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2019 DIGILAW 1453 (KAR)

J. Asha v. Shiram General Ins Com Ltd

2019-06-27

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Though these appeals are listed for admission, with the consent of learned counsel on both sides, the matters are taken up for final disposal. 2. These appeals are preferred against the judgment and award rendered by the Tribunal in MVC No.4/2014 dated 23.04.2015. MFA No.7291/2015 is filed by the appellants/claimants seeking enhancement of compensation and MFA No.5616/2015 is filed by the appellant/insurance company on the question of liability. 3. The factual matrix of the appeals is as under: It is stated in the claim petition that on 23.09.2013 at about 8.30 pm the deceased H.R.Devegowda and others were traveling by loading their onion bags harvested in their respective lands at Heggere Village, Challakere Taluk in lorry bearing Reg.No.KA-07-C-5786 to Bangalore Market for selling near Adivala Village at Nandihalli Cross on Poona- Bangalore NH-4 Road, Iriyur Tauk, the driver of the said lorry drove the same in a rash and negligent manner with greater speed and lost control as a result the lorry was capsized. Due to the impact, H.R.Devegowda sustained severe fatal injuries. Immediately he was shifted to Government Hospital, Hiriyur for first aid. Later he was shifted to District Hospital, Chitradurga. Doctor declared him as brought dead. After post mortem, petitioners performed funeral ceremonies spending Rs.50,000/-. Prior to the accident, the deceased was hale and healthy earning Rs.20,000/- from agricultural work and Rs.10,000/- from driving. Deceased was the sole bread earner of their family, due to the untimely death of the deceased, his family members are suffering from mental shock, agony and financial burden. Hence, they filed the claim petition seeking compensation before the Tribunal. 4. Upon issuance of summons, respondent Nos.1 did not appear, hence he was placed exparte, 2nd respondent has entered appearance through its counsel and filed written statement denying the petition averments and sought for dismissal of the appeal. 5. Based upon the pleadings of the parties, the Tribunal framed the issues. In order to prove their case, petitioner No.1 examined herself as PW.1 and got examined one witness as PW.2 and got marked documents as per Exs.P1 to P19. On behalf of the respondents, respondent No.2 examined its legal officer as RW.1 and got marked Exs.R1 and R2. 5. Based upon the pleadings of the parties, the Tribunal framed the issues. In order to prove their case, petitioner No.1 examined herself as PW.1 and got examined one witness as PW.2 and got marked documents as per Exs.P1 to P19. On behalf of the respondents, respondent No.2 examined its legal officer as RW.1 and got marked Exs.R1 and R2. The Tribunal after hearing arguments of learned counsel for the claimants and so also, the insurance company, and on evaluation of entire materials on record, passed the impugned judgment, awarding compensation of Rs11,69,924/- with interest @ 8% p.a. from the date of petition till realisation. It is this judgment challenged by the claimants seeking enhancement and insurance company on the question of liability. 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, was earning Rs.20,000/- per month and Rs.10,000/- per month from driving. His 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. Further, 1st appellant being wife of deceased, lost her husband at very young age, 2nd appellant being minor daughter has lost her father and appellants 3 and 4 being parents of the deceased have lost their son at the prime age and their needs to be met. On these grounds, learned counsel for the appellants seeks for enhancement of the compensation awarded by the Tribunal. 7. Per contra, Sri O.Mahesh, learned counsel for the insurance company contends that the accident was due to rash and negligent act of driver of the lorry in which the deceased and six others were traveling is on pure surmise and based on police investigation reports which were not proved as required under Law. The Tribunal failed to appreciate the evidence of so called eye witness Mr.Nagesh examined as PW2 who also claimed that he traveled in insured lorry along with six others was to the effect that the lorry went into road side ditch due to rash and negligent act of the said vehicle without verification or ruling out cause for such event was not due to any mechanic failure. No positive evidence was let in that said alleged accident was not due to any mechanical failure. The Tribunal ought to have seen that if eight persons were to be in Cabin of insured lorry which had permitted carrying capacity of three only was definitely in violation of policy terms and conditions as well as provisions of M.V.ACT and as such appellant-insurer was not liable. The Tribunal further ought to have seen that it was not proved that deceased was traveling with alleged bags of onion belonging to him and admissions of PWs 1 and 2 traveled in insured vehicle that no claim was made for value of onion bags itself established that seven persons who traveled in insured transport vehicle were not owners of goods carried and it was a set up plea to saddle liability on insurer in collusion with insured who readily cooperated with claimants to save his own skin. On all these grounds, learned counsel for the insurance company sought for setting aside the impugned judgment and award passed by the Tribunal. 