Karnataka High Court
Smt Meenakshi vs Shri Shiddappa on 26 September, 2019
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26th DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.20104 of 2010
c/w MISCELLANEOUS FIRST APPEAL Nos.20105 of 2010
and 20887 of 2010 (MV)
IN MFA NO.20104 OF 2010
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO.LTD.
DIVISIONAL OFFICE, SHANBHAG CHAMBERS,
5TH FLOOR, KIRLOSKAR ROAD, BELGAUM
HEREIN REP. BY ORIENTAL INS.CO.LTD.
REGIONAL OFFICE, SUMANGALA COMPLEX,
2ND FLOOR, LAMINGTON ROAD, HUBLI
REP. BY ITS ASSISTANT MANAGER
... APPELLANT
(By Sri. RAVINDRA R MANE, ADVOCATE)
AND
1. SMT. MEENAKSHI
W/O : YALLAPPA MANNIKERI
AGE : ABOUT 28 YEARS,
OCC : HOUSEHOLD R/O : HOOLIKATTI
TQ : SAUNDATTI, DIST : BELGAUM
2. KUMARI AKSHATA D/O : YALLAPPA MANNIKERI
AGE : ABOUT 10 YEARS, OCC : STUDENT,
R/O : -DO-
3. KUMAR SACHIN S/O : YALLAPPA MANNIKERI
AGE : 8 YEARS, OCC : STUDENT,
2
R/O : -DO-
RESPONDENTS 2 AND 3 BEING MINORS,
REP. BY THEIR NATURAL GUARDIAN
MOTHER-RESPONDENT NO.1
5. SHRI. SHIDDAPPA S/O : MARUTI KURI
AGE : MAJOR, OCC : AGRL.
R/O : MADHUR VILLAGE
TQ : SAUNDATTI, DIST BELGAUM
... RESPONDENTS
(By Sri. H.M. DHARIGOND, ADVOCATE FOR R1.
R2 and R3 ARE MINORS. REP. BY R1.
NOTICE TO R4 HELD SUFFICIENT V.O. DATED 16.4.2015)
THIS MFA FILED U/S 173(1) OF THE M.V.ACT,
AGAINST THE JUDGMENT AND AWARD DATED:
07/09/2009 PASSED IN MVC.NO.2422/2007 ON THE FILE
OF THE CIVIL JUDGE (SR.DN.) & MACT, BELGAUM,
AWARDING COMPENSATION OF RS.1,60,000/- ALONG
WITH INTEREST AT THE RATE OF 6% P.A. FROM THE
DATE OF PETITION TILL REALISATION OF ENTIRE
AMOUNT.
IN MFA NO.20105 OF 2010
BETWEEN
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO.LTD.
DIVISIONAL OFFICE, SHANBHAG CHAMBERS,
5TH FLOOR, KIRLOSKAR ROAD, BELGAUM
HEREIN REP. BY ORIENTAL INS.CO.LTD.
REGIONAL OFFICE, SUMANGALA COMPLEX,
2ND FLOOR, LAMINGTON ROAD, HUBLI
REP. BY ITS ASSISTANT MANAGER
... APPELLANT
(By Sri. RAVINDRA R MANE, ADVOCATE)
AND
1. SMT. SAVAKKA W/O : KARIYAPPA PUJARI
AGE : 48 YEARS, OCC HOUSEHOLD WORK,
3
R/O : ACHAMATTI, TQ: SAUNDATTI
DIST : BELGAUM
2. SHRI. SHIDDAPPA S/O : MARUTI KURI
AGE : 48 YEARS, OCC : AGRICULTURE
R/O : MADLUR VILLAGE,
TQ : SAUNDATTI, DIST : BELGAUM
... RESPONDENTS
(By Sri. H.M. DHARIGOND, ADVOCATE FOR C/R1.
