Karnataka High Court
Bismilla W/O Mirasab Walikar vs Mr.Pandurang S/O Akaram Rupnar on 9 July, 2020
Bench: S G Pandit, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 09TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO.101005/2020(MV)
BETWEEN:
1. BISMILLA W/O MIRASAB WALIKAR
AGE:21 YEARS, OCC:HOUSEHOLD WORK,
R/O: JAIN GALLI, KUDACHI,
TQ: RAIBAG, DIST: BELAGAVI-591317.
2. MR.CHANDASAB ALISAB WALIKAR
AGE: 68 YEARS, OCC: NIL,
R/O: SAPATSAGAR VILLAGE,
(VIDYA NAGAR), TQ: ATHANI,
DIST: BELAGAVI-591304.
3. KHAZABI W/O CHANDASAB WALIKAR
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: JAIN GALLI, KUDACHI,
TQ: RAIBAG, DIST: BELAGAVI-591317.
... APPELLANTS
(BY SRI. ASHOK A NAIK, ADVOCATE, APPEARED
THROUGH VIDEO CONFERENCE.)
AND:
1. MR.PANDURANG S/O AKARAM RUPNAR
AGE: 59 YEARS, OCC:OWNER VEHICLE,
R/O: A/POST: KAMALESHWAR STY
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LAXMI NAGAR, KUPAWAD (SANGLI),
TQ: MIRAJ,
DIST SANGLI-416410.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE
COMPANY LIMITED,
BELAGAVI, MARUTI GALLI,
BELAGAVI-590001.
...RESPONDENTS
(BY SRI. RAVINDRA R. MANE, ADV.
R1-NOTICE DISPENSED WITH)
MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 03.05.2019
PASSED IN MVC NO.2783/2017 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, RAIBAG, ALLOWING THE CLAIM PETITION FILED
UNDER SECTION 166 OF M.V. ACT.
THIS MFA COMING ON FOR ADMISSION, THROUGH
VIDEO CONFERENCE DUE TO COVID-19, THIS DAY, S.G.
PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of parties, the matter is finally heard and disposed of by this order.
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2. The appellants-claimants are before this court in this appeal being not satisfied with the quantum of compensation awarded under judgment and award dated 03.05.2019 in MVC No.2783/2017 on the file of the Senior Civil Judge and JMFC, Raibag praying for enhancement of compensation. The claimants are wife and parents of the deceased Merasab in a road traffic accident.
3. It is stated that on 29.09.2017, the deceased succumbed to the injuries sustained in a road traffic accident involving motorcycle bearing Reg.No.KA-23/R- 3321 and a lorry bearing No.MH-08/H-1599. The deceased was aged 32 years and was earning Rs.30,000/- per month from electric-cum-agricultural work. Before the tribunal, the claimant No.1, the wife of the deceased examined herself as PW1 apart from marking Ex.P1 to P6. Respondent-Insurance company examined RW1 and marked the documents as Ex.R1 to 4 R6. On scrutiny of material on record, the tribunal awarded total compensation of Rs.10,98,936/- with interest.
4. While awarding the above compensation, the tribunal assessed the notional income of the deceased at Rs.8,000/- per month, adopted the multiplier of 16 and deducted 1/3rd towards living and personal expenses of the deceased. The claimants not being satisfied with the quantum of compensation are before this in this appeal praying for enhancement of compensation.
5. Heard the learned counsel Sri. Ashok A. Naik for the appellants-claimants and Sri. R.R.Mane learned counsel for the respondent-Insurance company through video conference. Perused the tribunal records.
6. The learned counsel for the appellants would submit that the accident is of the year 2017 and the income assessed by the tribunal at Rs.8,000/- per 5 month is on the lower side. He submits that the deceased was doing electric-cum-agricultural work and was earning Rs.30,000/- per month, the tribunal ignoring the evidence of PW1 the wife of the deceased, assessed the income at Rs.8,000/- per month which is on the lower side, which requires to be enhanced.
7. Further, the learned counsel for the appellants would submit that the tribunal committed an error in non granting compensation on the head of future prospects. The deceased was aged 32 years as on the date of accident, hence, the claimants would be entitled for addition of 40% of the assessed income toward future prospects. Further he submits that claimants No.2 and 3 are the parents of the deceased would be entitled for Rs.40,000/- each on the filial and parental consortium, relying on the decision of the Hon'ble Apex Court in the case Magma General Insurance Co.Ltd vs. Nanu Ram and others, reported 6 in 2018 ACJ 2782 and in the case of United India Insurance Co.Ltd., V.s, Satinder Kaur @ Satwinder Kaur and Others in Civil Appeal No.2705/2020, disposed of on 30.01.2020. Thus he prays for allowing the appeal.
