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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MAY, 2022 PRESENT THE HON'BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE Mrs. JUSTICE K.S. HEMALEKHA MISCELLANEOUS FIRST APPEAL No.3667/2019 (MV/D)
BETWEEN:
LATHA, W/O LATE MUNIRAJU, AGED ABOUT 36 YEARS.
M. KIRAN, S/O LATE MUNIRAJU, AGED ABOUT 18 YEARS.
M. VIJAY, S/O LATE MUNIRAJU, AGED ABOUT 16 YEARS,
PETITIONER NO. 3 IS MINOR, REPT. BY MOTHER AND NATURAL GUARDIAN I.E. PETITIONER NO.1. ALL ARE R.AT BALARABANDE, MAHANTHALINGAPURA VILLAGE, BANNERGHATTA ROAD, ANEKAL POST, BANGALORE – 560 083. ...APPELLANTS (BY SRI P. SURESH, ADVOCATE)
AND:
HDFC ERGO GEN, INSURANCE CO.LTD., 2ND FLOOR, SHANKARANARAYANA BUILDING, NO.2, M.G. ROAD, BANGALORE – 560 001. REPT. BY ITS INCHARGE MANAGER.
C.V. SRIDHAR, S/O VENKATASWAMY, AGED ABOUT MAJOR, R/AT NO.16-B, CHINTHALA MADIWALA, HUSKUR POST, ANEKAL TALUK, BANGALORE – 560 099. …RESPONDENTS (BY SRI D. VIJAY KUMAR, ADVOCATE FOR R1 (VC) VIDE ORDER DATED 25.09.2021 NOTICE TO R2 IS DISPENCED WITH) ****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.01.2019, PASSED IN MVC NO.1871/2017, ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MACT, BENGALURU (SCCH-16), PARTLY ALLOWING THE CLAIM PERITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, K.S.HEMALEKHA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is taken up for final disposal.
The present appeal is preferred by the claimants assailing the judgment and award dated 24/01/2019, passed in MVC.No.1871/2017 on the file of the Small Causes and Motor Accident Claims Tribunal, Bengaluru, (hereinafter referred to as “the Tribunal” for short).
The parties herein are referred to as per their ranking before the Tribunal for the sake of convenience.
The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (“the Act” for short), seeking compensation of Rs.60,00,000/- on
account of death of one Muniraju in a fatal road traffic accident that occurred on 22/03/2017, while the deceased was proceeding on a motorcycle bearing registration No.KA-51/EF-6040 and when he reached near Delphi Factory at Jigani, a lorry bearing registration No.KA-09/9737 came in a rash and negligent manner and dashed against the motorcycle, due to the impact, the deceased succumbed to the injuries. The claimants are the wife and minor children of the deceased Muniraju. It is contended by the claimants that they were solely depending on the income of the deceased and he was the only bread winner of the family. Prior to the accident, the deceased was hale and healthy doing transport business and was earning a sum of Rs.60,000/- per month.
In pursuance of the summons issued by the Tribunal, respondent No.1/insurance company
appeared and filed its written statement admitting issuance of the insurance policy and its validity as on the date of the accident. However, denied that the accident occurred due to the rash and negligent driving on the part of the driver of the lorry bearing registration No.KA-09/9737. It is further contended by the insurance company that the driver of the offending vehicle did not possess valid and effective driving license as on the date of accident and sought for dismissal of the petition.
The Tribunal on the basis of the pleadings framed following issues: 1. Whether the petitioners prove that deceased Muniraju succumbed to the injuries sustained in vehicular accident alleged to have occurred on 22/03/2017 due to the rash and negligent driving of the driver of lorry bearing No.KA-09/9737?
Whether the petitioners are entitled to compensation? If so, what is the quantum and from whom?
What order or award?
In order to substantiate their case, the claimant No.1 examined herself as PW.1 and one more witness as PW.2 and got marked 13 documents at Ex.P-1 to P-13. On the other hand, the owner of the offending vehicle was examined as RW.1 and however no document was marked on his behalf.
The Tribunal, on the basis of the pleadings, evidence and the material on record, held that the accident occurred due to rash and negligent driving of the driver of the lorry bearing registration No.KA- 09/9737 and fastened the liability upon respondent No.1/insurance company and respondent No.2/owner of the vehicle and awarded a total compensation of
Rs.15,82,000/- with interest at the rate of 9% per annum from the date of petition till realization under the following heads: Sl. No. Head of Compensation Amount/Rs. 1 Loss of dependency 15,12,000.00 2 Loss of consortium 40,000.00 3 Loss of estate 15,000.00 4 Funeral and transportation expenses 15,000.00
Total 15,82,000.00
Aggrieved by the quantum of compensation awarded by the Tribunal being on the lower side, the claimants are in appeal.
Heard learned counsel Sri P.Suresh appearing for the appellants and the learned counsel Sri D.Vijay Kumar for respondent No.1 who appeared through video conference and perused the material on record including original records.