NOTICE TO R2 HELD SUFFICIENT V.O. DATED 5.3.2012)
THIS MFA IS FILED U/S.173(1) OF M.V.ACT AGAINST
THE JUDGMENT AND AWARD DATED:19/05/2009
PASSED IN MVC NO.1978/2006 ON THE FILE OF THE
MEMBER, ADDL. MACT, SAUNDATTI, AWARDING
COMPENSATION OF RS.3,37,000/- ALONG WITH INTEREST
AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION
TILL REALIZATION.
IN MFA NO.20887 OF 2010
BETWEEN
1. SMT MEENAKSHI
W/O YALLAPPA MANNIKERI
AGE 29 YEARS, OCC:HOUSEHOLD WORK
2. KUMARI AKSHATA D/O YALLAPPA MANNIKERI
AGE 11 YEARS, OCC:STUDENT
3. KUMAR SACHIN S/O YALLAPPA MANNIKERI
AGE 9 YEARS, OCC:STUDENT
ALL RESIDENT OF HOOLIKATTI
TQ:SAUNDATTI, DIST BELGAUM
SINCE APPELLANTS 2 AND 3 ARE MINORS
R/BY THEIR NATURAL MOTHER AND
MINOR GUARDIAN-APPELLANT NO.1
... APPELLANTS
(By Sri. H.M. DHARIGOND, ADVOCATE)
4
AND
1. SHRI SHIDDAPPA
S/O MARUTI KURI
AGE MAJOR VILLAGE, TQ:SAUNDATTI
DIST:BELGAUM
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURNCE CO. LTD
DIVISIONAL OFFICE
SHANBHAG CHAMBERS,
5TH FLOOR, KIRLOSKAR ROAD, BELGAUM
... RESPONDENTS
(By Sri. RAVINDRA R.MANE, ADVOCATE FOR R2.
NOTICE TO R1 DISPENSED WITH V.O. DATED 7.1.2011)
THIS MFA IS FILED U/Sec. 173(1) OF THE MOTOR
VEHICLE ACT, AGAINST THE JUDGMENT AND AWARD
DATED: 07-09-2009 PASSED IN MVC NO.2422/2007 ON
THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) & MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELGAUM, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
RESERVED FOR JUDGMENT ON : 04.09.2019
JUDGMENT PRONOUNCED ON : 26.09.2019
THESE MISCELLANEOUS FIRST APPEALS, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT, COMING
ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING :
5
JUDGMENT
Miscellaneous First Appeal Nos.20104 of 2010 filed by the insurer whereas MFA No.20887 of 2010 filed by the claimants assailing the judgment and award dated 07.09.2009 passed by the Principal Civil Judge (Senior Division) and Motor Accident Claims Tribunal, Belgaum (hereinafter referred to as the 'Tribunal', for short) in MVC No.2422 of 2007.
Another appeal in MFA No.20105 of 2010 is filed by the insurer assailing the judgment and award dated 19.05.2009 passed by the Additional Motor Accident Claims Tribunal, Saundatti, in MVC No.1978 of 2006.
2. Since all these appeals arise out of the very same accident but judgment delivered by different Tribunals, they are clubbed together in order to avoid repetition of facts and law.
3. Heard the arguments of the counsel for the insurer as well as the claimants.
6
4. Rank of the parties before the Tribunal is retained for convenience.
5. The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act', for short) claiming compensation of Rs.20,90,000/- for the death of one Yallappa Mahadevappa Mannikeri, in MVC No.2422 of 2007 alleged to have been died in a road traffic accident whereas the claimants in MVC No.1978 of 2006 also field a petition claiming compensation of Rs.24,25,000/- for the death of her son-Umesh Kariyappa Pujari in the very same road traffic accident inter alia contending that on 11.05.2006, Umesh Kariyappa Pujari was proceeding on a Hero Honda Splendor motorcycle bearing registration No.KA.24E-8974 as a pillion rider belonging to one Dyavappa Ayyappa Meti and when they were returning to their native Haralakatti village, at that time, a goods rickshaw Mahindra Alfa-three wheeler bearing registration No.KA.24.3529 came in a rash and negligent manner near the land of Chikkaraddi, half a 7 kilometer away from Hooli village and dashed against the motorcycle. Due to which, the pillion rider and the rider on the motorcycle fell down and sustained grievous injures and Umesh Kariyappa Pujari died on the spot. Prior to dashing to the motorcycle, the driver of the autorickshaw is said to have dashed to a pedestrian namely Yallappa Mahadevappa Mannikeri, who was in search of his missing buffaloes and thereby caused the death of two persons namely Yallappa Mahadevappa Mannikeri and Umesh Kariyappa Pujari. Hence, two separate claim petitions were filed before two different Tribunals seeking compensation on various heads.
