The United India Insurance Co. Ltd., Vs Mr Valerian Rajesh Lobo

THE UNITED INDIA INSURANCE CO LTD., VARANASI TOWERS MISSION STREET BUNDER, MANGALORE NOW REPRESENTED BY ITS MANAGER REGIONAL OFFICE 5TH & 6TH FLOOR,KRISHI BHAVAN NRUPATHUNGA ROAD BANGALORE 560001.

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…APPELLANT

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(BY SMT. HARINI SHIVANANDA, ADVOCATE)

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AND:

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Digitally signed by NIRMALA DEVI

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Location: HIGH COURT OF KARNATAKA

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MR VALERIAN RAJESH LOBO S/O LATE EMMANUAL LOBO AGED ABOUT 43 YEARS

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MISS RELWEENA RISHAL LOBO AGED ABOUT 11 YEARS D/O VALERIAN RAJESH LOBO

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MISS ROSHNI REYOLA LOBO AGED ABOUT 9 YEARS D/O VALERIAN RAJESH LOBO

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PETITIONERS 2 & 3 ARE MINORS REPRESENTED BY 1ST RESPONDENT AS FATHER & NATURAL GUARDIAN

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ALL ARE RESIDING AT LOBO VILLA BEHIND GURUDEV TOWERS KAVOOR KATTE KAVOOR, MANGALORE 575015.

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MR ABBUBAKKAR , MAJOR S/O MOHAMMED NO.5/86, NEERMARGA POST MANGALORE 575001.

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…RESPONDENTS

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(BY SMT. PUSHPAVENI AJITH, ADVOCATE FOR R1 TO R3 (ABSENT) NOTICE TO R4 IS DISPENSED WITH V/O DTD 06.04.2018)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 4.6.2014 PASSED IN MVC NO.1563/2012 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT & SESSIONS JUDGE, MEMBER, MACT, D.K., MANGALORE, AWARDING A COMPENSATION OF RS.19,46,500/- WITH CURRENT AND FUTURE INTEREST @ 6% P.A AS COMPENSATION TO PETITIONERS AND ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE C.M. POONACHA)

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The above appeal is filed by the insurer challenging the quantum of compensation awarded by the Tribunal vide judgment and award dated 4.6.2014 passed in MVC No.1563/2012 on the file of the IV Additional District and

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Sessions Judge & Member, MACT, D.K., Mangaluru¹ . The Tribunal by its judgment and award allowed the claim petition filed by the claimants and awarded compensation of `19,46,500/- together with interest at 6% p.a.

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The parties are referred to henceforth as per their ranks before the Tribunal for the sake convenience.

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It is the case of the claimants that one Smt.Asha Laveena Shera nee Lobo² was riding on her Honda Dio Scooter bearing registration No.KA-01-EH-4669 on 15.9.2012 when the offending tempo bearing registration No.KA-20-6265 came in a rash and negligent manner and hit the scooter of the deceased from hind side causing the accident in question. As a result of the accident, the victim suffered grievous injuries and died. Claiming compensation for her death, the husband and children of the deceased filed the claim petition arraying the owner and insurer of the tempo as respondent Nos.1 and 2 respectively.

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The first respondent remained ex parte before the

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Tribunal. The claim petition was contested by the second respondent/insurer. Claimant No.1 examined himself as PW.1 and the employer of the deceased was examined as PW.2.

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1 Hereinafter referred to as the ‘Tribunal’

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2 Hereinafter referred to as the ‘deceased’

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Exs.P1 to P15 were marked in evidence. The insurer did not adduce any oral evidence. However, the policy of insurance was marked as Ex.R1.

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The Tribunal by its judgment and award has awarded compensation of `19,46,500/- together with interest at 6% p.a., from the date of petition till realization and fastened the liability to pay compensation to the second respondent/insurer. Being aggrieved by the quantum of compensation, the insurer has filed the above appeal.

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Learned counsel Smt.Harini Shivananda appearing for the appellant/insurer assailing the quantum of compensation awarded contended that the income of the deceased has been assessed on the higher side and the quantum of compensation awarded on conventional heads is also on the higher side. It is further contended that future prospects ought not to have been awarded having regard to the judgment of the Hon'ble Supreme Court in the case of Sarala

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Verma (Smt) And Others vs. Delhi Transport Corporation and Another³ .

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3 (2009) 6 SCC 121.

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It is forthcoming that subsequent to the judgment

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of the Hon'ble Supreme Court in the case of Sarla Verma³ , a Constitution Bench of the Hon'ble Supreme Court in the case of

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National Insurance Company Limited vs. Pranay Sethi⁴ has held that future prospects have to be awarded in both cases where the deceased has a permanent job as well as in the event of deceased being self-employed.

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In the present case, it is averred that the deceased was working as a Staff Nurse at Father Muller Hospital, Mangaluru and the monthly income of the deceased was 13,700/- . The Establishment Superintendent of the Father Muller Hospital, Mangaluru, has been examined as PW.2, who has deposed that the deceased was a Staff Nurse and the salary certificate of the deceased (Ex.P7) discloses that the deceased was entitled to total salary of 13,762/- and a sum of `780/- was deducted monthly from her salary towards provident fund. The Tribunal, while considering the testimony of PW.2 as well as the salary certificate (Ex.P7) has recorded a finding that deduction towards income-tax and professional tax

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4 AIR 2017 SC 5157

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are not mentioned. Hence, the Tribunal assessed the income of the deceased as `10,000/- p.m.

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Having regard to the testimony of PW.2 and the salary certificate (Ex.P7) wherein it is stated that the deceased was earning 13,762/- p.m., and having regard to the fact that the said salary certificate does not disclose the income-tax, professional tax and other deductions, which aspect has been taken into consideration by the Tribunal, it cannot be said that the income of 10,000/- p.m., assessed by the Tribunal is on the higher side.

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Having regard to the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi⁴ , 40% is required to be taken towards future prospects and 1/3^rd is required to be deducted towards personal expenses since the dependents are three in number. Hence, the loss of dependency is re-assessed as (10,000/- + 40% - 1/3 = 9,334/- x 12 x 16) `17,92,128/-.

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Loss of consortium is required to be reassessed in terms of the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Company Ltd. v. Nanu

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Ram⁵ and Pranay Sethi⁴ , by assessing the same as 40,000/per dependent together with escalation. Since there are three dependents, the loss of consortium is re-assessed as (44,000/-x3) 1,32,000/-. The compensation towards loss of estate and funeral expenses is re-assessed as 15,000/- on each head together with 10% escalation. Hence, a sum of `16,500/- each is required to be awarded towards the same. Accordingly, the total compensation under various heads is reassessed as follows:

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Sl.No.	Heads	Amount awarded by theTribunal(`)	Amount awarded by this Court (`)
1.	Loss of dependency	17,06,500/-	17,92,128/-
2	Loss of love and affection	75,000/-	0/-
3	Loss of estate	75,000/-	16,500/-
4	Loss of consortium	75,000/-	1,32,000/-
5	Towards funeral and obsequies	15,000/-	16,500/-
	Total	19,46,500/-	19,57,128/-