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2019 DIGILAW 1196 (KAR)

T. Kusuma Shetty v. Parameshappa

2019-06-11

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. 1. Though this appeal is listed for admission, with the consent of learned counsel for both parties, the appeal is taken up for final disposal. 2. This appeal is preferred by the appellants against the judgment and award dated 06.04.2013, passed in MVC No. 641/2012 by the I Additional Senior Civil Judge and MACT - V, Davanagere, awarding compensation in a sum of Rs. 7,50,000/- with interest at 6% p.a. from the date of petition till the date of realization. Accordingly, the Tribunal has awarded compensation and has mentioned the apportionment in the operative portion of the order. The same is found to be inadequate, as the Tribunal has assessed the income of the deceased only in a sum of Rs. 5,000/- p.m. Therefore, the intervention of this Court is required in this appeal by considering the income of the deceased at Rs. 15,000/- p.m. instead of Rs. 5,000/- assessed by the Tribunal. Hence, he prays for enhancement by awarding suitable compensation. 3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 22.04.2012, at about 4.00 p.m. near Doddabathi pump house on old P.B. road, Davanagere, when the deceased U.K. Prashanth was proceeding as a pedestrian by the side of the road at the relevant point of time, the driver of the KSRTC bus bearing Registration No. KA-17/F-444 came in a rash and negligent manner, in a greater speed and dashed against the deceased. As a result of which, he sustained grievous injuries and died on the spot. The deceased was aged about 31 years as on the date of the accident. He was running a Kirani shop and earning Rs. 15,000/- p.m. His family consisted of himself, parents, wife and three children. The earnings of the deceased was the only source of income to the family to eke out their livelihood and the deceased was contributing his entire income for maintaining his family. Due to the untimely death of the deceased, the entire family members having been put to financial difficulty and hence, the appellants/claimants being the legal representatives of the deceased filed a claim petition before the tribunal seeking compensation from the respondents. 4. Due to the untimely death of the deceased, the entire family members having been put to financial difficulty and hence, the appellants/claimants being the legal representatives of the deceased filed a claim petition before the tribunal seeking compensation from the respondents. 4. In pursuance of the notice on the respondents, respondent No. 1 said to be driver of the offending vehicle and the respondent No. 2 said to be the Corporation have filed written statement to resist the claim petition. They stated that they are not liable to pay the compensation. However, respondent No. 3 said to be the insurer has entered appearance through its counsel and filed written statement by denying the entire averments made in the claim petition. On all these grounds, respondents therein sought for dismissal of the claim petition filed by the petitioners. 5. Based on the pleadings of the parties, the Tribunal framed six issues and on evaluation of the evidence of PW-1 and also the evidence of PWs. 2 and 3, so also considering Exs.P.1 to P.19 marked on behalf of the claimants to prove their case. On the other hand, RW-1 led oral evidence but not produced any document. Based on the oral evidence and documentary evidence put forth by the claimants, i.e. Exs.P.1 to P.19, the Tribunal has awarded a total compensation in a sum of Rs. 7,50,000/- with interest at 6% p.a. from the date of the petition till realization. The compensation awarded is incorporated in paragraph No. 10 of the impugned judgment. The claimants have filed this appeal aggrieved by the quantum of compensation granted by the Tribunal, on the ground that the Tribunal has failed to consider the income of the deceased in a sum of Rs. 15,000/- p.m. and has erroneously held the income of the deceased only at Rs. 5,000/- p.m. Hence, they seek for enhancement of the compensation. 6. Learned counsel for the appellants claimants has taken me through the evidence of PW-1, said to be the wife of the deceased. He points out to the documents at Exs.P3 spot mahazaar, P4 seizure mahazaar and P7 p.m. report held on the dead body of the deceased. The Tribunal has committed an error in not considering the hardship caused to the claimants in view of the death of the deceased, who is stated to be the bread winner of the family. He points out to the documents at Exs.P3 spot mahazaar, P4 seizure mahazaar and P7 p.m. report held on the dead body of the deceased. The Tribunal has committed an error in not considering the hardship caused to the claimants in view of the death of the deceased, who is stated to be the bread winner of the family. Therefore, reiterating the averments made in the claim petition, the claimants have filed the present appeal seeking compensation. He further submitted that the compensation awarded by the Tribunal under conventional heads and other heads are found to be on the lower side. He contended that the deceased was running a Kirani shop and was earning Rs. 15,000/- p.m. The claimants have also produced audited balance sheet as per Ex.P.19, in support of their case. Therefore, the same requires to be considered in this appeal on all these grounds, he seeks intervention of this Court to the judgment and award impugned in this appeal and prays for awarding suitable compensation. 