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2020 DIGILAW 1157 (KAR)

Siddamma v. Nayeem Basha

2020-06-22

B.V.NAGARATHNA, RAVI V.HOSMANI

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JUDGMENT B V Nagarathna, J. - Though this matter is listed for admission, with the consent of learned counsel on both sides, it is heard finally and disposed of by this judgment. 2. The appellants are the widow and sons of Halappa, who died in a road traffic accident and who are seeking enhancement of compensation by assailing the judgment and award passed by he III Addl. Senior Civil Judge & VII Motor Vehicle Accident Tribunal (hereinafter, referred to as 'Tribunal' for brevity) Davanagere, in M.V.C.No.909/2014, which was disposed of on 05.06.2017. 3. For the sake of convenience, the parties herein shall be referred to in terms of their status before the Tribunal. 4. It is the case of the claimants that Halappa, was sitting under a tree in front of his house on 17.11.2014 at about 11.45 a.m., when at that time respondent No.1 being the driver of vehicle bearing registration No.KA-01/A-6958 drove the same in a rash and negligent manner on Kukkuvada road and though Halappa tried to escape from the lorry, he was nevertheless hit by it and fell down, the rear wheel passed over the head of Halappa, as a result of which, he sustained serious injuries and died on the spot. A criminal case against respondent No.1 was registered in Cr.No.178/2014 for the offences punishable under Sections 279 and 304-A of IPC and Section 187 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act' for brevity). Post Mortem examination was conducted on the body of Halappa at C.G. hospital, Davanagere and thereafter his final rites were performed. Contending that Halappa was hale and healthy and he was growing sugarcane and other commercial crops on his land and that on account of the accidental death, the family had lost earnings through Halappa, claimants filed the claim petition under Section 166 of the Act. They contended that Halappa was using his earnings for maintenance of his family and on account of his untimely death, the family was in agony and penury, therefore, they sought for compensation on account of the death of Halappa. 5. In response to the notice issued by the Tribunal, respondents No.1 and 2 appeared through their counsel. Respondent No.1 did not file any statement of objections. The insurance company contended that the satisfaction of the award was subject to the terms and conditions of the policy. 5. In response to the notice issued by the Tribunal, respondents No.1 and 2 appeared through their counsel. Respondent No.1 did not file any statement of objections. The insurance company contended that the satisfaction of the award was subject to the terms and conditions of the policy. That the accident had occurred due to the negligence on the part of the deceased and that the compensation sought for by the claimants was exorbitant, excessive and without any basis. That the claim petition was not maintainable in law. Hence, insurer sought for dismissal of the claim petition. 6. On the basis of the rival pleadings, the Tribunal raised the following issues for consideration: i) Whether the petitioners prove that due to the rash and negligent act of the driver of goods vehicle bearing KA.1/A.5958 accident was occurred on 17.11.2014 at about 11.45 a.m. near Nagarasanahalli village, Kukkuwada road, Davanagere taluk, thereby claimant/petitioner's husband died on spot as stated in the petition? ii) Whether the respondents prove that, they are not liable to pay any compensation to the petitioners as contended in their objection statement? iii) Whether the petitioners are entitled for the compensation as prayed? If so, at what rate? iv) What order or award? 7. In support of their case, claimants examined P.W.1-Siddamma, widow of the deceased and P.W.2- Naresh, Deputy Chief Accountant of Davanagere Sugar Co., Ltd., Kukkuwada. They produced 16 documents which were marked as Exs.P1 to P.16. While the insurance company examined R.W.1- Surendra C.V., Senior Executive of Reliance Insurance company ltd., and Ex.R.1- policy copy was marked in evidence. On the basis of the aforesaid evidence, the Tribunal answered issue No.1 in the affirmative, Issue No.2 in the negative and under Issue No.3 awarded a sum of Rs.3,55,000/- as compensation with interest at the rate of 8% per annum and directed the insurance company to satisfy the award. 8. Being aggrieved by the inadequate compensation awarded by the Tribunal, claimants have preferred this appeal. 9. We have heard learned counsel Smt. Saritha Kulkarni, for the appellants and Sri. Ashok N Patil, learned counsel for respondent No.2 - insurer through video conference and perused the material on record. 10. Learned counsel for appellants contended that deceased Halappa was aged about sixty one (61) years at the time of the accident. 9. We have heard learned counsel Smt. Saritha Kulkarni, for the appellants and Sri. Ashok N Patil, learned counsel for respondent No.2 - insurer through video conference and perused the material on record. 10. Learned counsel for appellants contended that deceased Halappa was aged about sixty one (61) years at the time of the accident. That the proper multiplier to be applied for calculating compensation on the head of loss of dependency was 7' and not 6' as applied by the Tribunal. She next contended that Tribunal has assessed notional income only at Rs.5,000/- per month, which is on the lower side. She contended that since the accident occurred in the year 2014, even an unskilled employee or coolie would have been earning atleast Rs.8,000/- to Rs.10,000/- per month during that period. Therefore, notional income would have to be reassessed. She further contended that award of compensation on the head loss of dependency would have to be enhanced and accordingly, there may be reassessment of the compensation on all other heads including conventional heads and the appeal may be allowed on enhancing the compensation. 