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2020 DIGILAW 1181 (KAR)

Lolamma v. S. Chandrakala

2020-06-23

B.V.NAGARATHNA, RAVI V.HOSMANI

body2020
JUDGMENT B.V.Nagarathna, J. - Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally. 2. The appellants are claimants, who have sought enhancement of compensation by assailing the judgment and award dated 18/10/2014, passed in MVC.No.193/2013, by the Motor Vehicles Accident Claims Tribunal, Bengaluru (hereinafter referred to as "the Tribunal" for the sake of convenience). 3. Briefly stated, the facts are, the husband of appellant No.1 and father of appellant No.2, Mahadevaiah was walking on Varadenahalli-Mahadevapura Road, Motaganahalli, Magadi Taluk, Ramanagaram District, on 02/12/2012 at about 4.00 p.m. At that time, a heavy goods vehicle - lorry bearing No.KA-14/A-2742 came in a high speed and rash and negligent manner and dashed against the deceased from behind. As a result of the impact, Mahadevaiah fell down and died on the spot. Postmortem examination was conducted on the dead body of Mahadevaiah and handed over to the family members for his last rites. Contending that Mahadevaiah was hale and healthy and he was an agriculturist and milk vendor, earning a sum of Rs.25,000/- per month and maintaining his family from the said amount and further contending that his death had caused suffering, mental shock and agony as he was the only earning member of the family, the claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 ("the Act" for short). 4. In response to the notices of the Tribunal, the respondents appeared and filed their statements of objection. 5. The respondents denied the averments made in the claim petition and contended that they were not liable to pay any compensation as there was no negligence on the part of the driver of the lorry. They contended that the lorry was insured by respondent No.1 with respondent No.2/insurer and respondent No.2/insurer contended that the satisfaction of the claim would be subject to the terms and conditions of the policy. Both respondents contended that the claim made by the claimants to an extent of Rs.40,00,000/- for the death of Mahadevaiah was exorbitant and excessive and they sought for dismissal of the claim petition. 6. Both respondents contended that the claim made by the claimants to an extent of Rs.40,00,000/- for the death of Mahadevaiah was exorbitant and excessive and they sought for dismissal of the claim petition. 6. On the basis of the rival pleadings, the Tribunal formulated the following issues: (i) Whether the petitioner proves that Mahadevaiah S/o. Ganga Revanna died on 02/12/2012 at about 4.00 p.m., on Varadenahalli - Mahadevapura Road, Motaganahalli, Magadi Taluk, Ramanagara District, in an accident arising due to rash and negligent driving of the driver of HGV Lorry bearing No.K-14/A-2742? (ii) Whether the petitioner is entitled to compensation? If so, how much and from whom? (iii) What order or award? 7. In support of their case, the claimants examined the son of deceased Mahadevaiah as PW.1. He produced twelve documents, which were marked as Exs.P- 1 to P-12, while the respondents did not let-in any evidence. 8. On the basis of the aforesaid evidence, the Tribunal answered issue No.1 in the affirmative and issue No.2 also in the affirmative by awarding compensation of Rs.8,87,000/- with interest at the rate of 9% per annum, from the date of claim petition till realization. Being aggrieved by the inadequate compensation awarded by the Tribunal, the claimants have preferred this appeal. 9. We have heard learned counsel for the appellants/claimants and learned counsel for respondent No.2/insurer and perused the material on record as well as the trial Court records. 10. Appellants' counsel contended that the accident occurred in December 2012. The deceased Mahadevaiah was having income from agricultural operations and through milk vending business. That in the absence of there being any corroborative evidence, the Tribunal ought to have assessed the notional income realistically. He contended that the Tribunal has assessed the notional income at Rs.6,000/- per month only, which is very meager. Therefore, he sought for enhancement of the same. 11. He further submitted that having regard to the latest dictum of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi, (2017) 16 SCC 680 , 30% of the income would have to be added towards future prospects. Therefore, the notional income would be enhanced. He also submitted that compensation may be awarded on the conventional heads and the compensation may be enhanced by allowing this appeal. 12. Therefore, the notional income would be enhanced. He also submitted that compensation may be awarded on the conventional heads and the compensation may be enhanced by allowing this appeal. 12. Per contra, learned counsel for the respondent/insurer supported the judgment and award insofar as the award of compensation is concerned, but at the same time, he also contended that the enhancement on the head of future prospects cannot be 30% of the income, since the deceased was aged 46 years, having regard to the dictum in Pranay Sethi (supra) only 25%, if at all could be added. He also submitted that the Tribunal has awarded interest at 9% per annum. The same may be reduced to 6% in the event compensation is enhanced in this appeal. He also contended that there is no merit in this appeal and the same may be dismissed. 