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Karnataka High Court · body

2019 DIGILAW 1303 (KAR)

G. M. Hamza v. G. S. Sridhar

2019-06-17

K.SOMASHEKAR

body2019
JUDGMENT : K. SOMASHEKAR, J. 1. Heard the learned counsel for the appellants - claimants and the learned counsel for the Insurance Company - Respondent no.2 and perused the records. Respondent No.1 is served but he remains unrepresented. 2. The appellants claimants who are the legal representatives of deceased Irfan have preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in its impugned judgment dated 17.06.2013 in MVC No.566/2010, seeking enhancement of compensation and also being aggrieved by the finding of the Tribunal fastening the liability on the owner of the offending vehicle Respondent No.1 to pay the compensation. 3. The factual matrix is that on 31.03.2008 at about 4.30 p.m., when the deceased was walking on the side of Hosanagar Jayanagar near Keshava Murthy Nagaraja's estate, at that time a motor cycle bearing Regn.No.KA-15-J/1561 driven by its rider at high speed in a rash and negligent manner, dashed against the deceased Irfan and as a result of which, Irfan succumbed to the injuries on the spot itself. The deceased Irfan was aged about 12 years at the time of accident and was said to be a brilliant student. The claimants being the parents of the deceased Irfan had undergone depression and also mental agony for the death of their son. Hence, they filed a claim petition before the Tribunal seeking compensation from the respondents. 4. Upon service of summons, Respondent No.1 appeared through counsel and filed his written statement denying the rash and negligent riding of the motor cycle and contended that the accident occurred due to the negligence of the boy himself and sought for dismissal of the petition. The second respondent Insurance Company filed its written statement admitting the policy in respect of the motor cycle but contended that the rider of the offending motor cycle had no valid and effective driving licence as on the date of the accident. It was contended that the accident was due to the sole negligence of the deceased himself and hence sought for dismissal of the petition. 5. It was contended that the accident was due to the sole negligence of the deceased himself and hence sought for dismissal of the petition. 5. Based on the pleadings of the parties, the Tribunal framed issues and gave its findings based on the evidence of PW1, who is said to be the mother of the deceased Irfan and so also the documents at Exs.P1 to P6 produced by the claimants in order to establish their case relating to the untimely death of the deceased, a school going student. The offending vehicle had hit him forcefully as a result of which Irfan succumbed to the injuries at the spot itself. The second respondent Insurance Company examined its Branch manager as RW1 and got marked documents at Exhibits R1 to R3. The first respondent examined himself as RW2 and got marked the DL extract at Exhibit R4. The Tribunal after considering the oral and documentary evidence adduced by the parties, awarded a total compensation of Rs.2,25,000/- with interest at the rate of 6% p.a. from the date of petition till deposit, however fastening the liability on Respondent No.1 owner of the offending vehicle, to pay the compensation. It is this judgment which is under challenge in this appeal. 6. Learned counsel for the appellants contends that the Tribunal has not appreciated the evidence of PW1 said to be the mother of the deceased, and also not considered the untimely death of Irfan due to the offending motor cycle having hit him forcefully causing his instantaneous death to grant compensation. The learned counsel contends that compensation awarded by the Tribunal is grossly inadequate and disproportionate to the actual loss and damage caused to the appellants and hence requires to be enhanced by this court. It is his further contention that the Tribunal has erred in granting global compensation to the appellants. Instead, the learned counsel contends in view of the ratio of the Apex Court in KISHAN GOPAL AND ANOTHER VS- LAL AND OTHERS, (2014) 1 SCC 244 , the Tribunal ought to have adopted the said judgment and should have taken the income of the deceased at Rs.30,000/- per year and should have granted compensation towards 'Loss of dependency. Further, the learned counsel contends that 'Filial compensation' should be granted to the parents of the deceased in view of the judgment of the Apex Court in MAGMA GENERAL INSURANCE CO. LTD. Further, the learned counsel contends that 'Filial compensation' should be granted to the parents of the deceased in view of the judgment of the Apex Court in MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM, 2018 SCC ONLINE SC 1546. Further, the learned counsel contends that compensation towards 'Loss of estate' also be granted by this court, since the Tribunal has not considered any of the above heads while granting compensation. It is the further contention of the learned counsel that the Tribunal has erred in fastening the liability on the owner of the offending motor cycle first respondent to pay the compensation and in view of the judgment of the Apex Court in PAPPU and Others. Vs. VINOD KUMAR LAMHA AND ANR, (2018) AIR SC 592 the Insurance be directed to pay the compensation to the claimants in the first instance, however, with liberty to recover the said amount from the owner of the vehicle, in accordance with law. Thus, the learned counsel contends that the compensation awarded by the Tribunal may be enhanced suitably by this court. 