Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1266 (KAR)

Shruthi v. Sunil Kishore Pais

2019-06-14

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : K. NATARAJAN, J. 1. Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally. 2. The appellants-claimants have preferred this appeal, assailing the judgment and award dated 19.01.2018 passed in MVC No.423/2017 by the II Additional District Judge and MACT at Tumakuru (hereinafter referred to as 'Tribunal') 3. We have heard the arguments of learned counsel for the appellants as well as respondent-Insurance Company. 4. The rank of the parties before the Tribunal are retained for the sake of convenience. 5. The claimants filed the claim petition under Section 166 of Motor Vehicle Act, 1988 (hereinafter referred to as 'Act') seeking compensation of Rs.30,00,000/- inter alia, contending that on 15.03.2017 at about 6.30 p.m., the deceased-Harish was proceeding on his motor bike bearing registration No.KA-06-JC-9001 on Bangalore-Tumkur N.H. 48. When he reached near Isher service station at Chikkahalli, a bus bearing registration No.KA-51/D-4763 driven by its driver in a rash and negligent manner came from behind and dashed to the motorcycle of the deceased, due to which he has sustained injuries, shifted to Government Hospital, Tumakuru and later, he succumbed to the injuries. The first petitioner is the wife; the second petitioner is the daughter; third petitioner is the brother of the deceased, who have claimed the compensation on various grounds / heads. 6. In response to the notice, respondent No.1, driver of the bus appeared and filed statement of objections by denying the accident, age, income and occupation of the deceased as false and also denied that the accident had occurred due to the rash and negligent driving by the driver of the bus. On the other hand, it was contended that the rider of the motorcycle was solely responsible for the accident. However, it was contended that liability, if any, be saddled on respondent No.2-the Insurer. Respondent No.1 prayed for dismissing the claim petition. 7. Respondent No.2-Insurance Company also appeared and filed statement of objections by taking similar contentions to the effect that the rider of the motorcycle was solely responsible for the accident and there was no negligence on the part of driver of the bus. Therefore, they contended that the petition is bad for nonjoinder of necessary parties i.e., owner and Insurer of the motor bike. Therefore, they contended that the petition is bad for nonjoinder of necessary parties i.e., owner and Insurer of the motor bike. However, it admitted the issuance of the insurance policy in respect of the bus and prayed for dismissing the claim petition. 8. Based upon the pleadings, the Tribunal framed the following issues: "(1) Whether the petitioners prove that the accident was due to the rash and negligent driving of the vehicle bearing Reg.No.KA.51-D-4763 by its driver? (2) Whether the petitioners further prove that, as a result of the said accident deceased Harish K.S. sustained injuries and died? (3) Whether the petitioners are entitled for the compensation and if so by how much and from whom? (4) What order?" 9. The claimants to substantiate their claim, examined the first claimant as PW.1 and also got examined another witness as PW.2-Jayanna who was an eye-witness and also got marked nine documents as per Ex.P1 to Ex.P9. The respondents did not lead any evidence except marking the copy of the policy as Ex.R1. After considering the evidence on record, the Tribunal awarded compensation of Rs.13,95,064/- with interest at the rate of 6% p.a. as under: 1 Loss of dependency Rs.12,80,064/- 2 Loss and affection Rs.40,000/- 3 Transportation and Funeral expenses Rs.20,000/- 4 Loss of Consortium Rs.40,000/- 5 Loss of Estate Rs.15,000/- Total Rs.13,95,064/- 10. Assailing the award of compensation, the claimants have preferred this appeal for enhancing the compensation on various heads. 11. Learned counsel for the appellants-claimants contended that the deceased was hale and healthy and was working as a Security Guard, earning Rs.15,000/- per month and maintaining the family. Due to his untimely death, the claimants have lost their dependency. The Tribunal considered Rs.10,000/- as income, even though the deceased was earning Rs.15,000/- per month. Further, the Tribunal has not considered future prospects as per the dictum of Hon'ble the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 (Pranay Sethi); the Tribunal also awarded a meager amount towards loss of consortium; hence, learned counsel prayed for enhancing the total compensation. 12. Per contra, learned counsel for the insurer contended that when there is no proof of income produced by the claimant, the Tribunal has rightly considered the income of the deceased at Rs.10,000/- per month, but wrongly deducted 1/3rd of the income towards personal expenses of the deceased. 12. Per contra, learned counsel for the insurer contended that when there is no proof of income produced by the claimant, the Tribunal has rightly considered the income of the deceased at Rs.10,000/- per month, but wrongly deducted 1/3rd of the income towards personal expenses of the deceased. As there are only two dependants, the Tribunal ought to have deducted 50% of the income towards personal expenses of the deceased. The learned counsel for the insurer also contended that the Tribunal has awarded Rs.20,000/- towards transportation and funeral expenses, even though the Hon'ble Supreme Court has considered only Rs.15,000/- under the head of transportation and funeral expenses in the case of Pranay Sethi (supra). Therefore, learned counsel for the insurer prayed for dismissal of the appeal. 