Karnataka High Court
Smt Apsana W/O Hamaju @ Hanju @ Amijat ... vs Smt Dhanalaxmi M. Shrinivas on 3 June, 2024
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NC: 2024:KHC-D:7327
MFA No. 102704 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 102704 OF 2022 (MV-D)
BETWEEN:
1. SMT. APSANA W/O. HAMAJU @ HANJU
@ AMIJAT VADRALI, AGE: 27 YEARS,
OCCUPATION: HOUSEHOLD WORK,
R/O. INDIRA NAGAR, JANATA PLOT,
SANKESHWAR-591313, TALUKA HUKKERI,
DISTRICT: BELAGAVI.
2. KUMARI NADIRA D/O.HAMAJU @ HANJU
@ AMIJAT VADRALI,
AGE 08 YEARS, OCCUPATION: STUDENT.
3. KUMARI SUHAN D/O. HAMAJU @ HANJU
@ AMIJAT VADRALI, AGE: 06 YEARS,
Digitally signed by OCCUPATION STUDENT,
MANJANNA E
Location: HIGH
COURT OF
SINCE APPELLANTS 2 AND 3 ARE MINORS
KARNATAKA
REPRESENTED BY THEIR NATURAL
MOTHER APPELLANT NO. 1,
SMT. APSANA W/O HAMAJU @ HANJU
@ AMJAT VADRALI,
R/O INDIRA NAGAR, JANATA PLOT,
SANKESHWAR-591313,
TALUKA: HUKKERI, DISTRICT: BELAGAVI.
4. SMT. JUBEDA W/O. MOHAMMADALI VADRALI,
AGE: 53 YEARS,
OCCUPATION: HOUSEHOLD WORK,
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NC: 2024:KHC-D:7327
MFA No. 102704 of 2022
R/O. INDIRA NAGAR, JANATA PLOT,
SANKESHWAR-591313,
TALUKA: HUKKERI,
DISTRICT: BELAGAVI.
...APPELLANTS
(BY SMT. SUNANDA P. PATIL, ADVOCATE)
AND:
1. SMT. DHANALAXMI M. SHRINIVAS
AGE: 40 YEARS, OCCPUATION: BUSINESS,
R/O. #402, LAVAKUSH NAGAR,
L.G. RAMANNA LAYOUT,
LAGGERE, BENGALURU-560058.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LTD,
MARUTI GALLI, BELAGAVI 590 001.
...RESPONDENTS
(BY SRI. N. R. KUPPELUR, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
19.08.2021 PASSED IN MVC NO.666/2019 ON THE FILE OF THE
SENIOR CIVIL JUDGE, AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL, HUKKERI, ITINERARY COURT AT SANKESHWAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:7327
MFA No. 102704 of 2022
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel appearing for the parties, the matter is taken up for final disposal.
2. For the sake of convenience, the parties are referred to as per their rank referred to in the claim petition before the Tribunal.
3. The appeal is filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (for short, "M.V. Act") aggrieved by the judgment and award dated 19.08.2021 on the file of the Senior Civil Judge and MACT, Hukkeri, Itinerary Court at Sankeshwar (for short, "Tribunal"), whereby the Tribunal awarded an amount of Rs.23,78,640/- as compensation.
4. The claim petition was filed by the claimants seeking compensation of Rs.25,00,000/- on account of death of Humju @ Hamjat Mohammad Vadrali. On 25.12.2018 at about 11:00 p.m., deceased Salim Babu Sayyed being rider, alongwith his friend Humju @ Hamjat Mohammad Vadrali, who was pillion rider, were proceeding on Hero Honda Splendor motorcycle bearing chassis No.MBLHAR07XJHK20993 and -4- NC: 2024:KHC-D:7327 MFA No. 102704 of 2022 engine No.HA10AGJHK40852 from Hubballi on Dharwad by- pass road and when they came near Ramya Residency, the driver of offending Tempo Traveller vehicle bearing registered No.KA-02/AD-8414 came in high speed, rash and negligent manner and dashed to the motorcycle of deceased. Due to the said impact, the rider of the motorcycle, Salim Babu Sayyed and the pillion rider, Humju sustained fatal injury and Humju @ Hamjat Mohammad Vadrali died in the KIMS Hospital, Hubballi on account of accidental injuries.