7. Per contra, learned counsel for the second respondent Insurance Company contended that the Tribunal having regard to the fact that the deceased was just aged 12 years and was a school going boy who was not earning any income, has rightly awarded a global compensation in a sum of Rs.2,25,000/-, which does not call for any interference in this appeal. Further, having regard to the fact that the rider of the motor vehicle did not possess driving licence to ride a two-wheeler, the Tribunal was further justified in fastening the liability on the owner of the said vehicle and hence prays that the present appeal be dismissed. 8. Having regard to the contentions put forth by the learned counsel for both the parties and on perusing the material on record, I find that there is no dispute with the accident that occurred on 31.3.2008 causing the death of the young school going boy Irfan, aged 12 years. But however, the Tribunal without considering any heads of compensation required to be awarded, has proceeded to grant global compensation in a sum of Rs.2,25,000/-, which in my opinion, requires interference, in view of the change in scenario due to the recent judgments rendered by the Apex Court. But however, the Tribunal without considering any heads of compensation required to be awarded, has proceeded to grant global compensation in a sum of Rs.2,25,000/-, which in my opinion, requires interference, in view of the change in scenario due to the recent judgments rendered by the Apex Court. In view of the judgment of the Apex Court in KISHAN GOPAL AND ANOTHER VS- LAL AND OTHERS, (2014) 1 SCC 244 , I hereby award compensation globally in a sum of Rs.4,50,000/- towards 'Loss of dependency' and Rs.50,000/- towards 'Conventional heads'. 9. The Hon'ble Supreme Court in Magma General Ins. Co. Ltd. vs- Nanu Ram,2018 SCC Online SC 1546 has held as follows: '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.' In view of the said ruling, a sum of Rs.40,000/- each is granted to the parents of the deceased towards 'filial consortium' which works to Rs.80,000/-. Further, a sum of Rs.15,000/- is hereby awarded towards 'Loss of estate'. 8. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Global Compensation awarded by MACT Compensation recomputed by this Court Total Loss of dependency 2,25,000 4,50,000 4,50,000 Conventional heads 50,000 50,000 Loss of estate 15,000 15,000 Filial consortium 80,000 (40,000 each to both appellants) 80,000 TOTAL 2,25,000 5,95,000 5,95,000 ENHANCED COMPENSATION: Rs.3,70,000/- The claimants are entitled to a total compensation of Rs.5,95,000/- as against Rs.2,25,000/-. The enhanced compensation comes to Rs.3,70,000/-. Further, in view of the decision of the Apex Court in Pappu's case (supra), the Insurer is required to pay the compensation awarded by the Tribunal and then would have to recover the same from the owner of the offending vehicle. Accordingly, I proceed to pass the following: ORDER Accordingly, the appeal is allowed in part. The impugned judgment and award dated 17.06.2013 passed by the Tribunal in MVC No.566/2010 is hereby modified. The claimants/appellants are entitled for enhanced compensation of Rs.3,70,000/- with interest @ 6% p.a. from the date of petition till the date of deposit. Accordingly, I proceed to pass the following: ORDER Accordingly, the appeal is allowed in part. The impugned judgment and award dated 17.06.2013 passed by the Tribunal in MVC No.566/2010 is hereby modified. The claimants/appellants are entitled for enhanced compensation of Rs.3,70,000/- with interest @ 6% p.a. from the date of petition till the date of deposit. The enhanced compensation shall be paid and satisfied by the insurer Oriental Insurance Company Ltd. in the first instance, with liberty to recover the same from the owner of the offending vehicle Respondent No.1, in accordance with law. The insurer shall deposit the enhanced compensation amount along with interest, before the tribunal within four weeks. The amount already deposited, shall be adjusted. The same shall be disbursed to the claimants as per the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered. There shall be no order as to the costs. Office to draw the decree accordingly.