Partly allowed

Vidhya W/O Dattatraya Desai, v. Rajendra Tukaram Chavan

Karnataka HC21 Jan 2019MFA/100379/2015

Case brief

AI extract

What is this about?

High Court enhanced compensation awarded to family of a motor-accident victim from Rs. 8,99,000 to Rs. 14,60,400. Court increased income assessment and added future prospects. Awarded consortium damages to widow and minor children. Ordered deposit of funds in fixed deposits for minors and widow.

What did the court decide?

Compensation enhanced from Rs. 8,99,000 to Rs. 14,60,400 with interest. Amounts for minors to be kept in fixed deposits.

Vidhya W/O Dattatraya Desai, Vs Rajendra Tukaram… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 21^ST DAY OF JANUARY, 2019

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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MFA NO.100379/2015(MV)

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BETWEEN:

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SMT. VIDHYA W/O DATTATRAYA DESAI, AGE: 25 YEARS, CC: HOUSEHOLD WORK, R/O. BUDIHAL, TQ: CHIKODI, DIST: BELAGAVI, NOW R/O. JANAWAD, TQ: CHIKODI, DIST: BELAGAVI.

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KUMAR. ALANKAR S/O DATTATRAYA DESAI, AGE: 6 YEARS,

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KUMARI. ANKITA D/O DATTATRAYA DESAI, AGE: 4 YEARS, SINCE APPELLANT NOs.2 AND 3 ARE MONOR REPRESENTED BY MINOR GUARDIAN NATURAL MOTHER APPELLANT NO.1

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... APPELLANTS (BY SRI. VITTHAL S.TELI, ADVOCATE FOR SRI SHARAD V. MAGADUM, ADVOCATE.)

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AND

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SHRI. RAJENDRA TUKARAM CHAVAN, AGE: MAJOR, OCC: BUSINESS, R/O.FLAT NO.53 KANGA COLONY, SARADAR, BAZAR, SATARA, (MAHARASHTRA).

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THE MANAGER, CHOLAMANDAL MS GENERAL INSURANCE COMPANY LTD., 2ND FLOOR DARE HOUSE.2,

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NSC BOSE ROAD, CHENNAI-600001.

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SMT. TAAI WD/O BAPUSO DESAI, AGE: 53 YRS, OCC: HOUSE WIFE, R/O. BUDIHAL, TQ: CHIKODI, DIST: BELAGAVI.

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... RESPONDENTS

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(BY SRI S.K.KAYAKAMATH, ADVOCATE FOR R-2.) R1 AND R3 SERVED.

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 28.08.2014, PASSED IN MVC NO.1145/2012. ON THE FILE OF THE IST ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, BELLUNKE A.S., J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this appeal is listed for Admission, with the

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consent of learned counsel for the parties, it is taken up for final disposal.

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The present appeal has been filed by the appellants-claimants assailing the judgment and award dated 28.08.2014 passed by the I Additional Senior Civil Judge and Additional MACT, (hereinafter referred to as ‘Tribunal’ for short), Belgaum in MVC No.1145/2012.

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Brief facts leading to the case are that, on 05.05.2012 one Sri. Dattatraya Desai was proceeding on the motorcycle bearing No.KA-23/V-191 towards Budihal along with his friend, by riding the same in a moderate speed from his correct side of the road, when he came within the limits of Kanagala Village of National Highway-4, at about 12.30 hours a Truck bearing No.MH-11/AL-1251 came from hind side in a rash and negligent manner and by losing control over the said vehicle has dashed to the motorcycle of the said Dattaraya. Due to the said impact, said Dattatraya and his friend pillion rider suffered grievous injuries all over the body and died on the spot.

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It was contended that the prior to the accident, the deceased Dattatraya was hale and healthy as well as he was very active and energetic aged about 28 years and was working as a driver with one Nitin Desai on his tractor and thereby he was earning Rs.10,000/- per month. It is further contended that, apart from the said income, the deceased was having landed properties of 2 acres and growing commercial crops and earning Rs.1,00,000/- per

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year and out the said income he was maintaining his family. The petitioners were solely depending on the earnings of the deceased only, due to untimely death of the deceased petitioners have lost their complete dependency, love and affection, future prospectus of life of minor petitioners. Petitioners have suffered mentally, physically and financially. The accident in question occurred solely due to the rash and negligent driving of the vehicle in question, by its driver which is insured with respondent No.2. Therefore, respondent Nos.1 and 2 are being the owner and the insurer of the said vehicle are jointly and severally liable to pay the compensation to the petitioners. Hence, the claimants have filed the claim petition for compensation.

