1 R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE09H DAY OF DECEMBER2016PRESENT THE HON’BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN AND THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MFA No.101018/2015 (MV) BETWEEN1 2. SHANTAVVA W/O LATE GADIGEPPA AWARI @ ELIVAL, AGE:
43. YEARS, OCC: HOUSE WIFE, VEERBHADRAPPA S/O GADIGEPPA AWARI @ ELIVAL AGE:
17. YEARS9MONTHS, OCC: STUDENT, SINCE APPELLANT NO.2 IS MINOR, REP. BY HIS NATURAL MOTHER AS GUARDIAN i.e., APPELLANT NO.1, BOTH ARE R/O: NOOLVI, TQ: HUBBALLI, DIST: DHARWAD. ... APPELLANTS (By Sri. HARISH S MAIGUR & K H MULLA, ADVS.) AND1 ANAND S/O VIRUPAKSHAPPA BALLARI AGE: MAJOR, OCC: BUSINESS, R/O: A/P SASARAWAD, TQ: SIRHATTI, DIST: GADAG.
2. THE DIVISIONAL MANAGER SRI RAM GENERAL INSURANCE CO.LTD., E-8, RIICO, INDUSTRIAL AREA, 2 SITAPUR, JAIPUR, RAJASTHAN-302022. ... RESPONDENTS (By Sri. ASHOK T KATTIMANI, ADV. FOR R1) THIS APPEAL IS FILED U/S1731) OF MV ACT, AGAINST THE JUDGMENT
AND AWARD DATED0403.2015 PASSED IN MVC NO.439/2013 ON THE FILE OF THE FIRST ADDITIONAL SENIOR CIVIL JUDGE AND CJM AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION ETC. This appeal coming on for admission this day, RAGHVENDRA S. CHAUHAN. J, delivered the following:
JUDGMENT
A widowed wife, and a child, who lost his father in a vehicular accident, have approached this court with the hope that compensation awarded by the First Additional Senior Civil Judge and CJM and Addl. MACT, Dharwad, by his award dated 04.03.2015, in MVC No.439/2013, would be enhanced by this court.
2. In a nutshell, the facts of the case are that on 14.02.2013, around 9.45 p.m., Gadigeppa, the husband of appellant No.1, and the father of appellant No.2, was walking on side of a road with his friends after finishing his dinner. When the group of friends came near the Adargunchi Bridge, 3 on Hubli-Lakshmeshwar road, suddenly, a lorry, bearing registration No.KA-22/B-2496, being driven in a rash and negligent manner, came from the Hubli side, and dashed against Gadigeppa. Since grievous injuries were caused by the impact, he was immediately shifted to the KIMS Hospital at Hubli. Subsequently, he was also taken to Lifeline Hospital at Hubli for treatment. However, after undergoing medical treatment for fifteen days, Gadigeppa succumbed to the injuries.
3. Since the appellants lost the sole bread-earner of the family, they filed a claim petition before the learned Tribunal. In order to substantiate their case, the appellant No.1 examined herself as PW.1, and submitted twelve documents. The insurance company did not examine any witness, but did submit the insurance policy as a document. After going through the oral and documentary evidence, the learned Tribunal granted a compensation of Rs.11,37,091/- to the appellants along with interest at the rate of 6% per annum, from the date of filing of the petition till the date of realisation. Hence, this appeal before this court for enhancement. 4 4. Mr. Harish Maigur, the learned counsel for appellants, has raised the following contentions before this court :- Firstly, although the appellants had pleaded that Gadigeppa was working as a contractor, and was earning Rs.25,000/- per month, although they had submitted Ex.P9 and Ex.P10, clearly indicating that he was registered as a contractor, still the learned Tribunal has disbelieved the said documents. Moreover, the learned Tribunal has assessed his income as merely Rs. 7,000/- per month. Thus, the very assessment of income is highly misplaced. Secondly, since he was self-employed, since he was 41 years old, at the time of his death, the learned Tribunal was required to grant a compensation for the loss of future income suffered by the appellants under the category of ‘loss of dependency’. However, the appellants were not granted a single penny for the loss of future income suffered by the appellants. Thus, the very basis for calculating the ‘loss of dependency’ needs to be changed; the compensation in the said category needs to be re-calculated by this court. 5 Thirdly, despite the fact that appellant No.2 happens to be the young son, who at the relevant time was sixteen years old, and who has lost his father, still the learned Tribunal has failed to grant any compensation to the appellant No.2 for ‘loss of love and affection’. Therefore, the interest of appellant No.2 has been totally ignored by the learned Tribunal. Fourthly, although the appellant No.1 was still in her mid-life, as she was around forty years old, although she has at least thirty more years to live without the company, affection and love of her husband, still the learned tribunal has granted a meager sum of Rs.20,000/- for the category of ‘ lost of consortium’. Therefore, the compensation needs to be enhanced for the said category. Fifthly, although the accident had occurred in February’ 2013, still the learned Tribunal has granted merely Rs.10,000/- under the category of “Transportation of dead body, Funeral and obsequies’; considering the rate of inflation and high price of commodities, the compensation awarded under the said head is on the lower side. Hence the 6 compensation for the said category also needs to be enhanced by this court.
