M. R. Prabhavathi v. Branch Manager National Insurance Co Ltd
2019-07-05
K.SOMASHEKAR
body2019
DigiLaw.ai
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. Being not satisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants have filed this appeal against the judgment and award dated 28.01.2015 rendered by the Addl.Senior Civil Judge & CJM, Mandya in MVC No.272/2013. 3. The factual matrix of the appeal is that on 9.12.2012, deceased Puttaswamy @ Manteswamy had been to Sathanur village, for calling the workers for doing wood work by proceeding in motor cycle bearing No.KA.11/L 6083 from Sathanur towards Malavalli slowly and cautiously on the left side of the road. At about 8.30 p.m., near Banasamudra gate, N.H.209, Kanakapura Malavalli Main Road, a Maruthi 800 bearing regn.No.KA.05/N 9956 being driven by its driver in a rash and negligent manner with high speed came from Malavalli towards Halagur and dashed against the motorcycle. Due to the said impact, deceased fell down and sustained grievous injuries. Immediately, he was shifted to Government hospital, Malavalli, wherein first aid treatment was given and on advice was shifted to K.R.Hospital, Mysore for higher treatment in 108 ambulance. But unfortunately, he died on the way. The accident occurred due to the rash and negligent driving by the driver of the offending vehicle, the Halagur Police registered the case in Cr.No.254/2012 for the offence punishable under Section 279 and 304(A) of IPC r/w Section 187 of IMV Act. On these grounds, the claim petition was filed before the Tribunal seeking compensation. 4. After service of notice, respondents entered appearance through their counsel and filed written statement denying the petition averments and sought for dismissal of the claim petition. 5. Based upon the pleadings of the parties, the Tribunal framed issues for its consideration. In order to substantiate their case, petitioner no.2 got himself examined as PW.1 and got examined two witnesses as PW.2 and PW.3 and got marked Exs.P1 to P15. On behalf of respondents, Ex.R1 was marked and no oral evidence was adduced. After hearing the arguments advanced by the learned counsel for the parties and on evaluation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.9,48,600/- with interest at 9% p.a. from the date of petition till payment.
On behalf of respondents, Ex.R1 was marked and no oral evidence was adduced. After hearing the arguments advanced by the learned counsel for the parties and on evaluation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.9,48,600/- with interest at 9% p.a. from the date of petition till payment. It is this judgment which is under challenge in this appeal on various amongst other grounds. 6. Learned counsel for the appellants while taking me through the evidence of PW.1 contends that the Tribunal has erred in awarding lesser compensation towards loss of dependency by taking income of the deceased at Rs.6,000/- p.m. Whereas, the deceased was earning Rs.15,000/- p.m. by working as carpenter. Further, the Tribunal has erred in awarding lesser compensation towards loss of consortium, loss of estate, transportation and funeral expenses. Further, the Tribunal has failed to award any compensation towards loss of love and affection. On all these grounds, the learned counsel for appellants contends that the compensation awarded by the Tribunal is inadequate and also on lower side, hence, seeks for enhancement of compensation under all heads, by allowing the present appeal. 7. Per contra, learned counsel for the respondent insurance company contends that as per the investigation conducted by the company's investigator the alleged accident occurred mainly due to the negligent driving of the motorcycle by the deceased himself. He further contends that the driver of the offending car did not had effective driving licence to drive the type of the vehicle involved in the accident, as such there is violation of terms and conditions of the policy. The Tribunal by considering the evidence of PW.1 and so also evidence of PW.3 in a holistic approach has awarded the compensation in a sum of Rs.9,48,600/- with interest @ 9% p.a. The interest awarded on the compensation is also on higher side and it requires intervention of this Court. On all these grounds, he contends that the compensation awarded by the Tribunal is just and proper and it does not call for interference of this Court. Accordingly, he sought for dismissal of the appeal. 8.