6. In pursuance to the notice, respondent No.1- owner of the vehicle remained absent and was placed exparte.
Respondent No.2-insurer appeared and filed statement of objections contending that the petitioners have falsely involved the vehicle in collusion with the 8 first respondent. The person who died in the accident is not Yallappa Mahadevappa Mannikeri. The relationship between the petitioners and the deceased who died in the accident was disputed. Further, denied the age, occupation and income of the deceased and quantum is also exorbitant. Further contended that the driver of the goods auto was not holding a valid and effective driving licence. Hence, prayed for dismissal of the claim petition.
7. Based upon the rival pleadings, the Tribunal framed the following issues in MFA No.2422 of 2007 as under:
1. Whether the petitioners proves that the alleged accident in question was occurred due to rash and negligent driving of the Mahindra Alfa three wheeler bearing No.KA-24/3529 and as a result, Shri Yallappa Mahadevappa Mannikeri sustained fatal injuries and died while under the treatment?9
2. Whether the petitioners entitled for compensation? If so, for what amount and from whom?
3. What award or order?
Whereas in MVC No.1978 of 2006 the first respondent, who is the owner of the vehicle appeared and filed statement of objections denying the averments made in the petition as false and also taken a contention that the claim of the petitioner was exorbitant and excessive and further denied rash and negligent driving by the driver of the auto and contended that the accident occurred due to the negligent riding by the rider of the Hero Honda Splendour motorcycle. However, if the Tribunal comes to the conclusion that the petitioners are entitled for any compensation, then, the liability shall be fastened on the second respondent-insurer.
The second respondent-insurer also appeared through counsel and filed statement of objections denying the averments made in the petition as false including the age, income and occupation of deceased 10 Umesh Kariyappa Pujari and if any liability, the same is subject to the validity of the permit, driving licence and fitness certificate of the vehicle in question. Further, it has taken a specific contention that the auto bearing No.KA-24-3529 was not at all involved in the accident and the said Umesh Kariyappa Pujari died due to some other reason but not in the accident and if any liability the same is subject to the terms and conditions of the policy. Hence, prayed for dismissing the claim petition.
On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioners proves that the deceased Umesh s/o Kariyappa Pujeri died in the Motor vehicle accident that occurred on 11.5.2006 at about 9.15 pm, within the village limits of Hooli, near the land of Chikkaraddi on Saundatti-Ramdurg within the limits of Saundatti Police Station, on account of rash and negligent driving of Mahindra Alfa three wheeler bearing No.KA.24-3529 by its driver and the said Mahindra Alfa dashed against the Hero 11 Honda Splendor bearing No.KA.24.E.8974 and thereby caused the death of Umesh?
2. Whether the petitioner is entitled to any compensation? If so, to what amount and from whom?
3. What award?
8. To substantiate the contentions, the first claimant in MVC No.2422 of 2007 herself examined as PW-1 and also examined PW-2, the rider of the motorcycle who is also a complainant and eyewitness to the accident and got marked 10 documents as Exs.P-1 to P-10. On the other hand, the respondents did not lead any evidence except marking two documents as Exs.R1 and R2, i.e. insurance policy and particulars of DL respectively, with consent.
9. After considering the evidence on record, the Tribunal answered issue No.1 in the affirmative and awarded compensation of Rs.1,60,000/- together with interest @ 6% per annum under the following heads: 12
Rs.
