Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1391 (KAR)

Erannagowda v. K. S. Puttaraja

2019-06-24

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : K. Natarajan, J. This appeal is filed by the legal heirs of the deceased-Santhosh by assailing the judgment and award dated 15.6.2013 passed in MVC No.91/2012 by the Motor Accident Claims Tribunal at Holenarasipura (hereinafter referred to as 'Tribunal' for the sake of brevity). 2. We have heard the arguments of learned counsel for the appellants as well as learned counsel for the respondent-insurance company and perused the material on record. 3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal. 4. The claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation of Rs.20,00,000/- inter alia, contending that on 07.05.2012, at about 7.00 p.m., their son Santhosh, while he was walking on the left side of the road near Halalu gate to go to New Shanthi Sagar Hotel, at that time the driver of the car bearing No.KA-13/M-6016 drove the vehicle in a rash and negligent manner and hit the deceased-Santhosh from behind and caused the accident, due to which Santhosh died on the spot. It is contended by the claimants that the deceased was doing agriculture work as well as business and he was earning Rs.15,000/- to Rs.20,000/- per month. That they have spent a lot of amount for transportation of the dead body and obsequies ceremony. They have lost their earning member of the family. Hence, they prayed for granting compensation. 5. In pursuance to the notice issued by the Tribunal, respondent No.1 did not appear before the Court and remained ex-parte. 6. Respondent No.2-insurer appeared through counsel and filed statement of objections by taking a contention that the petition was not maintainable. Further, they denied the averments made in the claim petition as false. However, the insurance company admitted the issuance of policy to the vehicle in question but contended that the claim of the petitioners was excessive and exorbitant and further contended that the deceased himself was the cause of the accident. Therefore, respondent No.2 was not liable to pay any compensation to the petitioners and the insurance company prayed for dismissing the petition. 7. Based upon the rival pleadings, the Tribunal framed the following issues: "1. Therefore, respondent No.2 was not liable to pay any compensation to the petitioners and the insurance company prayed for dismissing the petition. 7. Based upon the rival pleadings, the Tribunal framed the following issues: "1. Whether the petitioners prove that on 07.05.2012 about 7 p.m. when the deceased Santhosh, son of petitioners No.1 and 2 was proceeding by walk on left side of the road at Halalu Gate, in front of Shanthi Sagar Hotel on N.H.48 Road Bellur, at that time the driver of Toyota Innova Car bearing No.KA-13-M-6016 came from Bangalore side in a rash and negligent manner with high speed and hit to the deceased Santhosh, due to which he sustained blood stained injuries all over the body and succumbed to the injury at the spot? 2. Whether the petitioners are entitled compensation as claimed in the petition? If not, at what amount and from whom? 3. What order or award?" 8. To substantiate their contentions, claimant No.1 examined himself as PW.1 and also got marked ten documents as per Exs.P1 to P10. The respondents did not let-in any evidence. 9. The Tribunal after considering the evidence on record, answered issue No.1 in the affirmative; issue No.2 partly in the affirmative and awarded compensation of Rs.3,30,480/- as under: Heads Compensation awarded by the Tribunal (in Rs.) Loss of dependency 2,92,500.00 Funeral and obsequies ceremony 5,000.00 Loss of love and affection 15,000.00 Loss of estate 15,000.00 Cold storage bill 1,500.00 Ambulance Charge 1,480.00 Total 3,30,480.00 Assailing the judgment and award passed by the Tribunal on the issue of quantum of compensation awarded by the Tribunal, the claimants have preferred this appeal. 10. Learned counsel for the appellant contended that the deceased was an agriculturist as well as running a business prior to the accident and he was earning Rs.15,000/- to Rs.20,000/- per month. The Tribunal considered the income of the deceased at only Rs.35,000/- per annum without any basis, which is meager. The Tribunal did not also consider the future prospects of the deceased as per the principles laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 (Pranay Sethi). The Tribunal also committed an error in applying the multiplier by taking the age of mother of the deceased instead of considering the age of deceased. The Tribunal also committed an error in applying the multiplier by taking the age of mother of the deceased instead of considering the age of deceased. He also contended that there is no compensation awarded on the conventional heads towards loss of consortium etc., to the parents of the deceased. Therefore, he prayed for enhancing the award of compensation. 11. Per contra, learned counsel for the insurer has supported the judgment and award passed by the Tribunal and strenuously contended that the claimants did not produce any document to prove the income of the deceased. Therefore, Tribunal rightly considered the income of the deceased at Rs.35,000/- per annum and prayed for dismissing the appeal. 12. Having heard the arguments of learned counsel for the appellants as well as respondents, the points that arise for our consideration are: "1) Whether the Tribunal was not justified in awarding Rs.3,30,480/- to the claimants, but which is inadequate as contended by the appellant? (2) Whether the appellants are entitled for enhancement of compensation? (3) What order?" 