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In response to the notice, respondent No.2 alone has appeared before the trial Court and filed its objection. In spite of service of notice, respondent No.1 did not appeared and hence he has been placed exparte. Respondent No.2 denied the entire petition averments in its objections and also denied the age, income, occupation

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of the deceased as pleaded by the petitioners as false. Respondent no.2 contended that the liability if any, subject to proving of insurance of vehicle in question as on the date of accident and subject to validity or legality of Certificate of Registration of the vehicle and valid and effective driving license of the driver and other vehicular documents and also as per the terms and conditions of the policy. It is further contended that the driver of the vehicle in question was not holding a valid and effective driving license and respondent No.1 knowing very well that the driver was not holding valid and effective driving license to drive the said class of vehicle has entrusted the same to him, thereby he has contravened the provisions of M.V. Act and Rules and also violated the terms and conditions of the policy. Hence, respondent No.2 is not liable to indemnify the respondent No.1 for any damages arising out of the alleged accident. Further contended that the deceased was riding his motorcycle in high speed, rash and negligent manner without giving any signal or indication to the traffic which was coming from hind side

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and all of a sudden deceased with motorcycle came to his right side on the road and thereby caused accident. It is also contended by the respondent No.2 that it may be permitted to contest the case on all the grounds under Section 170 of M.V. Act in case the respondent No.1 is in collusion with the petitioner. Therefore, respondent No.2 prayed for dismissal of the petition.

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On the basis of the rival pleadings, the Tribunal

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framed the following issues for its consideration:

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1. Whether the petitioners prove that accident had occurred due to rash and negligent driving of Truck bearing No.MH-11/AL-1521 by its driver and Dattatraya Bapu Desai sustained fatal injuries and died as alleged?

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2. Whether the Truck bearing No.MH11/AL-1521 was insured with the insurer and the driver of said vehicle had valid and effective driving license on the date of accident?

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3. Whether the petitioners are entitled for compensation with interest? If so, to what extent and from whom?

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4. What order or decree?

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The petitioners in order to prove their case, the mother of the deceased i.e., petitioner No.3 got examined as PW1. In support of their case, the petitioners have produced the documents and got marked as Ex.P1 to P9. There is no oral evidence on behalf of the respondents, the copy of Insurance Policy produced by the respondent No.2 got marked as Ex.R1 with consent.

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The learned Tribunal after holding the trial of the

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case, answered the issues as under :

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Point No.1 : in the affirmative

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Point No.2 : Partly in the affirmative Point No.3 : As per findings.

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Point No.4 : As per final order for following.

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After holding the trial, the Tribunal assessed the total compensation payable to the claimants at Rs.8,99,000/- with interest @ 6% per annum from the date of filing of petition till its entire realization by the respondent No.2. The appellants-claimants being dissatisfied with the award, has filed the present appeal for enhancement on the following grounds:

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a. The Tribunal erred in awarding the meager compensation of Rs.8,99,000/to the appellants for the death of their only bread earner, is on the lower side and hence requires to be enhanced.

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b. The Tribunal erred in awarding Rs.8,64,000/under the head of loss of dependency having regard to the income of the deceased and age of the deceased and hence same requires to be enhanced.

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c. The award of Rs.10,000/- under the head of loss of consortium to appellant No.1 is on the lower side. The Tribunal ought to have considered the age of the appellant No.1 who has lost her husband at the early age and

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ought to have awarded more compensation under the said head.

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d. Tribunal has erred in awarding meager compensation at Rs.5,000/- each under the head of love and affections, to the appellant Nos.2 and 3 who are minors, which is on the lower side.

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e. The Tribunal erred in awarding of Rs.5,000/under the head of loss of estate on the lower side.

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f. The Tribunal erred in awarding of Rs.5,000/under the head of funeral expenses and for transportation of dead body on the lower side.

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On the above said reasons, the appellants-claimants have sought for enhancement of the award in the present appeal.

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Heard the learned counsel for both the sides.

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The respondent–Insurance company has not

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filed any appeal against the judgment and award of the Tribunal. The appeal is not contested on the point of rash and negligent act of the driver of the lorry.

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Finding of issue Nos.1 and 2 has not been challenged by the insurance company while deciding loss of dependency, the age and income of the deceased are taken into consideration while assessing loss of dependency. The Tribunal in the absence of documentary evidence on record has assessed the income of the deceased at Rs.6,000/ per month.

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During the course of arguments, the learned counsel for the appellants-claimants submitted that, to show that the petitioner was driver by profession, they have not produced any documents. It is important to note that the deceased had wife and two children and mother. He had two acres of land. Therefore, he cannot be said unemployed person. He was aged about 28 years. Therefore, he is a able bodied person having capacity to earn something.

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Having regard to the date of accident, we find that the income of the deceased assessed by the Tribunal at Rs.6,000/- per month requires to be more. It is just and proper to assess the income of the deceased at Rs.6,500/-

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considering the year of accident. However, we find that the Tribunal committed error in not adding future prospects to the income of the deceased. As per the decision of Hon’ble Supreme Court, in the case of National Insurance Co. Ltd.