13. Having heard learned counsel for the respective parties, the following points would arise for our consideration: (i) Whether the appellants/claimants are entitled to additional compensation? (ii) What order? 14. The fact that the husband of appellant No.1 and father of appellant No.2 died in a road traffic accident that occurred on 02/12/2013 at about 4.00 p.m. when the driver of lorry bearing No.KA-14/A-2742 hit him from behind resulting in his death on the spot has been established. It has also come on record that Tavarekere Police registered case in Cr.No.624/2012 against the driver of the lorry for the offences punishable under Sections 279 and 304(A) of the IPC. Therefore, there is no controversy with regard to the negligence on the part of the driver of the lorry. 15. The appeal is, hence, restricted to the aspect of quantum of compensation awarded by the Tribunal. The rival contentions of learned counsel for the respective parties would not call for reiteration except noting the fact that the accident occurred on 02/12/2012. According to the claimants, the deceased Mahadevaiah had been earning through agriculture and milk vending business. Though there is no corroborative evidence in that regard, nevertheless, having regard to the fact that the accident took place in December 2012, the notional income could be re-assessed at Rs.10,000/- per month rather than Rs.6,000/- per month assessed by the Tribunal. According to the claimants, the deceased Mahadevaiah had been earning through agriculture and milk vending business. Though there is no corroborative evidence in that regard, nevertheless, having regard to the fact that the accident took place in December 2012, the notional income could be re-assessed at Rs.10,000/- per month rather than Rs.6,000/- per month assessed by the Tribunal. We also note that since the deceased Mahadevaiah was a selfemployed person, having regard to the dictum of the Hon'ble Supreme Court in the case of Pranay Sethi and the age of the deceased being 46 years, 25% of the said income would have to be added towards future prospects and not 30% as contended by learned counsel for the appellants. Consequently, the total amount would be Rs.12,500/- per month. Since there are two claimants, 1/3rd of the said amount would have to be deducted towards personal expenses of the deceased having regard to the dictum of the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation, (2009) AIR SC 3104 . Consequently, the compensation on the head of loss of loss of dependency would be Rs.12,500 x 1/3 = 8,333 x 12 x 13 (being the multiplier applicable) = Rs.12,99,999/-, which is rounded off to Rs.13,00,000/-. 16. On the conventional heads, it is necessary to follow the recent dicta of the Hon'ble Supreme Court in the case of Pranay Sethi (supra) and Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Others, (2018) ACJ 2782 (Magma General Insurance Co. Ltd.) and awarded a sum of Rs.40,000/- to the widow/appellant No.1 towards loss of spousal consortium, a sum of Rs.30,000/- to appellant No.2 towards loss of parental consortium, a sum of Rs.15,000/- each towards loss of estate and funeral expenses. Thus, the total compensation is Rs.14,00,000/- as under: Loss of dependency : Rs.13,00,000/- Loss of spousal consortium : Rs. 40,000/- Loss of parental consortium : Rs. 30,000/- Loss of love and affection : Rs. 15,000/- Funeral expenses : Rs. 15,000/- ----------------- TOTAL : Rs.14,00,000/- ========== The enhanced compensation is Rs.5,13,000/-, which shall carry interest at the rate of 6% per annum. The enhanced compensation shall be apportioned between the widow and the son of deceased Mahadevaiah to an extent of 80%:20%. 30,000/- Loss of love and affection : Rs. 15,000/- Funeral expenses : Rs. 15,000/- ----------------- TOTAL : Rs.14,00,000/- ========== The enhanced compensation is Rs.5,13,000/-, which shall carry interest at the rate of 6% per annum. The enhanced compensation shall be apportioned between the widow and the son of deceased Mahadevaiah to an extent of 80%:20%. Out of the compensation apportioned to appellant No.1/widow of the deceased, a sum of Rs.3,50,000/- shall be deposited in any post office and/or nationalized bank for an initial period of ten years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation amount shall be released to her after due identification. The amount of compensation apportioned to appellant No.2/son of the deceased Mahadevaiah shall be released to him after due identification. The appeal is allowed in part. Parties to bear their respective costs. Respondent No.2/insurance company shall deposit the enhanced compensation with upto date interest within a period of six weeks from the date of receipt of certified copy of this judgment. Office to transmit the trial Court records to the concerned Tribunal forthwith.