1 Global compensation towards 1,50,000/-
death of deceased 2 Loss of consortium to petitioner 10,000/-
No.1
Total 1,60,000/-
10. Assailing the judgment and award passed by the Tribunal fastening the liability on the insurer, the insurance company filed MFA No.20104 of 2010 whereas the claimants filed MFA No.20887 of 2010 seeking enhancement of compensation.
11. The claimant in MVC No.1978 of 2006 herself examined as PW-1 and go marked 10 documents as Exs.P-1 to P-10 and one independent witness was examined as PW-2. On the other hand, the insurer examined one P.D.Patil as RW-1 and got marked 3 documents as Exs.R-1 to R-3.
12. After considering the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded 13 compensation of Rs.3,37,000/- together with interest at the rate of 6% per annum as under:
Rs.
1 Loss of dependency 3,12,000/- 2 Loss of love and affection 20,000/- 3 Towards funeral expenses 5,000/-
Total 3,37,000/-
13. Assailing the judgment and award passed by the Tribunal fastening the liability, the insurer filed MFA No.20105 of 2010. However, the claimant has not preferred any appeal seeking enhancement.
14. Counsel for the insurance company in both the appeals submitted 2 fold arguments:
The first contention is, the very accident had not at all occurred and the vehicle Mahindra Alfa is not at all involved in the accident and the said vehicle is implicated by the claimants in collusion with the first 14 respondent. Hence, the insurance company is not at all liable to pay any compensation.
The second contention is, even if the accident is admitted, the first petitioner, who claims to be the wife of Yellappa Mahadevappa Mannikeri, in MVC No.2422 of 2007, cannot be accepted, as she has not at all identified the body of her husband-Yellappa Mahadevappa Mannikeri and as per the complaint filed by PW-2, name of the deceased was not mentioned in the FIR and it was mentioned as a mad person wandering on the road side. There is no complaint lodged by the claimant and the dead body of the person who died in the accident was buried by the police on the ground that it was unidentified dead body and taking advantage of the same, the first claimant is falsely claiming that the person who died in the accident as her husband and father of second and third claimant, which is not correct. The Tribunal committed an error in accepting the relationship of claimant No.1 with the deceased and awarding compensation is not correct and 15 contended that some body else had sustained injury and died in the accident but not Yallappa Mahadevappa Mannikeri. In fact, it is a hit and run case and the vehicle is falsely involved. There is delay in lodging the complaint. Hence, prayed for allowing the appeals and to dismiss the appeal filed by the claimants.
15. Per contra, learned counsel for the claimant in MFA No.20887 of 2010 i.e. respondent-claimant in MFA No.20104 of 2010 contended that in the complaint lodged by PW-2, who is the rider of the motorcycle, he has clearly stated that the accident had occurred due to negligence of the driver of Mahindra Alfa, who firstly had hit to a pedestrian and thereafter dashed to his motorcycle, due to which the pillion rider sustained injury and died on the spot and in the said accident, he had also sustained injury and then he lodged a complaint. Thereafter, the vehicle was seized by the police and charge sheet was filed against the driver of the Mahindra Alfa. The first claimant being the wife of Yallappa Mahadevappa Mannikeri went to the police 16 station and lodged the complaint of her missing husband. Thereafter, it was revealed from the investigating officer that the person who died in the accident was her husband and she has identified clothes of the deceased, which were worn by him when he went out of the house in search of missing buffaloes.
16. The claimants have filed ration card and other documents before the Tribunal. The same was accepted by the Tribunal and held that the accident occurred due to the negligence of the driver and involvement of the goods auto in the accident. Apart from that, the Tribunal at Saundatti also independently held about the involvement of the vehicle in the accident in question. PW-2-Devappa Ayyappa Meti was the rider of the motorcycle. He has identified the vehicle and the driver. Both the Tribunals have independently given findings about the involvement of the vehicle in question. Therefore, the contention of the insurer that the vehicle has been falsely implicated cannot be accepted and further contended that the pedesatrian, 17 who died in the accident, is the husband of the deceased if at all the husband of the deceased was alive, it was the burden on the insurer to prove that he was alive. Merely the investigating Officer stated in the charge sheet that an unidentified person had died in the accident that itself is not a ground to reject the evidence of the claimant, as PW-1 gave her statement before the investigating officer by identifying the clothes of the deceased as that of her husband. Such being the case, there is no dispute in respect of identity of the deceased.