8. Per contra, learned counsel for the respondent-Insurance company would submit that in the absence of any material to establish the income of the deceased the tribunal is justified in assessing the income of the deceased at Rs.8,000/- per month. Further, it is his submission that since the deceased was not having permanent job, he would not be entitled for the compensation on the head of future prospects. Thus, he prayed for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the following points that would arise for consideration: 7
1. Whether the income of the deceased assessed by the tribunal at Rs.8,000/- per month is proper and correct?
2. Whether the claimants would be entitled for addition of 40% of the assessed income towards future prospects?
3. Whether the claimants No.2 and 3 would be entitled for compensation on the head of filial consortium?
10. Answer to the above point No.1 in the negative and point Nos.2 and 3 in the affirmative for the following reasons:
11. The accident is of the year 2017. The accident that took place on 29.09.2017 involving a motorcycle bearing Reg.No.KA-23/R-3321 and TATA Motors vehicle bearing Reg.No.MH-08/H-1599 and the accidental death of Mirasab is not in dispute in this appeal. The claimants are before this court praying for enhancement of compensation.
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12. The claimants state that the deceased was doing electric-cum-agricultural work and was earning Rs.30,000/- per month. But, to substantiate their contention, the claimants have not placed on record any document or material on record. In the absence of any material to establish the income of the deceased, the tribunal has assessed the income of the deceased notionally. The notional income assessed by the tribunal at Rs.8,000/- per month is on the lower side. Normally this court and Lok Adalaths while settling the accident claims of the year 2017, based on the price index and minimum wages assess the notional income at Rs.10,250/-. In the instant case, in the absence of any material to establish the income of the deceased, we deem it appropriate to assess the notional income of the deceased at Rs.10,250/- per annum.
13. The deceased was aged 32 years as on the date of accident. As per the decision of Hon'ble Apex 9 Court in the case of National Insurance Company Limited V/s. Pranay Sethi and others reported in AIR 2017 SC 5157, the claimants would be entitled for compensation on the head of future prospects at 40% of the assessed income wherever the deceased was below 40 years. In the instant case since the deceased was 32 years, the claimants are entitled for adding of 40% of the assessed income towards future prospects. The multiplier adopted by the tribunal at 16 and deduction taken at 1/3rd is proper and correct.
14. The claimants No.2 and 3 are the parents of the deceased. The parents have lost their son at the evening of their life. The Hon'ble Apex Court in the case of Magma General Insurance Co.Ltd vs. Nanu Ram and others, reported in 2018 ACJ 2782 has held that the parents have lost their son are entitled for filial consortium at Rs.40,000/-each.
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15. In a recent decision of Hon'ble Apex Court in the case of United India Insurance Co.Ltd., V/s. Satinder Kaur @ Satwinder Kaur & Ors, Civil Appeal No.2705/2020 has held as follows:
"In Magma General Insurance Co.Ltd., V. Nanu Ram & Ors., this court interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as well as 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.
Parental consortium is granted to the child on 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 11 parent is to lose their child during their lifetime. Children are valued for their love and affection, and their role in the family unit.
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 permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.
The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of 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.12
Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.
The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).
At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.
In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium."13
16. A careful reading of the above decision would indicate that the Supreme Court has held that filial consortium is the right of the parents to compensation in the case of an accidental death of a child. In the instant case claimant Nos.2 and 3 have lost their son and lost love and affection during rest of their life. Under the circumstances, we deem it appropriate to award a sum of Rs.40,000/- each on the loss of filial consortium. Thus, the claimants would be entitled for the following modified compensation. 1 Loss of dependency 18,36,864/-
including future prospects 10250+40%=4100 14350-1/3 =4783 9567x12x16=1836864/-
2 Conventional heads 70,000/-
3 Filial consortium 80,000/-
(40000X2) TOTAL 19,86,864/-
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17. Thus, the claimant would be entitled to total compensation of Rs.19,86,864/- as against Rs.10,98,936/-.
18. The tribunal has mentioned interest @ 6% and 8% in the body of the judgment and in the operative portion of the judgment it has granted @ 9%. It appears that the tribunal without application of mind has granted the interest. Taking into consideration of the present rate of interest granted by the banks on the savings and fixed deposit amount, we deem it appropriate to award interest @ 6% p.a. on the above compensation from the date of petition till realization.
The appeal is allowed in part.
The respondent -Insurance company is directed to deposit the compensation amount awarded by this court with up to date interest from the date of receipt of copy of this order.
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The claimants would not be entitled for interest for the delayed period of 214 days in preferring the appeal which is condoned by order dated 11.03.2020 subject to the condition that in the event of enhancement of compensation delayed period would not carry any interest.
Draw the modified award accordingly.
SD/-
JUDGE SD/-
JUDGE MNS/