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Karnataka High Court · body

2017 DIGILAW 1276 (KAR)

Oriental Insurance Co. Ltd. v. Chikkaswamy

2017-09-13

R.S.CHAUHAN

body2017
JUDGMENT : Both these appeals arise from the award dated 19.12.2008, passed by the MACT, Bangalore, whereby for the death of Smt. R. Indira @ Indramma, the learned Tribunal has granted a compensation of Rs.5,89,948/- along with interest at 6% per annum from the date of petition, till the date of realisation. Since both these appeals challenge the same impugned award, these appeals are being decided by this common order. 2. The facts are being taken from MFA No.4210/2009, filed by M/s. Oriental Insurance Co. Ltd. 3. According to the claimants-respondents, on 09.01.2008, around 1.45 p.m., Smt. R. Indira @ Indramma was walking on the Ring Road near Hosakerehalli Junction. She was standing in the centre median of the road. Suddenly a lorry, being driven rashly and negligently, came on the Ring Road, and without observing the center median of the road, it dashed against Smt. Indira @ Indramma. Due to the said accident, Smt. Indira @ Indramma died on the spot. Therefore, claimant-respondent No.1 being the husband, and claimant-respondent Nos.2, 3, and 4 being the children filed a claim petition before the learned Tribunal. In support of their case, the claimant-respondent No.1 examined himself as P.W.1, and submitted twelve documents. However, the Insurance Company neither examined any witness, nor submitted any documents. The learned Tribunal has granted the compensation of Rs.5,89,948/- along with interest at 6% per annum from the date of petition, till the date of realisation. Hence, this appeal by the Insurance Company; the appeal by the claimants-respondents for enhancement of compensation. MFA No.4210/2009: 4. Mr. Arun Ponnappa, the learned counsel for the Insurance Company, has pleaded that the claimants have not produced any evidence to establish the fact that the deceased was earning Rs.5,000/- per month. According to the Schedule for notional income drawn by this Court, for an accident of the year 2008, the notional income should be taken as Rs.4,500/- per month. However, the learned Tribunal has erred in accepting her income as Rs.5,000/- per month. Therefore, the loss of dependency calculated by the learned Tribunal needs to be re-calculated by this Court. 5. On the other hand, Mr. K.T. Gurudeva Prasad, the learned counsel for claimants-respondents, submits that Smt. Indira @ Indramma was not only running a Fashion Shop, but she was also earning commission as an insurance agent. Therefore, the loss of dependency calculated by the learned Tribunal needs to be re-calculated by this Court. 5. On the other hand, Mr. K.T. Gurudeva Prasad, the learned counsel for claimants-respondents, submits that Smt. Indira @ Indramma was not only running a Fashion Shop, but she was also earning commission as an insurance agent. In order to establish the fact that she was earning commission, three different documents were submitted showing her income for October, November, and December, 2007. Moreover, they had submitted a Receipt Book of the Cloth Shop run by the deceased. Thus, ample evidence did exist for the learned Tribunal to conclude that the deceased was earning Rs.5,000/- per month prior to her death. Hence, the assessment of income is legally justified. 6. Heard the learned counsel for parties, and perused the impugned award. 7. A bare perusal of the impugned award clearly reveals that the claimants had produced three vouchers of PACL Ltd., which clearly indicated that for the months of October, November and December, 2007, the deceased had received a sum of Rs.417/-, Rs.309/-, and Rs.735/- as commission. The claimants-respondents had also produced a receipt book. Thus, it was clearly established that she was also running a cloth shop. Even if the notional income should be taken as Rs.4,500/- per month, it cannot be overlooked that she was earning beyond the notional income, by earning commission from PACL Ltd. Therefore, assessment of her income is not off the mark. Therefore, the contention raised by the learned counsel for Insurance Company is clearly unacceptable. 8. Hence, the appeal filed by the insurance company (MFA 4210/2009) is devoid of any merit. It is, hereby, dismissed. MFA No.4796/2009 9. The learned counsel for claimants has pleaded that the learned Tribunal has erred in applying the multiplier ‘13’ as the age of the deceased was 45 years. Therefore, multiplier ‘14’ should have been applied in order to assess the loss of dependency. Secondly, a sum of Rs.20,000/- has been granted for the loss of consortium. However, considering the fact that claimant No.1 had lost his wife at the age of forty-nine years, and he has been saddled with the responsibility of four children, the loss of consortium should be enhanced from Rs.20,000/- to Rs.1,00,000/-. Secondly, a sum of Rs.20,000/- has been granted for the loss of consortium. However, considering the fact that claimant No.1 had lost his wife at the age of forty-nine years, and he has been saddled with the responsibility of four children, the loss of consortium should be enhanced from Rs.20,000/- to Rs.1,00,000/-. In order to buttress his plea, the learned counsel has relied on the case of Rajesh & Others v. Rajbir Singh & Ors., (2013) 9 SCC 54 . Thirdly, despite the fact that the deceased had left four minor children, the four children have been granted only Rs.20,000/- for “the loss of love and affection” of their mother. Thus, compensation in the said category also needs to be enhanced by this Court. Lastly, even for the funeral expenses and transportation of body, merely Rs.10,000/- has been granted by the learned Tribunal. Since funerals are expensive, the compensation under the said category should be enhanced from Rs.10,000/- to Rs.25,000/-. 