Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 150 (KAR)

Sulochana v. Mohammad Saleem 1 Kaladagi

2019-01-10

B.V.NAGARATHNA, BELLUNKE A.S.

body2019
JUDGMENT : Bellunke A.S. J. - Though this appeal is listed for admission with the consent of learned counsel on both sides, it is heard finally. 2. The appellants were the claimants in M.V.C.No.475/2006 before the III Additional Civil Judge (Sr.Dn.) & CJM, Dharwad (herein after referred to as 'the Tribunal', for the sake of convenience). By judgment and award dated 04.06.2009, the Tribunal has granted compensation of Rs.1,10,000/- to the claimants by directing respondent Nos.1 and 2 to jointly and severally satisfy the award. Not being satisfied with the quantum of compensation, the claimants have preferred this appeal. 3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal. 4. Briefly stated the facts are that, on 29.11.2005 one Sri Sanganabasava S/o Basavaraj @ Basavanneppa Matti was travelling in an Indigo car from Gadag to Dharwad cautiously. When the car was approaching Hubli Railway Gate, Truck bearing registration No.KA-25/B-2788 driven by its driver in a high speed and rash and negligent manner dashed to the Indigo Car which was being driven by Sri Sanganabasava. On account of the said accident, Sanganabasava who was the inmate of the Car sustained grievous injuries and he was shifted to the Hospital. Ultimately the injured succumbed to the injuries sustained in the said accident. At the time of accident the deceased Sanganabasava was a pensioner, aged about 64 years and drawing pension of an amount of Rs.10,000/- per month. He was also earning more than Rs.1,00,000/- per annum out of agriculture. Petitioners are the Class-I legal heirs of the deceased, as petitioner No.1 is the wife, petitioner Nos.2 and 3 are the daughter and son of the deceased respectively who filed the claim petition seeking compensation on account of death of husband of the first petitioner and father of the second and third petitioners. 5. In response to the service of notice by the Tribunal, respondent No.2 appeared through its counsel and resisted the claim petition. 6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration : "1. Whether the petitioners prove that the accident has taken place on 29.11.2005 at about 15.30 hours, was due to the rash and negligent driving of the driver of the Truck bearing No.KA.25/B-2788, in the accident the deceased sustained injuries and died? 2. Whether the petitioners are entitled for compensation? Whether the petitioners prove that the accident has taken place on 29.11.2005 at about 15.30 hours, was due to the rash and negligent driving of the driver of the Truck bearing No.KA.25/B-2788, in the accident the deceased sustained injuries and died? 2. Whether the petitioners are entitled for compensation? If so, what amount and from whom? 3. What Order or Award?" 7. In support of their case, petitioner No.2 examined herself as PW.1 and produced thirteen documents which were marked as Exs.P.1 to P.13, while the copy of Pension particulars was marked as Ex.R.1. 8. On the basis of the evidence on record, the Tribunal answered Issue No.1 in the affirmative and awarded compensation of Rs.1,10,000/- with interest at the rate of 6% per annum from the date of claim petition till the date of deposit. Not being satisfied with the award, the claimants have preferred this appeal. 9. We have heard learned counsel for the appellants and learned counsel for the respondent insurance company and perused the material available on record. 10. The grievance of the appellants is that the Tribunal held that petitioner No.1 was not dependent as she is a pensioner, getting pension of Rs.14,000/- to Rs.15,000/- per month. As on the date of accident, petitioner Nos.2 and 3 were depending on the income of their father, but the Tribunal has denied compensation on the ground that the petitioner No.2 is married daughter and petitioner No.3 is not dependent on his father's income. 11. Therefore, what the deceased would have earned during his life time would be the loss of income on account of his death and it is to be paid to his legal heirs. Petitioner No.2 was employed as on the date of evidence but not on the date of death of her father. It is not the case of insurance company that appellant No.3 was not depending on the income of his father. The Trial Court failed to consider Section 1-A of the Fatal Accidents Act, 1855. Actually, proof of dependency is not necessary under law. Therefore, judgment and award is liable to be interfered with and compensation is liable to be enhanced to Rs.33,00,000/- as against Rs.1,10,000/-. 12. Per contra, learned counsel appearing for the respondent insurance company contended that the award is just and proper. This appeal would not call for any interference and sought dismissal of the appeal. 13. Therefore, judgment and award is liable to be interfered with and compensation is liable to be enhanced to Rs.33,00,000/- as against Rs.1,10,000/-. 12. Per contra, learned counsel appearing for the respondent insurance company contended that the award is just and proper. This appeal would not call for any interference and sought dismissal of the appeal. 13. Having heard learned counsel for the respective parties, so far as the rash and negligent act of the driver of the truck in question and the liability to satisfy the award are not disputed. Therefore the only point that would arise for our consideration is as under: 1) Whether the appellants are entitled for compensation on the head of loss of dependency or loss of estate apart from on other conventional heads? 