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2019 DIGILAW 1142 (KAR)

Sowmya Sukanya Kumari v. Swamy

2019-06-07

K.SOMASHEKAR

body2019
JUDGMENT : K.Somashekar, J. 1. Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal. 2. This appeal is preferred against the judgment and award dated 30.10.2012 rendered by the Presiding Officer, Fast Track Court-2, Additional MACT, Mysore, in MVC No.455/2012 seeking enhancement of compensation. 3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 21.02.2012 at about 6.45 p.m. deceased Sasi @ Sasikumar along with Chandra were traveling in the above said passenger bus along with other passengers from Malai Mahadeshwara Hills, near 7th Curve of Talabetta, all of a sudden the driver of the bus drove the vehicle rashly and negligently with high speed and dashed against a stone. Due to the said impact, the bus turned turtle and the inmates of the said bus sustained injuries. In the said accident the deceased succumbed to the injuries at the spot. Having lost the bread earner of the family, the claimants being wife, children and mother of the deceased, filed the claim petition before the Tribunal seeking compensation. 4. After service of notice, first respondent came to be deleted, second respondent was placed ex-parte and third respondent being the insurer of the offending vehicle, filed written statement, denying the petition averments and sought for dismissal of the claim petition. 5. On the basis of pleadings, the Tribunal framed issues. On behalf of claimants, PW.1 and PW.2 were examined. Exs.P1 to P.28 were got marked. Respondents did not choose to file any documents. After hearing the arguments advanced by learned counsel for the parties and on appreciation of oral and documentary evidence on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.4,77,000/- with interest @ 6% p.a. from the date of petition till payment. Being not satisfied with the compensation awarded by the Tribunal, the claimants are before this Court seeking enhancement of compensation by urging various grounds. 6. Learned counsel for appellants has taken me through the evidence of PW.1 Sowamya Sukanya Kumari, wife of the deceased and the documents relied upon by them for seeking enhancement of compensation. He contends that the award passed by the Tribunal is on lower side, inadequate and contrary to the facts, evidence and probabilities of the case. 6. Learned counsel for appellants has taken me through the evidence of PW.1 Sowamya Sukanya Kumari, wife of the deceased and the documents relied upon by them for seeking enhancement of compensation. He contends that the award passed by the Tribunal is on lower side, inadequate and contrary to the facts, evidence and probabilities of the case. Hence, the same is liable to be enhanced by this Court. Further, he contends that the Tribunal erred in not appreciating the oral and documentary evidence while determining the compensation under various heads. Further, the documents produced by the appellants were not considered which categorically and specifically establishes the quantum of pain and suffering meted out to the appellants. 7. He further contends that the Tribunal while evaluating the compensation under the head loss of dependency has failed to take note of the fact that appellant no.1 being the wife has lost her companion in her young age and appellant nos.2 and 3 being minor children having lost their beloved father have mentally undergone sufferings. Further, the income of the deceased taken by the Tribunal is on lower side and without noticing the fact that the deceased was a skilled labour and also doing painting work and earning more than Rs.350/- per day, failed to consider the same. Further, the compensation awarded under the conventional heads is also inadequate and the same needs to be enhanced, keeping in view the age of the children of the deceased. On all these grounds, learned counsel for the appellants seeks for interference of this Court and prays for allowing the appeal by enhancing the compensation. 8. Per contra, learned counsel for the insurance company contends that the driver of the offending bus was not holding valid driving licence to drive the vehicle on the date of accident. Further, he denies that the deceased was the passenger of the said bus and also the occurrence of accident as alleged in the petition. It is further contended that the Tribunal, on appreciation of oral and documentary evidence on record, has rightly assessed the income of the deceased and awarded just and fair compensation, and the same does not call for any interference and prays for dismissal of the appeal. 9. It is further contended that the Tribunal, on appreciation of oral and documentary evidence on record, has rightly assessed the income of the deceased and awarded just and fair compensation, and the same does not call for any interference and prays for dismissal of the appeal. 