor who conducted autopsy on the dead body of the deceased and even there is no dispute with regard to the concerned authority conducting inquest on the dead body and issuing inquest report as per Ex.P7. This appeal is mainly concentrated on the assessment of income of the deceased Ramachandra at Rs.4,500/- pm., and on the aspect of contributory negligence. The accident in question has occurred on 27.03.2011 and Tribunal has assessed and awarded a notional income of Rs.4,500/- p.m.
16. In view of the guidelines issued by the Hon'ble Apex Court in AIR 2017 SC 5157 [National Insurance Co. Ltd. Vs. Pranay Sethi and Others) and the accident being of the year 2011, the minimum income of the deceased should be taken at Rs.6,500/-. Therefore, after applying the guidelines laid down by the 14 Hon'ble Apex Court in the decision cited above, the future prospects at 40% of the income works out to Rs.6,500+40% (40% of 6,500) = 9,100/- and after deduction of 1/4th, towards his expenses, the monthly income of the deceased works out to Rs.6,825/- and after applying multiplier of '15', the loss of dependency works out to Rs.12,28,500/- as against Rs.7,89,840/- awarded by the Tribunal.
17. Further, in so far as the judgment rendered by the Hon'ble Apex Court relating to conventional heads is concerned, the compensation awarded should not exceed Rs.70,000/-, but the Tribunal has awarded only Rs.20,000/-, therefore, another sum of Rs.50,000/- requires to be added, which works out to Rs.70,000/-, to be paid to appellant/claimant No.1-Nagamma, being the wife of the deceased Ramachandra.
18. At this stage, it is worth to refer here a decision of the the decision rendered by the Hon'ble Apex Court in 2018 SCC ON LINE SC 1456 [Magma General Insurance Co. Ltd. vs. Nanu Ram], wherein it has been observed that,-
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"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 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 16 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."
19. In the instant case, PW.1-Nagamma, the wife of the deceased Ramachandra, has lost passionate of her husband due to his untimely death in a road accident, and the other claimants- 2 to 4, who are the children of the deceased viz., Nandeesha, aged 10 years, Nandeepa, aged 8 years and Akshaya Baby, aged 6 years are being minors represented by their mother and natural guardian Smt. Nagamma-PW.1, the wife of the deceased, have also lost passionate, love and affectionate of their father and Claimants No.5 & 6 namely Muniyappa and Ramamma are the parents of the deceased Ramachandra, have lost passionate, love and affection of their son Ramachandra, who died in a road accident. Therefore, the said aspect have to be taken into consideration keeping in view the guildelines rendered by the Hon'ble Apex Court in the case 17 of Magma General Insurance Co. Ltd. (cited supra). Therefore, the minor children of the deceased viz., claimants- 2 to 4 are entitled for Rs.40,000/- each towards loss of passionate, love, care, etc., of their father due to the death of their father in a road accident, which works out to Rs.1,20,000/-, and the Claimants- 5 & 6, the parents of the deceased Ramachandra are entitled for the parental consortium of Rs.40,000/- each. As the learned counsel submitted that Claimant No.5-Ramamma died during the appeal period, no order for enhancement of compensation is made against her.
20. In view of the above, the appellants/claimants are entitled for the revised compensation as under:
Sl.No. Particulars Amount (Rs.) 1 Loss of dependency 12,28,500-00 2 Conventional heads: transportation 70,000-00 of dead body, Funeral Expenses, loss of consortium .
3 Loss of passionate, love and 1,20,000-00 affection for three children @ Rs.40,000/- each 4 Loss of passionate, love and 40,000-00 affection for parent (claimant-No.5) of the deceased at Rs.40,000/- each Total 14, 58,500-00 18
21. In so far as negligence aspect is concerned, as argued by Sri. B.C. Seetharama Rao, the learned counsel for the Respondent-Insurance Company, the sketch (Ex.P5) drawn by the Investigating Agency indicates that, while crossing the road at the relevant point of time of the accident, the deceased came into contact with the offending lorry, as a result of which, he fell down and the wheels of the lorry ran over the body of the deceased Ramachandra and he lost his breath. The Tribunal while appreciating the said document, has rightly held that, there is a contributory negligence on the part of the deceased at the rate of 25%, because, where the deceased was crossing the road, there was no zebra crossing and he was not much diligent in observing the road traffic while crossing the road. Therefore, the Tribunal has rightly fixed the contributory negligence on the part of the deceased for cause of the accident in question. Therefore, this aspect does not call for interference of this Court.
22. In view of the above, the appellants/claimants-1 to 6 are entitled for the total enhanced compensation of enhanced compensation of 19 Rs.6,48,660/-. After deduction of 25% of that amount towards contributory negligence, it works out to Rs.4,86,495/- with 6% interest from the date of petition till the date of deposit. Accordingly, the following order is passed:
ORDER The appeal is allowed in part. The judgment and award dated 02.11.2012 passed by the Tribunal in MVC No.1995/2011 is modified. The appellants (Claimants-1 to 6) are entitled for enhanced compensation of Rs.4,86,495/- (6,48,660/- less 25% = 4,86,495/-) with interest at the rate of 6% pa., from the date of petition till the date of deposit.
The disbursement of the amount to the appellants (Claimants- 1 to 5) is as per the judgment passed by the Tribunal.
Sd/-
JUDGE KGR*