7. Per contra, learned counsel for respondent No. 2 drew my attention to the averments made in the claim petition, evidence of PWs. 1 to 3 and so also other relevant materials relating to the avocation of the deceased. He submits that the claimants have not produced any specific material to prove the income of the deceased as Rs. 15,000/- p.m. Though the claimants have produced audited balance sheet at Ex.P.19, the said document is not a statutory document to be considered in this case to assess the income of the deceased. However, the Tribunal has considered the nature of the business and has assessed the income at Rs. 5,000/- p.m. considering the aspect that the deceased was running a Kirani shop, which is just and proper so also the compensation awarded under conventional heads. Hence, on all these grounds he seeks for dismissal of the appeal. 8. In the back drop of the contentions taken by learned counsel for both parties, it is relevant to state that there is no dispute with regard to the death of the deceased at an young age. It is also not in dispute that the deceased was running a grocery shop but the appellants-claimants have produced audited balance sheet which is not relevant and statutory document to show that the income of the deceased was Rs. It is also not in dispute that the deceased was running a grocery shop but the appellants-claimants have produced audited balance sheet which is not relevant and statutory document to show that the income of the deceased was Rs. 15,000/- p.m. In the absence of any document with regard to the income, the Tribunal has rightly considered the nature of the business run by the deceased and has assessed the monthly income at Rs. 5,000/-. Though the learned counsel for the respondent No. 2 substantiated his arguments and objected to enhance the income of the deceased, as it is not in dispute that the accident has occurred in the year 2012 and to meet the ends of justice, a further sum of Rs. 2,000/- is reasonable to award in addition to Rs. 5,000/- p.m. awarded by the tribunal. In all, Rs. 7,000/- p.m. is assessed as the income of the deceased. Hence, after revisiting and re-appreciating other materials, the compensation under the head loss of dependency works to Rs. 14,11,200/-. 9. Keeping in view the guidelines laid down by the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi, (2017) AIR SC 5157, has held that in conventional heads i.e. loss of estate, loss of consortium and funeral expenses should not extend beyond Rs. 70,000/-. But in the instant case, the tribunal has awarded only Rs. 30,000/- and therefore, it requires to be enhanced by awarding Rs. 40,000/- in addition to what is awarded by the tribunal. In total, Rs. 70,000/- is awarded under these heads collectively. In the case of Magma General Insurance Co. Ltd. vs. Nanu Ram, 2018 SCC 1546, the 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. 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, cooperation, 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 parents 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. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. 10. Therefore, in the present case, as the children namely, Ananya and Aditya are minors, who are represented by their natural guardian mother and keeping the above guidelines, claimant Nos. 4 and 5 in the claim petition are entitled for further sum of Rs. 40,000/- each. In total, Rs. 80,000/- is awarded under the head Filial Consortium. Insofar as it relates to the compensation awarded towards other conventional heads in a sum of Rs. 30,000/- is concerned, seems to be very meager and another Rs. 4 and 5 in the claim petition are entitled for further sum of Rs. 40,000/- each. In total, Rs. 80,000/- is awarded under the head Filial Consortium. Insofar as it relates to the compensation awarded towards other conventional heads in a sum of Rs. 30,000/- is concerned, seems to be very meager and another Rs. 40,000/- is awarded under this heads. 11. In view of the above observations, the judgment and award rendered by the Tribunal is modified and enhanced as stated supra. Accordingly, I proceed to pass the following: ORDER: The appeal is allowed in part. Consequently, the appellants are entitled to enhanced compensation of Rs. 8,11,200/- with interest at the rate of 6% p.a. 12. Accordingly, the appellants are entitled for total compensation in a sum of Rs. 15,61,200/- as against Rs. 7,50,000/- awarded by the Tribunal. The enhanced compensation comes to Rs. 8,11,200/- which fetch interest at the rate of 6% p.a. 13. The respondent No. 2/Corporation is directed to deposit the enhanced compensation amount along with interest at the rate of 6% p.a. within a period of six weeks from the date of receipt of a copy of this order before the concerned Tribunal. 14. The amount in deposit shall be disbursed to the appellants in terms of the award passed by the Tribunal on proper identification. 15. Lower court records shall be forwarded to the concerned MACT forthwith. Office to draw a decree accordingly.