8. In the backdrop of the contentions as taken by the learned counsel for the claimants as well as learned counsel for the insurance company, it is not in dispute that the deceased H.R.Devegowda succumbed to the injuries due to the actionable negligence on the part of the driver of the offending lorry bearing Reg.No.KA-07- C-5786 in a road traffic accident. The claimants being the wife, daughter and parents of the deceased H.R.Devegowda have filed the claim petition seeking compensation. PW.1 Smt.Asha in her evidence has reiterated the averments made in the petition itself. In support of her claim, she has produced documents such as Ex.P1 complaint, Ex.P2 FIR, Ex.P3 spot mahazar, Ex.P4 inquest report, Ex.P.5-IMV Report, Ex.P6 PM report, Ex.P7 charge sheet. On evaluation of these documents, the Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the said lorry. 9. It is said that the deceased by avocation was an agriculturist earning Rs.20,000/- per month and also was a driver earning Rs.10,000/-. The said contentions were denied by the insurance company. In this regard claimants have produced RTC extracts and same were standing in the name of father of the deceased. His assistance to his father in the agriculture work cannot be ruled out. The said contentions were denied by the insurance company. In this regard claimants have produced RTC extracts and same were standing in the name of father of the deceased. His assistance to his father in the agriculture work cannot be ruled out. Ex.P11 is the school certificate and it reveals that he was hardly 29 years on the date of the death. Same is also to be considered to fix the multiplier. Keeping in view of all these grounds urged, the Tribunal has taken Rs.6,500/- per month as notional income. There is no proof of income as there is a norms and illustration to take Rs.8,000/- per month as income of the deceased. The accident took place in the year 2013. Therefore, it requires to be raised the income of deceased as Rs.8,000/- instead of Rs.6,500/-. As per the guidelines of Sarala Verm Vs.Delhi Transport Corporation Case, (2009) AIR SC 3104 case, the multiplier of 17 is applied and same shall be maintained. But the Tribunal has deducted 1/3rd instead of 1/4th. Therefore, appropriate deduction is required to be considered as 1/4th instead of 1/3rd. Further, 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 has to be added to his income. Accordingly, compensation under the head loss of dependency is reworked out as under: Income per month 8,000 Add: future prospects @ 40% 3,200 11,200 Less: 1/4 personal expenses 2,800 8,400 Rs.8,400 x 12 x 17 = 17,13,600/- 10. Further, under the conventional heads, the Tribunal has awarded in all a sum of Rs.1,60,000/-. But as per the ratio of reliance in Pranay Sethi's case as stated supra, under the conventional heads, petitioners are entitled to a sum of Rs.70,000/-. 11. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM,2018 SCCONLINESC 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. 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. 12. In the instant appeals, the deceased has left behind his daughter who is petitioner No.2. She has lost love and affection of her father and there is a reciprocity in between the family and deceased. Hence, in accordance with the above said ruling, a sum of Rs.40,000/-, is awarded to claimant No. 2 towards loss of filial consortium. Claimants No.3 and 4 are the parents of the deceased H.R.Devegowda. His parents lost their son. Therefore, the parental consortium requires to be granted. Keeping in view of the ratio, claimants 3 and 4 are entitled for a sum of Rs.40,000/- each. 13. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Compensation awarded by MACT Compensation by this Court Loss of dependency 8,83,932 17,13,600 Future prospectus 25,992 Funeral and obsequies 25,000 70,000 Traveling and Transportation of dead body 10,000 Loss of consortium 1,00,000 Loss of estate 25,000 Love and affection 1,00,000 Filial consortium - 1,20,00,000 Total 11,69,924/- 19,03,600/- Thus, in all, the claimants are entitled to total compensation of Rs.19,03,600/- as against Rs.11,69,900/- awarded by the Tribunal. The enhanced compensation would be Rs.7,33,700/-. 14. The enhanced compensation would be Rs.7,33,700/-. 14. The contention of Sri O.Mahesh, learned counsel for the insurance company has contended that the compensation awarded by the Tribunal towards loss of consortium and love and affection for a sum of Rs.1,00,000/- each are exorbitant. Therefore, same are requires to be modified. The Tribunal has failed to consider the law laid down by the Hon'ble Apex Court in National Insurance Co. Ltd., Vs. Pranay Sethi, (2017) AIR SC 5157. As per the Pranay Sethi's case, compensation towards conventional head should not be exceed Rs.70,000/-. But Tribunal failed to consider the same. 15. Keeping in view of the above said contentions of the learned counsel for the insurance company, the compensation of Rs. 1,00,000/- each awarded by the Tribunal towards love and affection and loss of consortium is absolved. For the reasons and findings as stated above, I proceed to pass the following: ORDER MFA No.7291/2015 filed by the appellants/claimants and MFA No.5616/2015 filed by the appellant/insurance company are allowed in part. The appellants/claimants in MFA No.7291/2015 are entitled for enhanced compensation of Rs.7,33,700/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 23.04.2015 passed by the Tribunal in MVC No.4/2014, is modified accordingly. The Shriram General Insurance Company Co. Ltd., shall deposit the entire compensation along with the compensation enhanced by this Court and interest accrued thereon, 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, insofar as it relates to rate of interest, apportionment and deposit is concerned, shall remain unaltered. The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith. Office to draw the decree accordingly.