Smt. S. Malathi Vs Sri. a Subbaryadu

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 29-12-2015 PASSED IN M.V.C. NO.2851 OF 2015 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE AND MEMBER, M.A.C.T, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO.2453/2016:

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BETWEEN:

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M/S. UNITED INDIA INSURANCE COMPANY LIMITED REGIONAL OFFICE 6TH FLOOR, KRISHI BHAVAN NRUPATHUNGA ROAD, HUDSON CIRCLE BENGALURU-560 001 REPRESENTED BY ITS MANAGER.

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...APPELLANT

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(BY SRI A.M. VENKATESH, ADVOCATE)

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HC-KAR

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AND:

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SMT. S. MALATHI W/O. LATE S. PAVANKUMAR AGED ABOUT 24 YEARS.

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MASTER DIKSHITH S/O. LATE S. PAVANKUMAR AGED ABOUT 3 YEARS SINCE MINOR, REPRESENTED BY HIS NATURAL GUARDIAN AND MOTHER REPRESENTED BY RESPONDENT NO.1 HEREIN.

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SRI NAGARAJ @ S. NAGARAJ GOUD S/O. LATE KEMPANNA GOUD AGED ABOUT 54 YEARS.

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SMT. S. PARVATHAMMA W/O. NAGARAJ @ S. NAGARAJ GOUD AGED ABOUT 49 YEARS.

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RESPONDENT NOS.1 TO 4 ARE RESIDENT OF NO.6-22-11 KURUPALLI VILLAGE DUNDAPALLI POST GANGAVARAM CHITTOOR DISTRICT ANDHRA PRADESH-517 408.

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SRI A. SUBBARAYUDU PROPRIETOR M/S. BHAVANI TRAVELS NO.327, ALBERT VICTOR ROAD KALASIPALYAM BENGALURU-560 002.

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...RESPONDENTS

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(BY SRI K.T. GURUDEVA PRASAD, ADVOCATE, FOR R-1 TO R-4, AND SRI G.V. DAYANANDA, ADVOCATE, FOR R-5)

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE M.V. .ACT, AGAINST THE JUDGMENT AND AWARD DATED 29-12-2015 PASSED IN M.V.C. NO.2851 OF 2015 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE AND MEMBER, M.A.C.T, BENGALURU, AWARDING COMPENSATION OF RS.24,65,500/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

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THESE MISCELLANEOUS FIRST APPEALS ARE COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH AND HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

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Miscellaneous First Appeal No.4544 of 2016 is filed

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by the claimants seeking enhancement of compensation, whereas, Miscellaneous First Appeal No.2453 of 2016 is filed by the Insurance Company challenging the quantum of compensation awarded as excessive and seeking reduction of the same in M.V.C. No.2851 of 2015 on the files of the Motor Accidents Claims Tribunal, Court of Small Causes at Bengaluru (SCCH-15), dated 29.12.2015.

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2. For the sake of convenience, the parties herein

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shall be referred to in terms of their status before the Tribunal.

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HC-KAR

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Brief facts of the case are that on 22.03.2015 at

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about 12.30 p.m., Sri S. Pavankumar (hereinafter referred to as 'deceased') was riding motorcycle, bearing registration No.KA-05 EB-927, on the extreme left side of the road on NH-75 at Kolar. When he came in front of R.L. Jalappa Hospital, a bus, bearing registration No.KA-01 C-3319, came with high speed in a rash and negligent manner and dashed against the motorcycle, as a result, the deceased succumbed to the injuries at the spot itself.

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Heard Sri K.T. Gurudeva Prasad, learned counsel for the claimants, Sri. A.M. Venkatesh, learned counsel for Insurance Company, and perused the judgment and award of the Tribunal.

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Sri K.T. Gurudeva Prasad, learned counsel for

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the appellants-claimants in Miscellaneous First Appeal No.4544 of 2016 and respondents in Miscellaneous First Appeal No.2453 of 2016, has contended that the

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HC-KAR

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compensation awarded by the Tribunal is on lower side. Prior to accident, the deceased was working as 'Head Mechanic' under PW3 and was earning Rs.18,000/- per month, but the Tribunal notionally considered the income at Rs.9,000/- per month. Hence, he prayed to enhance the compensation.

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Per contra , Sri. A.M. Venkatesh, learned counsel for the appellant-Insurance Company in Miscellaneous First Appeal No.2453 of 2016 and respondent in Miscellaneous First Appeal No.4544 of 2016, has contended that the Tribunal, without assessing the oral and documentary evidence on record, has granted excess and exorbitant compensation under the conventional heads. Further, the Tribunal has considered 50% future prospects, which is contrary to the principles laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and

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Others reported in (2017) 16 SCC 680 which has to be

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reduced to 40%. Further, the Tribunal has granted

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HC-KAR

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compensation with interest at the rate of 9% per annum, which is also exorbitant. Hence, he prayed to reduce the compensation.