13. Upon hearing the arguments of learned counsel for both the parties and on perusing the judgment and award as well as the documents produced before the Tribunal, the points that would arise for our consideration are:- "(1) Whether the Tribunal awarding compensation of Rs.13,95,064/- to the claimants is insufficient? (2) Whether the appellants are entitled for enhancement of compensation? (3) What order?" 14. It is the case of the claimants that on 15.03.2017 at about 6.30 p.m., when the deceased-Harish was proceeding on his motorcycle bearing registration bearing No.KA-06/JC-9001 on Bengaluru - Tumakuru NH 48, when he reached near Chikkahalli service station, a bus bearing registration No.KA-51/D-4763 driven by its driver in a rash and negligent manner came from behind and dashed against the deceased, due to which, he sustained serious injuries and succumbed to the same. The claimants got marked Ex.P1-FIR, Ex.P2-copy of the complaint, Ex.P3-spot panchanama, Ex.P5-IMV Report, Ex.P8-charge-sheet. These documents were not seriously disputed by the respondent-Insurance Company. On the other hand, these documents corroborate the evidence of PW.1. Apart from PW.1, the claimants also examined PW.2-Jayanna who is an eye-witness to the accident. He has categorically deposed that the accident had occurred due to the rash and negligent driving by the driver of the bus and he further stated that after causing the accident, the driver of the bus did not stop the vehicle and proceeded further and the bus was chased, it was stopped near toll-gate and later complaint came to be filed before the Police. The evidence of PW.1 & PW.2 and the documents clearly go to show that the accident in question has occurred due to the rash and negligent driving by the driver of the bus. There is no evidence let in by the respondents before the Tribunal. Therefore, after considering of the evidence on record, the Tribunal rightly held that the accident had occurred due to the rash and negligent driving by the driver of the bus. Even the respondent-Insurance Company has not filed any appeal against the findings on negligence. Therefore, we are required to consider the quantum of award passed by the Tribunal. 15. The claimants have contended that the deceased was working as a security guard and earning of Rs.15,000/- per month but in support of the proof of income, they have not produced any document. Therefore, it is necessary to consider the notional income of the deceased. This Court normally considers the income of the unskilled labour at Rs.9,000/- to 9,500/- for the year 2015-2016. The accident in question occurred on 15.03.2017, therefore the Tribunal in our view, has rightly considered Rs.10,000/- per month as income of the deceased. However, the Tribunal has not considered the future prospects of the deceased as per the dictum of Hon'ble the Apex Court in the case of Pranay Sethi (supra) according to which, 40% of the income should be considered towards future prospects. If Rs.10,000/- is considered as the income of the deceased, 40% of the same comes to Rs.4,000/-; if it is taken as future prospects, total income comes to Rs.14,000/- (Rs.1,000+Rs.4,000) per month. 16. As per the judgment in Sarla Verma and others vs. Delhi Transport Corporation Limited and another, (2009) 6 SCC 121 , 1/3rd of the income has to be deducted towards the personal expenditure of the deceased i.e., Rs.4,664/- has to be deducted, it comes to Rs.9,333/- which has to be multiplied by 12 x 16 (multiplier) which is equal to Rs.17,91,936/- which would be the compensation towards loss of dependency. 17. As per the dictum of Hon'ble Apex Court in the case of Nanu Ram alias Chuhru vs. Magma General Insurance Co. Ltd, (2018) ACJ 2782, claimant No.1 being the wife is entitled for spousal consortium of Rs.40,000/-, claimant No.2 being the daughter is entitled for parental consortium of Rs.30,000/- and claimant No.3 the brother is entitled for Rs.30,000/- towards loss of love and affection. Ltd, (2018) ACJ 2782, claimant No.1 being the wife is entitled for spousal consortium of Rs.40,000/-, claimant No.2 being the daughter is entitled for parental consortium of Rs.30,000/- and claimant No.3 the brother is entitled for Rs.30,000/- towards loss of love and affection. In all, claimants are entitled for Rs.1,00,000/- towards loss of consortium. The claimants are entitled to Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral and transportation charges. In all, claimants are entitled for re-assessed compensation as follows: 1 Loss of dependency Rs.17,91,936 2 Loss of consortium for first claimant Rs.40,000/- 3 Parental consortium to the second claimant Rs.30,000 4 Loss of love and affection to the third claimant Rs.30,000 5 Funeral and transportation charges Rs.15,000 6 Loss of estate Rs.15,000 Total Rs.19,21,936 18. In the result, the compensation is re-assessed at Rs.19,21,936/- (rounded off to Rs.19,22,000/-). The enhanced compensation is Rs.5,26,936/-, which shall also carry interest at the rate of 6% p.a. from the date of claim petition till realisation. The enhanced compensation shall be apportioned in favour of the appellants in the ratio of 40:50:10. The Insurance Company shall deposit the enhanced compensation with interest within a period of four weeks from the date of receipt of certified copy of this judgment. On receipt of the enhanced compensation, the same shall be released to appellant Nos.1 and 3. Since appellant No.2 is a minor, the same shall be deposited in any Nationalized Bank or Post Office till she attains the age of majority. The appeal is allowed in-part in the aforesaid terms. Parties to bear their respective costs.