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2020 DIGILAW 219 (KAR)

Kumarappa Kudithini And Others v. N. Shafi

2020-01-24

P.G.M.PATIL

body2020
JUDGMENT 1. The claimants being aggrieved by the judgment and award dated 18.08.2011 passed in MVC No.892/2010 on the file of III Additional MACT, Bellary, have filed this appeal. 2. The case of the claimants before the tribunal is that, on 21.02.2009, deceased Kotresh came to Bellary to meet the General Manager of his office and while returning back to his village on his two wheeler, a lorry bearing registration No.AP-02/W-3557 being driven by respondent No.1 in a rash and negligent manner dashed to Kotresh. As a result, he sustained injuries and was shifted to VIMS Hospital, Bellary for treatment, later on he succumbed to the said injuries. The claimants who are the parents, sister and brother of the deceased, have stated that the deceased was hale and healthy and was working as JCB operator and earning Rs.10,000/- p.m. They were dependents on his income. Therefore, the claimants claimed compensation of Rs.46,00,000/- against the driver, owner and insurer of the offending vehicle. 3. In pursuance of the notice, respondent Nos.1 and 2 remained absent and were placed ex-parte. Respondent No.3 appeared through his counsel before the Tribunal and filed objections, denying the case of the petitioners, with regard to the accident, injury and income of the deceased and also status of the petitioners. He also contended that the driver of the vehicle was not holding effective driving licence and there is breach of policy condition. Therefore he sought for dismissal of the claim petition. On the basis of the pleadings of the parties, the tribunal framed issues. 4. In support of the claim petition, the claimant No.2 was examined as PW1 and got marked 9 documents as Exs.P.1 to P.9. Respondent No.3 produced copy of the policy at Ex.R1. Further no oral evidence was adduced. 5. The learned member of the Tribunal, after hearing both the parties, passed the impugned judgment awarding compensation of Rs.3,95,400/- with interest at 6% p.a. from the date of petition till its realization. Respondent No.3-Insurance Company was directed to deposit the compensation amount before the Tribunal. 6. The claimants being aggrieved by the impugned judgment have filed the appeal, seeking for enhancement of the compensation on the ground that the Tribunal has grossly erred in considering the income of the deceased at Rs.7,100/- p.m. and that the compensation awarded under other heads, is on lower side. 6. The claimants being aggrieved by the impugned judgment have filed the appeal, seeking for enhancement of the compensation on the ground that the Tribunal has grossly erred in considering the income of the deceased at Rs.7,100/- p.m. and that the compensation awarded under other heads, is on lower side. The Tribunal ought to have deducted 1/4th of the income of the deceased towards personal expenses and that the Tribunal has not awarded any compensation towards future prospects. 7. Heard the learned counsel for the parties. 8. Learned counsel for the claimants submitted that the Tribunal has considered the income of the deceased at Rs.7,100/- p.m. which is on lower side and 40% towards future prospects, is not awarded and further the claimants 1 and 2 are entitled for parental consortium and claimant 3 sister of the deceased is entitled for filial consortium. It is also submitted that the Tribunal has chosen the multiplier, considering the age of the mother, instead of the age of the deceased. In support of the said submission, learned counsel has relied on the judgment in the case of Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram and Others reported in (2018) 18 SCC 130. 9. Per contra learned counsel for the insurer supported the impugned judgment and further submitted that the claimants are not entitled for compensation towards loss of love and affection to claimant No.3-sister of the deceased. Claimant Nos.1 and 2 are not entitled for parental consortium, in view of the judgment in the case of Sebastiani Lakra and Ors. v. National Insurance Company Ltd. and Ors. decided by the Honble Supreme Court of India on 12.10.2018 in Civil Appeal Nos.10588-89 of 2018. 