14. On perusal of the trial court judgment, it is not in dispute that as on the date of death of Sanganbasava, the first petitioner was getting pension. It is also found that the first petitioner was working in some other private concerns and she was earning a sum of Rs.20,000/- per month. The third petitioner has studied MBA and employed and also married. Therefore, the Tribunal based on the admissions in the evidence found that the question of awarding compensation on the head of loss of dependency did not arise. Therefore, if at all the petitioners are entitled to compensation it is only on the head of loss of estate. However, the Tribunal has awarded only Rs.1,00,000/- under the head of loss of estate and Rs.10,000/- under the head of Transportation of dead body and funeral expenses. 15. The Trial Court has not awarded compensation under the head of loss of consortium to the first petitioner and loss of parental consortium to each of the second and third petitioners who are children of the deceased and the first petitioner. The compensation awarded by the Tribunal under the head of Transportation of dead body and funeral expenses is very low. 16. Law is well settled with regard to payment of compensation by adding future prospects and on the head of consortium and Transportation of dead body and funeral expenses. The decision, Magma General Insurance Company Limited and Nanu Ram Alias Chuhru Ram Vs. others, (2018) ACJ 2782 can be relied on. 16. Law is well settled with regard to payment of compensation by adding future prospects and on the head of consortium and Transportation of dead body and funeral expenses. The decision, Magma General Insurance Company Limited and Nanu Ram Alias Chuhru Ram Vs. others, (2018) ACJ 2782 can be relied on. In the said judgment, the Hon'ble Supreme Court has held that the future prospects is to be awarded on the basis of (i) the nature of deceased's is employment and (ii) age of the deceased. In the said judgment also the judgment of Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi, (2017) ACJ 2700 (SC) case is relied on. As regards the consortium is concerned, the Hon'ble Apex Court held as follows: "8.7 A constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (SC), deal t with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. 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. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. 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. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicles accidents under the Act. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid down in Pranay Sethi, 2017 ACJ 2700 (SC)." 17. Therefore we are inclined to award a sum of Rs.40,000/- under the head of loss of consortium to the first petitioner and Rs.40,000/- each under the head of parental consortium to the second and third petitioner and Rs.20,000/- towards Transportation of dead body and funeral expenses. 18. As regards granting compensation on the head of loss of estate, when the claimants were not dependent on the income of the deceased, the ruling of this Court, A Manavalagan Vs. A.Krishnamurthy and others, (2004) ILR(Kar) 3268 can be relied on. 19. In the said judgment, law relating to the grant of compensation on the head of loss of dependency and loss of estate where dependency is not there has been very well explained and settled by the said precedent. It is held by the Hon'ble High Court as under: "(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. It is held by the Hon'ble High Court as under: "(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. A conventional sum for loss of expectation of life, is added. (iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalizing it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependants claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases." 20. Therefore, taking into consideration the non-dependency of the wife and children of the deceased having regard to their own income, what the deceased would have saved after deducting his personal expenses would be the loss of estate. Therefore, out of Rs.9,000/-, 25% would come to Rs.2,250/- which the deceased could have saved and that is the loss of estate to the family of the petitioners. Therefore, 2,250x12x7 (being the appropriate multiplier) on the head of loss of estate would be Rs.1,89,000/-. Therefore the total compensation payable to the petitioners is as follows: Sl.No. Particulars Amount in Rs. 1 Loss of estate 1,89,000/- 2 Loss of consortium to the 1s t petitioner 40,000/- 3 Loss of parental consortium to the 2n d & 3r d petitioners. (40,000 x 2 =80,000) 80,000/- 4 Towards transportation of dead body and funeral expenses. 20,000/- Total 3,29,000/- Compensation awarded by the Tribunal 1,10,000/- Enhanced compensation. 2,19,000/- Rounded off to 2,20,000/- 21. Hence, for the above said reasons we answer the point raised for determination partly in the affirmative. We hold that the appellants are entitled for enhancement of compensation as stated above. Accordingly, appeal is allowed in part in the aforesaid terms. 22. 20,000/- Total 3,29,000/- Compensation awarded by the Tribunal 1,10,000/- Enhanced compensation. 2,19,000/- Rounded off to 2,20,000/- 21. Hence, for the above said reasons we answer the point raised for determination partly in the affirmative. We hold that the appellants are entitled for enhancement of compensation as stated above. Accordingly, appeal is allowed in part in the aforesaid terms. 22. The enhanced compensation shall carry interest at the rate of 6% per annum the date of petition till the date of realization except for the period of delay in filing the appeal i.e., 184 days. The second respondent - insurance company to deposit the enhanced compensation within a period of six weeks from the date of receipt of copy of this judgment. 23. Since the claimants are the wife and children of the deceased Sanganabasava, the enhanced compensation shall be apportioned in the ratio of 35:35:30 as has been done by the Tribunal. No costs.