Smt Sulochana Vs the Royal Sundaram Alliance

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 04.02.2019 PASSED IN MVC NO.7468/2017 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE, MACT AND XLI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU (SCCH-17), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT.

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THIS MISCELLANEOUS FIRST 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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NC: 2025:KHC:3913-DB MFA No.947/2020

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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‘Whether the compensation awarded to the claimants by the Tribunal under the impugned award is just and fair”? is the question involved in this case.

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Appellants were claimant Nos.1 to 4 and respondent Nos.1 and 2 were the respondents in M.V.C.No.7468/2017 on the file of XIX Additional Small Causes Judge, MACT and XLI Additional Chief Metropolitan Magistrate, Bangalore (SCCH-17). Pending the claim petition, claimant No.3 died and her legal representatives were brought on record as claimant Nos.3(a) and 3(b). For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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Claimant No.1 is the wife, claimant No.2 is the minor son, claimant Nos.3 and 4 are the parents of deceased K.Rangaswamy. On 16.09.2017 at about 3.30 a.m. near Adivala village, NH-4 road, Hiriyur Taluk within the limits of Hiriyur Rural Police Station, when Rangaswamy was boarding the car bearing Registration No.KA-18-P-8513, driver of lorry bearing Registration No.AP-03-TE-2232 hit Rangaswamy and caused the accident. Rangaswamy succumbed to the injuries

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when he was being shifted to the hospital. At the time of accident, respondent Nos.1 and 2 were the insurer and registered owner of the lorry bearing Registration No. AP-03TE-2232.

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Claimants filed M.V.C.No.7468/2017 against the respondents claiming compensation of Rs.1,50,00,000/alleging that the deceased Rangaswamy was earning Rs.1,00,000/- from his business M/s.Win-Fires Safety Systems. Deceased was aged 37 years and they were all depending on his income. They further contended that due to the accident, they have suffered pecuniary and non-pecuniary damages to the tune of Rs.1,50,00,000/- and respondents are liable to pay the same.

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Respondent No.2 did not contest the petition. Respondent No.1/insurer contested the petition denying occurrence of the accident, actionable negligence on the part of the driver of lorry, age, avocation, income of the deceased and their liability to pay the compensation.

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To substantiate their case, claimant No.1 was examined as PW.1 and got marked Exs.P1 to P26A. Respondents did not adduce any evidence. The Tribunal on

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hearing the parties, by the impugned judgment and award held that the accident and consequent death of Rangaswamy occurred due to actionable negligence on the part of driver of canter lorry bearing Registration No.AP-03-TE-2232.

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Tribunal based on the evidence, considered the age

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of the deceased as 38 years, his income at Rs.28,654/- added 40% to the same by way of future prospects. The Tribunal rejected the contention that claimant No.4 was dependent on the deceased and considered only claimant Nos.1 to 3 as dependants and deducted 1/3^rd of the income of the deceased for his personal expenses, applied 15 multiplier and awarded compensation of Rs.48,13,920/- on the head of loss of dependency. The Tribunal in all awarded compensation of Rs.48,83,920/- on different heads as follows:

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1 Towards loss of dependency	Rs.48,13,920/-
2 Towards loss of consortium	Rs. 40,000/-
3 Towards loss of estate	Rs. 15,000/-
4 Towards funeral expenses	Rs. 15,000/-
Total	Rs.48,83,920/-

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The Tribunal directed respondent No.1/Insurer to pay the said compensation with interest at 7.5% per annum.

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In this appeal, appellants have questioned

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adequacy of the compensation awarded to them.

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Sri R.L.Udaya Kumar, learned Counsel for the

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appellants/claimants submits that claimant No.4 was aged 62 years and he was depending on the deceased. The very fact of the Tribunal apportioning him 5% of the compensation awarded shows that the Tribunal has considered him as dependant. Therefore the finding of the Tribunal that claimant No.4 was not dependant of the deceased is self contradictory. He further submits that the compensation awarded on other conventional heads is not in accordance with the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi¹ and Magma General Insurance Company Ltd., v. Nanu Ram² .

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Sri H.S.Lingaraj, learned Counsel for the Insurer submits that claimant No.4 was agriculturist and he did not enter the witness box to say that he was dependent on the income of the deceased. Therefore the Tribunal was justified in holding that claimant Nos.1 to 3 alone were depending on the income of the deceased. He further submits that the compensation awarded on all other heads is on the higher side.

