G.Veeraiah & Others vs Sudhakara Shetty & Others

P.N. Desai, J

This appeal is filed by the claimants challenging the Judgment and Award dated 17.04.2018 passed by the Additional District Judge and Additional Motor Accident Claims Tribunal, Udupi (Sitting at Kundapura), Kundapura (‘the Tribunal’ for short), in MVC No.115/2016, wherein the Tribunal has awarded a sum of Rs.14,59,141/- with interest at 6% p.a. as compensation.

The appellants are the parents and sister of deceased - Veerabhadra. They have filed a claim petition contending that on 30.6.2015 at about 01:00 p.m. the deceased - Veerabhadra was traveling in a motor-cycle bearing registration No.KA-02-ER-8883 as a pillion rider along with his friend - Vishwas who was riding the motorcycle. When they were proceeding from Vandse towards Kundapur, near Santosh Nagar cross at Hemmady village, on N.H.66, the driver of the offending bus bearing registration No.KA-20-D-1389, came from the opposite side, in a rash and negligent manner with high speed, to the extreme right side of the road and dashed to the motorcycle of Veerabhadra. Due to the impact, both the rider and pillion rider of the motorcycle fell down and sustained injuries. Injured - Veerabhadra was shifted to Adarsh hospital, Udupi and thereafter, he was shifted to Baptist Hospital, Bengaluru. On 18.07.2013, he succumbed to the injuries. Hence, the claim petition was filed.

The respondent No.2 - insurance company appeared before the tribunal and filed written statement denying the accident and its liability. Thereafter, the Tribunal framed issues. Petitioner No.1 - G.Veeraiah/father of the deceased got examined himself as PW.1 and one Sri. Shashikumar who is an eye witness examined as PW.2 and the claimants have produced eighteen documents as Exs.P.1 to P.18 which includes FIR, charge sheet, postmortem report, marks card of deceased, Adhaar card and medical bills which indicate that the deceased died due to road traffic accident. The respondents have not adduced any evidence nor any documents have been marked on their behalf. After hearing the arguments, the Tribunal passed the impugned judgment and award. The claimants have sought for enhancement of compensation contending that tribunal has awarded a meager compensation.

Heard Shri. H.Pavana Chandra Shetty, learned counsel for the appellants, and Shri. C.Shankar Reddy, learned counsel for respondent No.2.

The learned counsel for the appellants argued that the Tribunal has awarded very meager compensation towards loss of love and affection. The learned counsel further argued that the tribunal has taken the income of the deceased at Rs.9,000/- per month only, which is very much on the lower side. The deceased had completed his graduation in B.Com and had applied for MBA course. He was also assisting his father in tailoring shop. The tribunal has not considered these aspects. The learned counsel also argued that the deceased was shifted from Adarsh Hospital, Udupi to Baptist hospital, Bengaluru for treatment, in view of the same, the claimants have incurred transportation charges, but the tribunal has not awarded any compensation towards incidental expenses. The learned counsel for appellants argued that, if the deceased would have completed his MBA graduation, he would have very bright prospects. Therefore, learned counsel argued to enhance the compensation as prayed.

Learned counsel for respondent No.2 argued that the deceased was a student, he has no source of income, therefore, the tribunal has rightly assessed the income of the deceased and rightly awarded the compensation under the different heads of compensation. The learned counsel for respondent No.2 also contended that the claimants have not established the income of the deceased by producing cogent material, therefore, urged for dismissal of the appeal.

We have perused the impugned Judgment and the materials placed on record.

The happening of the accident and consequent death of son of claimant Nos.1 and 2 due to fatal injuries is cogently established by evidentiary material on record. Finding of the tribunal as to the involvement of offending vehicle has not been challenged by the insurer. In this appeal, the short question that falls for our consideration is only as to the quantum of compensation which the claimants complain is meager and per contra which the insurer contends just and proper.

It is not in dispute that the deceased - Veerabhadra died in the road traffic accident occurred on 30.06.2015 due to rash and negligent driving of the offending bus by its driver. It is evident from Ex.P10 - B.com marks card copy of deceased that the deceased - Veerabhadra has passed B.Com with 'Second Class' and he has obtained 'A' grade for internal assessment i.e., outstanding. Ex.P11 - interview letter issued from Quest Global Bengaluru reveals that the deceased was short listed for technical interview process. It is also evident that he was aged about 21 years at the time of accident. The tribunal has assessed the income of deceased at Rs.9,000/- per month, on considering the fact that as per the Gazette Notification, dated 31.05.2010, the Ministry of Labour and Employment, has fixed the monthly wage in a sum of Rs.8,000/- as per Section 4 of the Employee's Compensation Act, 1923. Further, the Ministry of Labour and Employment, by another notification dated 03.01.2020, has increased the monthly wages under Section 4 of the Employee's Compensation Act, 1923 to Rs.15,000/-per month. Admittedly, the accident occurred in the year 2015. The deceased has completed his graduation in B.Com and he had applied for MBA Course. There is also evidence that he was assisting his father in tailoring work. Keeping in mind, his qualification, increase in minimum wages, evidence on record and taking totality circumstances of this case, we deem it appropriate to re-fix the income of the deceased at Rs.12,000/- per month; same is also not seriously disputed by respondent No.2 - insurance company.

This apart there needs to be an addition of 40% to the notional income as future prospects in view of the decision of Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LTD. VS. PRANAY SETHI & ORS., (2017) 16 SCC 680. The deceased was a non-earning person and in this regard, the Hon'ble Supreme Court in a decision reported in KIRTI AND ANOTHER Vs. ORIENTAL INSURANCE COMPANY LIMITED (2021) 2 SCC 166, wherein the earlier decision of the Hon'ble Supreme Court in the case of HEM RAJ V. ORIENTAL INSURANCE CO. LTD.AND OTHERS, reported in 2018 ACJ 5 is referred and it is held that 40% has to be added towards 'future prospects', even for a non-earning person.