10. The claimants have contended before the Tribunal that the deceased was earning Rs.10,000/- p.m. as he was working as JCB operator in P.A.C. Engineering Services. The claimants have produced wage slip of the deceased issued by the said company at Ex.P7. This wage slip goes to show that the deceased was getting salary of Rs.7,100/- p.m. and therefore the Tribunal has properly considered the said document and held that the income of the deceased was Rs.7,100/- p.m. which needs no interference. The claimants have produced wage slip of the deceased issued by the said company at Ex.P7. This wage slip goes to show that the deceased was getting salary of Rs.7,100/- p.m. and therefore the Tribunal has properly considered the said document and held that the income of the deceased was Rs.7,100/- p.m. which needs no interference. The claimants are entitled for addition of 40% of the income of the deceased towards future prospects as held by the Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Ors. reported in AIR 2017 SC 5157 . It also cannot be disputed that the deceased being bachelor, 50% of the income of the deceased has to be deducted towards his personal and living expenses as per the dictum of the Apex Court in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation reported in (2009) 6 SCC 121 . Therefore, the only dispute is with regard to awarding parental consortium to claimants 1 and 2 and filial consortium to claimants 3 and 4, who are sister and brother of the deceased. 11. The Apex Court in the case of Magma General Insurance Company Limited , stated supra, considered the facts wherein father and sister of the deceased were claimants, the mother had pre-deceased the deceased. It is also stated that the father was aged about 65 years. Therefore, the Apex Court held that the parents are entitled for loss of consortium under the head of filial consortium. The Apex Court considered the facts involved in the said case, deem it appropriate to award the father and sister of the deceased, an amount of Rs.40,000/- for loss of filial consortium. The case of Magma General Insurance Company Limited , stated supra, was decided on 18.09.2018. The learned counsel for the insurer has relied on the judgment in the case of Sebastiani Lakra and Ors., stated supra, which was decided on 12.10.2018. In this case, there were no minor claimants or parents who claimed compensation towards parental consortium or filial consortium. The case of Magma General Insurance Company Limited , stated supra, was decided on 18.09.2018. The learned counsel for the insurer has relied on the judgment in the case of Sebastiani Lakra and Ors., stated supra, which was decided on 12.10.2018. In this case, there were no minor claimants or parents who claimed compensation towards parental consortium or filial consortium. The Honble Supreme Court of India in paragraph 22 of the judgment has observed that 'In addition thereto, according to the judgment of this Court in Pranay Sethi case (supra), the claimants are entitled to Rs.15,000/- for loss of estate, Rs.40,000/- loss of consortium, Rs.15,000/- for funeral expenses i.e. a total amount of Rs.49,97,956/- which is rounded of to 50,00,000/-'. Therefore, the Apex Court awarded compensation in terms of principles stated in Pranay Sethi , stated supra. Considering the facts and circumstances in the case on hand, it is seen that both the parents of claimants 3 and 4 are alive and therefore the claimants 3 and 4 cannot be held as dependents on the income of the deceased, who was a bachelor. Since the parents themselves are the main claimants in the petition, they cannot be awarded compensation towards parental consortium separately as they are entitled for compensation towards loss of dependency. 12. Accordingly, this Court holds that it is just and necessary to reassess the compensation awarded to the claimants by adding 40% of the income towards future prospects and a sum of Rs.30,000/- under conventional heads. Accordingly, on such reassessment, the following just compensation is granted. The income of the deceased is considered at Rs.7,100/- p.m., 40% is added towards future prospects which comes to Rs.2,840/-, thereby total income comes to Rs.9,940/-, 50% of the said income has to be deducted towards personal and living expenses of the deceased. Thereby the remaining income would be Rs.4,970/-. The same has to be multiplied by 12 and 18. The multiplier is taken considering the age of the deceased. The claimants are entitled for a sum of Rs.10,73,520/- towards loss of dependency (Rs.4,970/- x12x18). The claimants are also entitled for compensation of Rs.30,000/- under conventional heads and thus they are entitle for a sum of Rs.11,03,520/- as against Rs.3,95,400/- awarded by the Tribunal. Thus the claimants are entitled for enhanced compensation of Rs.7,08,120/- with interest at 6% p.a. from the date of petition till final realization. 13. The claimants are also entitled for compensation of Rs.30,000/- under conventional heads and thus they are entitle for a sum of Rs.11,03,520/- as against Rs.3,95,400/- awarded by the Tribunal. Thus the claimants are entitled for enhanced compensation of Rs.7,08,120/- with interest at 6% p.a. from the date of petition till final realization. 13. Accordingly, this Court proceed to pass the fol lowing: ORDER The appeal is allowed in part. The appellants/claimants are awarded enhanced compensation of RS.7,08,120/- with interest at 6% p.a. from the date of petition till final realization. The respondent-insurer is directed to deposit the compensation amount before the Tribunal within a period of 60 days. Apportionment, deposit and disbursement of the compensation shall be in terms of the order of the Tribunal.