1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE08H DAY OF SEPTEMBER, 2016 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA MFA No.201612/2015 (MVC) ® BETWEEN:
2. Santosh, S/o Bheemrao, Age:
30. years, Occ: Private work, Prarthana, D/o Santosh, Age:
06. years, Minor U/g of her father and guardian, Appellant No.1 Santosh, S/o Bheemrao, Age:
30. years, Both are R/o Sikendrapur, Tq. Bidar, Now R/o at Patty Manthal, Tq. Basavakalyan-585327. (By Sri Basavaraj R. Math, Advocate) ... Appellants AND:
1. Rajkumar, S/o Kashappa Wall, Age: Major, Occ: Business and owner of Car bearing No.KA.38/M-2215, R/o Markunda, Tq & Dist. Bidar-585401. 2 2. M/s ICICI Lombard General Insurance Company Ltd., Zenith House, Keshwarao Khade Marg, Mahalaximi Mumbai-400034. Represented by its regional Manager, ICICI Lombard General Insurance Company Ltd., 2nd floor, Bellad Company, Hubli-580020. (By Sri. Subhash Mallapur, Advocate for R2, Notice to R1 is dispensed with v/o dt.31-08-2016) ... Respondents ***** This MFA is filed under Section 173(1) of MV Act, by the advocate for the appellants praying to call for the records and modify the impugned judgment and award dated 25.06.2012 passed by the Fast Track Court, Basavakalayan, Dist. Bidar, in MVC No.464/2011, in the interest of justice and equity. This appeal coming on for Admission this day, the Court delivered the following: JUDGMENT
An unfortunate husband and minor daughter filed the present appeal for enhancement of compensation against the judgment and award dated 25.06.2012 made MVC No.464/2011 on the file of the Fast Track Court, Basavakalayan, Dist. Bidar, (‘Tribunal’ for short) 3 awarding `6,37,000/- with interest at 6% per annum from the date of petition till realization.
2. It is the case of the claimants that deceased Anitha is the wife of the first claimant and mother of the second claimant. On 16.05.2011, when she was returning to village on motor bike bearing registration No.KA-31/J-1571 from Bidar, of which the claimant No.1 was the rider, after attending the marriage, at about 8.30 pm, when they came near Bidar- Humnabad road, the Indica car bearing registration No.KA-38/M- 2215 owned by the 1st respondent came from Humnabad side in a high speed in a rash and negligent manner and dashed against the motor bike in which the deceased was the pillion rider. The deceased fell down from the bike and sustained injuries. She was shifted to Government Hospital in an ambulance and she succumbed to the injuries during the course of treatment in the hospital at about 1.00 am on 4 17.05.2011. The New Town Police registered case in Crime No.94/2011 under Sections 279, 338 and 304(a) of IPC read with Section 187 of the M.V.Act against the driver of the Indica car owned by the 1st respondent. It was further contended that the deceased Anitha was a young woman, newly married having a minor daughter/ claimant No.2 and was well qualified having studied B.A and she was attending to the accounts of Self Help Group under D.C.C. Bank and out of the said avocation, she was earning `10,000/- per month. Therefore, sought for compensation of `14,74,000/-.
3. The 1st respondent filed written statement and contended that the claim petition is not maintainable either in law or on facts and denied the age, occupation, income, nature of injuries sustained and the expenditure made towards treatment. Further, it was denied that the accident occurred due to rash and negligent driving of the driver of the offending car and 5 contended that the rider of the motor cycle was riding the motor bike in a rash and negligent manner without following the traffic rules and all of a sudden came in front of the car and the accident occurred. It was contended that the offending car being insured with the 2nd respondent, 1st respondent is not liable to pay compensation and sought for dismissal of the claim petition.
4. The 2nd respondent/insurer of the offending car filed written statement denying all the averments made in the claim petition. He denied the age, occupation, income, nature of injuries sustained and the expenditure made towards treatment. It was further contended that the 1st respondent has violated the terms and conditions of the policy and entrusted the vehicle to a person who had no valid and effective driving licence as on the date of the accident and hence, 6 2nd respondent is not liable to pay compensation and prayed for dismissal of the claim petition.