5. On the other hand, the learned counsel for Insurance Company, has pleaded that, firstly, Ex. P9and Ex. P10relate to the year 2004-2005. Since the accident had occurred in the year 2013, it was unclear whether Gadigeppa was still working as a contractor, or not. Therefore, the learned Tribunal was justified in not relying upon the two exhibits submitted before the learned Tribunal. Secondly, the learned Tribunal was justified in taking the notional income of the deceased as Rs.7,000/- per month, in order to calculate the loss of dependency. Thirdly, as far as the grant of ‘loss of future income’ is concerned, the learned counsel has taken this court through catena of judgments, from The General Manager, Kerala State Road Transport Coporation, Trivandrum v. Susamma Thomas (Mrs.) and Others [ (1994) 2 SCC176, to U.P. State Road Transportation Corporation and Others v. Trilok Chandra and Others [ (1996) 4 SCC362, in order to contend that, in case correct compensation 7 is paid which would fetch the claimants interest equivalent to the income earned by the deceased, then the question of grant of loss of future income would not even arise. Moreover, the learned counsel pleads that in the case of Reshma Kumari and Others v. Madan Mohan and Another [ (2013) 9 SCC65, a case decided by the Hon’ble Supreme Court on 02.04.2013, a Full Bench of the Apex Court has denied the grant of ‘future loss of income’. Even if the case of Rajesh and Others v. Rajbir Singh and Others [(2013) 9 SCC54 another Full Bench of the Hon’ble Supreme Court, on 12.04.2013, has taken a contrary view, but the fact remains that in the case of Rajesh and others (supra), the judgment of the Hon’ble Supreme Court in the case of Reshma Kumari was not even noticed. Although in the case of Rajesh and others (supra), the Hon’ble Supreme Court did grant loss of future income, but nonetheless, the said case is per incurium as in the case of Rajesh and others (supra), the Hon’ble Supreme Court failed to notice its earlier judgment in the case of Reshma Kumari and Others (supra). Moreover, considering the contradiction contained in the case of Reshma Kumari (supra), and 8 Rajesh and others (supra), on 02.07.2014, in the case of National Insurance Company Limited v. Pushpa and Others [(2015) 9 SCC166, the Hon’ble Supreme Court has referred the issue, whether the addition of income for future prospects should be considered or not, before a Larger Bench of the Hon’ble Supreme Court. Similarly, even in the case of Shashikala and Others v. Gangalakshmamma and Another [ (2015) ACJ1239, again, a learned Division Bench of the Hon’ble Supreme Court has referred the same issue to a Larger Bench. The said issue continues to be pending before the Larger Bench. During the pendency of the said issue before a Larger Bench of the Apex Court, this court should not even consider the said issue. Therefore, ‘loss of future income’ cannot be granted to the appellant at this juncture. Fourthly, as far as ‘loss of consortium’ is concerned, the learned counsel pleads that if adequate compensation had been given for ‘loss of dependency’, then merely “a token compensation” needs to be given for the ‘loss of consortium’. Since a sum of Rs.7,84,056/- has already been paid to the appellant No.1 under the conventional head of ‘loss of 9 dependency’, the learned Tribunal was justified in granting her “a token amount” of Rs.20,000/- for the category of ‘loss of consortium’. Fifthly, even for the grant of compensation for ‘loss of love and affection’ to the appellant No.2, the learned counsel for insurance company has vehemently opposed the same. Lastly, according to the learned counsel, the compensation of Rs.10,000/- is more than just and reasonable for the category of ‘transportation of dead body, funeral and obsequies’ for the ceremonies associated with the departed soul. Therefore, the learned Tribunal was justified in passing the impugned award.