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v. Pranay Sethi and others reported in 2017 ACJ 2700 future prospects at 40% to be added to the income of the deceased. Hence, adding future prospects at 40% to Rs.6,500/-, will come to Rs.6,500+2600 = 9100/-. Hence, the total income would be Rs.9,100/-. The deceased had liability of maintaining of four persons. Therefore, ¼th has to be deducted towards his personal expenses i.e., 9100X ¼ =2275/-. Hence, the net income of the deceased would be Rs.6825/-(9100-2275) accordingly income of the deceased is assessed.

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As per the transfer certificate of the deceased produced by the claimants, indicates that the date of birth of the deceased is 01.02.1981. Whereas, the accident has occurred in the year 2012, hence, the age of the deceased was 32 years. Tribunal has rightly taken multiplier at ‘16’ therefore, total loss of dependency would be calculated as

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Rs.6,825/-X12X16= 13,10,400/-. Therefore, the claimants are entitled compensation under the head of loss of dependency is Rs.13,10,400/-

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On perusal of the evidence on record as well as finding given by the Tribunal, we find that the compensation awarded by the Tribunal on other conventional heads is very meager. To assess the compensation on the head of consortium, the law laid down in Civil Appeal No.9581 of 2018 (arising out of SLP (Civil) No.3192/2018) between Magma General Insurance Co.Ltd. Vs. Nanu Ram and others has to be followed and accordingly it is relied on. The Hon’ble Supreme Court considering the Pranay Sethi’s Case stated supra, has further defined the meaning of word ‘consortium’ in paragraph No.8.7 of the aforesaid decision reads as follows:

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“8.7. A constitution Bench of this Court in Pranay Sethi 2017 ACJ 2700 (SC), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

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In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium, and ‘filial consortium’.

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The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.[Rajesh V.Rajbir Singh, 2013 ACJ 1403(SC)].

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Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation.

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Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.

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Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child cause great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

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Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child’s consortium for exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

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The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled loss of consortium under the head of Filial Consortium.

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Parental Consortium is awarded to children who lose their parents in motor vehicles accidents under the Act.

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A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.

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The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium’ as laid down in Pranay Sethi, 2017 acj 2700(SC).

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In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of

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Rs.40,000/each for loss of Filial Consortium.”

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Therefore, relying on the above said authority, Petitioner No.1- the wife of the deceased - is entitled an amount of Rs.40,000/- towards consortium, petitioner Nos.2 and 4 are minor children, are entitled to an amount of Rs.40,000/- each towards love and affection. Petitioner No.3 is the mother of the deceased is entitled the compensation to an amount of Rs.40,000/- towards loss of parental consortium. It is just and proper to award an amount of Rs.15,000/- each towards loss of estate and towards funeral and transportation of dead body. Therefore, we quantify the compensation payable to the appellants-claimants as under :

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1	Loss of dependency	13,10,400/-
2	Loss of consortium to claimant No.1	40,000/-
3	Loss of love and affection to claimant Nos.2 and 4 at Rs.20,000/- each	40,000/-
4	Loss of consortium to claimant No.3.	40,000/-

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5	Loss of estate	15,000/-
6	Towards funeral expenses and transportation of dead body	15,000/-
	TOTAL	14,60,400/-

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In the result, the appeal is allowed in part. The compensation now awarded is Rs.14,60,400/- with interest at the rate of 6% per annum from the date of claim petition till realization instead of Rs.8,99,000/awarded by the Tribunal. The enhanced compensation of Rs.5,61,400/- shall carry interest at the rate of 6% per annum.

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The enhanced compensation shall be apportioned between appellants and respondent No.3/mother of the deceased in the ratio of 40:20:20:20.

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The enhanced compensation along with proportionate interest to minor appellants shall be deposited in Fixed Deposit in any Nationalised Bank or in the Post Office till they attain the age of majority. 75% of the enhanced compensation with proportionate interest

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awarded to the first appellant-widow of the deceased shall be deposited in any Post Office or in Nationalised Bank for an initial period of ten years. She shall be entitled to draw the periodical interest on the said deposit. The balance amount shall be released to her. The compensation along with proportionate interest awarded to respondent No.3 shall be released to her.

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The respondent-insurer to deposit the enhanced compensation with interest within a period of six weeks from the date of receipt of a certified copy of this judgment.

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Appeal is allowed in part in the aforesaid terms.

No costs.

Sd/JUDGE

Sd/JUDGE

MNS/-

Vidhya W/O Dattatraya Desai, v. Rajendra Tukaram Chavan

Case brief

What is this about?

What did the court decide?

Vidhya W/O Dattatraya Desai, v. Rajendra Tukaram Chavan

Case brief

What is this about?

What did the court decide?

What the court decided

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