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We have perused the judgment and award and

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submissions made by the learned counsel for both parties. The only point that arises for our consideration in this appeal is:

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“Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement, or reduction?”

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In so far as the quantum of compensation is

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concerned, the Tribunal assessed the notional income of the deceased at Rs.9,000/- per month as per the Circular issued by the Karnataka Legal Services Authority and the High Court Legal Services Committee, Bengaluru. Learned counsel for the claimants contended that prior to accident,

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the deceased was working as 'Head Mechanic' and to substantiate the same, the claimants examined PW3,

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HC-KAR

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employer of the deceased, before the Tribunal and relied upon Ex.P10-Attendance Register and Ex.P7-Salary Slips. From perusal of Ex.P7, it demonstrates that the deceased was drawing a salary of Rs.18,000/- for the months of January and February, 2015. However, perusal of Ex.P13copy of General Licence of PW3 to run the service station, it clearly establishes that Licence was expired on 30.03.2009 itself and he did not renew the licence. Therefore, when the claimants have failed to produce the actual income of the deceased, the Tribunal has rightly assessed the income of the deceased at Rs.9,000/- per month, and thus, no interference is called for in this regard.

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The Tribunal has considered addition of 50% of

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the assessed income towards future prospects, which is contrary to the principles laid down by the Hon'ble Apex Court in Pranay Sethi supra. At the time of accident, the deceased was aged 29 years and he was not a permanent employee. Therefore, 40% of the income must be added

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HC-KAR

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towards future prospects, which comes to Rs.3,600/(9,000 X 40%) and the total income comes to Rs.12,600/per month (9,000 + 3,600). Therefore, the 'loss of dependency' is Rs.19,27,800/- (Rs.12,600 x 12 x 3/4 x 17).

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Further, the Tribunal has awarded compensation of Rs.1,50,000/towards 'loss of consortium', Rs.1,25,000/- towards 'loss of love and affection', Rs.1,00,000/- towards 'loss of estate' and Rs.25,000/towards 'transportation of dead body and funeral expenses', which are exorbitant.

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In the case of Magma General Insurance Co.

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Ltd. v. Nanu Ram alias Chuhru Ram and Others

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reported in 2018 ACJ 2782 (SC) , the Hon’ble Apex Court by referring to the decision of the Constitution Bench in

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Pranay Sethi supra has discussed about granting the compensation under the head of ‘loss of consortium’ and has also issued guidelines for grant of ‘spousal

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HC-KAR

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consortium’, ‘parental consortium’ and ‘filial consortium’.

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The claimants are the wife, son and parents of the deceased. In view of the ratio laid down by the Hon’ble Apex Court in the aforesaid decision, the claimants are entitled to compensation of Rs.1,60,000/- (40,000/- each) and the same is merged along with 'loss of love and affection'. In addition, the claimants are entitled to Rs.15,000/- towards 'loss of estate' and Rs.15,000/towards 'transportation of dead body and funeral expenses'.

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With regard to award of interest, the learned counsel for the Insurance Company vehemently argued to reduce the rate of interest awarded by the Tribunal at 9% per annum contending that the same is on the higher side. In the decision rendered by this Court in Miscellaneous First Appeal No.5896 of 2018 (MV) and connected matters in the case of Ms. Joyeeta Bose and Others v. Venkateshan V. and Others , wherein a similar question arose with regard to awarding of interest, keeping in view

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HC-KAR

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Section 34 of the Code of Civil Procedure, 1908, it has

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been held that rate of interest shall not exceed 6% per annum from the date of petition till the date of deposit. Therefore, in the present case also, the rate of interest is

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reduced to 6% per annum from 9% per annum awarded by the Tribunal.

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Thus, the claimants are entitled for the following

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compensation:

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HEADS	Rs.
Loss of dependency	19,27,800.00
Loss of consortium	1,60,000.00
Loss of estate	15,000.00
Transportation of dead body and funeral expenses.	15,000.00
TOTAL	21,17,800.00
Less: Compensation awarded by the Tribunal	24,65,500.00
REDUCED COMPENSATION	-3,47,700.00

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In the result, we pass the following

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O R D E R

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i. Miscellaneous First Appeal No.4544 of 2016 filed by the claimants is dismissed .

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HC-KAR

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ii. Miscellaneous First Appeal No.2453 of 2016 filed by the Insurance Company is partly allowed.

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iii. The judgment and award passed by the Tribunal is modified to the extent stated hereinabove. The claimants are entitled for reduced compensation of Rs.21,17,800/- as against Rs.24,65,500/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of filing the claim petition till the date of its realisation. The compensation awarded by the Tribunal is reduced by Rs.3,47,700/-.

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iv. The Insurance Company shall deposit the entire compensation amount together with interest before the Tribunal within a period of six weeks' from the date of receipt of a copy of this judgment.

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