On all these grounds, he contends that the compensation awarded by the Tribunal is just and proper and it does not call for interference of this Court. Accordingly, he sought for dismissal of the appeal. 8. Having regard to the strenuous contentions as taken by the learned counsel for the appellants and the counter made by learned counsel for insurance company relating to scanning of the judgment and award rendered by the Tribunal, it is relevant to state that claimant no.1 is the wife, claimants 2 and 3 are the sons of deceased Puttaswamy @ Manteswamy. PW.1 - M.M.Lokesh being claimant no.2 and son of the deceased has reiterated the petition averments in his evidence. In support of his claim, he has produced Ex.P1- FIR, Ex.P2 - Complaint, Ex.P3 - Mahazar, Ex.P4 - sketch, Ex.P5 - IMV report, Ex.P6 - inquest report, Ex.P7 - P.M.report, Ex.P8 - charge sheet. On evaluation of these oral and documentary evidence, the Tribunal held that due to the actionable negligence on the part of the driver of the Maruthi car, the accident took place and the deceased succumbed to the accidental injuries. 9. Now coming to the aspect of compensation that has to be considered towards loss of dependency, the entire oral and documentary evidence has to be reassessed and re-appreciated. It is pertinent to note that the deceased was carpenter by avocation and working under one Vijaykumar.R., Class-III contractor, Halahalli main road, Mandya and he was earning Rs.15,000/- p.m. PW.3 - Vijay Kumar was examined in this regard. But there being no documentary proof to show the exact income of the deceased, the Tribunal assessed the income at Rs.6,000/- p.m. As per Ex.P7 - P.M.report, the age of deceased was 42 years at the time of his death. The Tribunal has adopted multiplier of 14 relying on Sarla Verma's case. But having regard to the age of the deceased and year of accident i.e., 2012 and as per the norms and guidelines of the Lok Adalath chart, where there is no proof of income, the notional income has to be taken and the income for the year 2012 would be Rs.7,000/-. Insofar as future prospectus is concerned, the Tribunal has added future prospects at 30%.
Insofar as future prospectus is concerned, the Tribunal has added future prospects at 30%. But having regard to the decision of the Hon'ble Supreme Court in National Insurance Co.Ltd. vs. Pranay Sethi, (2017) AIR SC 5157, future prospects that has to be added for the persons of age group of 40 to 50 years is 25%. Accordingly, the future prospects is scaled down to 25% from 30% as assessed by the Tribunal. The Tribunal has rightly deducted 1/3rd of income towards personal expenses of the deceased. Accordingly, the compensation under the head loss of dependency is re-worked out as under: Income per month 7,000 Add: future prospects @ 25% 1,750 8,750 Less: 1/3 personal expenses 2,917 Rs.5,833 x 12 x 14 = 9,79,944/- 5,833 10. Further, under the conventional heads, the Tribunal has awarded in all a sum of Rs.75,000/-. But as per the ratio of reliance in Pranay Sethi's case as stated supra, the compensation towards the conventional heads, shall not be more than Rs.70,000/-. Accordingly, the compensation awarded by the Tribunal in a sum of Rs.75,000/- is scaled down to Rs.70,000/-. 11. The Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM, 2018 SCCONLINE(SC) 1546, 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. 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." 12. In the instant appeal, claimant nos.2 and 3 being the sons of the deceased Puttaswamy @ Manteswamy have lost their father in the accident. They have lost the love and affection, parental aid, protection, affection, society, discipline, guidance and training of the deceased. Further, as there is a reciprocity between deceased Puttaswamy and his sons being claimants 2 and 3, a sum of Rs.40,000/- each is awarded to them towards parental consortium. 13.
They have lost the love and affection, parental aid, protection, affection, society, discipline, guidance and training of the deceased. Further, as there is a reciprocity between deceased Puttaswamy and his sons being claimants 2 and 3, a sum of Rs.40,000/- each is awarded to them towards parental consortium. 13. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Compensation awarded under the heads By MACT By this court Loss of dependency 8,73,600 9,79,944 Loss of estate 25,000 70,000 Funeral and transport expenses 25,000 Loss of consortium 25,000 Parental consortium (Rs.40,000 x 2) - 80,000 Total 9,48,600 11,29,944 Thus, in all, the claimants are entitled to total compensation of Rs.11,29,944/- as against Rs.9,48,600/- awarded by the tribunal. The enhanced compensation would be Rs.1,81,344/- For the reasons and findings as stated above, I proceed to pass the following: ORDER The appeal is allowed in part. The appellants/claimants are entitled for enhanced compensation of Rs.1,81,344/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 28.01.2015 passed by the Tribunal in MVC No.272/2013, is modified accordingly. Respondent - Insurance Company shall deposit the enhanced compensation before the Tribunal, along with interest accrued, 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. The enhanced compensation shall be apportioned to the extent of 50% in respect of claimant No.1 and 25% each in respect of claimant Nos.2 and 3. However, the impugned judgment and award, in so far as it relates to rate of interest is concerned, shall remain unaltered. Office to draw the decree accordingly.