5. Based on the aforesaid pleadings, the trial Court framed the following issues.. “1. Whether the petitioners proves that, Anitha was died in the alleged RTA due to rash and negligent act of the drive of the Indica car bearing No.KA-38/M-2215 at about 8.30 pm near Bidar-Humnabad road, who is legally wedded wife petitioner No.1 and petitioner No.2 is daughter of the petitioner No.1 and deceased Anitha?.
2. Whether the petitioner is entitled compensation, if so, what amount and from whom?.
3. What order or award?.” 6. In order to substantiate their claim, claimant No.1/ husband of the deceased was examined as P.W.1 and got marked the documents Exs.P.1 to 9. The 7 respondents have not adduced any evidence, nor produced any documents in support of their case.
7. On considering the oral evidence and entire material documents on record, the Tribunal recorded a finding that the claimants have proved that the deceased Anitha died in the road traffic accident due to rash and negligent driving of the Indica car bearing registration No.KA-38/M-2215 by its driver. The deceased is the wife of 1st claimant and mother of 2nd claimant and that the claimants are entitled for compensation. Accordingly, by the impugned judgment and award dated 25.06.2012, awarded compensation of `6,37,000/- with interest at 6% per annum. Hence the present appeal is filed by the claimants for enhancement of compensation.
8. The 2nd respondent has not filed any appeal against the impugned judgment and award. 8 9. I have heard the learned counsel for the parties to the lis.
10. Sri Basavaraj R. Math, learned counsel appearing for the claimants/appellants vehemently contended that the Tribunal is not justified in assessing the income of the deceased at `4,500/- per month, when the claimant No.1 examined as P.W.1 proved by leading oral and documentary evidence that the deceased was attending to the accounts of Self Help Group under D.C.C. Bank and earning `10,000/- per month. He also contended that awarding consortium of `5,000/- is without any basis and there cannot be discrimination between wife and husband while awarding consortium. It applies equally to both the couple. He further contended that the award passed by the Tribunal in respect of conventional heads are on lower side and sought for modification of the impugned judgment and award 9 passed by the Tribunal by allowing the appeal for enhancement of compensation.
11. Per contra, Sri Subhash Mallapur, learned counsel appearing for the 2nd respondent sought to justify the impugned judgment and award passed by the Tribunal and strenuously contended that in the absence of any material produced to prove that the deceased was earning `10,000/- per month and the Tribunal is justified in taking income of the deceased at `4,500/- per month and therefore, sought to dismiss the appeal.
12. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in this appeal is: “Whether the claimants have made out a case for enhancement of compensation, in the facts and circumstances of the present case?.” 10 13. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties.
14. It is not in dispute that the claimant No.1 is the husband and claimant No.2 is the minor daughter of the deceased. Smt. Anitha, wife of the 1st claimant died at a very young age due to the accident that occurred on 16.05.2011 due to the rash and negligent driving of the car bearing registration No.KA-38/M-2215 by its driver. Due to the death of his wife, the 1st claimant has definitely lost love and affection of his wife through out his life and the 2nd claimant/minor child lost the love, affection and care of her mother. P.W.1 has stated on oath that the deceased was attending to the accounts of Self Help Group under D.C.C. Bank and was earning `10,000/- per month, but has not produced any documents in support of the same. But the fact remains that the deceased was aged 27 years as on the 11 date of the accident and was hale and healthy. The Tribunal should have taken atleast `6,000/- as monthly income of the deceased. In view of the dictum of the Hon’ble Supreme Court in the case of Sarla Verma (Smt) and Others Vs Delhi Transport Corporation and Another reported in (2009) 6 SCC121 out of the monthly income, 1/3rd has to be deducted towards personal expenses of the deceased. Thus, deducting 1/3rd towards personal expenses, the monthly income of the deceased would be `4,000/- and the annual income would be `48,000/-. Applying the multiplier 17 as applicable to the age 27 of the deceased, loss of dependency would be `8,16,000/-. The Tribunal, while awarding compensation under the conventional heads, has proceeded to award meager amount which is again contrary to the law declared by the Hon’ble Supreme Court in the case of Vimal Kanwar vs. Kishore Dan reported in (2013)7 SCC476 wherein, at paragraphs 32 to 37, it is held as under:
12. 32. Admittedly, the date of birth of deceased Sajjan Singh being 1-2-1968; the submission that he would have continued in service up to 1-2- 2026, if 58 years is the age of retirement or 1-2- 2028, if 60 years is the age of retirement is accepted. He was only 28 years 7 ½ month old at the time of death. In normal course, he would have served the State Government minimum for about 30 years. Even if we do not take into consideration the future prospect of promotion to which the deceased was otherwise entitled and the actual pay revisions taken effect from 1-1- 1996 and 1-1-2006, it cannot be denied that the pay of the deceased would have doubled if he would have continued in services of the State till the date of retirement. Hence, this was a fit case in which 100% increase in future income of the deceased should have been allowed by the Tribunal and High Court, which they failed to do. 13 33. Having regard to the fact and evidence on record, we estimate the monthly income of deceased Sajjan Singh at Rs. 9000x2=Rs.18,000 per month. From this his personal living expenses, which should be 1/3rd, there being three dependants has to be deducted. Thereby, the “actual salary” will come to Rs.18,000 – Rs.6000 = Rs. 12,000 per month or Rs.12,000 x 12 = Rs.1,44,000 per annum. As the deceased was 28 ½ years old at the time of death the multiplier of 17 is applied, which is appropriate to the age of the deceased. The normal compensation would then work out to be Rs.1,44,000 x 17 = Rs.24,48,000 to which we add the usual award for loss of consortium and loss of the estate by providing a conventional sum of Rs.1,00,000; loss of love and affection for the daughter Rs.2,00,000, loss of love and affection for the widow and the mother at Rs.1,00,000 14 each i.e. Rs.2,00,000 and funeral expenses of Rs.25,000.
34. Thus, according to us, in all a sum of Rs.29,73,000 would be a fair, just and reasonable award in the circumstances of this case.
35. The rate of interest of 12% is allowed from the date of the petition filed before the Tribunal till payment is made.
36. Respondent 3 is directed to pay the total award with interest (minus the amount if already paid) within three months. Appellant 2 daughter who was aged about 2 years at the time of accident of the deceased has already attained majority; money may be required for her education and marriage. In the circumstances, we direct Respondent 3 to deposit 25% of the due amount in the account of Appellant 1, the wife. Out of the rest 75% of the due amount, 35% of the 15 amount be invested in a nationalised bank by fixed deposit for a period of one year in the name of the daughter, Appellant 2. Out of the rest 40% of the due amount, 20% each be invested in a nationalised bank by fixed deposit for a period of one year in the name of Appellants 1 and 3, the wife and the mother respectively.
37. The award passed by the Tribunal dated 21.06.2003 and judgment dated 29.07.2011 of the Rajasthan High Court stand modified to the extent above. The appeal is allowed with the aforesaid observation and direction. No separate order as to costs.” 15. Learned counsel for the respondent sought to justify that the compensation awarded by the Tribunal under the head of consortium at `5,000/-. The Hon’ble Supreme Court in catena of decisions has held that consortium should be `1,00,000/-. Reliance can be 16 made on the judgments reported in the case of Vimal Kanwar (supra), Neeta & others –vs- Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur reported in (2015)3 SCC590and Asha Verman and others –vs- Maharaj singh and others reported in (2015)11 SCC389 Though, in the cases referred supra, consortium is awarded to the wife, there cannot be any discrimination between the spouses to award compensation under the head ‘consortium’. The definition of the word ‘consortium’ in different dictionaries are as under: “BLACK’S LAW DICTIONARY: to receive The benefits that one person, esp. a spouse, is entitled including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations. from another, LEGAL AND MEDICAL DICTIONARY: In its fullest sense it implies a companionship between each of hem, entertainment of mutual friends, sexual intercourse, all those elements which, when combines, justify the old common 17 law dictum that a man and his wife are one person.-.It has been defined as a partnership of association; but in the matrimonial sense it implies much more than these rater cold words suggest. It involves a sharing of two lives, a sharing of joys and sorrows of each party; of their success and disappointments.