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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15th DAY OF FEBRUARY, 2021
PRESENT
THE HON’BLE MR.JUSTICE ALOK ARADHE
AND
THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.117 OF 2017 (MV-D)
BETWEEN:
MRS. PUSHPA W/O. LATE MANSINGH SISODIA, AGED ABOUT 45 YEARS,
MR. KULDEEP SINGH S/O. LATE MANSINGH SISODIA, AGED ABOUT 28 YEARS,
MRS. KOMAL SINGH W/O. TARUN KUMAR, AGED ABOUT 26 YEARS,
MR. MANISH SINGH S/O. MANINGH, AGED ABOUT 23 YEARS,
MR. SOURABH S/O. LATE MANSINGH SISODIA, AGED ABOUT 17 YEARS,
APPELLANT NO.5, IS MINOR HENCE REPRESENTED BY HIS NEXT FRIEND NATURAL GUARDIAN, AND MOTHER APPELLANT NO.1,
2 ALL ARE RESIDING AT NO.25-A, NEW LAXMI NAGARA, SRIKRISHNA JANMA BHOOMI LINK ROAD, NEAR GOVINDA NAGARA, RAILWAY CROSSING, POST OFFICE, KRISHNANAGARA, MATHURA, U.P. PIN-281 123. ...APPELLANTS (BY SRI. RAVISHANKAR SHASTRY G, ADVOCATE)
AND:
THE MANAGING PARTNER MR. JOBIN K.J. MALANAD TRADERS, KALAPURAKKAL, KUMARANELLUR, KUMARANELLUR POST, TALAPILLY, THRISSUR DISTRICT, KERALA STATE, PIN-680 590.
THE RELIANCE INSURANCE CO. LTD., 570, RECTIFIER HOUSE, NAIGAUM CROSS ROAD, WADALA, MUMBAI, REPRESENTED BY ITS MANAGER, PIN-400 031. …RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR RESPONDENT NO.2; SERVICE OF NOTICE ON RESPONDENT NO.1 IS DISPENSED WITH VIDE COURT ORDER DATED 15.02.2021)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 13.06.2016 PASSED IN MVC NO.1249/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT, MANGALURU, D.K. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
3 JUDGMENT
Though this appeal is listed for orders, the same is taken up for the final disposal with the consent of the learned counsel for the parties.
This appeal under Section 173 (1) of the Motor Vehicles Act is filed seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal and Principal Senior Civil Judge, Mangaluru (henceforth referred to as ‘the Tribunal’) in M.V.C.No.1249/2014 dated 13.06.2016. The parties shall henceforth be referred to as they were arrayed before the Tribunal.
The claim petition discloses that the claimants are the legal representatives of Mansingh Sisodia. It is stated that on 31.03.2014, Mansingh Sisodia was supervising the workers standing outside the KIOCL bus stop. At about 5.00 p.m., a lorry bearing registration No.KL-48-E-6401 (henceforth referred to as ‘the offending vehicle’) was driven by its driver dangerously at a high speed and in a rash and negligent manner from Kuloor side
4 and after entering the National Highway-66, near the work place, suddenly applied brake. As a result, he lost control over the bus and which capsized by the side of the bus stop. The plywood which was loaded on to the offending vehicle, fell on Mansingh Sisodia and he suffered grievous injuries including major fracture of the left leg and injuries to all over the body. He was shifted to A.J.Hospital, Mangaluru for expert treatment. He was treated at A.J.Hospital between 31.03.2014 to 27.04.2014 and had undergone surgeries by way of ORIF with LCP fertibia and nailing for fibula under general anesthesia on 08.04.2014. However, despite the best treatment, he succumbed to the injuries on 27.04.2014.
The claimants contended that the deceased was an Iron Fabricator, who had taken up contract on piece work basis at ABF Engineering International Private Limited, Mangaluru and Sunil Hi-tech Private Limited, Nagpur and Zillion Infrastructure Private Limited, Delhi and was also carrying out similar works in various private
5 companies. The claimants contended that the deceased was earning a sum of Rs.60,000/- per month and that all the claimants were dependent on him. They contended that the death was due to the negligence on the part of the driver of the offending vehicle and therefore, they filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of a sum of Rs.75,00,000/-.
The claim petition was resisted only by the insurer who contended that the driver of the offending vehicle did not possess a valid and effective license to driver the offending vehicle at the time of the accident. It also contended that the offending vehicle was not involved in the accident but it was implicated in the case to lay a claim for compensation. It alleged that the deceased was negligent and was responsible for the accident.
Based on the rival contentions, the Tribunal framed issues and set down the case for trial.
