Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1342 (KAR)

Umashankari v. M. L. Jagadeesha

2019-06-19

K.SOMASHEKAR

body2019
JUDGMENT : K.Somashekar, J. Though this appeal is listed for hearing on I.A.No.1/2015 for seeking condonation of delay but the said application is allowed and delay condoned as sought for. With the consent of learned counsel on both sides, the same is taken up for final disposal. 2. This appeal is preferred by the appellants/claimants being the wife, children and mother of the deceased B.R. Nagaraju against the judgment and award dated 4.12.2014 passed by the Fast Track Court and Additional MACT, Hassan in MVC No.972/2014 seeking enhancement of compensation, whereby the Tribunal has awarded compensation in a sum of Rs.9,45,000/- with interest at 8% p.a. which found to be inadequacy and also on lower side in support of the income held by the Tribunal also to be considered with regard to the future prospects of the deceased. 3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 08.01.2012 between 7.30 to 8.00 p.m. when the husband of claimant Umashankari, aged about 35 years was proceeding in his motor cycle bearing registration No.KA-02-HG-4699 near reliance petrol bunk, a lorry bearing registration No.KA-13-B-6828 came from Sakaleshpura side in a rash and negligent manner driven by its driver and hit to Nagaraju's motor bike due to which he sustained grievous injuries. Immediately he was shifted to Government Hospital, Hassan and after first aid, he was shifted to NIMHANS, Bengaluru. While he was under treatment, he succumbed to the injuries on 15.01.2012. Deceased Nagaraju was an agriculturist by his avocation at the relevant point of time when he met with an accident and he was earning Rs.20,000/- p.m. But the untimely death of Nagaraju, wife has lost her companion, children's have lost their beloved father's love and affection and mother has also lost her son. Claimants were depending upon the sources of deceased Nagaraju to eek out their life and they are under depression and also mental agony. The claimants being the dependants of the deceased filed claim petition against the respondents seeking compensation. 3. First respondent said to be the owner of the offending lorry and second respondent said to be insurer of offending vehicle. 4. In pursuance to issuance of notice, respondents did not appear and did not participate in the proceedings. In order to substantiate their case, claimant No.1 examined herself as P.W.1 and got marked Exs.P.1 to P.10. 5. 3. First respondent said to be the owner of the offending lorry and second respondent said to be insurer of offending vehicle. 4. In pursuance to issuance of notice, respondents did not appear and did not participate in the proceedings. In order to substantiate their case, claimant No.1 examined herself as P.W.1 and got marked Exs.P.1 to P.10. 5. Based upon the evidence of P.W.1, so also the relevant documents Ex.P.6-seizure Mahazar, Ex.P.5- Spot Mahazar, Ex.P.9 post mortem report said to be issued by the doctor who conducted autopsy over the dead body of Nagaraj, Ex.P.10- Inquest report. Insofar as the deceased said to be an agriculturist by avocation as such Ex.P.11 RTC extract has been produced by the claimants in order to establish their case against the respondents. All these vital documents have been appreciated by the Tribunal and awarded compensation in a sum of Rs.9,45,000/- with interest at 8% p.a. Being aggrieved, the claimants are in this appeal by urging various grounds. 6. Learned counsel for the claimants contends that the judgment and award passed by the Tribunal is contrary to evidence and materials available on record and just compensation has not been awarded to the claimants. The Tribunal failed to notice that the deceased by avocation as an agriculturist and was earning Rs.20,000/- per month and maintaining the family consisting of 4 members, all were depending on the sole income of the deceased. The Tribunal has not properly assessed the income of the deceased while awarding the compensation towards loss of dependency. The Tribunal ought to have taken the income of the deceased at Rs.7000/- p.m. instead of Rs.6,000/- p.m. There is illustration and guidelines relating to the income where the accident occurred in the year 2012- 2013 in a sum of Rs.7000/- to 8,000/-. Therefore it requires to be enhanced in sum of Rs.1000/- in addition to Rs.6,000/- p.m. as held by the Tribunal. 7. He contends that in view of the law laid down by the Hon'ble Apex Court in National Insurance Co.Ltd. vs. Pranay Sethi, (2017) AIR SC 5157, future prospects is to be added to his income. Further, the compensation awarded by the Tribunal towards conventional heads is on lower side. Further, he contends that the Tribunal has grossly erred in passing the impugned judgment and award without following procedure as prescribed under law and by the Hon'ble Apex Court and this Court. Further, the compensation awarded by the Tribunal towards conventional heads is on lower side. Further, he contends that the Tribunal has grossly erred in passing the impugned judgment and award without following procedure as prescribed under law and by the Hon'ble Apex Court and this Court. On these grounds, learned counsel for the appellants seeks for enhancement of the compensation awarded by the Tribunal. 8. Per contra, Sri B. Pradeep, learned counsel for the insurance company has meticulously submitted that the compensation awarded towards conventional head are higher in side and it requires to be reduced as per the ratio of reliance in Pranay Sethi's case, conventional head shall not exceed Rs.70,000/- Therefore, appeal requires intervention of the impugned judgment and award passed by the Tribunal. 