-.It implies a companionship between each of them regarding entertainment of mutual funds, sexual intercourse and all other elements which combine justifying dictum of common law (AIR1984Del.66) -It means companionship, affection or love and mutual service or sexual intercourse. It certainly belongs to marital status of persons.-. The word ‘consortium’ has a fixed and limited meaning involving a sharing of two lives, sharing of joy and sorrows of each party. THE LAW LEXICON companionship, Consortium means love, affection, comfort, mutual services, sexual intercourse. All these things belongs to the married state. Taken together they make up consortium. Harvinder Kaur vs. Harmander Singh Choudhry, AIR1984Del 66, 69, [Hindu Marriage Act (25 of 1955), Ss. 9, 13]. ‘Consortium’ connotes only the husband and the wife and the companionship, fellowship or togetherness of the husband and the wife. 18 Farooque vs. Ahmedabad Municipality, AIR1985Guj 114, 115. [Fatal Accidents Act (13 of 1855), S.1-A]. Conjugal fellowship of husband and wife, and the right of each to the company, society, co- operation, affection, and aid of the other in every conjugal relation. Roseberry v. Starkovich, 73 NM211 387 P.2d, 321, 322. Loss of “consortium” consists of several elements, encompassing not only material services but such intangibles as society guidance, companionship, and sexual relations. Countryman vs. Winnebago County, 2 Dist., 135 III. App.3d 384, 90 III, Dec. 344, 347, 481 NE2 1255,1258. Damages for loss of consortium are commonly sought in wrongful death actions, or when spouse has been seriously injured through the negligence of another, or by spouse against third person alleging that he or she has caused breaking-up of marriage. Cause of action for “consortium” occasioned by injury to marriage partner, is a separate cause of action belonging to the spouse of the injured married partner and though derivative the sense of being occasioned by injury to spouse, is a direct injury to the spouse who has lost the consortium. Peoples vs.Sargent, 77 Wis. 2d 612, 253 NW2 459, 472. in In the civil law, a union fortunes; a lawful Roman marriage. The joining of several persons as parties to one action. 19 The old English law, the term signified company or society, and in the language of pleading, as in the phrase per quod consortium amisit, it has substantially the companionship or society of wife. 3 BL. Comm.
140. the same meaning, viz., The meaning of this word in the context of a husband’s right to recover damages for loss of consortium against a person who negligently injures his wife was fully discussed in the House of Lords in Best vs. Samuel Fox & Co. Ltd., . AC716 It was there held that a wife does not have a similar right. The question of whether consortium is one and indivisible or whether an action could lie for partial loss or impairment was also discussed but unresolved.” 16. Taking into consideration the dictum of the Hon’ble Supreme Court stated supra and the definition of the word ‘consortium’ in various dictionaries, the loss of love and affection to the wife equally applies to the husband also. Therefore, the award passed by the Tribunal towards consortium is contrary to law and the same is erroneous and requires to be enhanced.
17. In view of the aforesaid reasons, the claimant No.1/ husband of the deceased who lost his wife at a 20 very young age is entitled to `1,00,000/- under the head ‘consortium’.
18. On reconsidering the entire material on record, both oral and documentary, the claimants are entitled to the compensation as under: Loss of dependency Loss of consortium Transportation of dead body Funeral expenses `8,16,000/- `1,00,000/- `10,000/- `15,000/- Love and affection towards minor `50,000/- daughter TOTAL `9,91,000/- 19. Thus, the claimants are entitled to enhanced compensation of `9,91,000/- as against `6,37,000/- awarded by the Tribunal and the total enhancement will be `3,54,000/-. 21 20. In view of the aforesaid reasons, the appeal is allowed in part. The judgment and award dated 25.06.2012 made MVC No.464/2011 on the file of the Fast Track Court, Basavakalayan, Dist. Bidar, is modified, entitling the claimants/appellants to enhanced compensation of `3,54,000/- with interest at 6% per annum from the date of petition till the date of realization.
21. However, it is made clear that in view of the order passed by this Court dated 31.08.2016, the claimants are not entitled for interest on the enhanced compensation for the delay period of 1102 days in filing the present appeal. Ordered accordingly. kcm Sd/- JUDGE