IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH R DATED THIS THE1T DAY OF AUGUST, 2019 BEFORE THE HONBLE MR.JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.100096/2018 (MV) C/w. M.F.A. CROSS-OBJECTION NO.100115/2018 IN MFA NO.100096/2018BETWEEN :
THE NEW INDIA ASSURANCE CO. LTD., REPTD BY ITS SR. DIVISIONAL MANAGER, DIVISIONAL OFFICE CLUB ROAD, BELAGAVI IN APPEAL REP: BY DULY CONSTITUTED AUTHORITY.... APPELLANT
(BY SRI. M. K. SOUDAGAR, ADVOCATE) AND:
1. SHRI. RAMCHANDRA S/O. SHIVARAM DESAI, AGE:
42. YEARS, OCC: PVT. SERVICE, R/O: H No.108, SHIVAJI GALLI, JAFARWADI VILLAGE, TAL & DIST: BELAGAVI-590001. SMT. NUTUN W/O. RAMCHANDRA DESAI, AGE:
37. YEARS, OCC: HOUSEHOLD, R/O: H No.108, SHIVAJI GALLI, 2.
3. 2 JAFARWADI VILLAGE, TAL & DIST: BELAGAVI-590001. SHRI PRAKASH JOMA PATIL, AGE:
27. YEARS, OCC: BUSINESS, R/O: BASAVANNA GALLI, JAFARWADI VILLAGE, TAL & DIST: BELAGAVI-590001.
... RESPONDENT
S (BY SRI. K. RAGHAVENDRA : V VIDYA, ADVOCATES) --- MFA NO.100096/2018 IS FILED UNDER SECTION1731) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED1409.2017 PASSED IN MVC No.1799/2015 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-II AND ADDITIONAL CIVIL JUDGE, BELAGAVI, AWARDING COMPENSATION OF RS.20,45,000/- WITH INTEREST AT9 P.A. FROM THE DATE OF PETITION TILL ITS REALISATION. IN MFA CROB.100115/2018BETWEEN :
1. SRI. RAMACHANDRA S/O. SHIVARAMA DESAI AGED ABOUT:
43. YEARS, OCC: PVT. JOB, R/O: H.NO.108, SHIVAJI GALLI, JAFARWADI VILLAGE, TQ & DIST: BELAGAVI-590001.
2. 3 SMT.NUTUN W/O RAMCHANDRA DESAI AGED ABOUT:
38. YEARS, OCC: HOUSEHOLD, R/O: H.NO.108, SHIVAJI GALLI, JAFARWADI VILLAGE, TQ & DIST: BELAGAVI-590001. ... CROSS-OBJECTORS (BY SRI. K. RAGHAVENDRA RAO : V VIDYA, ADVOCATES) AND:
1. PRAKASH JOMA PATIL S/O JOMA PATIL, AGED ABOUT:
28. YEARS, OCC: BUSINESS, R/O: BASAVANA GALLI, JAFARWADI VILLAGE, TQ & DIST: BELAGAVI-590001. THE NEW INDIA ASSURANCE CO. LTD., REP. BY ITS SR. DIVISIONAL MANAGER, DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI-590001.
2.
... RESPONDENT
S (BY SRI. M. K. SOUDAGAR, ADVOCATE FOR R2) R1- NOTICE DISPENSED WITH) --- MFA.CROB IN MFA NO.100096/2018 FILED UNDER ORDER41RULE22OF CPC., 1908, AGAINST THE JUDGMENT AND AWARD DATED1409.2017 PASSED IN MVC No.1799/2015 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-II AND ADDITIONAL CIVIL JUDGE, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION COMPENSATION SEEKING ENHANCEMENT OF COMPENSATION. AND FOR4THIS APPEAL AND CROSS-OBJECTION COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: COMMON JUDGMENT MFA No.100096/2019 is filed by the Insurer assailing the quantum of judgment and award, whereas MFA Crob.100115/2018 is filed by the claimants seeking for enhancement of compensation assailing the same judgment and award passed by the II Addl. District Judge and MACT, Belagavi in MVC No.1799/2015 dated 14.09.2017.