11. Per contra, learned counsel for respondent No.2- insurer supported the impugned judgment and award and contended that there is no merit in this appeal. That the Tribunal has awarded excessive compensation of Rs.1,00,000/- on the head loss of consortium and that the award of compensation on the heads loss of estate, loss of love and affection and towards funeral expenses are on the higher side. He also submitted that normally Tribunals and this Court awarding interest at the rate of 6% per annum. But in the instant case, interest at the rate of 8% per annum has been awarded, which is on the higher side. He contended that there is no merit in the appeal and same may be dismissed. 12. Having heard learned counsel for the respective parties and on perusal of the material on record, following points would arise for our consideration: i) Whether the quantum of compensation awarded by the Tribunal would call for any modification or enhancement, as sought for by the appellants/claimants? ii) What order? 13. 12. Having heard learned counsel for the respective parties and on perusal of the material on record, following points would arise for our consideration: i) Whether the quantum of compensation awarded by the Tribunal would call for any modification or enhancement, as sought for by the appellants/claimants? ii) What order? 13. The fact that Halappa died in a road traffic accident that occurred on 17.11.2014 on account of rash and negligent driving by respondent No.1 when he drove goods vehicle bearing registration No.KA-01-A/6958 in a rash and negligent manner endangering human life resulting in death of Halappa is not in dispute. The controversy, however, is only with regard to awarding compensation by the Tribunal. In the instant case, Tribunal has awarded compensation of Rs.3,55,000/- with interest at the rate of 8% per annum on the following heads: i) Loss of dependency Rs.1,80,000/- ii) Loss of estate Rs. 20,000/- iii) Loss of consortium Rs.1,00,000/- iv) Loss of love and affection Rs. 30,000/- (Rs.10,000/- to each petitioner) v) Towards funeral expenses Rs. 25,000/- Total Rs.3,55,000/- 14. On perusal of the same and bearing in mind the rival contentions of the parties, we find that deceased Halappa was 61 years of age. Nevertheless, he was an active person and earning income from agricultural activities. Though it can not be stated that Halappa was earning a fabulous monthly income from agricultural activities, nevertheless, we keep in mind the activity and the fact that he was growing sugar cane and other crops on his land. It may be contended that legal representatives of the deceased Halappa had the benefit of the land, which would enure to them and therefore, there is no real loss of income to the family. It may also be contended that claimants No.2 and 3 are majors and they are eking out their livelihood. But nevertheless, it has to be borne in mind that, although Halappa was aged about 61 years, he was nevertheless an active member of the family and he was earning for the family from agricultural operations. But having regard to his age, we think that notional monthly income must be assessed at Rs.8,500/- and not Rs.5,000/- as awarded by the Tribunal. Therefore, on re-assessing the notional monthly income at Rs.8,500/-, we also think that the appropriate multiplier of 7' must be applied instead of 6'. But having regard to his age, we think that notional monthly income must be assessed at Rs.8,500/- and not Rs.5,000/- as awarded by the Tribunal. Therefore, on re-assessing the notional monthly income at Rs.8,500/-, we also think that the appropriate multiplier of 7' must be applied instead of 6'. Having regard to the dictum of the Hon'ble Supreme Court in the case of SARALA VARMA AND OTHERS Vs. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) AIR SC 3104 . Since the deceased was 61 years of age, we do not think that any amount can be added towards future prospects. There are three claimants in the instant case and even if it is contended that the two sons of Halappa are majors, nevertheless, his wife-widow being one of the claimant, 1/3 of the said amount is to be deducted towards his personal expenses. Consequently, compensation on the head of loss of dependency would be Rs.8,500 1/3 = 5,666/- X 12 X 7 = 4,75,999/-, rounded of to Rs.4,76,000/-. 15. Having regard to the latest judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS, (2017) 16 SCC 680 , and MAGMA GENERAL INSURNCE CO., Vs. NANURAM @ CHUHRU RAM AND OTHERS, (2018) ACJ 2782 , compensation on the head of loss of consortium would be Rs.40,000/-, on the head of loss of parental consortium, love and affection would be Rs.30,000/- each for the two sons totaling Rs.60,000/- and a sum of Rs.15,000/- each towards loss of estate and funeral expenses. Thus, the reassessed compensation would be Rs.6,06,000/- instead of Rs.3,55,000/- as awarded by the Tribunal. We find considerable force in the argument of learned counsel for the insurer to the effect that the rate of interest awarded on the said compensation must be at the rate of 6% per annum only. Instead, the Tribunal has awarded interest at 8% per annum on the enhanced compensation. Hence, interest on the reassessed compensation shall be at the rate of 6% per annum. In the result, the re-assessed compensation is as under: Loss of dependency Rs.4,76,000/- Loss of consortium Rs. 40,000/- Loss of love and affection Rs. 60,000/- Loss of estate and funeral Expenses Rs. 30,000/- TOTAL Rs.6,06,000/- The enhanced compensation same shall carry interest at the rate of 6% per annum from the date of petition till realization. In the result, the re-assessed compensation is as under: Loss of dependency Rs.4,76,000/- Loss of consortium Rs. 40,000/- Loss of love and affection Rs. 60,000/- Loss of estate and funeral Expenses Rs. 30,000/- TOTAL Rs.6,06,000/- The enhanced compensation same shall carry interest at the rate of 6% per annum from the date of petition till realization. The entire enhanced compensation shall be awarded to appellant No.1-widow of deceased Halappa, which would be Rs.2,51,000/- plus interest. Out of the enhanced compensation, a sum of Rs.2,00,000/- shall be deposited in any Post Office or Nationalized Bank initially for a period of three years and she shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification. The second respondent insurer shall deposit the enhanced compensation within a period of six weeks from he date of receipt of a certified copy of this judgment. Parties to bear their respective costs.