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2020 DIGILAW 1158 (KAR)

Manager Shriram General Ins Co Ltd. v. Pavithra

2020-06-22

B.V.NAGARATHNA, RAVI V.HOSMANI

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JUDGMENT Ravi V Hosmani, J. - Though this appeal and MFA-Crob. are listed for admission, with the consent of the learned counsel for the respective parties, they were heard finally. 2. Mfa No.600/2016 has been filed by the Insurance Company seeking reduction in the quantum of compensation awarded by the Senior Civil Judge and Motor Accident Claims Tribunal, Nagamangala, in M.V.C.No.127/2015 dated 29.10.2015; while MFA - Crob.No.70/2016 has been filed by the claimants seeking enhancement of compensation by assailing the aforesaid judgment and award and they have been clubbed together. 3. For the sake of convenience the parties shall be referred to in terms of their status and ranking before the Tribunal. 4. The facts leading to filing of this appeal are that on 01.06.2014 at about 8.15 p.m., while T.J. Javaregowda, rider of the Motorcycle bearing registration No.KA-05-EE/7859 was proceeding along with one Balakrishna towards Nagamangala, near Ammanakatte, Nagamangala Town, the driver of a goods Eicher canter bearing registration No. KA-11- 4148 came from the opposite direction in a rash and negligent manner and dashed against the motorcycle, as a result of which, Javaregowda sustained fatal injuries and died on the spot. Claiming compensation, wife, children and mother of the deceased filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 against the owner and insurer of the offending vehicle. 5. After service of notice, respondent No.1- owner of the offending vehicle appeared through his counsel but did not file any written statement. Respondent No.2 - insurer entered appearance through its counsel and filed written statement denying the petition averments. It has admitted the issuance of policy and its coverage. It contended that in the accident another motorcycle bearing registration No.KA-02-HV/7806 was also involved, therefore, the accident in question was on account of the negligence of riders of both motorcycles and they were not holding any valid and effective driving licence and also insurance coverage at the time of the accident. The accident was not on account of the negligence on the part of the driver of the goods vehicle. Further the driver of the Goods Eicher canter was also not holding a valid and effective driving licence, permit and fitness certificate. Hence, sought for dismissal of the claim petition. 6. The accident was not on account of the negligence on the part of the driver of the goods vehicle. Further the driver of the Goods Eicher canter was also not holding a valid and effective driving licence, permit and fitness certificate. Hence, sought for dismissal of the claim petition. 6. On the basis of the pleadings, following issues were framed by the Claims Tribunal: (i) Whether the petitioners prove that 01.06.2014 at about 8.15 p.m. while T.J.Javaregowda, as rider and one Balakrishna, as rider pillion of motorcycle bearing No.KA-05-EE-7859 were proceeding towards Nagamangala, near Ammanakatte in Nagamangala Town the driver of Goods Eicher Canter bearing No.KA-11-4148 drove it in rash and negligent manner, came from Nagamangala side and dashed against the above said motorcycle, due to the said impact T.J. Javaregowda sustained fatal injuries and died on the spot? (ii) Whether the petitioners are entitled for compensation? If entitled, how much and from whom? (iii) What order or decree? 7. In support of their case, the Crossobjectors/ claimants, Smt.Pavitra, wife of the deceased examined herself as P.W.1 and one witness viz., Balakrishana as P.W.2 and got marked 11 documents at Ex.P.1 to P.11. On behalf of the Insurance Company the legal officer of Sriram General Insurance Company was examined as R.W.1 and got marked 2 documents at Ex.R.1 and R.2. 8. The Claims Tribunal after appreciating the evidence on record and on perusal of the records answered issue No.1 in the affirmative; issue No.2 partly in the affirmative and issue No.3 as per final order awarding compensation of Rs.17,65,000/- with interest at 6% per annum from the date of the petition payable by respondent No.2-Insurance Company. 9. Assailing the quantum of compensation, the insurer and the cross-objectors are in appeal. 10. Learned counsel for the insurer submitted that the deceased was not having any regular or permanent employment and therefore, addition of future prospects at 50% was not justified. It was further contended that though the deceased was aged above 40 years, the multiplier applied was 15' instead of applying correct multiplier of 14'. The award under the conventional heads was also questioned as being excessive. 