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2019 DIGILAW 1274 (KAR)

V. K. Kusuma v. Manju G. K.

2019-06-14

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : K. NATARAJAN, J. 1. Though these appeals are listed for Admission, with the consent of learned counsel on both sides, they are heard finally. 2. Miscellaneous First Appeal No.1149 of 2017 is filed by the claimants seeking enhancement of compensation, while Miscellaneous First Appeal No.6847 of 2016 is filed by the insurer seeking reduction in the compensation awarded by the I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal (hereinafter referred to as 'Tribunal', for the sake of convenience), Chikkamagaluru, in M.V.C. No.119 of 2015, by judgment and award dated 5-8-2016. 3. We have heard the arguments of Sri Ravikumar N.R., learned counsel for the appellant claimants and Sri K.P. Thrimurthy, learned counsel for the respondent-Insurance Company. 4. The status of the parties before the Tribunal is retained for the sake of convenience. 5. The claimants filed the petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') for claiming compensation of Rs.50,00,000/-. inter alia, contending that on 31.01.2015, at about 5.15 p.m., when the husband of the first claimant-U.D.Ramesh was standing on the extreme left side of the road in front of Chikkamagaluru Taluk Office on Chikkamagaluru-Belur Road, respondent No.1 came in his new Honda Shine Motor Cycle bearing Chassis No. ME4JC36NAFT043975 and engine No.JC36ET7192068 in a rash and negligent manner with high speed and dashed to Ramesh, due to which he sustained head injury and died on the spot. 6. The claimants contended that the deceased was an agriculturist and coffee planter. He was earning an income of Rs.25,000/- per month and they have produced various documents to prove the income. It is contended that due to the untimely death, the claimants have lost their dependency. Hence, prayed for awarding compensation. 7. In pursuance of the notice, respondent Nos.1 and 2 though appeared through their counsel, have not chosen to file any statement of objections. 8. The third respondent-insurer has filed statement of objections contending that the liability of respondent-insurer, if any, may be determined subject to tallying the engine number and chassis number mentioned in the registration certificate and further disputed the age, occupation, income of the deceased as false. 8. The third respondent-insurer has filed statement of objections contending that the liability of respondent-insurer, if any, may be determined subject to tallying the engine number and chassis number mentioned in the registration certificate and further disputed the age, occupation, income of the deceased as false. It has also taken the contention that, the third claimant who is the married daughter is not entitled to any compensation as she was not dependent on the deceased and further contended that the rider of the motor cycle had no valid driving licence at the time of accident. Hence, prayed for dismissing the claim petition. 9. Based upon the rival pleadings, the Tribunal framed the following issues: "1. Whether the petitioner proves that on 31.10.2015 at about 5.15 P.M on Chikkamagaluru-Beluru Road in front of Chikkamagaluru Taluka Office the respondent No.1 being the rider of motor new Honda Shine cycle bearing chassis No.ME 4J C 36 NAFT 043975 and Engine No. JC 36ET 7192068 in a rash and negligent manner with high speed and dashed to 1st petitioner's husband and other petitioners' father U.D.Ramesh who is standing on the extreme left side of the road due to which the said U.D.Ramesh suffered grievous injuries and succumbed to injuries? (2) Whether the petitioners are entitled for the compensation? If so what amount and form what? (3) What order or award?" 10. The claimants in order to prove their case, examined the first claimant as PW.1 and got marked nine documents and on the other hand, the respondent had not let-in any evidence except marking the insurance policy as per Ex.R1 with consent. 11. Based upon the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded compensation of Rs.13,75,000/- on various heads as hereunder: Loss of dependency Rs.12,60,000 Loss of guardianship of minor son petitioner No.2 Rs.25,000 Love and affection towards petitioner No.3 Rs.25,000 Towards the consortium Rs.35,000 Towards funeral expenses Rs.25,000 Transportation of dead body Rs.5,000 Total Rs.13,75,000 12. Assailing the quantum of compensation awarded by the Tribunal, the claimants have filed the appeal in MFA No.1149/2017 whereas the Insurance Company has filed the appeal in MFA No. 6847/2016 seeking reduction in the award of compensation. 13. Assailing the quantum of compensation awarded by the Tribunal, the claimants have filed the appeal in MFA No.1149/2017 whereas the Insurance Company has filed the appeal in MFA No. 6847/2016 seeking reduction in the award of compensation. 13. Learned counsel for the claimants contended that the Tribunal considered the income of the deceased at Rs.17,500/- only per month, even though, the claimants have produced documents to show that the deceased was doing business by selling coffee. The RTC extracts produced go to show that he was owning the land, but the Tribunal has considered only Rs.17,500/- per month at the deceased's income which is meager. He also contended that the Tribunal has not considered future prospects of the deceased and has not awarded any compensation on that head. The Tribunal ought to have considered 15% of the income towards future prospects as per the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and other, (2017) 16 SCC 680 ; Further on the head of loss of consortium compensation is also not properly awarded. Therefore, he prayed for enhancing the compensation. 14. Per contra, learned counsel for the insurer contended that there is no document or any other evidence adduced before the Tribunal by the claimants to prove the income of the deceased but the Tribunal has considered monthly income of the deceased at Rs.17,500/- which is on the higher side. The Tribunal ought to have considered notional income of the deceased. Learned counsel also contended that the Tribunal has awarded an exorbitant amount towards loss of guardianship, love and affection, funeral expenses and hence, prayed for reduction of quantum of compensation. 