Learned counsel for the claimants would contend that the Tribunal has not taken into
consideration Exs.P-9 to P-13, which were produced by the claimants to show that the deceased was earning around Rs.60,000/- per month by doing transport business and that the documents produced by the claimants would clearly establish that the deceased was earning Rs.60,000/- per month. It is further contended that the compensation awarded by the Tribunal under the head loss of consortium is not as per the dictum of the Apex Court in the case of Magma General Insurance Company Ltd. Vs. Nanu Ram & Others [2018 ACJ 2782] (Magma General Insurance Company Ltd.). On this ground, the claimants have sought to re-assess the compensation.
Per contra, learned counsel for the insurance company would contend that the compensation awarded by the Tribunal is just and proper and does not call for any interference by this Court. It is also contended that the award of interest
at the rate of 9% per annum is much on the higher side as this Court normally awards interest at the rate of 6% per annum.
Having heard learned counsel for the parties and on perusal of the material on record, the only point that arises for our consideration is: “Whether the claimant has made out any case for enhancement in the facts and circumstances of the present case?”
The date, time and occurrence of the accident are not in dispute. The dispute is only with regard to the quantum of compensation awarded by the Tribunal. The Tribunal has rightly held that the accident has occurred due to rash and negligent driving of the driver of the offending vehicle bearing registration No.KA-09/9737. The perusal of the judgment and award of the Tribunal would depict that the Tribunal has taken notional income of the
deceased at Rs.9,000/- per month discarding the contention of the claimants that the deceased was earning Rs.60,000/- per month. It is relevant to note that in order to substantiate the contention that the deceased was earning Rs.60,000/- per month, the claimants have produced only the R.C. Book as per Ex.P-12, which is the registration certificate, wherein nowhere it depicts that the deceased was earning Rs.60,000/- per month nor the claimants have made any effort to produce the bank statement nor the income tax return to show the actual income of the deceased. In view of this fact, in the absence of any documentary evidence, the notional income as per the Karnataka State Legal Services Authority, Bengaluru, for the accidents that occurred in the year 2017, to be taken is Rs.11,000/- as against Rs.9,000/- taken by the Tribunal (adding 40% to Rs.11,000/- towards future prospects in view of the dictum of the Apex
Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others [2017 ACJ 2700] would be Rs.4,400/-) the total income arrived at is Rs.15,400/- and after deducting 1/3rd towards personal expenses of the deceased as the dependents are three in number, as per the dictum of the Hon’ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation [(2009)6 SCC 121], the loss of dependency is arrived at Rs.10,267/-. Considering the age of the deceased as 36 years, the applicable multiplier is 15. Thus, a sum of Rs.18,48,000/- is arrived at towards loss of dependency (10,267x12x15 = 18,48,060/- rounded off to Rs.18,48,000/-).
The Tribunal has awarded compensation of Rs.40,000/- under the head loss of consortium without considering the number of dependents. As per the dictum of the Apex Court in United India
Insurance Company Limited vs. Satinder Kaur and others [AIR 2020 SC 3076] and Magma General Insurance Company Ltd. (supra), the claimants are entitled to spousal and filial consortium which would come to Rs.1,20,000/- ( Rs.40,000/-x3). Under the head loss of estate and funeral and obsequies ceremony, the claimants are entitled for Rs.15,000/- each, which the Tribunal has rightly awarded. After reassessing both oral and documentary evidence, the just compensation is as under:
Sl. No Head of Compensation Amount/Rs. 1 Loss of dependency 18,48,000.00 2 Loss of consortium(40,000 x 3) 1,20,000.00 3 Loss of estate 15,000.00 4 Funeral and obsequies ceremony 15,000.00
Total 19,98,000.00
The Tribunal has already awarded a sum of Rs.15,82,000/- and deducting the same out of Rs.19,98,000/-, the claimants are entitled to enhanced compensation of Rs.4,16,000/- with interest
at 9% per annum. The award of interest at 9% on the enhanced compensation is having regard to the peculiar facts and circumstances of the case and due to the fact that the deceased has left behind two minor children. Thus, the contention of learned counsel for the insurance company that the interest has to be reduced to 6% per annum does not appraise the mind of this Court. Thus, the point that arose for consideration is answered in the affirmative favouring the claimants.
In the result, we pass the following:
ORDER
(i) The appeal filed by the claimants is allowed in part.
(ii) The claimants are entitled for an enhanced compensation of Rs.4,16,000/- with interest at the
rate of 9% per annum from the date of petition till the date of realization.
(iii) The apportionment, deposit and release of compensation amount as per the order of the Tribunal stand unaltered.
(iv) As directed by the Tribunal, respondent Nos.1 and 2 are jointly and severally liable to pay the award amount. However, the compensation has to be paid by the insurance company at the first instance and recover the same from the owner of the offending vehicle.
(v) The insurance company shall deposit the enhanced compensation amount within a period four weeks from the date of receipt of a copy of this order with proportionate interest.
(vi) The trial Court record be transmitted to the concerned Court forthwith.
(vii) No order as to costs.
Sd/- JUDGE
Sd/- JUDGE S*