IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.7383 OF 2017 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
JLB ROAD, CHAMUNDIPURAM,
MYSORE.
THROUGH ITS REGIONAL OFFICE
MAHALAKSHMI CHAMBERS,
M.G. ROAD, BENGALURU-560001
REP. BY ITS MANAGER.
... APPELLANT
(BY SRI. ANUP SEETHARAMA RAO, ADVOCATE FOR SRI.
SEETHARAMA RAO B.C., ADVOCATE)
AND:
1. SMT. SAROJA
AGED ABOUT 41 YEARS,
W/O MARIGOWDA
2. SRI. MARIGOWDA
AGED ABOUT 45 YEARS,
S/O LATE PUTTAIAH
2
3. MISS. CHANDRAKALA
AGED ABOUT 21 YEARS,
D/O SRI. MARIGOWDA
4. MR. PUNITHKUMAR
AGED ABOUT 19 YEARS,
S/O SRI MARIGOWDA,
ALL ARE RESIDENTS OF
2ND CROSS,
V.V. NAGARA, KALLAHALLY,
MANDYA.
5. SRI. MAHESH C.K.
MAJOR IN AGE,
S/O SRUI KALEGOWDA,
CHAMALAPURA VILLAGE,
KERAGODU HOBLI
MANDYA TALUK & DISTRICT.
(OWNER OF MOTOR CYCLE NO.KA.09/EE-6921)
... RESPONDENTS
(BY SRI. LAKSHMIKANTH K., ADVOCATE FOR
RESPONDENT NOS.1 TO 4 (ABSENT);
NOTICE SERVED TO RESPONDENT NO.5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
10.07.2017 PASSED IN MVC NO.479/2016 ON THE FILE OF
THE I ADDITIONAL SENIOR CIVIL JUDGE AND MACT., AT
MANDYA, AWARDING COMPENSATION OF Rs.26,62,000/-
WITH INTEREST AT THE RATE OF 9% P.A. ON THE
COMPENSATION FROM THE DATE OF PETITION TILL
REALIZATION.
3
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, NATARAJ RANGASWAMY, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, as the records from the Motor Accident Claims Tribunal are received, it is taken up for final disposal with the consent of learned counsel for the parties.
2. This appeal is filed by the insurer challenging the Judgment and Award dated 10.07.2017 passed by the I Additional Senior Civil Judge and Motor Accident Claims Tribunal, Mandya (hereinafter referred to as 'the Tribunal') in MVC No.479/2016.
3. The appellant herein and respondent No.5 herein will henceforth be referred to as the 'insurer' and 'owner' respectively of the offending vehicle involved in the accident and respondent Nos.1 to 4 herein will henceforth be referred to as 'claimants'.
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4. The claim petition discloses that the claimants are the legal representatives of a person named Mr. Bharath Kumar. It is stated that on 22.03.2016, the said Bharath Kumar and another person named Mr.Praveen were traveling to Ramandur on a motorcycle bearing registration No. KA-09-EE-6921. When they were moving near Haniyambadi village on Kirugavalu-Mandya road, a Swaraj Mazda bearing registration No.KA-41-A-3221 (henceforth referred to as the 'offending vehicle'), being driven by its driver in a rash and negligent manner approached from the opposite direction and dashed against the motorcycle. On account of this accident, both Mr.Bharath Kumar and Mr.Praveen fell down and sustained injuries and Mr.Bharath Kumar was shifted to District Hospital, Mandya, but was declared brought dead. The claimants being the parents and siblings of the deceased contended that the deceased was running a hotel and a bakery and was earning Rs.20,000/- per month. They claimed that he was also looking after the agricultural operations in the land belonging to the joint family 5 measuring 29.8 guntas situated at Neralekere village and was earning Rs.5,000/- per month which he was contributing to the family. Therefore, they claimed that they were deprived of the emotional and financial support provided by the deceased. They alleged actionable negligence on the part of the driver of the offending vehicle and claimed compensation of Rs.37,05,000/- from the owner and the insurer of the offending vehicle.
5. The owner of the offending vehicle claimed that the vehicle was duly insured and therefore, he was not liable to pay the compensation.
6. The insurer claimed that the offending vehicle did not possess a valid permit and a fitness certificate and that the driver of the offending vehicle did not possess a valid licence to drive that particular category of vehicle. It also contended that the deceased was negligent and was responsible for the accident and therefore the owner and insurer of the motor bike were proper and necessary parties.
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7. Based on the aforesaid rival contentions, the claim petition was set down for trial.
8. The claimant No.1 was examined as PW.1 and the pillion rider who was also injured in the accident was examined as PW.2 and they marked documents Exs.P1 to P10. The insurer examined its executive as RW.1 who marked a document as per Ex.R1.