Apart from that, the insurer had not at all examined any witnesses in MVC No.2422 of 2007 except marking two documents. Such being the case, they cannot raise a ground disputing the identity of the deceased, which is not correct, and prayed for dismissing the appeal filed by the insurer. He has contended in his appeal for enhancement that deceased was an agriculturist and was also having buffaloes. He used to earn Rs.10,000/- per month but the Tribunal by disbelieving the evidence on record, has awarded global compensation of 18 Rs.1,60,000/- which is not correct. Even no compensation is awarded by the Tribunal towards loss of consortium, funeral and other expenses. Hence, prayed for enhancement of the compensation.
17. Though the counsel for the insurer argued in respect to fastening of the liability in MFA No.20105 of 2010 as well as on the quantum of compensation, he submitted that he would not press the ground in respect of quantum of compensation except deduction of 1/3rd of the income towards personal expenses of the deceased Umesh Kariyappa Pujari. Therefore, the counsel for the insurer restricted his argument on the point of liability only. Hence, prayed for allowing the appeal.
18. Upon hearing the arguments of the learned counsel for both the parties, the points that arise for consideration are:
i. Whether the Tribunal is not justified in fastening the liability on the insurer even 19 though the insurer disputed the identity of the deceased and involvement of the vehicle?
ii. Whether the claimants-appellants in MFA
No.20887 of 2010 are entitled for
enhancement of compensation?
iii. Whether the judgment and award passed by the Tribunal in MVC No.1978 of 2006 calls for interference?
iv. What order?
19. As regards the liability of the insurer, in respect of the negligent and accident caused by the driver of the 3 wheeler goods auto, the claimants in both the cases have examined themselves independently as PW-1 before two different Tribunals. PW-2, who is the rider of the motorcycle and an eyewitness to the accident, independently, has let-in evidence before both the Tribunals and has corroborated the evidence of PW- 1 in both the cases. Ex.P-1-complaint, Ex.P-2-FIR, Ex.P-3-spot panchanama, Ex.P-4-inquest panchanama, Ex.P-5-seizure panchanama of the vehicle, Ex.P-6-post 20 mortem report, Ex.P-7-MVI report, Ex.P-8-charge sheet were marked in MVC No.2422 of 2007. Similar documents were also marked in MVC No.1978 of 2006 as per Exs.P-1 to P-8. By considering the evidence on record, both oral as well as documentary, both the Tribunals have independently given findings that the accident in question dated 11.05.2006 had occurred due to rash and negligent driving by the driver of the goods tempo due to which a pedestrian died and thereafter the vehicle went and dashed to the motorcycle of PW-2 wherein the pillion rider also died.
Two deaths have taken place in the said accident. Therefore, both the Tribunals have rightly held that the accident occurred due to rash and negligent driving by the driver of the goods auto and though the insurer disputed the validity of the driving licence of the driver of the vehicle and the respondents themselves produced driving licence and insurance policy which were marked as documents on behalf of the respondents, respondent No.1 being the owner of the vehicle and the second 21 respondent being the insurer is liable to pay compensation to the legal representatives of the deceased in both the claim cases.
