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2020 DIGILAW 1163 (KAR)

Sattewwa v. Tushar

2020-06-22

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT S.G.Pandit, J. - The claimants/appellants are before this Court in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 03.01.2018 in M.V.C. No.1824 of 2015 on the file of the I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Gokak, (for short 'the Tribunal'), praying for enhancement of the compensation. 2. Even though the appeal is listed for admission, with the consent of the learned counsel for the parties, the same is heard finally and disposed of by this judgment. 3. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') by the claimants, who are the wife, parents and brothers of the deceased, claiming compensation for the death of one Ramaning who died in a road traffic accident that occurred on 26.05.2015 involving motorcycle bearing No.KA-49/J-9848 and tipper vehicle bearing registration No.MH-11/AL-5922. The Tribunal, based on the material placed on record both oral and documentary, awarded a total compensation of Rs.9,86,064/- with interest at 9% per annum from the date of petition till its realization on the following heads: 1 Loss of Dependency Rs.8,96,064/- 2 Loss of consortium (petitioner No.1) Rs.40,000/- Loss of estate (petitioner No.2 & 3) Rs.15,000/- 3 Loss of love and affection and expectancy of life Rs.20,000/- 4 Transportation of dead body and funeral expenses Rs.15,000/- Total Rs.9,86,064/- 4. The occurrence of the accident involving motorcycle bearing No.KA-49/J-9848 and tipper vehicle bearing registration No.MH-11/AL-5922 and the accidental death of Ramaning is not in dispute in this appeal. The claimants' appeal is for enhancement of the compensation. 5. Heard the learned counsel for the appellants and the learned counsel for respondent No.2-insurance company. 6. The learned counsel for the appellants would submit that the compensation awarded by the Tribunal is on the lower side. The learned counsel submits that the deceased was working as a Lab Technician and was also doing agricultural work, earning a sum of Rs.10,000/- per month and Rs.2,00,000/- per annum respectively which the deceased contributed to his family. The deceased was aged about 33 years as on the date of the accident. It is his submission that the Tribunal ignoring the oral evidence of P.W.1 and P.W.2, assessed the income of the deceased at Rs.7,000/- per month which is on the lower side and prays for enhancement of the same. The deceased was aged about 33 years as on the date of the accident. It is his submission that the Tribunal ignoring the oral evidence of P.W.1 and P.W.2, assessed the income of the deceased at Rs.7,000/- per month which is on the lower side and prays for enhancement of the same. Further, he submits that the Tribunal failed to award any compensation towards future prospects which the claimants are entitled to at 40% of the assessed income. It is also his submission that claimant No.2 the mother of the deceased would be entitled for Rs.40,000/- towards filial consortium as held by the Hon'ble Apex Court in the case of Magma General Insurance Co. Limited v. Nanu Ram and Others, (2018) ACJ 2782 . The learned counsel informs the Court that claimant No.3, the father of the deceased, died after the disposal of the claim petition. Thus, he prays for enhancement of the compensation. 7. Per contra, the learned counsel for respondent No.2-insurance company would submit that even though the claimants stated that the deceased was earning Rs.10,000/- per month as Lab Technician and was also having an income of Rs.2,00,000/- per annum from agriculture, the claimants have not placed any material on record to establish the same and, in those circumstances, the income assessed by the Tribunal at Rs.7,000/- per month is proper and correct which needs no interference. Further, he submits that claimant No.2, the mother of the deceased, would not be entitled to Rs.40,000/- towards filial consortium in view of the decision of the Hon'ble Apex Court in the case of Sebastiani Lakra and others Vs. National Insurance Co. Ltd. and another, (2019) ACJ 34 . He further submits that as per the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, (2017) ACJ 2700 , claimants would be entitled to a total compensation of Rs.70,000/- under the conventional heads and not more than that. Thus, he prays for dismissal of the appeal. 8. Having heard the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in this appeal: i) Whether the income of the deceased assessed by the Tribunal at Rs.7,000/- per month is proper and correct? ii) Whether the claimants would be entitled for addition of 40% of the assessed income towards future prospects? ii) Whether the claimants would be entitled for addition of 40% of the assessed income towards future prospects? iii) Whether claimant No.2 would be entitled for Rs.40,000/- towards filial consortium? 