2. We have heard the arguments of learned counsel for the appellant/Insurance Company as well as the cross-objectors/claimants. For the convenience, the rankings of the parties before the Tribunal is retained. 5 3. The claimants are the parents of deceased Shubham Ramchandra Desai, who died in the Road Traffic Accident. They filed claim petition under Section 166 of Motor Vehicles Act (hereinafter referred to as the Act, for short) claiming compensation of Rs.25,00,000/, inter alia contending that on 30.06.2015 at about 10.30 pm, when the said Shubham Ramchandra Desai along with others were traveling in a car bearing registration No.KA22/Z-3373, while proceeding to Jotiba temple from Jafarwadi, the driver of the car driven the vehicle in a rash and negligent manner with high speed and dashed to the truck which was proceeding in front, due to which the said Shubham Ramchandra Desai had sustained injuries and he was shifted to the KLE Hospital, Belagavi and he succumbed to the injuries on 01.07.2015. The claimants have contended that their deceased son was pursuing Diploma 1st Year Diploma in Electronic and Communication and he had very good future. He was a bright student, but due to the 6 untimely death, they lost their son. Therefore, they claimed compensation on various heads. In response to the notice, though the 1st respondent owner appeared through his counsel, but not filed any statement of objections. The 2nd respondent-Insurer appeared and filed statement of objection by denying the rash and negligent driving and accident in question and also taken contention that the accident had occurred due to negligent driving of the respondent No.1 and the driver of the car did not have any driving licence and further taken contention that the deceased student was studying in Diploma and there was no income and therefore the claimants are not entitled for any compensation. Hence he prayed for dismissing the claim petition. Based upon the rival pleadings, the Tribunal framed the following issues:
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3. Aii Dz Cx jg?. To substantiate the contention, the 1st claimant got himself examined as PW1 and got marked 15 documents. Though the respondent-Insurance Company has taken various contention, but not let in any evidence except marking Ex.R1 Insurance Policy. After considering the evidence on record, the Tribunal awarded the compensation of Rs.20,45,000/- under the following heads:
8. Towards Loss of dependency Rs.19,20,000.00 Towards Funeral expenses Rs.20,000.00 Towards Transportation of dead Rs.5,000.00 body Towards loss of love and affection Rs.1,00,000.00 Total Rs.20,45,000.00 Assailing judgment and award passed by the Tribunal, the insurer filed MFA No.100096/2018 for reduction of the compensation, whereas the claimants filed Cross-objection No.100115/2018 for enhancement of compensation.
4. The counsel for the Insurer contended that the Tribunal committed error in taking the income of the deceased at Rs.20,000/- per month, even though he was 1st year Diploma student and a non-earning member. There is no established income proved by the claimants before the Tribunal. Even the Engineering Graduates are not earning Rs.10,000/- per month. Such being the case, considering Rs.20,000/- per 9 month as income for the student of 1st year Diploma is exorbitant and excessive. Apart from that, it is also contended that the Tribunal awarding Rs.1,00,000/- towards love and affection, is also against the guidelines of Honble Apex Court in the case of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 SCC680 It is also contended the award of Rs.20,000/- towards funeral expenses is also excessive and against the judgment of the Honble Apex Court stated supra. Further the interest awarded at 9% p.a. is excessive and hence he prayed for allowing the appeal.
5. Per contra, learned counsel for the claimants supported the judgment and award passed by the Tribunal. However, it is contended that, though the Tribunal has considered Rs.20,000/- as income per month for the deceased, but failed to consider the future prospects of 50% of the income, as per the recent judgment of the Honble Apex Court in catena of decisions including the judgment in the case of Sarala 10 Verma and others Vs. Delhi Transport Corporation and Others reported in 2009 (6) SCC121and Pranay Sethis case (supra). The counsel also contended that in similar identical case, the Division Bench of this Court in an un-reported judgment in MFA No.102137/2014 has considered Rs.20,000/- per month as income for the deceased who was a Diploma student. Hence he prayed for dismissing the appeal filed by the Insurer and prayed for allowing their cross- objection by enhancing the compensation.
6. Upon hearing the arguments of learned counsel for both the parties and perusal of records, the points that arise for my consideration are: i. Whether the Tribunal is justified in awarding the compensation of Rs.20,45,000/- by taking the income of the deceased Diploma student at Rs.20,000/- per month and whether it is excessive and exorbitant as contended by the Insurer, which requires reduction?. 11 ii. Whether the claimants are entitled for enhancement of compensation?. iii. Whether the interest awarded by the Tribunal requires reduction?. iv. What order?.
7. The claimants have established the factum of accident dated 30.06.2015, which was occurred when the deceased was traveling in a car bearing registration No.KA22/Z-3373 and the same was driven by the driver of the respondent No.1 in a rash and negligent manner and dashed to the truck, which was going ahead, due to which the deceased sustained injuries and died in the hospital. There is no dispute with respect to the Tribunal holding the rash and negligence on the part of the driver of the car. The only controversy in dispute is quantum of compensation awarded by the Tribunal. Whether it is exorbitant or insufficient as contended by the appellants/cross-objectors in both the cases. Admittedly, the deceased Shubham Ramchandra Desai was 1st year Diploma student. He has completed 1st year examination as on the date of accident. Ex.P8 is 12 Admission Ticket. Exs.P9 and P10 are Conduct Certificates, Exs.P12 to P15 are the Sport Certificates. The same was not seriously disputed by the respondent- Insurer. Learned counsel for the Insurer contended that the deceased was only a non-earning member and a student and there is no established income made out before the Tribunal, therefore taking Rs.20,000/- per month is exorbitant and excessive and requires reduction.