20. Now the main dispute arises for consideration in MFA No.20104 of 2010 and MFA No.20887 of 2010 is that the insurer disputed the identity of the husband of the first claimant namely Yallappa Mahadevappa Mannikeri, who died in the accident wherein the insurance company contended that some other unknown person had died in the accident but the claimant is falsely claiming that the deceased was the husband of the first petitioner. The respondent's counsel for the insurance company relied upon the averments made in the FIR and the charge sheet. On perusal of the complaint-Ex.P-1 and FIR Ex.P-2 wherein PW-2-Dyavappa Ayyappa Meti, who is the rider of the motorcycle, lodged the complaint before the police on the very day of the accident stating that when he was riding the motorcycle wherein the deceased Umesh Kairyappa Pujari was pillion rider, a 22 tempo came and dashed to Umesh after dashing to a pedestrian. Though he has stated that he has seen the pedestrian, who is a wanderer and is also a mad person but he has not mentioned the name of the pedestrian who died in the accident. However, the claimants' counsel contended that the deceased Yallappa Mahadevappa Mannikeri husband of the first petitioner went for tracing the missing bullocks. As he did not return for two days, therefore, she went to the police station for lodging the complaint to trace her missing husband, at that time, the investigating officer, who registered a case in respect of the accident, revealed about the unidentified deceased person, then the petitioner came to know that the said person was none other than her husband. She also identified the clothes worn by the deceased on the earlier day when her husband left the house. To prove the person who died in the accident was her husband, she has got marked Ex.P-9-heir ship certificate issued by the Tahsildar and Ex.P-10 ration card where the name of the deceased 23 person is mentioned as Yallappa Mahadevappa Mannikeri. Though the counsel for the insurer disputed the identity but these two documents were seriously disputed before the Tribunal. Even on perusal of the charge sheet, it shows the first claimant Meenakshi has been arrayed as a witness to the case where she has identified the deceased as her husband by identifying the clothes. However, the investigating Officer, in a casual manner, has mentioned in the charge sheet that an unidentified person, aged about 25-30 years, had also died in the accident. Even though petitioner No.1 gave statement before the investigating Officer but the same was not properly reflected in the charge sheet at column No.17. Apart from that, though the insurer disputed the identity but the insurance company has not let in any evidence or examined any other witness to show that the person who died in the accident was not Yallappa Mahadevappa Mannikeri and was some body else. If a person identifies the deceased, who died in the accident, in police station as a relative, the insurer has 24 no right to dispute the identity without adducing any evidence before the Tribunal to show that the said person is alive. As required under Section 108 of the Indian Evidence Act, 1872, the burden is on the insurer to prove that the said Yallappa is alive. Therefore, without pleading any evidence before the Tribunal, the contention of the insurer that the person who died in the accident is not Yallappa Mahadevapa Mannikeri and some body else, cannot be acceptable merely because the police have cremated the body holding that the identity of the person is not traced but subsequently, it was revealed that the deceased was none other than Yallapa Mahadevappa Mannikeri-husband of the first petitioner. Therefore, the contention raised by the respondent-insurer disputing the identity of the deceased is not sustainable in law and the arguments of the learned counsel for the insurer is rejected. Therefore, I hold that the Tribunal has rightly held that the deceased was Yallappa Mahadevappa Manniker who died in the accident and was none other than the 25 husband of the first petitioner and she is the legal representative of the said deceased.
21. That part, the accident and death of another person Umesh Kariyappa Pujari in the same accident in MVC No.1978 of 2006, the insurer though filed an appeal but has not seriously contested in respect of the accident. Even though the insurer had let in evidence in the this case but no evidence was let-in in MVC No.2422 of 2007. Therefore, the arguments of the learned counsel for the insurer cannot be accepted. Hence, I answer point No.(i) in favour of the claimants and against the insurer.
