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2019 DIGILAW 1390 (KAR)

Syed Reshma v. T. Pari

2019-06-24

K.SOMASHEKAR

body2019
JUDGMENT : K Somashekar, J. This appeal though listed for admission, with the consent of the learned counsel for both the parties, the matter is taken up for final disposal. 2. Heard the learned counsel for the appellants - claimants and the learned counsel for respondent No. 2 - Insurance Company and perused the records. Notice to Respondent No.1 has been dispensed with. 3. The legal heirs, who are the dependents of the deceased Syed Nayaz Ameer have preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in the impugned judgment dated 16.04.2014 in MVC No.3124/2013, seeking enhancement of compensation. 4. The factual matrix is that on 2.4.2013 at about 3.30 a.m, when the deceased Syed Nayaz Ameer was filling diesel into fuel tank of Tata Sumo bearing No.KA4 03-N-3437 which was parked on the extreme left side of Chitradurga to Bengaluru NH-4, at that time a lorry bearing Reg.No.NL-02-K-3249 driven by its driver in a rash and negligent manner came from Chitradurga side on the extreme left side of the road and dashed the deceased and caused the accident. As a result, he sustained injuries and later succumbed to death. In view of the untimely death of the deceased, his wife, two minor children and parents who were the legal representatives of the deceased filed a claim petition before the Tribunal seeking compensation. 5. On issuance of notice, respondent No.1 - owner of the lorry as well as Respondent No.2 - Insurance Company appeared and filed written statements denying the averments in the claim petition. Based upon the pleadings, the Tribunal framed the issues. In order to prove the case, first appellant was examined as PW.1 and another was examined as PW-2 and got marked 14 documents as per Exs.P1 to P14. On the side of the respondents no witness was examined but however, copy of the Insurance Policy was marked as Exhibit R1. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. After hearing the arguments of learned counsel for the petitioners and learned counsel for respondent-insurer and after recording the findings, the Tribunal passed the impugned judgment and awarded compensation of Rs.14,97,671/- with interest @ 6% p.a. from the date of petition till the date of deposit. It is this judgment which is under challenge in this appeal. 6. The learned counsel for the appellants vehemently contended that though the deceased was working as a transport driver and the accident was of the year 2013, the Tribunal has erred in assessing the income of the deceased at Rs.6,000/- and was getting a monthly income of Rs.12,000/- per month. Though any salary certificate has not been produced to evidence the said fact, having regard to the fact that the accident had occurred in the year 2013, as per the settled norms adopted in the Lok Adalath chart, the Tribunal ought to have taken his monthly income at least at Rs.8,000/- per month in order to arrive at the compensation towards Loss of dependency . Hence, the learned counsel contends that the assessment of the income by the Tribunal is on the lower side and needs to be enhanced. It is the further contention of the learned counsel that the Tribunal has added only 30% of his income towards his future prospects though he was 31 years at the time of the accident. But however, in view of the decision of the Apex Court in National Insurance Company Limited -vs- Pranay Sethi, (2017) AIR SC 5157, 40% of his income ought to have been added towards future prospects, which has not be done. Further, towards conventional heads as well, the Tribunal has awarded only an amount of Rs.50,000/-. Again, as per the ruling of the Apex Court in Pranay Sethi (supra), an amount of Rs.70,000/- ought to be awarded towards all the conventional heads put together. It is the further contention of the learned counsel that in view of the decision of the Apex Court in MAGMA GENERAL INSURANCE CO. LTD. Again, as per the ruling of the Apex Court in Pranay Sethi (supra), an amount of Rs.70,000/- ought to be awarded towards all the conventional heads put together. It is the further contention of the learned counsel that in view of the decision of the Apex Court in MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM, 2018 SCCONLINESC 1546, the Tribunal ought to have granted parental consortium to the children of the deceased and filial consortium to the parents of the deceased. On all these grounds, the learned counsel for the appellants - claimants contends that the compensation awarded by the Tribunal be enhanced suitably. 