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2019 DIGILAW 1602 (KAR)

Sumithra v. Usman Sharief

2019-07-05

K.SOMASHEKAR

body2019
JUDGMENT : K.Somashekar, J. Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal. 2. This appeal is directed against the judgment and award dated 24.06.2015 rendered by the MACT, Bengaluru in MVC No.2228/2013 awarding compensation of Rs.12,11,991/- with interest @ 6% p.a. from the date of petition, till deposit. Being not satisfied with the compensation awarded, the present appeal is filed. 3. The factual matrix of the appeal is that on 26.01.2013 at about 7.20 p.m., deceased S.R.Srinivasa was riding his motor cycle bearing Reg.No.KA-02-L-9978 from Nandagudi towards Siddnahalli, in a moderate speed by observing traffic rules with great care and caution on extreme left side of the road in front of police quarters Nandagudi. At that time, one goods auto bearing Reg.No.KA-01-AB-7871 driven by its driver with high speed in a rash and negligent manner dashed to the motor cycle from behind. Due to the said impact, the rider of the motor cycle fell down and sustained severe injuries all over the body. Immediately, the injured was shifted to MVJ Medical College Hospital, Hoskote and after the first aid, as per the advice he was shifted to NIMHANS Hospital for treatment and without there being sufficient treatment, he was taken back to MVJ Medical College Hospital and kept in ICU. On 29.01.2013 at about 7.20 a.m., S.R.Srinivas breathed his last in the said hospital. 4. It is contended that at the time of accident, the deceased was aged about 35 years and was hale and healthy. By working as Mason under various civil contractors at Nandagudi, was earning a sum of Rs.9,000/- p.m. and the entire income was contributed to his family. Due to his untimely death, the family of the petitioners having put to untold mental shock and financial difficulties are faced by them. Further, they have spent a sum of Rs.1,50,000/- towards medical, transportation of dead body and funeral expenses. It is further stated that the deceased had married the third respondent Rashmi 12 years back and since she deserted his house 3 years back, she filed maintenance case and dowry harassment case against the deceased and thereafter, she has settled with her parents. It is further stated that the deceased had married the third respondent Rashmi 12 years back and since she deserted his house 3 years back, she filed maintenance case and dowry harassment case against the deceased and thereafter, she has settled with her parents. Since the parents of the deceased were old and nobody to look after them, deceased married the first petitioner 2 years back and hence, third respondent was made a formal to the proceedings. On all these grounds, the claim petition was filed before the Tribunal, seeking compensation. 5. After service of notice, respondent Nos. 2 and 3 appeared through their counsel and resisted the claim petition by filing separate written statements, denying the petition averments. First respondent remained absent throughout the proceedings and was placed as exparte. 6. Based upon the pleadings of the parties, the Tribunal framed the issues for its consideration. In order to substantiate their case, petitioner no.1 got herself examined as PW.1 and got marked Exs.P1 to P.18. Respondents did not chose to adduce any evidence on their behalf. After hearing arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence on record, the Tribunal passed the impugned judgment awarding compensation of Rs.12,11,991/- with interest @ 6% p.a. from the date of petition, till deposit. It is this judgment which is challenged under this appeal seeking enhancement of compensation. 7. Learned counsel for the appellants contends that the approach of the Tribunal in appreciation of evidence on record, is illegal and against the law of evidence and also against the principles of settled law. It is further contended that the Tribunal has given its finding erroneously by considering the income of the deceased as Rs.6,000/- per month though he was having the capacity to earn Rs.15,000/- per month by avocation as mason. Therefore, he seeks to interfere with the impugned judgment and award passed by the Tribunal and to pass appropriate orders by enhancing the compensation. 8. Per contra, Sri B.Pradeep, learned Counsel for respondent No.2 has taken me through the evidence of PW.1-Sumithra-wife of the deceased. He submits that the deceased got married to respondent No.3-Rashmi also. The Tribunal considering the materials placed on record, has awarded the suitable compensation under the heads of loss of dependency, conventional heads etc. 8. Per contra, Sri B.Pradeep, learned Counsel for respondent No.2 has taken me through the evidence of PW.1-Sumithra-wife of the deceased. He submits that the deceased got married to respondent No.3-Rashmi also. The Tribunal considering the materials placed on record, has awarded the suitable compensation under the heads of loss of dependency, conventional heads etc. The Tribunal has also taken the income of the deceased at Rs.6,000/- per month even though there is no specific material to show the income. The compensation awarded by the Tribunal is just and proper. Therefore, he seeks to dismiss the appeal by confirming the judgment and award passed by the Tribunal. 