6. Heard the learned counsel for parties and perused the impugned award.
7. The learned Tribunal is certainly justified to the limited extent of not relying on Ex. P9and Ex. P10 which clearly indicate that Gadigeppa was registered as a contractor in the year 2004-05. Since the accident had occurred in the year 2013, the learned Tribunal could not 10 have relied on documents pertaining to the years 2004, and 2005.
8. However, notwithstanding lack of documentary evidence, the testimony of appellant No.1, as PW.2 was not demolished in the cross-examination. In her examination- in-chief, she has clearly stated that her husband was a contractor. Therefore, she has established the status of her husband as working as a contractor. However, she could not prove the income earned by him through his contractual work. Therefore, the learned Tribunal was also justified in taking the notional income that may have been earned by Gadigeppa as a contractor. In the schedule used by this court for taking the notional income of a person for the year 2013, the income has to be taken notionally as Rs.7,000/- per month. Hence, the learned Tribunal was justified in taking Gadigeppa’s monthly income as Rs.7,000/- per month. Therefore, to this extent, the learned Tribunal cannot be faulted. Thus, the first contention raised by the learned counsel for the appellants is unacceptable. 11 9. However, the issue before this court is, whether the tribunal is justified in denying the ‘loss of future income’ while calculating the ‘loss of dependency’ for the appellants?. It is true that in the case of Reshma Kumari and Others (supra), and Rajesh and others (supra), the Hon’ble Supreme Court has expressed contradictory views on the said issue. However, this court is not in a position to opine that merely because the case of Reshma Kumari and Others (supra) was not noticed in the case of Rajesh and others (supra), therefore, the latter case is per incurium. In catena of cases, the Hon’ble Supreme Court has reminded the courts that judicial discipline will have to be maintained by the High Courts. Therefore, it is not for the High Court to opine that a judgment decided by the Supreme Court is per incurium.
10. Undoubtedly, in the case of National Insurance Company (supra), and in the case of Shashikala and Others (supra), the issue has been referred to a Larger Bench of the Hon’ble Supreme Court. Therefore, the issue before this court is whether during the pendency of an issue before a Larger Bench of the Apex Court, the High Court is 12 precluded from taking the said factor into account while calculating the loss of dependency, or not ?.
11. In this regard, assistance may be had from the case of Munna Lal Jain and Another v. Vipin Kumar Sharma and Others [ (2015) 6 SCC347. For, in this case, a Full Bench of the Apex Court clearly noticed that there is a contradiction between the cases of Reshma Kumari and Others (supra), and Rajesh and others (supra). It has also noticed the fact that presently the issue is pending before a Larger Bench of the Apex Court. But, notwithstanding the pendency of the issue before a Larger Bench, in the case of Munna Lal Jain (supra), the Full Bench of the Apex Court has relied on the case of Rajesh and others (supra), and has granted the benefit of loss of future income to the claimants. Thus, it seems that the High Court would be justified in taking the factor of loss of future income into account while deciding the ‘loss of dependency’, even if the issue is presently pending before the Larger Bench of the Apex Court. 13 12. In fact, in catena of cases, this Court has relied on the case of Munna Lal Jain (supra) in order to grant compensation in the category of ‘loss of future income’ while calculating the loss of dependency for the claimants/ appellants in those cases. The judicial discipline would also require that even this Bench should follow the judicial thinking as expressed by the Co-ordinate Benches of this Court. Therefore, this Bench has no other option, but to follow and to grant compensation under the category of ‘loss of future income’ to the appellants before this court.