6 7. Claimant No.1 as PW.1 and another witness was examined as PW.2 and they marked the documents as Exs.P1 to 33. Neither the insurer nor the owner of the offending vehicle adduced any evidence, but the insurer marked a copy of the Insurance Policy as Ex.R1.
Based on the oral and documentary evidence, the Tribunal held that the accident was due to the rash and negligent driving by the driver of the offending vehicle. It also held that the insurer failed to prove that the driver of the offending vehicle did not possess a valid and effective driving license at the time of the accident.
In so far as the claim for compensation is concerned, the Tribunal noticed that the Income Tax Returns for the year 2011-2012 disclosed an annual taxable income of Rs.1,82,600/-. The income tax returns for the year 2013-14 however was not submitted by Mansingh Sidodia during his lifetime. But, the same was submitted by his son, which disclosed his annual taxable income as Rs.2,20,230/-. For the year 2014-15, the
7 income was declared at a sum of Rs.3,15,901/-. The Tribunal noticed the bank statement of the deceased as per Ex.P12 which indicated substantial transactions. It also noticed Ex.P26 which also indicated that the deceased had conducted substantial transactions. However, since there was nothing to be established that the deceased had proved his income as on the date of the accident, the Tribunal considered the income at a sum of Rs.12,000/- p.m. and having regard to the medical expenses that the claimants had occurred for the treatment of the deceased, and the loss of dependency, the Tribunal awarded the following compensation:
Sl. No. Heads under which compensation awarded Amount in Rupees 1 Transportation of dead body and funeral expenses 25,000/- 2 Loss of love and affection 50,000/- 3 Loss of consortium 50,000/- 4 Loss of dependency 13,44,000/- 5 Medical bills 1,08,712/-
Total 15,77,712/-
8 10. It is relevant to note that the Tribunal failed to award compensation towards loss of future prospects and also loss of consortium to each of the claimants as per the Judgment of the Hon’ble Apex Court in the case of MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS. reported in (2018) 18 SCC 130 and confirmed in the case of UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR ALIAS SATWINDER KAUR AND ORS. reported in AIR 2020 SC 3076.
Feeling aggrieved by the quantum of compensation awarded by the Tribunal, the claimants have filed the present appeal.
The learned counsel for the claimants contended that the Income Tax Returns for the year 2011- 12 showed an annual income of Rs.1,82,600/-. In so far as the T.D.S. deductions made for the year 2014-15, the same discloses that the deceased had received more than Rs.12,00,000/- in the assessment year 2014-15. It also discloses that these payments were received by the
9 deceased prior to the date of the accident. Further, the bank statement placed on record by the claimants indicate that the deceased had a sum of Rs.10,29,415.36/- to his credit. Therefore, the notional income considered by the Tribunal is definitely on the lower side. Having regard to the fact that at an undisputed point of time, the deceased had an annual income of Rs.1,82,600/- during the assessment year 2011-12, the income of the deceased stood improved as per the T.D.S. Certificates which disclosed that the deceased had a annual turnover of more than Rs.12,00,000/-. Therefore, the income of the deceased could be safely considered at a sum of Rs.20,000/- per month. The deceased had left behind five claimants and therefore, 1/4th of the notional income of the deceased had to be deducted towards his personal expenses. In addition, the deceased was aged 43 years and therefore, 25% of his income is to be considered as loss of future prospects. In that view of the matter, the dependency of the claimants over the deceased would be Rs.18,750/- x 12 x 14. Hence, the compensation awarded
10 by the Tribunal deserves to be reconsidered and re- determined as follows:
Sl. No. Heads under which compensation awarded Amount in Rupees 1 Dependency of the claimants (Rs.18,750/- x 12 x 14) 31,50,000/- 2 Loss of filial consortium (Rs.40,000/- each to claimant Nos.2, 3, 4 and 5) 1,60,000/- 3 Spousal consortium to claimant No.1 40,000/- 4 Loss of estate 15,000/- 5 Funeral expenses 15,000/- 6 Medical Expenses 1,08,712/-
Total 34,88,712/-
In view of the above, the appeal filed by the claimants is allowed in part and the impugned Judgment and Award passed by the Tribunal in M.V.C.No.1249/2014 is modified and the compensation of Rs.15,77,712/- awarded by the Tribunal is enhanced to a sum of Rs.34,88,712/-, which is payable by the insurer of the offending vehicle along with interest at the rate of 7% per annum from the date of the claim petition till the date of realization.
11 The insurer of the offending vehicle is directed to deposit the compensation with interest as stated above within one month from the date of receipt of a certified copy of this Judgment.
Upon deposit, the compensation along with proportionate interest shall be apportioned amongst the claimants in equal shares. Out of the entitlement of the claimants, 10% shall be deposited in their respective names in any nationalized bank for a period of three years.
Sd/- JUDGE
Sd/- JUDGE
NR/-