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1 (2017) 16 SCC 680

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2 (2018) 18 SCC 130

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Analysis

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Respondents have not questioned the findings of

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the Tribunal regarding occurrence of the accident due to actionable negligence on the part of the driver of canter lorry bearing Registration No.AP-03-TE-2232 or it’s contractual liability to pay the compensation.

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It is no doubt true that claimant No.4 did not enter the witness box to depose that he is dependent on the income of the deceased. However, PW.1 i.e. claimant No.1 tendered evidence on behalf of all of them. There is no dispute that claimant No.4 being aged 62 years and the Tribunal took out stray sentence from the evidence of PW.1 that claimant No.4 is agriculturist. But there was no material to show that the alleged occupation was gainful, enabling him to maintain himself. The very fact of the Tribunal awarding 5% out of the compensation awarded goes to show that the Tribunal at one stretch considered him as dependant of the deceased. The Tribunal lost sight of the fact that PW.1 in her chief examination had stated that the claimants were depending on the income of the deceased and the same was pleaded in the petition also.

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In the ordinary course, father aged 62 years, depending upon his earning son aged 38 years is quite natural and normal. Similarly, at that age, even though the father had some occupation, son had the pious duty to maintain his aged father. Therefore the finding of the Tribunal that claimant No.4 was not depending on the deceased is not acceptable.

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As per income tax returns Ex.P18 for the assessment year 2015-2016 income of the deceased was Rs.3,52,330/-. Out of that tax deducted was Rs.8,672/-. On such deduction of tax his annual income would be Rs.3,43,658/-. Considering the age of the deceased, nature of his employment and as per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case referred to supra, 40% of the income has to be added by way of future prospects which comes to Rs.3,43,658/- X 40% = Rs.1,37,463.20/rounded off to Rs.1,37,463/-. Thus his total income would be Rs.3,43,658/- + Rs.1,37,463/- = Rs.4,81,121/-.

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On considering claimant Nos.1 to 4 as dependants of deceased, 1/4^th of his income has to be deducted for his personal expenses. Therefore his annual contribution to family comes to Rs.4,81,121/- x 3/4 = Rs.3,60,840.75/- rounded off

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to Rs.3,60,841/-. The applicable multiplier is 15. Therefore the compensation payable on the head of loss of dependency would be Rs.3,60,841/- x 15 = Rs.54,12,615/-.

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As per the judgments of the Hon'ble Supreme Court in Pranay Sethi’s and Nanu Ram’s cases referred to supra, each of the claimants are entitled to compensation on the head of loss of consortium at Rs.40,000/- with escalation at 10% which comes to Rs.44,000 x 4= Rs.1,76,000/-.

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As per the judgment of the Hon'ble Supreme Court in Pranay Sethi’s case, the claimants are entitled to compensation of Rs.15,000/- + Rs.15,000/- on the head of loss of estate and funeral expenses and transportation of dead body with escalation at 10%. Therefore the just compensation payable is as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	54,12,615/-
2.	Loss of consortium	1,76,000/-
3.	Loss of estate	16,500/-
4.	Funeral expenses & transportation charges	16,500/-
	Total	56,21,615/-
	Less: awarded bythe Tribunal	48,83,920/-
	Enhanced compensation	7,37,695/-

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Respondent No.1 being the Insurer is liable to pay compensation which shall carry interest at 6% per annum. For

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the aforesaid reasons, appeal deserves to be allowed in part.

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Hence, the following:

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ORDER

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i) The appeal is partly allowed.

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ii) Claimants are entitled to enhanced compensation of Rs.7,37,695/- with interest thereon at 6% p.a. from the date of petition till its realization.

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iii) Respondent No.1/Insurer shall deposit the enhanced compensation with accrued interest before the Tribunal within four weeks from the date of receipt of copy of this order.

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iv) Out of enhanced compensation, 80% share shall be released to claimant No.1 and remaining 20% shall released to claimant No.4 on furnishing required documents.

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Registry shall transmit trial Court records to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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KSR

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List No.: 1 Sl No.: 48

Smt Sulochana v. the Royal Sundaram Alliance

Case brief

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Smt Sulochana v. the Royal Sundaram Alliance

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