8. Per contra, learned counsel for the Cross- objectors i.e., the claimants contended that, though the deceased was a Diploma student and completed first year, but he had very good academic qualification and he was the sport player for 12-15 years and he might be having very good future and he might have earned very good income in future and considering the aspect, the Tribunal rightly considered the income of Rs.20,000/- per month. Therefore, contended that it does not require for reduction in the income. The claimants also 13 relied upon the unreported judgment of the Division Bench of this Court in MFA No.102137/2014. In a similar case this Court considered Rs.20,000/- per month as income of a student, wherein it was stated that the deceased in the said case was IV Semester Diploma in Computer Science student and was also doing part time service. But here in this case, the deceased was just 1st year student. Though the claimants have produced sports certificate, there is no document to show whether the deceased was also doing any part time service. However, the Division Bench of this Court in a recent judgment dated 21.06.2019 passed in MFA No.6972/2016 and another judgment dated 23.07.2019 passed in MFA No.7135/2018 considered the income of Rs.15,000/- for the Engineering Student and Rs.12,000/- for the Diploma student, respectively.
9. Therefore, looking to the facts and circumstances of the case and considering the 14 education of the deceased, I propose to consider Rs.12,000/- as notional income of the deceased Shubham Ramchandra Desai. Therefore, I hold that Tribunal considering Rs.20,000/- p.m. as income of the deceased is exorbitant and it requires reduction. Hence the income of the deceased is to be taken at Rs.12,000/- per month.
10. Further, as per the judgment of the Honble Supreme Court in Pranay Sethi (supra), 50% of the income should be considered for future prospects of the salaried person having permanent job. However, for the age group up to 40 years for self-employed person and having fixed income, 40% of the income shall be considered for future prospects. Though the learned counsel for the Insurer contended that, when there is no established income of the deceased is proved, then the future prospects of 40% cannot be considered in this case. The submission cannot be accepted since the Division Bench of this Court in catena of cases 15 considered 40% of the income as future prospects even in the case of a person other than self-employed and have fixed salary even while fixing the notional income of the deceased. The Court may consider the future prospects. Though the claimant not able to prove income, which was claimed by them, when the court considers the notional income as income of the deceased person. Even in such case also Court/Tribunal may award future prospects based upon the principle laid down by the Honble Supreme Court in Pranay Sethis case. Therefore, a person other than the salaried person and self-employed is also entitled for 40% of the future prospects. As no person would receive/continue to earn same salary for a longer period, may definitely try to improve his future income. Hence, the deceased shall also be entitled for 40% future prospects. Therefore, the contention of the learned counsel for the Insurer cannot be accepted and 16 I hold that the Tribunal erred in not calculating or considering the future prospects for the deceased.
11. Therefore, considering 40% of the income of the deceased towards future prospects, if Rs.12,000/- is considered as income of the deceased, 40% of income would be Rs.4,800/-, totaling to Rs.16,800/-. The deceased being a bachelor, Rs.8,400/- being 50% has to be deducted towards personal expenses. If Rs.8,400/- is multiplied into 12 and the appropriate multiplier 18, the compensation towards loss of dependency would come to Rs.18,14,400/- (Rs.8,400/- x 12 x 18). Therefore, I propose to award Rs.18,14,400/- towards loss of dependency as against Rs.19,20,000/- awarded by the Tribunal.
12. As per the judgment of the Honble Apex Court in the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram Alias Chuhru Ram (2018 SCC Online SC1546, the claimants being parents of the deceased are entitled for Rs.30,000/- each towards loss of filial 17 consortium and Rs.15,000/- towards loss of estate and another Rs.15,000/- towards funeral and transportation expenses.
13. In all the claimants are entitled for reassessed compensation as under: Towards Loss of dependency Rs.18,14,400.000 Towards loss of Filial Consortium (30000x2) Rs.60,000.00 Towards Loss of Estate Rs.15,000.00 Towards Funeral & Transportation expenses Total Rs.15,000.00 Rs.19,04,400.00 14. The learned counsel for the Insurance Company contended that the award of interest at the rate of 9% p.a. is also exorbitant and sought for reduction to 6% p.a. The same is objected by the claimants counsel. As regards the interest awarded by the Tribunal at 9% p.a., the Division Bench of this Court in various cases used to award interest at 6% 18 p.a., especially in death cases. Looking to the economic condition of the country and rate of interest on deposits offered by the banks, the award of interest is reduced to 6% p.a. from 9% p.a. awarded by the Tribunal. Though the claimants are able to succeed in getting 40% of future prospectus and compensation towards loss of consortium, but there is reduction in the quantum of compensation. Therefore, the appeal filed by the Insurer is allowed in part. The Cross-objection of the claimants is liable to be dismissed. The claimants are entitled for reassessed compensation of Rs.19,14,400/- as against Rs.20,45,000/- awarded by the Tribunal. The Insurance Company is directed to deposit Rs.19,14,400/- together with interest at 6% p.a. from the date of petition till realization. Regarding apportionment, 50% of the compensation together with interest awarded to the claimants is ordered to be deposited in any nationalized bank or any post office 19 initially for a period of three years in the name of the 1st claimant and 5 years in the name of 2nd petitioner and there are entitled to withdraw periodical interest thereon. Remaining amount with interest is ordered to be released to the claimants on proper identification. The amount in deposit by the Insurance Company before this Court is ordered to be transmitted to the Tribunal forthwith. gab Sd/- JUDGE