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2020 DIGILAW 1182 (KAR)

Flora George v. Uma Shankar Prathap

2020-06-23

B.V.NAGARATHNA, RAVI V.HOSMANI

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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 claimants in MVC No.6012/2013 have preferred this appeal seeking enhancement of compensation being aggrieved by the inadequate of compensation awarded by the Motor Accidents Claims Tribunal, Bengaluru, by judgment and award dated 13.10.2015 [hereinafter, it is referred to as the 'Tribunal' for the sake of brevity]. 3. The appellants/claimants had filed the claim petition before the Tribunal u/s.166 of the Motor Vehicles Act, 1988 [hereinafter, referred to as the 'Act' for the sake of brevity], seeking compensation of Rs.50,00,000/- on account of the death of George Christopher @ Williams George Christopher S/o. Williams Kumaraswamy, in a road traffic accident. According to the claimants/appellants, George Christopher died on 18.07.2013 at about 10.15 a.m., when he was traveling on Bajaj Chethak two wheeler scooter bearing Regn. No.KA-03/EF-3400 towards BEL Circle from Hebbal Circle. At that time, the driver of a Car bearing Regn. No.KA-03/MP-7603 came in a rash and negligent manner, over took the scooter from the left side and dashed against the hind portion of the scooter. As a result, George Christopher, fell down and sustained grievous injuries. He was admitted to the nearest Baptist Hospital in Bellary Road, Bengaluru, where the doctor at the time of admission noticed that he had sustained head injury with left ear bleeding, large right front parietal subdurable haematoma with 12 mm midline shift, left clavicular fracture, multiple cranial and facial bone fractures and he was an inpatient from 18.07.2013 to 24.09.2013 for about two months. He died due to cardio respiratory failure on account of coma consequent to a head injury. The appellants contended that George Christopher was hale and healthy and he was working as a Manager in a Company called Gandhi Cranes and earning a handsome salary, out of which, he was maintaining his family. His legal representatives and dependents, being his widow and children, filed the claim petition seeking compensation on account of the death of George Christopher. The Hebbal Traffic Police had also registered a case against the driver of the Car in Crime No.80/2013. Hence, the claimants contended that George Christopher had died due to the negligence on the part of the driver of the said car and therefore, they were entitled to compensation. 4. The Hebbal Traffic Police had also registered a case against the driver of the Car in Crime No.80/2013. Hence, the claimants contended that George Christopher had died due to the negligence on the part of the driver of the said car and therefore, they were entitled to compensation. 4. In response to the notices issued by the Tribunal, respondent No.1 did not appear and he was placed exparte, while the second respondent Insurance Company appeared and contested the matter. While filing the statement of objections, the respondent Insurance Company, denied the averments made in the claim petition, contending that the indemnification of the insured would be subject to the terms and conditions of the policy and that the driver of the Car bearing No.KA-03/MP-7603 was, in fact, not negligent at all in causing the accident and that, George Christopher had died due to his own negligence. Therefore, the Insurance Company sought for dismissal of the claim petition. In the alternative they also contended that there was contributory negligence on the part of the deceased and therefore, the compensation may be reduced on account of the said fact, if the Tribunal was to award any compensation to the claimants. 5. On the basis of the rival pleadings, the Tribunal formulated the following points for its consideration. (1) Whether petitioner proves that on 18.07.2013 at about 10.15 a.m., when deceased George Christopher @ Williams George Christopher was proceeding on Bajaj Chethak two wheeler scooter bearing Regn. No.KA-03/EF-3400 towards BEL Circle from Hebbal Circle, at that time, the driver of car bearing Regn. No.KA-03/MP-7603 driven the same in rash and negligent manner with high speed and dashed to the scooter by which deceased sustained grievous injuries and died in Baptist Hospital? (2) Whether respondent No.2 proves that as on the date of accident, the driver of Car was not holding valid and effective driving licence and the terms and conditions of insurance policy are violated by the owner of the vehicle? (3) Whether petitioners are entitled for compensation as prayed in the claim petition? If so, what is quantum of compensation amount and from whom? (4) To what Order or award? 