Further the tribunal has deducted 1/3rd towards personal and living expenses of the deceased. The Hon'ble Supreme Court in the case of SARLA VERMA & ORS. VS DELHI TRANSPORT CORPORATION AND ANOTHER (2009) 6 SCC 121 has elaborately discussed with regard to computation of loss of dependency. The Constitution Bench of Hon'ble Supreme Court in the case of Pranay Sethi supra, at paragraph No.39 referred paragraph Nos.30, 31, 32 of Sarla Verma's case supra, where the Hon'ble Apex Court has discussed and settled the law with regard to deduction towards personal and living expenses, when the deceased was a bachelor. The paragraph Nos.30, 31 and 32 reads as under:

“30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in U.P.STATE ROAD TRANSPORT CORPORATION & ORS. Vs. TRILOK CHANDRA (1996 (4) SCC 362),. the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.”

Further the Constitution Bench of Hon'ble Supreme Court in the case of Pranay Sethi supra at paragraph No.41 referred the decision of Reshma Kumari & Ors vs Madan Mohan & Anr (AIR 2013 SC (Supp) 474, wherein the three-Judge Bench agreed with the above reference made in Sarla Verma's case and at paragraph No.43.6 of Reshma Kumari's case, it is held as under:

"43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 41 above."

Further at paragraph No.43, the Constitution Bench held as under:

On a perusal of the analysis made in Sarla Verma which has been reconsidered in Reshma Kumari, we think it appropriate to state that as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the tribunals and courts should be guided by conclusion 43.6 of Reshma Kumari. We concur with the same as we have no hesitation in approving the method provided therein."

Therefore, deduction of 1/3rd towards personal and living expenses taken by the tribunal and its reasons are contrary to principles stated by Constitution Bench of Hon'ble Apex Court. Therefore, 50% needs to be deducted instead of 1/3rd towards personal and living expenses of the deceased, in view of the relationship with claimants.

Hence, if the income of the deceased is taken as Rs.12,000/- per month and to that, if 40% is added, (i.e., Rs.4,800/-) the monthly income of the deceased would be Rs.12,000 + 4,800 = Rs.16,800/-. As the deceased was a bachelor at the time of accident and by referring the method adopted by Hon'ble Supreme Court for computation of loss of dependency in the cases of Sarla Verma, Pranay Sethi and Reshma Kumari referred supra, 50% needs to be deducted towards personal expenses of the deceased and it comes to Rs.16,800 x 50% = Rs.8,400/- per month. The deceased was aged about 21 years at the time of accident. Therefore, the appropriate multiplier applicable to the age group of deceased as per the decision of Apex Court in SARLA VERMA's case supra is '18'. With these altered factors, the compensation towards 'loss of dependency' is recalculated as under:

(8,400 x 12 x 18 = Rs.18,14,400/-.)

The Apex Court in the case of United India Insurance Company Ltd. V. Satinder Kaur @ Satwinder Kaur reported in 2020 SCC Online SC 410 civil appeal no.2705/2020 referred to the Pranay Sethi's case (supra) regarding award of compensation under conventional heads; it also referred to earlier decision in the case of Magma General Insurance Co. Ltd., vs. Nanu Ram and others, reported in (2018) ACJ 2782, which interpreted consortium to be a compendious term, encompassing spousal consortium, parental consortium as well as filial consortium, it is held that loss of love and affection is comprehended in loss of consortium. The Hon'ble Supreme Court further ruled at paragraph No.8.7 that, there is no justification to award compensation towards loss of love and affection under a separate head, but placed it under the loss of consortium which is a legitimate conventional head. The Apex Court has fixed a sum of Rs.40,000/- to be under the head loss of consortium, it may be spousal, parental and filial consortium. Therefore, as per the decision rendered in Magma General Insurance Company case supra, the parents i.e., claimant Nos.1 and 2 each are entitled for compensation towards 'filial consortium' which comes to Rs.80,000/-. The tribunal has awarded a sum of Rs.15,000/-towards funeral expenses and Rs.15,000/- towards loss of estate, the same is just and proper.

With the above altered income factor the compensation is re-determined as below:

Sl. No

Particulars

Trial Court

This Court

01.

Loss of Dependency

Rs.12,96,000/-

Rs.18,14,400/-

02.

Medical expenses

Rs.93,141/-

Rs.93,141/-

04.

Funeral expenses

Rs.15,000/-

Rs.15,000/-

05.

Loss of Estate

Rs.15,000/-

Rs.15,000/-

06.

Loss of love and affection

Rs.40,000/-

Rs.80,000/-

Total

Rs.14,59,141/-

Rs.20,17,541/-

In the result, we pass the following:

ORDER

(i) The appeal is allowed in-part;

(ii) The impugned Judgment & award dated 17.04.2018 passed in MVC No.115/2016 by the Additional District Judge and Addl. MACT, Udupi (sitting at Kundapura), Kundapura, is modified and the compensation awarded by the tribunal in a sum of Rs.14,59,141/- is enhanced to Rs.20,17,541/- (Rupees Twenty Lakh Seventeen Thousand Five Hundred and Forty one only) with interest at the rate of 6% per annum from the date of petition till the date of realisation.

(iii) All other conditions in the operative portion of the order of the tribunal are kept intact.

(iv) The Insurer shall make good the difference amount of the compensation within a period of eight weeks.

(v) Parties shall bear their own costs.