10. On the other hand, Mr. Arun Ponnappa, the learned counsel for Insurance Company, has pleaded that a compensation award is not meant to be a bonanza. In case a just and reasonable compensation has been granted by the Tribunal, then the award should not be interfered by this court. Therefore, he has vehemently opposed to the enhancement of compensation claimed by the learned counsel for claimants. 11. Heard the learned counsel for parties. 12. According to the Schedule in the case of Sarla Verma & Others v. Delhi Transport Corporation & Another, AIR 2009 SC 3104 for the deceased aged about forty-five years, ‘14’ multiplier should be adopted. Therefore, the learned Tribunal was not justified in applying ‘13’ multiplier for calculating the loss of dependency. Hence, multiplier of ‘14’ should be used for calculating the said loss. Therefore, the loss of dependency comes to Rs. 5,59,944/- (Rs. 3,333 x 12 x 14). Therefore, compensation under the category of loss of dependency is enhanced from Rs. 5,19,948/- to 5,59,944/-. 13. In the case of Rajesh & Others v. Rajbir Singh & Others [ (2013) 9 SCC 54 ], the Hon’ble Supreme Court has extensively dealt with the concept of Consortium as under:- 17. The ratio of a decision of this Court, on a legal issue is a precedent. 5,19,948/- to 5,59,944/-. 13. In the case of Rajesh & Others v. Rajbir Singh & Others [ (2013) 9 SCC 54 ], the Hon’ble Supreme Court has extensively dealt with the concept of Consortium as under:- 17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2500 to Rs.10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma Case, it was held that compensation for loss of consortium should be in the range of Rs.5000 to Rs.10,000. In legal parlance, “consortium” is the right of the spouse to the Company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdiction, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium. Therefore, the compensation in the category of loss of consortium is enhanced from Rs.20,000/- to Rs.1,00,000/-. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium. Therefore, the compensation in the category of loss of consortium is enhanced from Rs.20,000/- to Rs.1,00,000/-. 14. Admittedly, the deceased had left four minor children behind her. Yet, the learned Tribunal has granted a compensation of merely Rs.20,000/- for all the four children. Thus, each child merely receives Rs.5,000/- for having lost the love and affection of his/her mother. The vacuum left by their mother cannot be filled. Considering the fact that the children were minor at the time of her death, the compensation under the head of loss of love and affection is enhanced from Rs.20,000/- to Rs.80,000/-. 15. Even for the funeral expenses, a compensation has been paid as Rs.10,000/-. But considering the fact that funeral expenses are not only meant for cremation of body, but also include the last rites to be performed for the departed soul, the compensation of Rs.10,000/- is certainly on the lower side. Therefore, compensation in the said category is enhanced from Rs.10,000/- to Rs.25,000/-. 16. For the reasons stated above, MFA No.4796/2009 filed by the claimants-appellants is allowed and the award dated 19.12.2008, is modified to the extent as stated herein below:- Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Loss of Dependency 5,19,948 5,59,944 Funeral expenses and transportation of dead body 10,000 25,000 Loss of Consortium 20,000 1,00,000 Loss of Estate 20,000 20,000 Loss of love and affection 20,000 80,000 Total 5,89,948 7,84,944 17. The learned counsel for insurance company submits that the insurance Company has already deposited a sum of Rs.3,70,000/- along with interest. Therefore, the remaining amount should carry interest only from the date of deposit, till the date of realisation. 18. Since the insurance Company has already deposited a sum of Rs.3,70,000/- along with interest, the said amount shall not carry interest. However, the remaining amount shall carry interest from the date of petition till the date of realisation. 19. Therefore, the Insurance Company is directed to deposit the enhanced amount of Rs.1,94,996/-, along with interest at the rate of 6% p.a., from the date of filing of the petition till the date of realization. 20. However, the remaining amount shall carry interest from the date of petition till the date of realisation. 19. Therefore, the Insurance Company is directed to deposit the enhanced amount of Rs.1,94,996/-, along with interest at the rate of 6% p.a., from the date of filing of the petition till the date of realization. 20. The compensation amount shall be disbursed to the claimants in accordance with the appropriation directed by the learned Tribunal in the award dated 19.12.2008. 50% of the amount payable to the minors shall be kept in fixed deposit in any nationalised bank for a period of one year to be renewed yearly till the minors reach the age of majority. Once having reached the age of majority, the claimants shall be free to request the learned Tribunal to release the said amount in his/her favour. The amount shall be released only after verifying the identity of the claimants.