15. Having heard the arguments of learned counsel appearing for both the parties and on perusal of the records, the points that arise for our consideration are: (1) Whether the judgment and award passed by the Tribunal granting compensation of Rs.13,75,000/- calls for interference by this Court? (2) What order? 16. The claimants have established that on 31.01.2015 at about 5.15 p.m., the husband of the first petitioner namely U.D.Ramesh was standing on the left side of the road in front of Chikkamagaluru Taluk Office. Respondent No.1 came on his new Honda Shine Motor Cycle in a rash and negligent manner in a high speed and dashed against Ramesh, due to which he sustained injuries and died on the spot. Respondent No.1 came on his new Honda Shine Motor Cycle in a rash and negligent manner in a high speed and dashed against Ramesh, due to which he sustained injuries and died on the spot. It is also not in dispute that the vehicle in question was a new vehicle. The insurance policy was issued by the insurer to the vehicle in question with temporary registration number. Though, the counsel for the insurance company contended that the owner of the vehicle has violated the conditions of the policy without obtaining any registration number and plied the vehicle on the road, but the insurer got marked Ex.R1, the insurance policy which was issued for the vehicle of respondent No.1 without a registration number. Therefore, once the vehicle was insured with the insurer, whether it was with permanent registration number or not, the policy covered the third party risk arising in respect of accident claims. Therefore, the contention of the respondent-insurance company that there was violation of conditions of policy cannot be accepted. 17. The only question that arises for our consideration is whether the compensation awarded by the Tribunal is excessive or requires to be reduced as contended by the insurer or it has to be enhanced as claimed by the claimants. 18. The claimants have stated in their evidence that the deceased was running the business of selling coffee. He owned 8.20 acres of land. In the year 2013, deceased had consigned 2,000 kg of coffee, the value of which was Rs.2,86,5757/- and he had sold the same for Rs. 2,97,452/- thereby earned profit of more than Rs. 10,000/- and he was also receiving income from the land. Therefore, it is contended that the deceased was having income of Rs.25,000/- per month. But, on perusal of the documents, it is not clear, as to what was the actual income per month earned by the deceased. Though there is some consignment mentioned by the claimant, but no documents were produced and marked to show what was his actual income. By considering the RTCs and some consignments, the Tribunal considered the income of the deceased as Rs.17,500/- per month. Therefore, we hold that the Tribunal rightly considered the income of the deceased at Rs.17,500/- per month. Though there is some consignment mentioned by the claimant, but no documents were produced and marked to show what was his actual income. By considering the RTCs and some consignments, the Tribunal considered the income of the deceased as Rs.17,500/- per month. Therefore, we hold that the Tribunal rightly considered the income of the deceased at Rs.17,500/- per month. As per the dictum of Hon'ble Apex Court in the case of Pranay Sethi (supra) for the age group of more than 59 years, 15% of the income should be considered as compensation towards future prospects. If 15% of Rs.17,500/- i.e., Rs.2,625/- is added then total income would be (Rs.17,500 + Rs.2,625) Rs.20,125/- per month. The claimants are three in numbers, therefore, 1/3rd of the same i.e., Rs.6,708/- if deducted towards personal income of the deceased, it comes to Rs.13,416/- per month for Rs.1,60,992/- p.a., the same if multiplied by 9 it comes to Rs.14,48,928/-, rounded off to Rs.14,50,000/-. As per the dictum of the Hon'ble Apex Court in the case of Nanu Ram alias Chuhru vs. Magma General Insurance Co. Ltd., (2018) ACJ 2782, claimant No.1-wife is entitled to Rs.40,000/- towards loss of spousal consortium, both children are entitled to Rs.30,000/- each towards loss of parental consortium. Further, they are entitled to Rs.15,000/- towards funeral and transportation charges and Rs.15,000/- towards loss of estate. In all the claimants are entitled to the following enhanced compensation as under: Heads Compensation awarded by this Court (in Rs.) Loss of dependency 14,50,000.00 Loss of consortium (Rs.40,000/- to wife and Rs.30,000/- each to the children of the deceased) 1,00,000.00 Funeral expenses and transportation charges 15,000.00 Loss of estate 15,000.00 Total 15,80,000.00 19. In the result, Miscellaneous First Appeal No.1149 of 2017 filed by the claimants is allowed-in-part and Miscellaneous First Appeal No.6847 of 2016 filed by the insurer is dismissed. The compensation now awarded is Rs.15,80,000/- instead of Rs.13,75,000/- awarded by the Tribunal. Thus, the enhanced compensation of Rs.2,05,000/- shall carry interest at the rate of 6% per annum from the date of claim petition till realisation. 20. The enhanced compensation shall be apportioned in the ratio of 60:20:20. The enhanced compensation shall be released to the claimants, on same being deposited by the insurance company within a period of four weeks from the date of receipt of a certified copy of this judgment, after due verification. 21. 20. The enhanced compensation shall be apportioned in the ratio of 60:20:20. The enhanced compensation shall be released to the claimants, on same being deposited by the insurance company within a period of four weeks from the date of receipt of a certified copy of this judgment, after due verification. 21. The amount in deposit to be transmitted to the Tribunal, forthwith. Parties to bear their respective costs. 22. In view of the disposal of the appeals, pending application, namely I.A. No.2 of 2018 in Miscellaneous First Appeal No.6847 of 2016, also stands disposed.