Karnataka High Court

The Divisional Manager vs Shri Sherkhan S/O Husenkhan @ ... on 6 December, 2021

Bench: Ravi V.Hosmani

     IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH

          DATED THIS THE 06TH DAY OF DECEMBER, 2021

                           BEFORE

         THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

             M.F.A. No. 101303 OF 2021 (MV-D)

BETWEEN:

THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO.LTD.,
BELAGAVI CITY NO.3957/184/A
SHANBHAG PLAZA, 1ST FLOOR
BEHIND HOTEL SANMAN DELUXE
NEAR GANDHI BHAVAN, COLLEGE ROAD
BELAGAVI.
REP BY DULY CONSTITUTED AUTHORITY
REGIONAL MANAGER
NEW INDIA ASSURANCE CO.LTD.,
REGIONAL OFFICE, 2ND FLOOR
KALBURGI BHADRAPUR INFINITY
PINTO ROAD, HUBBALLI-580 020.                 ... APPELLANT

(BY SRI. M.K.SOUDAGAR, ADVOCATE)

AND:

1.     SHRI. SHERKHAN
       S/O HUSENKHAN @ HUSEN PATHAN
       AGE: 32 YEARS, OCC: PAINTER
       R/O: H.NO.1115, 6TH CROSS
       NEW VAIBHAV NAGAR, B.K.KANGRALI
       BELAGAVI-590 016.

2.     SMT.JARINA
       W/O HUSENKHAN @ HUSEN PATHAN
                              - 2-




     AGE: 61 YEARS, OCC: HOUSEHOLD
     R/O: H.NO.1115, 6TH CROSS
     NEW VAIBHAV NAGAR, B.K.KANGRALI
     BELAGAVI-590 016.

3.   SMT.TAMANNA
     W/O NAYEEM POLAD
     AGE: MANOR, OCC: HOUSEHOLD
     R/O: H.NO.1115, 6TH CROSS
     NEW VAIBHAV NAGAR, B.K.KANGRALI
     BELAGAVI-590 016.

4.   SHRI.NARAYAN SIDRAI CHOUGULE
     AGE: 56 YEARS, OCC: TATA TRUCKINESS
     R/O: OMKAR INDUSTRIES PLOT NO.3B1
     KANGRALI INDUSTRIAL AREA
     BAUXITE ROAD, BELAGAVI-590 016.
                                              ... RESPONDENTS

(BY SRI. HANUMANTHA R. LATUR, ADVOCATE FOR C/R1 TO R3)


     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED
05.08.2021 PASSED IN MVC NO.788/2020 ON THE FILE OF THE IV
ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL-V,    BELAGAVI,   AWARDING     COMPENSATION     OF
RS.5,60,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE
OF PETITION TILL ITS PAYMENT.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

Challenging judgment and award dated 05.08.2021 passed by

Additional District Judge and MACT, Belagavi in MVC No.788/2020

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this appeal is filed by appellant-insurer challenging quantum of

compensation.

2. Brief facts as stated are that on 09.03.2020 when

Zakekhan, aged 7 years was returning from school at 4:45 p.m.,

TATA truck bearing Rg.No.KA-22/B-6733 driven by its driver in rash

and negligent manner dashed against him, resulting in his death.

Claiming compensation for his untimely death, parents and

grandmother filed claim petition against owner and insurer of

offending truck under Section 166 of Motor Vehicles Act (hereinafter

referred to as 'M.V. Act' for short).

3. On service of notice, owner did not file objections.

Insurer filed objections denying claim petition in toto. It alleged

non-joinder and mis-joinder of parties. It also contended that driver

of lorry was not holding effective driving licence and sought for

discharge of its liability.

4. Based on pleadings, tribunal framed following issues:

1. Whether the petitioners prove that Zakekhan @ Mohammed Zakekhan S/o Sherkhan Pathan, died in the motor vehicle accident occured on 09.03.2020 at about 4.45 p.m., at Azam Nagar Circle

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towards Hindalco Circle, Bauxite Road, near Nexa Show Room Vaibhav Nagar, Belagavi, on account of rash and negligent driving of TATA Tipper HGV-HE bearing registration No.KA-22/B-6733 by its driver?

2. Whether the petitioners are entitled from compensation? If so, what amount and from whom?

3. What order or award?

Additional Issue:

1. Whether the respondent No.2 proves that the petition is bad for non- joinder of necessary parties?

Thereafter, claimant no.1 was examined as PW-1. Exs. P.1 to

P.11 were marked. No evidence was led by respondents.

5. On consideration, tribunal answered issue no.1 in

affirmative, issue no.2 by holding that claimant was entitled for

compensation of Rs.5,20,000/- from respondents no.1 and 2 with

6% interest, additional issue no.1 as having become redundant and

issue no.3 allowing claim petition in part and awarding total

compensation of Rs.5,60,000/- and directing respondent no.2 to

deposit the same.

Aggrieved by said award, insurer is in appeal.

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6. Sri. M.K. Saudagar, learned counsel for

appellant/insurer submitted that award passed by tribunal was

contrary to material on record. Tribunal was not justified in holding

that accident occurred due to rash and negligent driving of its

driver. Tribunal was not justified in awarding compensation of

Rs.5,60,000/- contrary to decision in case of Reshma Kumari and

others vs. Madan Mohan and another reported in 2013 SCC

OnLine SC 284. It erred in not following Division Bench decisions

of this Court in MFA No.21210/2013 and MFA No.23328/2012.