11. It was further contended that though the deceased was aged above 40 years, the multiplier applied was 15' instead of applying correct multiplier of 14'. The award under the conventional heads was also questioned as being excessive. 11. On the other hand, learned counsel for the claimants/cross-objectors submitted that the deceased was an agriculturist, also doing milk-vending business and had an income of more than Rs.25,000/- as evidenced by Ex.P.7 and Ex.P.8, but the Claims Tribunal has considered it at Rs.8,000/-notionally, which calls for enhancement. It was also contended that the claimants being wife, two minor children and mother of the deceased, the Claims Tribunal has not granted adequate compensation under conventional heads and sought appropriate award. It was also contended that the age of the deceased Javaregowda was 38 years as on the date of the accident and the Claims Tribunal was justified in taking future prospects at 50% and applying multiplier of 15' and sought for dismissal of the appeal by the insurer. 12. Having heard learned counsel for the respective parties and on perusal of the material on record, as well as the original record, the following points are raised for our consideration. 1) Whether the quantum of compensation awarded by the Tribunal calls for any modification in this appeal? As well as Cross Objection? 2) What order? 13. Since the appeal of the insurer and the cross-objection of the claimants is on quantum of compensation, the occurrence of the accident at 8.15 p.m. on 01.06.2014 between motorcycle bearing registration No.KA-05-EE-7859, on which the deceased T.J. Javaregowda was riding and the Eicher Goods lorry bearing reg.No.KA-11-4148 near Ammanakatte, Nagamangala Town is not in dispute. It is also not disputed that Sri. T.J. Javaregowda died in the accident and that the accident occurred on account of rash and negligent driving by the driver of the Eicher Goods lorry. The only dispute is with regard to the quantum of compensation awarded by the Claims Tribunal. Reg. Point No.1. 14. As per the decision of the Hon'ble Supreme Court in the case of Sarla Varma and Others Vs. Delhi Transport Corporation & another, (2009) 6 SCC 121 , the first step for determining the compensation is to determine the multiplicand. The same is based on the age, occupation, income and the number of dependents of the deceased. The accident occurred on 01.06.2014. Delhi Transport Corporation & another, (2009) 6 SCC 121 , the first step for determining the compensation is to determine the multiplicand. The same is based on the age, occupation, income and the number of dependents of the deceased. The accident occurred on 01.06.2014. During the said period, even an ordinary coolie would be earning Rs.8,500/- to Rs.9,000/- per month. Considering the certificate issued by the Milk Producers Co-operative Society, at Ex.P.7 and the list of payment made at Ex.P.8, monthly income of the deceased Javaregowda can be safely taken at Rs.9,000/-. Though, the claimants have mentioned the age of the deceased as 38 years in the claim petition, the age of the deceased Javaregowda mentioned in the Post mortem report -Ex,P.5 and the Election identity card-Ex.P.9 is 40 years, which has been accepted by the Claims Tribunal. In the absence of any specific evidence, to dispute the same, the age of the deceased taken by the Claims Tribunal as 40 years, is affirmed. As per the decision of the Hon'ble Supreme Court in National Insurance Company Ltd., Vs. Pranay Sethi & Ors., (2017) AIR SC 5157 , for the age group between 40 and 50 years, future prospects applicable in case of self employed persons would be 25%. Therefore, the Claims Tribunal was not justified in considering future prospects at 50%. As per Sarla Varma's case (supra), the multiplier applicable for the age group between 36-40 is 15' and 41- 45 is 14'. Since, we have determined the age of the deceased as 40 years, the proper multiplier would be 15'. The Claims Tribunal is justified in applying the same. The claimants in this case are four in number namely, wife, two minor children and mother of the deceased. Therefore, deduction towards personal expenses of the deceased would be 1/4th as per Pranay Sethi (supra). Hence, the loss of dependency would be Rs.9000 + 25% (future prospects) less 1/4th (personal expenses) X 12 X 15 = Rs.15,18,750/-. Therefore, compensation towards loss of dependency is reduced to Rs.15,18,750/- instead