13. In the case of Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another [ (2009) 6 SCC121, it was laid down that in case the victim happens to be above the age of 40 years, 30% of his annual income should be taken for calculating the ‘future loss of income’. Therefore, taking 30% of the annual income earned by Gadigeppa, this court grants to the appellants, a compensation of Rs.2,35,217/- in the category of ‘loss of future income’. 14 14. It is, indeed, trite to state that the existential condition of a widow in our country, is highly a pitiable. Once a woman becomes a widow, she is neither wanted by her parental family, nor cared for by her in-laws’ family. Considering her to be an inauspicious person, she is subjected to neglect and ridicule; yet, she is expected to be an ideal mother, an ideal wife. She is expected to bring up the children with high sense of morality and to educate them to certain standards. Despite the fact that she no longer has the love, care and assistance, the financial help from her husband, she is expected to fulfill the void left by the sudden demise of the husband. Her children, in particular, and the society, in general, expects her to fulfill such a void and to rise to the occasion, and to act almost like “Mother India”. Such expectations are notwithstanding the fact that she is uncared for, neglected, abandoned, ridiculed and also reduced to an animal existence. It is rather surprising that in the age of Gender Justice, the learned counsel for the insurance company would have this court to believe that merely because a widow has been granted a just and reasonable compensation in the category of ‘loss of 15 dependency’, she needs only a ‘token’ compensation for the emotional vacuum, physical vacuum, psychological vacuum and sociological vacuum that is created in her life due to the sudden demise of her husband. It is in this context that in the case of Rajesh and others (supra), the Apex Court had elaborately dealt with the very concept of ‘consortium’. The Apex Court had opined as under: “In legal parlance, “consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non- pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, 16 companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.” 15. It is pertinent to note that in the opinion expressed above, the Hon’ble Supreme Court has clearly noticed that “non pecuniary head of damages (relating to consortium) has not been properly understood by our courts”. It has also opined that, in its view “it would only be just and reasonable that the courts award atleast rupees One Lakh towards loss of consortium”. (emphasis added). Therefore, the contention raised by the learned counsel for respondent that only a “token amount” needs to be paid is contrary to the opinion expressed by the Apex Court in the case of Rajesh and others (supra). 17 16. Notwithstanding the fact that, a forty year middle- aged lady, saddled with the responsibility of bringing up a teenage boy, who has suddenly lost her husband in an accident, notwithstanding the burdens suddenly put on her shoulders, still the learned Tribunal has miserly granted a sum of Rs.20,000/- for the loss of consortium suffered by her. Therefore, keeping the dictum, laid down by the Apex Court in the case of Rajesh and others (supra), this court enhances the compensation for the ‘loss of consortium’ from Rs.20,000/- to Rs.1,00,000/- for appellant No.1.
17. Needless to say, a young boy, aged sixteen years, would find it very difficult to walk through the paths of life without a father figure- the father who could have advised him about the ups and downs of life, who could have guided him to the pit falls of his life, who could have assured him at the moment of crises, who could have blessed him at the auspicious moments of life, who is no more due to the accident of fate, notwithstanding the plight of a son, who has suddenly lost his father, and who would continue to search for a father figure throughout the life, the learned Tribunal has not granted a single penny to the appellant No.2. 18 Therefore, this court grants a compensation of Rs.50,000/- in the category of ‘loss of love and affection’ to the appellant No.2.
18. Death is no longer inexpensive. But, the moment a person dies, the family is financially burdened and economically shattered. Just the performance of last rites which is not only limited to the performance of the funeral, but even as to customary rites in the post funeral period eat into the financial stock of the family. Even in the year 2013, to perform funerary rites and other traditional rites accompanying cremation would have certainly cost the family more than Rs.10,000/-, which had been granted by the Tribunal to the appellant for ‘transportation of dead body, funeral and obsequies’. Therefore, this court enhances the compensation in the said category from Rs.10,000/- to Rs.25,000/-.
19. For the reasons stated above, the appeal is hereby allowed. The impugned award dated 04.03.2015 is modified. The appellants are entitled to total compensation of 19 Rs15,17,308/- as against the compensation of Rs.11,37,091/- awarded by the Tribunal, as under: Loss of Dependency Rs.7,84,056=00 Loss of Future Income Rs.2,35,217=00 Loss of Consortium Rs.1,00,000=00 Loss of Love and affection Rs. 50,000=00 Loss of Estate Rs. 10,000=00 Loss of Expectancy Rs. 10,000=00 Transportation of dead body, funeral and obsequies Rs. 25,000=00 Medial Expenses Rs.3,03,035=00 Total Rs.15,17,308=00 The insurance company is directed to deposit the amount, along with interest thereon at the rate of 6% per annum, with the learned Tribunal forthwith, after deducting the amount already deposited. The Tribunal is directed to apportion the amount between the appellant Nos.1 and 2, strictly in accordance with the award, and to keep the amount payable to appellant No.2 in fixed deposit in any Nationalized Bank. The fixed deposit shall be automatically 20 renewed on yearly basis with liberty to withdraw the periodical interest. Sd/- JUDGE Sd/- JUDGE Np/-