In support of his submissions, learned counsel relied upon Division

Bench decisions of this Court in case of Basavaraja P.B. Vs. G.

Veeranna and others in M.F.A.No.21210/2013 disposed off on

08.03.2018 and in Anathamma and another Vs. Thirumalesh

and others in M.F.A.No.23328/2012 disposed off on

15.12.2017. He also relied upon decision of Hon'ble Supreme Court

in case of Reshma Kumari (supra).

7. On the other hand, Sri. Hanumath R. Latur, learned

counsel for caveator/respondents no.1 to 3 sought to justify award.

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It was submitted that Hon'ble Supreme Court in the case of Kishan

Gopal and another Vs. Lala and others reported in (2014) 1

SCC 244 had taken notional annual income of minors at

Rs.30,000/- per annum. It was further submitted that future

prospects was required to be added even in case of notional income

and therefore award was justified.

8. From above submissions, occurrence of accident

involving insured vehicle leading to death of Zakekhan is not in

dispute. Tribunal passed award holding insurer liable to pay

compensation. Insurer has not questioned its liability. It has

confined its challenge on quantum. Hence, liability of insurer is also

not in dispute. Therefore, point that arises for consideration is:

"Whether award passed by tribunal calls for interference, as sought for?"

9. In order to establish age, occupation, income and

dependency, claimants have pleaded that deceased Zakekhan was

aged about 7 years and was a school going boy. Ex.P.9 - school

certificate establishes that he was a student and therefore a non-

earning member. His income has to be assessed notionally. Hon'ble

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Supreme Court in Kishan Gopal's case (supra) held that notional

income of a 10 years old minor should be taken as Rs.30,000/- per

annum and awarded total compensation of Rs.5,00,000/- for death

of minor, with interest at 9% per annum.

10. In the case of Basavaraja P.B.(supra) Division Bench

of this Court referring to larger Bench decision of Hon'ble Supreme

Court in Reshma Kumari's case (supra) had considered notional

income of a minor at Rs.15,000/- per annum and awarded

compensation of Rs.2,75,000/-. In Anathamma's case (supra)

learned Single Judge of this Court awarded compensation of

Rs.2,75,000/- for death of a minor aged 5 years referring to

decision in Reshma Kumari's case (supra).

11. The Hon'ble Supreme Court in Reshma Kumari's case

(supra) evolved following principles:

"40. In what we have discussed above, we sum up our conclusions as follows:

(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment.

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(ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed.

(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.

(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death.

(v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the Judgment in Sarla Verma.

(vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 38 above.

(vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration."

12. In the case on hand, deceased Zakekhan was aged 7

years at the time of accident. Therefore, assessment of

compensation would be in terms of para 40(ii), (iv) to (vi) (supra).

Application of said principles to the instant case would be as

follows:

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1. Deceased was unmarried, therefore deduction towards personal expenses would be '1/2'.

2. As he was below 40 years, addition of future prospects will have to be at 40%.

3. Multiplier applicable would be '15'.

13. However, Hon'ble Supreme Court has not prescribed

notional income of a minor. Claim petition in the instant case is

under Section 166 of M.V. Act. Therefore, notional income

prescribed in Schedule - II would not apply. In the recent decision

in the case of Rajendra Singh and others Vs. National

Insurance Co., and others reported in (2020) 7 SCC 256,

Hon'ble Supreme Court upheld assessment of notional income of 12

year old school going child at Rs.36,000/- per annum.

14. By taking same as notional annual income and applying

above principles, award under 'loss of dependency' would be as

follows:

Rs. 36,000/- + 40% - '1/2' x 15 = Rs.3,78,000/-.

15. Under conventional heads, claimants being parents

would be entitled to Rs.40,000/- each towards 'filial consortium'

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and Rs.15,000/- towards 'funeral expenses' and Rs.15,000/-

towards 'loss of estate'. They would also be entitled to addition of

10% to award under conventional heads, as more than three years

have lapsed after rendering decision in the case of National

Insurance Company Ltd., Vs. Pranay Sethi and others

reported in (2017) 6 SCC 680. Thus, total compensation would be

Rs.3,78,000/- + Rs.1,21,000/- = Rs.4,99,000/-.

16. Further, in Kurvan Ansari and another vs. Shyam

Kishore Murmu and another reported in (2022) 1 SCC 317, it

has held that notional income prescribed in Schedule - II was not

relevant to present times and considered fit to take Rs.25,000/- as

notional income of a 7 years old boy and awarded compensation of

Rs.4,70,000/- for his death as follows:

            loss of dependency              Rs.3,75,000

            Filial Consortium                 Rs.80,000
            (at Rs.40,000 x 2)
            Funeral expenses                  Rs.15,000

                      Total                 Rs.4,70,000
                                  - 11-

17. But the Apex Court in above case was dealing with

claim petition under Section 163-A of M.V. Act. Therefore, it did not

add future prospects. As the present claim is under Section 166 of

M.V. Act, future prospects have to be added. If future prospects is

added to the above award by treating it as benchmark, total

compensation would be more than the award passed by tribunal

i.e., [Rs.3,75,000/- + 40% = Rs.5,25,000/- + Rs.95,000/- =

Rs.6,20,000/-].

18. But, tribunal in the instant case has awarded total

compensation of Rs.5,60,000/-. Claimants are parents and

grandmother of deceased Zakekhan. Deceased was admittedly hale

and healthy and studying in I - std. He was the only child of