of Rs.16,20,000/- awarded by the Claims Tribunal. As per the decision of the Hon'ble Supreme Court in Magma General Insurance Co., Ltd., Vs. Hence, the loss of dependency would be Rs.9000 + 25% (future prospects) less 1/4th (personal expenses) X 12 X 15 = Rs.15,18,750/-. Therefore, compensation towards loss of dependency is reduced to Rs.15,18,750/- instead of Rs.16,20,000/- awarded by the Claims Tribunal. As per the decision of the Hon'ble Supreme Court in Magma General Insurance Co., Ltd., Vs. Nanu Ram @ Chuhru Ram & Ors., (2018) 18 SCC 130 , the wife is entitled for compensation towards loss of consortium, the children are entitled for compensation towards loss of parental consortium and the mother is entitled for compensation towards loss of filial consortium. The Claims Tribunal has awarded a sum of Rs.1,00,000/- towards loss of consortium to the wife, which is contrary to the decision in Pranay Sethi (supra). Hence, a sum of Rs.40,000/- only is awarded to the wife - claimant No.1. A sum Rs.30,000/- to each of the other claimants is awarded towards loss of parental and filial consortium. Further the claimants are also entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. Thus, the claimants are entitled for total compensation of Rs.16,78,750/- under the following heads: Loss of dependency ... Rs.15,18,750/- Loss of consortium ... Rs. 40,000/- Loss of parental consortium (Rs.30,000 X 2) ... Rs. 60,000/- Loss of filial consortium ... Rs. 30,000/- Loss of Estate ... Rs. 15,000/- Funeral Expenses ... Rs. 15,000/- Total ... Rs.16,78,750/- The difference in the compensation reassessed is Rs.86,250/- 15. With regard to rate of interest on the compensation, normally, this Court has been awarding interest at the rate of 6% per annum on the award. In the absence of any special or adequate justification, the award of interest at 9% by the Claims Tribunal would be unjustified. Hence, the rate of interest is reduced from 9% to 6% per annum. 16. In the result, point No.1 is answered in favour of the appellant- Insurer and against the claimants. Thus the quantum of compensation is reassessed at Rs.16,78,750/- with interest at the rate of 6% per annum from the date of the claim petition till realization. Point No.2 is answered accordingly. The appeal filed by the Insurer is allowed in part; while the MFA-cross objection is dismissed. In view of the reduction in the compensation, the apportionment of the same between the claimants is modified as under: 40% to the widow of the deceased. Point No.2 is answered accordingly. The appeal filed by the Insurer is allowed in part; while the MFA-cross objection is dismissed. In view of the reduction in the compensation, the apportionment of the same between the claimants is modified as under: 40% to the widow of the deceased. 25% each to the minor children of the deceased. 10% to the mother of the deceased. Out of the compensation awarded to the widow of the deceased, 75% shall be kept in Fixed Deposit for an initial period of 10 years in any Post Office or Nationalised Bank, which shall be free from encumbrances. She is entitled to draw periodical interest of the said deposit. Balance compensation shall be payable to her after due identification. If Master Rahul,- first son of the deceased has already attained majority, 50% of the compensation awarded to him shall be kept in Fixed deposit in any Post Office or in any Nationalised Bank for a period of three years. He shall be entitled to draw periodical interest of the said deposit. The balance compensation shall be payable to him after due identification. The reason for releasing the 50% of the compensation amount to him is, in order to enable him to continue his education, if he so desires or for any other suitable purpose. The entire compensation awarded to Master Chandan, second son of the deceased shall be kept in Fixed Deposit in Post Office of any Nationalised Bank until he attains the age of majority. On his attaining the age of majority, 50% of the compensation shall be released to him for his education or any other purposes. The balance amount shall be re-deposited for a further period of three years. He shall be entitled to draw the periodical interest of the said deposit. The entire compensation awarded to the mother of the deceased shall be released to her after due identification. The appellant-insurer to deposit the balance compensation amount with up-to-date interest within a period of six weeks from the date of receipt of certified copy of this judgment. Parties to bear their respective cost. Office to return the TCR to the concerned Tribunal forthwith.