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2019 DIGILAW 1614 (KAR)

Vasanthi v. Mohammed Kunhi

2019-07-08

K.SOMASHEKAR

body2019
JUDGMENT : K.Somashekar, J. The appeal though listed for admission, with the consent of the learned counsel for both parties, the same is heard and disposed of by this order. 2. This appeal is preferred by the claimants - appellants who are the legal representatives of the deceased Ashok Kumar seeking enhancement of compensation awarded by the Tribunal. By its judgment dated 16.09.2013 in MVC No.1054/2011, the Tribunal has awarded compensation in a sum of Rs.12,66,100/- to the claimants - legal representatives of deceased. Being not satisfied with the said compensation, the claimants have filed this appeal seeking enhancement of compensation. 3. Heard the learned counsel for the claimants - appellants as well as the learned counsel for the respondents and perused the impugned judgment as well as the material on record. 4. The factual matrix is that on 13.02.2010 at about 10.00 p.m. when Ashok Kumar was proceeding on a motor cycle bearing Regn.No.KA-19-S-4244 on the road opposite to Hotel Swathi, Kaikamba, Uppala, Kasaragod Taluk, Kerala State, the driver the offending car bearing Regn.No.KA-19-Z-6881 had driven the same negligently and dashed the motorcycle of the deceased. As a result, he sustained grievous injuries and though was treated as an in-patient at hospital, he succumbed to the injuries on 16.03.2010. A huge amount though was spent towards medical expenses, it had gone in vain. Prior to the accident, the deceased was said to be a car driver aged 38 years and was earning Rs.6,000/- per month. The appellants - claimants were wholly dependant on the income of the deceased. Due to the untimely death of the deceased, claimants having been put to great hardship, they filed a claim petition before the Tribunal seeking compensation. After service of notice, the owner of the offending vehicle as well as the driver remained absent and were placed exparte. The Insurer however filed its written statement and contested the claim petition. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. Taking the income of the deceased at Rs.4,000/- per month and adding 50% towards future prospects and thereafter deducting 1/4th towards his personal expenses, and since the deceased was aged 42 years, applied the multiplier 14', awarded Rs.7,56,000/- towards 'Loss of dependency' and a total compensation of Rs.12,66,100/- with interest at 6% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal seeking enhancement of compensation. 5. Learned counsel for the claimants/appellants vehemently contends that the deceased was an experienced driver and was earning Rs.6,000/- per month. Further, even as per the norms prescribed in the Lok Adalath Chart, when there is no proof of income in respect of an accident of the year 2010-11, the notional income shall be taken between Rs.5500 - 6500. But however, the Tribunal has erred in taking his income at Rs.4,000/- p.m. while computing compensation towards 'Loss of dependency'. Hence, the learned counsel contends that the income of the deceased be considered at Rs.6,000/-. The learned counsel further contends that the Tribunal taking into consideration that fact that the deceased had left behind his wife, daughter and mother as his dependants, ought to have awarded 'parental compensation' in respect of his daughter and 'filial compensation' in respect of his mother, in view of the judgment of the Apex Court in MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM, 2018 SCCONLINESC 1546, which aspect has not been taken into consideration by the Tribunal. On these grounds, learned counsel for appellants prays for allowing the appeal and enhancing the compensation awarded by the Tribunal suitably. 6. Per contra, learned counsel for Respondent No.2 - Insurance Company vehemently contends that though the deceased was aged 42 years at the time of the accident, the Tribunal has erred in adding 50% of his income towards his future prospects. In view of the decision of the Apex Court in National Insurance Company Limited -vs- Pranay Sethi, (2017) AIR SC 5157, learned counsel contends that only 25% of his income could be added towards 'future prospects' and not 50% as awarded by the Tribunal. In view of the decision of the Apex Court in National Insurance Company Limited -vs- Pranay Sethi, (2017) AIR SC 5157, learned counsel contends that only 25% of his income could be added towards 'future prospects' and not 50% as awarded by the Tribunal. Secondly, in view of the fact that the appellants have filed this appeal for enhancement of compensation, the learned counsel brings to the notice of this court that the father of the deceased who was arraigned as third petitioner in the claim petition had expired before the filing of the present appeal before this court and hence he has not been made a party to this appeal. In view of the said fact, the dependents of the deceased are now three in number and not four as before the Tribunal. Hence, while re-assessing the compensation, in view of the decision of the Apex Court in SARLA VERMA Vs. DELHI TRANSPORT CORPORATION, (2009) ACJ 1298), this court has to deduct one-third towards his personal expenses instead of one-fourth adopted by the Tribunal. Further, the learned counsel contends that in view of the decision in Pranay Sethi (supra), the compensation under conventional heads put together shall not be awarded more than Rs.70,000/- and hence contends that the said aspect also be taken into consideration by this court. Hence, the learned counsel prays that these aspects be taken into consideration by this court while re-computing the compensation. 