13. The claimants have established before the Tribunal that on 07.05.2012 at about 7.00 p.m., their son Santhosh was walking on the left side of the road. The car belonging to respondent No.1 bearing No. KA-13/M-6016 came in a rash and negligent manner and dashed Santosh from behind and he sustained injuries and died on the spot. To support their contentions, claimant No.1 examined himself as PW.1 and to corroborate his evidence, he got marked Ex.P1-Police Report; Ex.P2-Copy of FIR; Ex.P3-Charge Sheet; Ex.P4-Spot panchanama; Ex.P6-Post Mortem report, which clearly suggest that the said accident had occurred due to rash and negligent driving of the car by its driver. The insurer has also not preferred any appeal against the finding on negligence. Therefore, the finding of the Tribunal on issue No.1 with regard to rash and negligent driving on the part of driver of the offending car deserves to be upheld. 14. This aspect takes us to consider, whether the quantum of compensation awarded by the Tribunal is sufficient or not. The claimants have contended that the deceased was an agriculturist and doing business and earning Rs.15,000/- to Rs.20,000/- per month but to support their case, they have not produced any document before the Tribunal to prove the income. Therefore, in the absence of any such proof of income, the deceased should be considered as an un-skilled labourer. The claimants have contended that the deceased was an agriculturist and doing business and earning Rs.15,000/- to Rs.20,000/- per month but to support their case, they have not produced any document before the Tribunal to prove the income. Therefore, in the absence of any such proof of income, the deceased should be considered as an un-skilled labourer. This Court has been considering Rs.7,000/- as income for an un-skilled labourer for the year 2012. Therefore, the income of the deceased is considered as Rs.7,000/- per month. Therefore, we are of the view that Rs.35,000/- per annum considered as income of the deceased by the Tribunal is meager and it is liable to be enhanced to Rs.7,000/- per month. 15. The Tribunal has also not considered future prospects of the deceased who is below the age of 40 years. In the case of Pranay Sethi (supra), the Apex Court has considered 40% of the income as future prospects. If Rs.7,000/- is considered as income per month and 40% of the same would be Rs.2,800/-. The income of the deceased is calculated as Rs.9,800/- per month. The deceased was a bachelor and therefore, 50% of the income should be deducted towards personal expenditure of the deceased. If Rs.4,900/- is deducted from Rs.9,800/-, it would be Rs.4,900/- p.m., and Rs.4,900x12x17 (appropriate multiplier) comes to Rs.9,99,600, rounded off to Rs.10,00,000/-. This would be awarded on the head of loss of dependency. Therefore, the loss of dependency awarded by the Tribunal deserves to be enhanced to Rs.10,00,000/-. 16. As per the judgment of the Hon'ble Apex Court in the case of Nanu Ram alias Chuhru vs. Magma General Insurance Co. Ltd., (2018) ACJ 2782 (Nanu Ram), claimant Nos.1 and 2 being the parents of the deceased are entitled for Rs.30,000/- each towards loss of filial consortium. Therefore, we propose to award Rs.60,000/- on the head of loss of consortium. The claimants are also entitled for Rs.15,000/- towards loss of estate and another Rs.15,000/- towards funeral and transportation expenditures. In all, the claimants are entitled for the compensation as under: Heads Compensation awarded by this Court (in Rs.) Loss of dependency 10,00,000.00 Loss of filial consortium 60,000.00 Funeral and transportation expenses 15,000.00 Loss of estate 15,000.00 Total 10,90,000.00 17. The claimants are also entitled for Rs.15,000/- towards loss of estate and another Rs.15,000/- towards funeral and transportation expenditures. In all, the claimants are entitled for the compensation as under: Heads Compensation awarded by this Court (in Rs.) Loss of dependency 10,00,000.00 Loss of filial consortium 60,000.00 Funeral and transportation expenses 15,000.00 Loss of estate 15,000.00 Total 10,90,000.00 17. The Tribunal has also not given any proper reason for disallowing the claim of claimant No.1 who is the father of the deceased and he is aged about 58 years. There is no evidence on record to show that he is having an independent income and not dependent on the deceased. Therefore, in absence of any evidence on the record, both the claimants are required to be considered as dependents of the deceased. 18. In the result, the appeal is allowed in-part in the aforesaid terms. 19. The re-assessed compensation shall also carry interest at the rate of 6% per annum from the date of claim petition till realisation. 20. The enhanced compensation shall be apportioned between the appellants-claimants in the ratio of 25:75. 50% of the enhanced compensation apportioned to appellant No.1 shall be deposited in a Fixed Deposit in any Post-Office or Nationalised Bank for an initial period of five years and he shall be entitled to draw periodical interest on the said deposit. The remaining compensation shall be released to him after due identification. 75% of the enhanced compensation apportioned to appellant No.2 shall be kept in a Fixed Deposit in any Post-Office or in any Nationalised Bank for an initial period of ten years and she shall be entitled to draw periodical interest on the said deposit. The balance amount shall be released to her, after due identification. 21. Respondent-Insurance company shall deposit the balance compensation amount with interest within a period of four weeks from the date of receipt of a certified copy of this judgment. Parties to bear their respective costs.