22. As regards computation of compensation in MVC No.2422 of 2007, the deceased was said to be an agriculturist earning Rs.7,500/- per month but the claimants have not produced any document to prove the income. There were some averments made in the complaint by PW-2 that the deceased was an insane person and wandering on the road. On the other hand, 26 it is stated that the deceased had went out of the house tracing the missing buffaloes. There is no evidence to show that the deceased was a insane person and merely a third person or unknown person lodges a complaint , that itself cannot be said that the deceased was insane person and used to wander and he has no income. Even a person working in the house for tethering the bullocks or cattle, he cannot be treated as a non- earning member. Merely no documents were produced, that by itself is not a ground to reject the entire evidence on record. Hence, the Tribunal has committed an error by awarding a sum of Rs.1,60,000/- as global compensation and the Tribunal has lost sight regarding value of a life of a person who died in the accident. Therefore, I hold the claimants have established that the deceased was a person who is earning member and therefore, the Tribunal ought to have considered at least notional income for calculating the loss of dependency. Therefore, considering the facts and circumstances of the case, I propose to consider Rs.3,000/- per month as 27 income of the deceased. As per the judgment of the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi reported in 2017 SUPREME COURT 5157, 40% of the income shall be considered towards future prospects of the deceased. Therefore, 40% of Rs.3,000/- would be Rs.1,200/- totaling to Rs.4,200/- per month. The claimants are 3 in number. As per the decision of the Hon'ble supreme Court in Sarla Verma's (supra), 1/3rd of the income would be deducted towards personal expenses of the deceased. If 1/3rd is deducted from Rs.4,200/- it comes to Rs.2,800/- and is multiplied by 12x17(multiplier for the age group 26-30), it comes to Rs.5,71,200/-. This would be the loss of dependency. As per the law laid down the Hon'ble Supreme Court in Magma General Insurance Co. Ltd. v. Nanu Ram and others reported in 2018 ACJ 2782, the first petitioner being the wife of the deceased is entitled to a sum of Rs.40,000/- towards spousal consortium and petitioners 2 and 3 are entitled to a sum of Rs.30,000/- each towards loss of parental 28 consortium and for a sum of Rs.15,000/- towards loss of estate. The claimants are not entitled for compensation under the head transportation and funeral expenses since the dead body is said to be cremated by the police. In all, the claimants are entitled to the reassessed compensation as under:
Rs.
1 Loss of dependency 5,71,200/- 2 Loss of spousal consortium 40,000/- 3 Loss of parental consortium 60,000/- 4 Loss of estate 15,000/-
Total 6,86,200/-
23. The claimants in MFA No.20887 of 2010 are entitled to compensation of Rs.6,86,200/-. In view of the finding of the Tribunal regarding the occurrence of the accident in question in MFA No.20105 of 2010 that the accident had occurred due to rash and negligent driving by the driver of the goods auto, the first and second respondent being the owner and insurer 29 admitted their liability to pay compensation to the claimant, though the insurer disputed the very involvement of the vehicle in question but PW-2, who is an eyewitness and also complainant and also rider who identified the vehicle and the fact that merely the case was a hit and run case, itself is not a ground to reject the claim since immediately within two days the vehicle was traced and identified by the witness. The police have also filed charge sheet against the driver of the goods auto. When such being the case, the contention taken by the insurer in both the appeals that the vehicle in question was not at all involved in the accident, cannot be accepted. As regards the quantum of compensation, as already held, the learned counsel restricted his argument only with respect to involvement of the vehicle and not on the quantum, that apart, there is no appeal filed by the claimants in MVC No.1978 of 2006, therefore, considering and interfering on the question on the quantum of compensation in MVC No.1978 of 2006 does not arise.
30
24. Consequently, MFA Nos.20104 of 2010 and 20105 of 2010 filed by the insurer are dismissed.
25. MFA No.20887 of 2010 filed by the claimants is allowed in part. The judgment and award dated 07.09.2009 passed by the Principal Civil Judge (Senior Division) and Motor Accident Claims Tribunal, Belgaum in MVC No.2422 of 2007 is modified. The appellants are entitled to compensation of Rs.6,86,200/- together with interest at the rate of 6% per annum from the date of petition till realization as against Rs.1,60,000/- awarded by the Tribunal. Out of the compensation amount, 25% each along with up to date interest shall be deposited in the name of the 2nd and 3rd petitioner in fixed deposit in any Nationalized Bank for a period of five years or till they attain the majority whichever is later. The remaining 50% of the compensation shall be released to the first petitioner on due identification. 31
Amount in deposit shall be transmitted to the Tribunal concerned along with LCR forthwith.
Sd/-
JUDGE kmv