7. In the background of the contentions taken by learned counsel for the claimants - appellants and the learned counsel for the second respondent - insurer it is relevant to state that there is no dispute with regard to the death of deceased - Ashok Kumar who met with an accident on 13.02.2010. I find justification in the contention of the learned counsel for the appellants as regards taking the notional income of the deceased. In view of the settled norms prevailing in the Lok Adalath chart, I hereby take the income of the deceased at 6,000/- instead of Rs.4,000/- adopted by the Tribunal. In view of the decision of the Apex Court in Pranay Sethi (supra), I hereby find it appropriate to add 25% of his income towards 'future prospects', instead of 50% as adopted by the Tribunal. Hence, adding 25% of his income at Rs.6,000/- towards future prospects, the income comes to Rs.7,500/-. In view of the decision of the Apex Court in Pranay Sethi (supra), I hereby find it appropriate to add 25% of his income towards 'future prospects', instead of 50% as adopted by the Tribunal. Hence, adding 25% of his income at Rs.6,000/- towards future prospects, the income comes to Rs.7,500/-. Then deducting one-third towards his personal expenses instead of one-fourth adopted by the Tribunal, the income comes to Rs.5,000/-. However, the multiplier adopted by the Tribunal at 14' being proper, it remains undisturbed. Hence, with Rs.5,000/- as the income and 14' multiplier, the compensation towards 'Loss of dependency' comes to Rs.8,40,000/- (5000 x 12 x 14) as against Rs.7,56,000/- awarded by the Tribunal. Further, in view of the decision of the Apex Court in National Insurance Company Limited -vs- Pranay Sethi, (2017) AIR SC 5157, the compensation awarded under 'conventional heads' should not exceed Rs.70,000/- or should not be below Rs.70,000/-. However, in the present case on hand, an exorbitant sum of Rs.1,90,000/- has been totally granted under various conventional heads put together. Hence, the compensation under four of the conventional heads is scaled down so that the compensation under all the conventional heads put together comes to Rs.70,000/-. 8. Further, as contended by the learned counsel for the appellants - claimants, having regard to the ratio of the reliance in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM, 2018 SCCONLINESC 1546, I find it is just and proper to grant 'parental consortium' to Appellant No.2 who is the daughter of the deceased, in view of the death of her father at an unexpected age. In the said judgment, the Apex Court has held thus: "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." In accordance with the said ruling, I hereby grant a sum of Rs.40,000/- to Appellant No.2 under the head "Loss of Parental consortium". In the same judgment in MAGMA GENERAL INSURANCE CO. LTD. (supra), it is further held thus: "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. 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." Hence, I hereby grant a sum of Rs.40,000/- to Appellant No.3 - mother of the deceased under the head "Loss of filial consortium". 9. 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 re-assessed by this Court Total Loss of dependency 7,56,000 8,40,000 8,40,000 Loss of estate 50,000 70,000 70,000 Loss of love and affection 75,000 Loss of consortium 50,000 Funeral expenses 15,000 Medicine, hospital charges 3,12,600 Nil 3,12,600 Attendance and Conveyance charges 7,500 Nil 7,500 Thus, in all, the claimants / appellants are entitled to a total compensation of Rs.13,10,100/- as against Rs.12,66,100/- awarded by the tribunal. The enhanced compensation would come to Rs.44,000/-. Accordingly, I proceed to pass the following: ORDER The appeal is allowed in part. The impugned judgment and award dated 16.09.2013 passed by the Tribunal in MVC No.1054/2011 is hereby modified. The claimants/appellants are entitled to a total compensation of Rs.13,10,100/- with interest @ 6% p.a. from the date of petition till realisation. Respondent No.2 - Insurer shall deposit the entire compensation with interest before the tribunal within six weeks from the date of receipt of a copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. Any amount already in deposit shall be adjusted. However, the impugned judgment and award, in so far as it relates to the rate of interest, deposit and apportionment is concerned shall remain unaltered. There shall be no order as to the costs. Office to draw the decree accordingly.