5. The claimants filed a petition under Section 166 of the M.V. Act on the ground that claimant No.1 is wife of deceased Humju, claimant Nos.2 and 3 are daughters of deceased and claimant No.4, who is mother of deceased. The deceased was hale and healthy, aged about 26 years and was doing cooking contract work and centring work, thereby he was earning Rs.25,000/- per month and was contributing the same to his family and due to the death of Humju, they have lost the sole bread earner in the family and they have sought for enhancement of compensation.
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6. Heard the learned counsel appearing for the claimants and respondent No.2 - Insurance Company and perused the judgment and award of the Tribunal. As there is no dispute regarding death of deceased Humju, died in a road traffic accident that occurred on 25.12.2018, due to rash and negligent driving by the driver of the Tempo Traveller bearing registered No.KA-02/AD-8414 and liability of the insurer of Tempo Traveller, the points that arise for Court's consideration in the appeal are:
"i. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement? ii Whether 20% negligence saddled upon the driver of the Tempo Traveller of motorcycle and 80% liability saddled upon the Insurance Company is just and proper?"
7. From the perusal of the pleadings, documents, evidence on record, it appears that, PWs.1 and 2 in their evidence clearly stated that the alleged incident took place due to the negligence on the part of the driver of the Tempo Traveller vehicle bearing registered No.KA-02/AD-8414 and the accident took place while he over taking his vehicle, he dashed -6- NC: 2024:KHC-D:7327 MFA No. 102704 of 2022 to the motorcycle of deceased persons from hind side. Further, the contents of charge sheet discloses that, at para 17 the driver of the offending Tempo Traveller came in a rash and negligent and caused the accident. The specific defence of respondent - Insurance Company is that, the accident occurred due to rash and negligent riding of the motorcycle by the deceased - Salim Babu Sayyed, as such, they are not liable to pay any compensation to the claimants. Admittedly, no issue has been framed in this regard under Order XIV of CPC and no rebuttal evidence has been adduced by respondent No.2 - Insurance Company to substantiate their contention before the Tribunal. Therefore, the Tribunal without appreciating the legal aspects, fixed the contributory negligence on the rider of motorcycle and driver of Tempo Traveller in the ratio of 20:80, which is not in accordance with law. The finding of Tribunal as to contributory negligence on the ground that the rider of motorcycle was riding the motorcycle without possessing a driving licence is equally unsustainable. Driving without a valid driving licence may expose the claimants to other liabilities, but no inference of contributory negligence can be arrived on that -7- NC: 2024:KHC-D:7327 MFA No. 102704 of 2022 basis. The similar ratio laid down in the case of Saraswati Palariya vs. New India Assurance Company Limited1.
8. Further, if a person drives a vehicle without licence, he commits an offence. Whereas, in this case, no fault is committed by pillion rider. Therefore, the ratio of 20:80 as fixed by the Tribunal as contributory negligence, has no basis. In fact, the driver of the Tempo Traveller is liable to pay entire compensation on account of death of deceased Humju.
9. After hearing the learned counsel appearing for the parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable and hence, it is required to be enhanced.
10. The claimants in order to prove their case examined wife of deceased Humju and mother of deceased Salim Babu as PWs.1 and 2 and got exhibited documents namely Exs.P1 to P10. On behalf of the respondents, none of the witness has been examined. The Insurance Company relied upon Ex.D1 - Insurance Policy. The very fact that the deceased alongwith 1 2019 ACJ 42 -8- NC: 2024:KHC-D:7327 MFA No. 102704 of 2022 rider of the motorcycle, proceeded in the motorcycle, the driver of Tempo Traveller came in a rash and negligent manner from hind side and dashed against the motorcycle of the deceased, is not in dispute. Hence, the rider and pillion rider were sustained fatal injuries and succumbed to the injuries.
11. The claimants have stated that prior to the death of deceased Humju, he was doing cooking contract and centring work, thereby earning Rs.25,000/-per month. However, no material is placed on record to prove the income of the deceased. In the absence of any proof with regard to income of the deceased, the Tribunal considered the notional income of deceased at Rs.13,250/-, which has no basis. Considering the age of the deceased as 26 years, year of the accident as 2018, his notional income is re-assessed at Rs.11,750/- per month in place of Rs.13,250/- as arrived at by the Tribunal.