9. The answer to point No.1 would be in the negative and the answer to point Nos.ii) and iii) would be in the affirmative for the following reasons: (a) As stated above, there is no dispute with regard to the occurrence of the accident and the accidental death of Ramaning. The claimants' appeal is for enhancement of the compensation. The claimants stated that the deceased was working as a Lab Technician earning Rs.10,000/- per month and he was also doing agricultural work earning an income of Rs.2,00,000/- per annum. But no material whatsoever is placed on record to establish that the deceased was working as a Lab Technician and also to establish the agricultural income of Rs.2,00,000/- per annum. In the absence of any material on record, the Tribunal assessed the notional income of the deceased at Rs.7,000/- per month, which is on the lower side and needs interference. This Court and the Lok Adalats, while settling the accidental claims of the year 2015 in the absence of any material placed on record to establish the income, normally would take Rs.8,000/- per month as the notional income of a person. In the present case also, in the absence of any material placed on record to establish the income, we deem it proper to assess the notional income of the deceased at Rs.8,000/- per month. (b) The deceased was aged 33 years as on the date of the accident. The Hon'ble Apex Court in the case of Pranay Sethi (supra) has held that the claimants would be entitled for an addition of 40% of the assessed income towards future prospects wherever the deceased was below the age of 40 years. Following the said decision, it is held that the claimants would be entitled to addition of 40% of the assessed income towards future prospects. The deduction made by the Tribunal at 1/3rd of the income of the deceased towards his personal and living expenses is proper and correct which needs no interference. Following the said decision, it is held that the claimants would be entitled to addition of 40% of the assessed income towards future prospects. The deduction made by the Tribunal at 1/3rd of the income of the deceased towards his personal and living expenses is proper and correct which needs no interference. (c) On taking the income of the deceased at Rs.8,000/- per month, adding 40% of the assessed income towards future prospects, deducting 1/3rd towards personal expenses of the deceased and applying multiplier of 16, the claimants would be entitled to a sum of Rs.14,33,664/- towards 'loss of dependency' including future prospects. (d) The learned counsel for the appellants, relying on the decision of the Hon'ble Apex Court in Magma General Insurance Co. Limited (supra), contended that claimant No.2 mother of the deceased would be entitled for Rs.40,000/- towards filial consortium. On the other hand, learned counsel for respondent No.2-insurance company, relying on the decision of the Hon'ble Apex Court in Sebastiani Lakra's case (supra), contended that claimant No.2 would not be entitled for compensation of Rs.40,000/- towards filial consortium. The Hon'ble Apex Court in Magma General Insurance Co. Limited (supra) has specifically held that where the claimants are children and parents of the deceased, they would be entitled to filial and parental consortium. The Hon'ble Apex Court in Pranay Sethi's case (supra) has stated that the claimants would be entitled for compensation under the conventional heads in a sum of Rs.70,000/-, which includes loss of consortium to the surviving spouse where the deceased is wife or husband. The decision in Pranay Sethi's case does not deal with the situation of awarding compensation towards filial or parental consortium. The decision in Sebastiani Lakra's case also does not discuss the legal principles enunciated in the case of Magma General Insurance Company, while it only indicates that the claimants would be entitled to compensation of Rs.70,000/- under the conventional heads. It would not discuss with regard to the entitlement of compensation on the head of filial or parental consortium. The Hon'ble Apex Court in Sebastiani Lakra's case was considering as to whether amount received by the claimants under Employees Family Benefit Scheme requires to be deducted from the compensation to be awarded under the Act. But the compensation on the head of filial and parental consortium was not under consideration. The Hon'ble Apex Court in Sebastiani Lakra's case was considering as to whether amount received by the claimants under Employees Family Benefit Scheme requires to be deducted from the compensation to be awarded under the Act. But the compensation on the head of filial and parental consortium was not under consideration. Thus, we feel that in view of the decision in Magma General Insurance Company Ltd., case (supra) claimant No.2 would be entitled for filial consortium of Rs.40,000/- 10. On reassessment, the claimants would be entitled for the following modified compensation: 1. Loss of dependency (including future prospects) Rs.14,33,664/- 2. Conventional heads Rs. 70,000/- 3. Filial consortium (Rs.40,000/- to claimant No.2) Rs. 40,000/- Total Rs.15,43,664/- Thus, in all, the claimants would be entitled to a total compensation of Rs.15,43,664/-, as against Rs.9,86,064/- awarded by the Tribunal, along with interest at 9% per annum from the date of petition till the date of realization. Accordingly, the appeal is allowed in part. The judgment and award dated 03.01.2018 passed in M.V.C. No.1824/2015 passed by the Tribunal is hereby modified. The claimants are entitled to a total compensation of Rs.15,43,664/-, as against Rs.9,86,064/- awarded by the Tribunal, along with interest at 9% per annum from the date of petition till the date of realization. The apportionment and deposit of the compensation shall be in the same proportion as ordered by the Tribunal.