7. Per contra, the learned counsel appearing for the insurer submitted that the Tribunal, on proper appreciation of the evidence on record has rightly assessed the income of the deceased and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal. 8. On a careful evaluation of the material I find that there is no dispute with regard to the accident that occurred on 2.4.2013 and the death of Syed Nayaz Ameer. It is seen that the claimants being the wife, his two minor children and parents of the deceased, are the dependents of the deceased who was aged 31 years. Prior to his death, the deceased was working as a Transport driver and was said to be earning Rs.12,000/- per month. There being no proof of his income, in view of the settled norms adopted in the Lok Adalath chart, the accident being of the year 2013, his income is hereby taken at Rs.8,000/- per month as against Rs.6,000/- taken by the Tribunal in order to reassess the compensation awarded by the Tribunal. Further, I find that the Tribunal has committed an error in adding just 30% towards his future prospects. In view of the fact that the deceased was aged 31 years, as per the decision in Pranay Sethi (supra), I find it appropriate to add 40% of the income towards future prospects. Hence, taking the income of the deceased at Rs.8,000/- and adding 40% towards his future prospects the income comes to Rs.11,200/-. Deducting one-fourth towards his personal expenses, the income would be Rs.8,400/- per month. Hence, taking the income of the deceased at Rs.8,000/- and adding 40% towards his future prospects the income comes to Rs.11,200/-. Deducting one-fourth towards his personal expenses, the income would be Rs.8,400/- per month. With Rs.8,400/- p.m. as the income and applying multiplier 16 , the compensation towards Annual Loss of dependency is reassessed at Rs.16,12,800/- (8400 x 12 x 16) as against Rs.11,23,200/- awarded by the Tribunal. Further, in view of the ruling of the Apex Court in National Insurance Company Limited vs. Pranay Sethi, (2017) AIR SC 5157, the compensation awarded by the tribunal under Loss of consortium and Funeral expenses , totally amounting to Rs.50,000/- is on the lower side and hence the same is enhanced by an amount of Rs.20,000/-. As a result, totally Rs.70,000/- is awarded under the above two conventional heads put together. 9. Having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM,2018 SCCONLINESC 1546, it is just and proper to grant parental consortium to Appellants 2 and 3 who are the children of the deceased, in view of the death of their father at an unexpected age. In the said judgment, the Apex Court has held thus: 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. In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- each to Appellants 2 and 3, in all amounting to Rs.80,000/- under the head Loss of Parental consortium to Appellants 2 & 3 , as against Rs.40,000/- awarded by the Tribunal towards Loss of love and affection . In the same judgment in MAGMA GENERAL INSURANCE CO. LTD. (supra), it is further held thus: 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. Hence, Filial consortium is required to be granted to the parents of the deceased, i.e., appellants 5 and 6. 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. Hence, Filial consortium is required to be granted to the parents of the deceased, i.e., appellants 5 and 6. In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- each to Appellants 4 and 5, in all amounting to Rs.80,000/- under the head Loss of filial consortium to Appellants 5 & 6 as against Rs.25,000 granted by the Tribunal towards Loss of expectancy . However, the compensation granted by the Tribunal in respect of all other heads requires no interference. 10. In view of the discussion made above and with the altered factors, the compensation is hereby reworked out as under:- Particulars Compensation awarded by MACT Compensation enhanced by this Court Total Loss of dependency 11,23,200 4,89,600 16,12,800 Loss of consortium 25,000 Funeral expenses 25,000 20,000 70,000 Medical 2,59,471 Nil 2,59,471 expenses Loss of expectancy/ Filial compensation to Appellants 4 & 5 25,000 55,000 80,000 Loss of love and affection / Parental compensation to Appellants 2 & 3,40,000 40,000 80,000 TOTAL 14,97,671 6,04,600 21,02,271 Thus, in all, the claimants/appellants are entitled to a total compensation of Rs.21,02,271/- as against Rs.14,97,671/- awarded by the tribunal. The enhanced compensation would be Rs.6,04,600/-, which shall carry interest at 6% per annum. Accordingly, I proceed to pass the following: ORDER The appeal is allowed in part. In modification of the impugned judgment and award dated 16.04.2014 passed by the Tribunal in MVC No.3124/2013, the compensation payable to the claimants is enhanced from Rs.14,97,671/- to Rs.21,02,271/-. The enhanced compensation would come to Rs.6,04,600/-. The second Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants in terms of 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. Office to draw the decree accordingly.