6. (3) Whether petitioners are entitled for compensation as prayed in the claim petition? If so, what is quantum of compensation amount and from whom? (4) To what Order or award? 6. In support of their case, the widow of the deceased George Christopher, Smt.Flora George was examined as PW-1; one of the sons of the deceased George Christopher, Sri Godwyn Emmanuel G, was examined as PW-2; Sri R. Vimalraj was examined as PW- 3; Sri S.Ramesh was examined as PW-4 and Sri Basavarajappa.M.K., was examined as PW-5. The claimants produced 24 documents which were marked as Exhibits P1 to P24. The Insurance Company examined Smt. Kusuma.K. as RW-1. She has produced four documents marked as Exs.R1 to R4. On the basis of the evidence on record, the Tribunal answered Issue No.1 in the Affirmative, Issue No.2 in the Negative and Issue No.3 as partly Affirmative and awarded compensation of Rs.15,52,968/- with interest at the rate of 6% p.a., from the date of claim petition till realization. Directions for apportionment of the compensation amongst the claimants and for deposit were also issued. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimants have preferred this appeal. 7. We have heard learned counsel for the appellants and learned counsel for the second respondent Insurer. The first respondent is served and once again he is unrepresented. We have perused the material on record as well as the original record. 8. Appellants' counsel contended that the deceased was aged 56 years. He was working as a Manager in a Private company called Gandhi Cranes. His Salary was Rs.17,000/- per month. Ex.P-14 salary certificate was produced in support of the same. But the Tribunal assessed the notional income of the deceased at Rs.5,000/- per month by ignoring all documentary evidence in that regard. He further submitted that Ex.P15 are the salary vouchers which are produced. But, the said documents were also not taken into consideration. The notional assessment at Rs.5,000/- per month is too meager. Therefore, the same is re-assessed having regard to the documentary evidence on record. He further contended that in view of the latest dictum of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd., Vs. But, the said documents were also not taken into consideration. The notional assessment at Rs.5,000/- per month is too meager. Therefore, the same is re-assessed having regard to the documentary evidence on record. He further contended that in view of the latest dictum of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd., Vs. Pranay Sethi & Others, (2017) 16 SCC 680 , 15% of the said income must be added towards future prospects as the deceased was 56 years of age at the time of his death. He also submitted that the award of compensation under the conventional heads also be reassessed and enhanced by allowing this appeal. 9. Per contra, learned counsel for the respondent Insurance Company supported the judgment and award of the Tribunal and contended that there is no merit in this appeal. He submitted that the documents produced by the appellants/claimants are contradictory to each other. In the circumstances, the Tribunal was justified in ignoring the same and assessing the notional monthly income of the deceased at Rs.5,000/- per month. He has also stated that the overall compensation awarded by the Tribunal is just and proper and hence, the appeal may be dismissed. 10. Having heard learned counsel for the respective parties and on perusal of the materials on record and as well as the original record, the following points that would arise for our consideration: (1) Whether the claimants are entitled to additional compensation? (2) If so, what order? 