9. In the background of the contentions taken by learned counsel for the appellants and learned counsel for the respondent-insurer as stated supra, it is relevant to state that there is no dispute that on account of rash and negligent driving of the driver of the offending lorry bearing registration No.KA-13-B-6828 on 15.01.2012 the deceased - Nagaraju died due to grievous injuries, the same has been revealed in Ex.P.9 Post mortem report by the doctor who conducted autopsy over the dead body. It is relevant to state that Ex.P.10 is inquest proceedings over the dead body of the deceased by the concerned authorities in order to file the charge sheet against the accused being the driver of the offending vehicle as per Ex.P.8. 10. Further, there is no dispute that the deceased was working as agriculturist by his avocation earning Rs.20,000/- p.m., but there are no specific documents produced on behalf of the claimants/petitioners for seeking compensation. In the absence of any such documents, the Tribunal has assessed notional income of Rs.6,000/- p.m. for the accident that occurred on 15.01.2012. There are suitable guidelines relating to notional income which has to be considered for the year 2012-2013 which is between Rs.7000/- to 8,000/-. When there are guidelines relating to the consideration of notional income for awarding compensation suitably, the same has not been considered by the Tribunal. The notional income taken by the Tribunal at Rs.6,000/- p.m. is on the lower side and the same is enhanced by Rs.1,000/- p.m. in addition to Rs.6,000/-. In all, it comes to Rs.7,000/- p.m. 11. When there are guidelines relating to the consideration of notional income for awarding compensation suitably, the same has not been considered by the Tribunal. The notional income taken by the Tribunal at Rs.6,000/- p.m. is on the lower side and the same is enhanced by Rs.1,000/- p.m. in addition to Rs.6,000/-. In all, it comes to Rs.7,000/- p.m. 11. Insofar as personal expenses of deceased 1/4 is deducted by the tribunal but 25% of future prospectus is to be added, in view of ratio of reliance in the case of National Insurance Company Ltd., -vs- Pranay Sethi, (2017) AIR SC 5157. Accordingly, the compensation under the head 'loss of dependency' would work out as under: 7000 X 25% 1750 7000+1750 8750 8750 x ¼ 6,563 (8750-2187 =6,563) 6,563 x 12 months x 15 multiplier 11,81,340/- is awarded as against Rs.8,10,000/- towards loss of dependency awarded by the Tribunal. 12. The Tribunal has awarded compensation Rs.60,000/- towards 'loss of consortium', Rs.25,000/- towards 'loss of estate' , Rs.25,000/- towards 'love and affection', Rs.25,000/- towards 'funeral expenses and obsequies ceremony, In all Rs.1,20,000/- However keeping in view the law laid down in Pranay Sethi's case referred to supra, the compensation under conventional heads shall not exceed in a sum of Rs.70,000/- or shall not be below Rs.70,000/-. However, in the present case, an amount of Rs.1,10,000/- is awarded which exceeds Rs.70,000/- Accordingly, it is reduced to Rs.70,000/- out of Rs.1,10,000/- towards conventional head and reduced in a sum of Rs.40,000/- 13. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM,2018 SCCONLINE(SC) 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 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. 14. In the instant appeal, the claimant No.1 is said to be the wife of deceased Nagaraju as there shall be consideration as spouse consortium, 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. Insofar as Parental consortium is granted to the child upon the premature death of a parent. But in the instant case deceased Nagaraju is said to be the father of claimants 2 and 3 who are the children of the deceased. The responsibility will be taken up by his wife Umashankari. In another terms of parental consortium claimant No.4 Gowramma said to be the mother of the deceased lost love and affection of her son. Hence, in accordance with the above said ruling, a sum of Rs.40,000/- each, is awarded to claimants 2 to 4 towards loss of filial consortium and parental 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:- Compensation awarded under the heads By MACT By this court Loss of dependency 8,10,000 11,81,340 Loss of love and affection 25,000 25,000 Loss of estate 25,000 70,000 Loss of consortium 60,000 Transportation of dead body 25,000 Filial Consortium 1,20,000 Total 9,45,000 13,96,340 16. Thus, in all, the claimants are entitled to total compensation of Rs.13,96,340/- as against Rs.9,45,000/- awarded by the Tribunal. The enhanced compensation would be Rs.4,51,340/-. For the reasons and findings as stated above, I proceed to pass the following: ORDER Appeal is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.4,51,340/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 04.12.2014 passed by the Fast Track Court and Additional MACT, Hassan in MVC No.972/2014, is modified accordingly. The appellants/claimants are entitled for enhanced compensation of Rs.4,51,340/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 04.12.2014 passed by the Fast Track Court and Additional MACT, Hassan in MVC No.972/2014, is modified accordingly. Respondent No.2- Insurance Co.Ltd. shall deposit the entire amount awarded by the Tribunal as well as 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.