9. In the context of the contentions as taken by the learned counsel for the appellants and so also, learned counsel for respondent insurance company, it is not in dispute that the accident occurred due to actionable negligence on the part of the bus by its driver, as a result of the said accident, Sasi @ Sasikumar died. Ex.P1 is the FIR, Ex.P2 is the statement, Ex.P3 is the spot mahazar, Ex.P4 is the spot sketch, Ex.P5 is the IMV report, Ex.P6 is the claim notice. According to Ex.P7 - inquest report and Ex.P8 PM report, deceased Sasi @ Sasikumar died due to the head injury sustained in the accident. Ex.P12 is the death certificate of the deceased. 10. Pw.1 in her evidence has stated that at the time of accident deceased was earning Rs.350/- per day as a painter. But no document has been produced in this regard. Accordingly, Tribunal has taken Rs.3000/- p.m as the notional income of the deceased. As per Ex.P8, the age of deceased was 35 years as on the date of accident. Hence, multiplier of 16 was adopted, as per the decision of Hon'ble Supreme Court in Sarala Varma vs. Delhi Transport Corporation, (2009) ACJ 1298. After deducting 1/4th towards personal expenses a sum of Rs.4,32,000/- was awarded by the Tribunal towards loss of dependency. 11. It is pertinent to note that the accident is of the year 2012. The deceased was working as painter. As per the guidelines and illustrations in the Lok Adalath chart, where there is no proof of income, the notional income that has to be taken for the year 2012 is Rs.7,000/-. Accordingly, the compensation under the head loss of dependency is re-worked out as under: Rs.7,000 x 12 x 16 x = 10,08,000/- Thus, under the head 'loss of dependency' the claimants are entitled for Rs.10,08,000/- as against Rs.4,32,000/- awarded by the Tribunal and the enhanced compensation under this head would be Rs.5,76,000/-. 12. Accordingly, the compensation under the head loss of dependency is re-worked out as under: Rs.7,000 x 12 x 16 x = 10,08,000/- Thus, under the head 'loss of dependency' the claimants are entitled for Rs.10,08,000/- as against Rs.4,32,000/- awarded by the Tribunal and the enhanced compensation under this head would be Rs.5,76,000/-. 12. In so far as compensation under the conventional heads, the Hon'ble Apex Court in National Insurance Co.Ltd vs. Pranay Sethi, (2017) AIR SC 5157), has awarded in all a sum of Rs.70,000/-. But the Tribunal under the conventional heads has awarded in all a sum of Rs.45,000/-. Therefore, another sum of Rs.25,000/- is awarded under this head. 13. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM,2018 SCCONLINESC 1546, the Hon'ble Apex Court has held that: "In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'. The right to consortium would include the company, care help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation." Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training". Filial consortium is the right of the partenst to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit." 14. At the time of accident, claimant Nos. 2 and 3 were minors. They have lost their father Sasi@Sasikumar, at the tender age and have lost love and affection of the deceased and there is a reciprocity in between the family and deceased. Further, due to the death of the deceased, claimant no.4 being the mother, has lost the love, affection, companionship and his role in the family. 2 and 3 were minors. They have lost their father Sasi@Sasikumar, at the tender age and have lost love and affection of the deceased and there is a reciprocity in between the family and deceased. Further, due to the death of the deceased, claimant no.4 being the mother, has lost the love, affection, companionship and his role in the family. Hence, in accordance with the above said decision, a sum of Rs.40,000/- each, is awarded to claimants 2 to 4 towards loss of filial consortium totaling to Rs.1,20,000/-. 15. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Compensation awarded by MACT Compensation by this Court Loss of dependency 4,32,00 10,08,000 Loss of consortium 10,000 70,000 Loss of love and affection 15,000 Loss of estate 10,000 Transportation and funeral expenses 10,000 Loss of filial consortium - 1,20,000 Total 4,77,000 11,98,000 Thus, in all, the claimants are entitled to total compensation of Rs.11,98,000/- as against Rs.4,77,000/- awarded by the Tribunal. The enhanced compensation would be Rs.7,21,000/-. For the reasons and findings as stated above, I proceed to pass the following: ORDER The appeal filed by the appellants/claimants is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.7,21,000/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 30.10.2012 passed by the Tribunal in MVC No.455/2012, is modified accordingly. Respondent - Insurance Company shall deposit the compensation enhanced by this Court, along with interest accrued, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to rate of interest, apportionment and deposit is concerned, shall remain unaltered. Office to draw the decree accordingly.