9. The Tribunal noticed that PW.2 was the eye witness to the accident and that he had lodged a complaint with the jurisdictional police against the driver of the offending vehicle. The Tribunal also noticed Ex.P2 which was the spot mahazar, Ex.P3 the IMV report, Ex.P6 which was the charge sheet filed by the investigating officer in Crime No.215/2016 and held that the accident was due to the negligence on the part of the driver of the offending vehicle. In so far as the quantum of compensation is concerned, the claimants had not placed on record any material proof to indicate the avocation or the income of the deceased. However, the Tribunal considered the 7 notional income of the deceased at a sum of Rs.12,000/- per month and granted loss of future prospects at 50% and deducted 50% of the income of the deceased towards his personal expenses and awarded the following compensation:
Sl. Heads under which Amount in
No. compensation awarded Rupees
1 Towards loss of dependency 25,92,000/-
2 Towards loss of love and affection 40,000/-
3 Towards transportation and funeral 30,000/-
charges
Total 26,62,000/-
The Tribunal awarded interest at the rate of 9% per
annum from the date of the claim petition till the date of realization.
10. Feeling aggrieved by the aforesaid Judgment and Award passed by the Tribunal, the insurer has filed this appeal contending that the deceased was negligent and was responsible for the accident. The learned counsel contended that in the absence of any proof of the income of the deceased, the Tribunal could not have treated the notional income of the deceased at Rs.12,000/- per month. 8 Learned counsel submitted that even as per the chart prescribed for settlement at the Lok Adalath, a sum of Rs.9500/- is treated as the notional income in respect of persons who die or are injured in the road traffic accidents in the year 2016. He, therefore, contended that the Tribunal ought to have restricted the income to a sum of Rs.9500/- per month. Further, he contended that the Tribunal had awarded 50% as loss of future prospects of the notional income of the deceased while in view of the judgment of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in 2017 (16) SCC 680, the loss of future prospects must have been calculated at 40%. Further he claimed that the deceased was a bachelor and in view of the Judgment of the Apex Court in the case of Sarla Verma and Others vs Delhi Transport Corporation and another reported in 2009 (6) SCC 121, 50% of his income must have been deducted towards his living expenses as against 1/3rd deducted by the Tribunal. He also contended that the Tribunal ought not to have 9 awarded interest at the rate of 9% per annum and there was no extraordinary circumstance that compelled the Tribunal to award interest at the rate of 9% per annum.
11. The learned counsel for claimants however contended that the Tribunal failed to award compensation towards the loss of filial consortium and that the claimants were entitled to a sum of Rs.40,000/- each. The learned counsel, therefore, prayed that the compensation awarded may not be disturbed.
12. We have considered the arguments advanced by the learned counsel for the parties and we have also perused the records of the Tribunal as well as its Judgment and award.
13. As rightly contended by the learned counsel for the insurer, in the absence of any proof regarding income, it was incumbent upon the Tribunal to have considered the income of the deceased at a sum of Rs.9,500/- per month as per the guidelines issued by the Karnataka State Legal 10 Services Authority and since the deceased was not employed in any permanent employment, the loss of future prospects ought to have been granted at 40% as per the judgment of the Apex Court in Pranay Sethi's case (supra). Further, the deceased was a bachelor and in view of the Judgment of the Apex Court in Sarla Verma's case (supra), 50% of his income ought to have been deducted towards his living expenses. In view of the judgment of the Apex Court in the case of Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram reported in 2018 (18) SCC 130 and in the case of United India Insurance Co. Ltd. vs Satinder Kaur @ Satwinder Kaur and others reported in 2020 SCC OnLine SC 410, the claimants are entitled to loss of filial consortium at the rate of Rs.40,000/- each.
14. It is now well entrenched that it is the duty of the Court to ensure that the dependents of the deceased are awarded just compensation which is also the mandate of Section 166 of the Motor Vehicles Act, 1988 but such 11 compensation should not be fanciful and exorbitant. In the opinion of this Court, the Tribunal over reached the authoritative pronouncement of the Apex Court in Sarla Verma's case and Pranay Sethi's case. Further there were no extra ordinary circumstances that entitled the claimants for interest at 9% per annum.
15. Hence, this Court has reconsidered the Judgment and award of the Tribunal and redetermined the compensation as follows:
Heads under which Amount in
compensation awarded Rupees
Loss of dependency @Rs.9500/- per 14,36,400/-
month along with 40% future prospects
(Rs.9500 + Rs.3800=Rs.13300/-) after deducting 50% towards living expenses Rs.6650/- x 12 x 18 Loss of filial consortium to the claimants 1,60,000/- @ Rs.40,000/- to each of them Towards conveyance, medical expenses, 75,000/- funeral and obsequies and loss of estate Total 16,71,400/-
16. In view of the above, the appeal filed by the insurer of the offending vehicle is allowed in part and in modification of the impugned Judgment and Award passed 12 by the Tribunal, the compensation awarded by the Tribunal in MVC No.479/2016 is reduced from Rs.26,62,000/- to Rs.16,71,400/-, which is payable by the insurer to the claimants along with interest at 6% per annum from the date of the claim petition till the date of realization.
17. The compensation determined by this Court along with interest shall be deposited by the insurer before the Tribunal within a period of one month from the date of receipt of a certified copy of this Judgment.
18. The amount in deposit, if any, shall be transmitted to the Tribunal for disbursement to the claimants.
Sd/-
JUDGE Sd/-
JUDGE sma