11. The fact that George Christopher @ Williams George Christopher died in a road traffic accident that occurred on 18.07.2013 at about 10.15 a.m., after a period of two months of hospitalization on account of the injuries sustained by him in the accident has been established by the claimants. This was due to the negligence on the part of the driver of the Car bearing No.KA-03/MP-7603. The only controversy in this appeal is with regard to the compensation to be awarded to the claimants/appellants herein. The Tribunal awarded Rs.15,52,968/- with interest at the rate of 6% p.a., from the date of claim petition till realization on the following heads: Heads Amount 1. Medical Expenses 9,00,000/- 2. Funeral, Obsequies and transportation of dead body 25,000/- 3. Loss of love and affection 30,000/- 4. Loss of estate 30,000/- 5. Loss of consortium 1,00,000/- 6. Loss of care and guidance for minor children 1,00,000/- 7. Medical Expenses 9,00,000/- 2. Funeral, Obsequies and transportation of dead body 25,000/- 3. Loss of love and affection 30,000/- 4. Loss of estate 30,000/- 5. Loss of consortium 1,00,000/- 6. Loss of care and guidance for minor children 1,00,000/- 7. Loss of dependency 3,67,968/- Total: 15,52,968/- It is not necessary to re-iterate the arguments of the counsel for the respective parties. But, on perusal of the documentary and oral evidence, in light of the arguments of the learned counsel for the parties, we find that the Tribunal was not right in assessing the notional income at Rs.5,000/- only per month by not taking into consideration the documentary evidence on record. Though Ex.P-14 Salary certificate has been produced to show that the deceased was receiving salary of Rs.13,000/- and allowances of Rs.4,000/- per month, totally Rs.17,000/-, the vouchers produced as per Ex.P-15 do not corroborate the said document. On examining the vouchers at Ex.P- 15, it is noted that the highest receipt of the deceased for the month of May, 2013 was being Rs.12,000/-. The accident occurred on 18.07.2013. In the circumstances, we can safely rely upon Ex.P15 containing the voucher for the month of May, 2013 and assess the salary at Rs.12,000/- per month. 12. In terms of the Judgment of the Hon'ble Supreme Court in the case of Pranay Sethi, cited supra, 15% of the said amount would have to be added towards future prospects as the age of the deceased was 56 years at the time of death. Consequently, the total monthly salary would be Rs.13,800/-. 1/3rd of the said amount would have to be deducted towards personal expenses of the deceased. Having regard to the judgment of the Hon'ble Supreme Court in Sarla Verma (Smt) & Others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , the resultant sum would be Rs.9,200/- which has to be annualised and by applying the multiplier of 9', compensation under the head 'loss of dependency' would be Rs.9,93,600/- [9,200 x 12 x 9]. 13. Delhi Transport Corporation and another, (2009) 6 SCC 121 , the resultant sum would be Rs.9,200/- which has to be annualised and by applying the multiplier of 9', compensation under the head 'loss of dependency' would be Rs.9,93,600/- [9,200 x 12 x 9]. 13. In terms of the dicta of the Hon'ble Supreme Court in Pranay Sethi's case cited supra and in Magma General Insurance Company Ltd., and Nanu Ram @ Chuhru Ram & Others, (2018) 18 SCC 130 ; a sum of Rs.40,000/- is awarded towards loss of spousal consortium, a sum of Rs.30,000/- each towards 'loss of parental consortium' and Rs.15,000/- each is awarded towards 'loss of estate' and 'funeral expenses. A sum of Rs.9,00,000/- awarded towards medical expenses by the Tribunal is retained. Further, we find that the deceased - George Christopher was admitted in the Hospital for about 60 days, but no amount is awarded towards incidental charges for the said period. We propose to award a sum of Rs.50,000/- on the said head. Consequently, the reassessed compensation would be Rs.20,73,600/-. The same shall carry interest at the rate of 6% p.a., from the date of claim petition till realization. Enhanced compensation is Rs.5,20,632/- as per the table given below: S. No. Compensation awarded under different heads. Amount in Rs. 1. Medical Expenses 9,00,000/- 2. Loss of dependency 9,93,600/- 3. Loss of spousal consortium 40,000/- 4. Loss of parental consortium to both the sons and loss of love and affection 60,000/- 5. Loss of estate 15,000/- 6. Funeral expenses 15,000/- 7. Incidental expenses 50,000/- Total: 20,73,600/- 14. Accordingly, the Appeal is allowed in part. Out of the enhanced compensation, a sum of Rs.1 lakh each with interest shall be paid to the sons of the deceased George Christopher and out of the amount awarded to the widow, a sum of Rs.3,50,000/- shall be deposited in the Post Office or in any Nationalized Bank for an initial period of ten 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 Insurance Company shall deposit the amount within a period of six weeks with upto date interest from the date of receipt of the certified copy of this judgment. Parties to bear their respective costs. Office to transmit the original records to the concerned Tribunal forthwith.