9. In this backdrop of the contentions taken by the learned Counsel for the appellants and counter made by the learned Counsel for respondent No.2, I find that there is no dispute with regard to the death of the deceased, who met with an accident on 26.01.2013 at about 7.20 p.m. When deceased S.R.Srinivasa was riding his motor cycle, the offending vehicle came from behind with high speed and in a rash and negligent manner and dashed to the motor cycle. Due to the impact, the driver of the motor cycle fell down and sustained grievous injuries. Consequently, he has taken treatment and on 29.01.2013 at about 7.20 a.m. he breathed his last in the hospital. The same has been revealed in the claim petition. Autopsy was conducted over the dead body as per Ex.P8. Ex.P4 is the mahazar conducted by the Investigating Officer relating to the driver of the offending vehicle, inquest report is at Ex.P7. It requires to be considered as to whether the Tribunal has rightly considered the income of the deceased at Rs.6,000/-p.m. The deceased was having earning capacity of Rs.9,000/- per month. The accident occurred on 26.01.2013. When there is no proof of income, notional income has to be taken. Therefore, for the year 2012-13, the income has to be taken at Rs.7,000/- to Rs.8,000/-. As the accident has occurred in June, 2013, the income of the deceased is taken at Rs.8,000/- per month as against Rs.6,000/- taken by the Tribunal. 10. The Tribunal has taken the multiplier as 16' as per the decision in Sarla Verma's case. Therefore, for the year 2012-13, the income has to be taken at Rs.7,000/- to Rs.8,000/-. As the accident has occurred in June, 2013, the income of the deceased is taken at Rs.8,000/- per month as against Rs.6,000/- taken by the Tribunal. 10. The Tribunal has taken the multiplier as 16' as per the decision in Sarla Verma's case. The decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi, (2017) AIR SC 5157 deals with Sections 167 and 168 of the Motor Vehicles Act, 1988 relating to the future prospects. The same has to be determined keeping in view the age of the deceased. 40% shall be added to the income as future prospects if deceased was below 40 years of age. In the instant case, the deceased was below 40 years of age. The Tribunal has taken the multiplier as 16', which is just and proper. Accordingly, the compensation towards loss of dependency is re-worked out as under: Income per month 8,000 Add: Future prospects @ 40% 3,200 11,200 Rs.11,200 x 12 x 16 x 2/3 = 14,33,600/- 11. Hence, the appellants are entitled for compensation of Rs.14,33,600/- as against Rs.11,52,000/- awarded by the Tribunal. The enhanced compensation would be Rs.2,81,600/-. 12. In view of ratio of laid down in Pranay Sethi's case as stated supra, the compensation awarded under the conventional heads should not exceed Rs.70,000/-. However, the Tribunal has awarded the compensation of Rs.40,000/- under the conventional heads. Therefore, additional sum of Rs.30,000/- is awarded under the conventional heads. 13. In the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM,2018 SCCONLINESC 1546), the Hon'ble Supreme Court has dealt with the judgment relating to the parental consortium and also 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. In the instant case, the deceased S.R.Srinivasa is said to be the son of claimant Nos.2 and 3. 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. In the instant case, the deceased S.R.Srinivasa is said to be the son of claimant Nos.2 and 3. Therefore, Rs.70,000/- is enhanced towards filial consortium as against Rs.10,000/- under the head of loss of love and affection awarded by the Tribunal. 14. In terms of the aforesaid reasons and findings, it is stated that the appellants are said to be the legal representatives of the deceased including respondent No.3, who is the first wife of the deceased and she had also lost her husband. Therefore, the legal representatives of the deceased are entitled for the enhanced compensation of Rs.3,81,600/- with interest @ 6% p.m. as against Rs.12,11,991/- awarded by the Tribunal. Accordingly, I proceed to pass the following order: (i) The appeal is hereby allowed-in-part. Consequently, the appellants herein and respondent No.3 are entitled for the enhanced compensation of Rs.3,81,600/- with interest @ 6% p.a. as follows: (a) Insofar as the enhanced compensation amount of Rs.2,81,600/- under the head of loss of dependency is concerned, the same shall be equally divided amongst claimant Nos.1 to 3 and respondent No.3. (b) Insofar as the enhanced compensation amount of Rs.70,000/- under filial consortium is concerned, the same shall be equally divided amongst claimant Nos.2 and 3 who are said to be the parents of the deceased. (c) Insofar as the enhanced compensation amount of Rs.30,000/- under the conventional heads, the same shall be equally divided amongst claimant No.1 and respondent No.3 who are said to be the wives of the deceased. (ii) The respondent-Insurance Company be directed to deposit the aforesaid enhanced compensation amount of Rs.3,81,600/- with accrued interest @ 6% p.a. before the Tribunal in MVC.No.2228/2013 within a period of six weeks from the date of receipt of a copy of this order. (iii) Accordingly, the judgment and award passed by the Tribunal is modified. Office to draw the decree accordingly.