12. The claimants are wife, daughters and mother of deceased Humju. Therefore, 1/4th of his income has to be deducted towards his personal expenses and 3/4th of his income has to be taken towards his family contribution and the multiplier applicable to his age group is 17, in view of the ratio -9- NC: 2024:KHC-D:7327 MFA No. 102704 of 2022 laid down in the case of National Insurance Company Limited vs. Pranay Sethi and others2 and 40% of actual income of the deceased should be added towards future prospects. Therefore, the income of the deceased comes to Rs.11,750/- + 40% = Rs.16,450/-.
13. In view of the ratio laid down in the case of Sarla Verma (SMT) and others vs. Delhi Transport Corporation and another3, since the number of dependants of family members of the deceased Humju are only four, the deduction towards personal living expenses of deceased is 1/4th. Therefore, the monthly income of the deceased comes to Rs.16,450 - 1/4th = Rs.12,337/- and annual income of the deceased comes to Rs.12,337 X 12 = Rs.1,48,044/-. Since the age of deceased is 26 years, the multiplier applicable would be
17. Therefore, the "loss of dependency" comes to Rs.1,48,044/- X 17 = Rs.25,16,748/- (11,750 + 40% - ¼ X 12 X 17).
2 (2017) 16 SCC 680 3 (2009) 6 SCC 121
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14. In view of the law laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and others4, the claimant No.1 being the wife, claimant Nos.2 and 3 - daughters and claimant No.4 - mother of deceased Humju, are entitled for compensation of Rs.40,000/- each under the head "loss of consortium".
15. The accident is of the year 2018. In view of the ratio laid down in the case of Pranay Sethi supra, the Hon'ble Apex Court enhanced the compensation on conventional heads, on percentage basis, once in every three years and the enhancement should be at the rate of 10% in a span of three years. Now almost five years have been elapsed and therefore, the claimants are entitled for 10% escalation on loss of estate, loss of consortium and funeral expenses. Hence, they are entitled for Rs.1,60,000/- + Rs.16,000/- = Rs.1,76,000/- is awarded towards "loss of consortium" as against Rs.60,000/- awarded by the Tribunal.
4 (2018) 18 SCC 130
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NC: 2024:KHC-D:7327 MFA No. 102704 of 2022
16. In addition, the Tribunal has granted a compensation of Rs.15,000/- under the head loss of estate and funeral expenses which is not reasonable. Hence, additional compensation of Rs.1,500/- each is granted under the head loss of estate and funeral expenses. Hence, they are entitled for Rs.16,500/- under the head "loss of estate" and Rs.16500/- under the head "funeral expenses".
17. Thus, the claimants are entitled for the following compensation:
Loss of dependency Rs.25,16,748/-
(11,750 + 40% - ¼ X 12 X 17)
Loss of consortium Rs.1,76,000/-
(40,000 X 4 + 10%)
Loss of estate Rs.16,500/-
Funeral expenses Rs.16,500/-
Total Rs.27,25,748/-
Less: Compensation awarded by Tribunal Rs.23,78,640/-
Balance Rs.3,47,108/-
18. Accordingly, the appeal is allowed in part. The judgment and award dated 19.08.2021 passed by the Senior Civil Judge and MACT, Hukkeri, Itinerary Court, Sankeshwar is modified to the extent stated hereinabove.
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NC: 2024:KHC-D:7327 MFA No. 102704 of 2022 The claimants are entitled for an enhanced compensation of Rs.3,47,108/-/- with interest at 6% per annum from the date of petition till the date of its realization.
The Respondent No.2 - Insurance Company is directed to deposit enhanced compensation amount with interest at 6% per annum within a period of six weeks from the date of receipt of copy of this judgment.
The apportionment and disbursement of the enhanced compensation shall be as per the order of the Tribunal.
Registry to transmit the copy of this judgment to the concerned Tribunal alongwith its records.
No order as to costs.
Sd/-
JUDGE RSH,AC/ct-an List No.: 1 Sl No.: 30