Karnataka High Court

Smt Ayesha Tabassum vs Mr R Suresh on 16 December, 2021

Bench: H T Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF DECEMBER, 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

     MISCELLANEOUS FIRST APPEAL NO.8491/2019 (MV)

BETWEEN:


1.   SMT.AYESHA TABASSUM
     W/O LATE ASHIEF PASHA
     AGED ABOUT 28 YEARS
     RESIDENT OF
     ADINAYAKANAHALLI
     HONNAVALLI HOBI,
     TIPTUR TALUK
     TUMKUR DISTRICT

2.   MASTER MOHAMMED HAFTHAB
     S/O LATE ASHIEF PASHA
     AGED ABOUT 9 YEARS
     MINOR
     REPRESENTED BY NATURAL GUARDIAN
     MOTHER 1ST APPELLANT
     SMT. AYESHA TABASSUM
     RESIDENT OF
     ADINAYAKANAHALLI
     HONNAVALLI HOBLI,
     TIPTUR TALUK
     TUMKUR DISTRICT 572 201

3    MASTER MOHAMMED DANISH
     S/O LATE ASHIEF PASHA
     AGED ABOUT 7 YEARS
     MINOR
     REPRESENTED BY NATURAL GUARDIAN
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       MOTHER 1ST APPELLANT
       SMT. AYESHA THABASSUM
       RESIDENT OF
       ADINAYAKANAHALLI
       HONNAVALLI HOBLI,
       TIPTUR TALUK
       TUMKUR DISTRICT 572 201

                                              ... APPELLANTS
(BY SRI.CHANDRASHEKARAIAH.B., ADVOCATE)

AND:

1.     MR.R. SURESH
       S/O RAJARAM REDDIYAR
       MAJOR (AGE NOT KNOWN TO THE APPELLANT)
       I/A SAGUNAHALAMAL SALAI
       POONTHOTTAM, VELAPADI,
       VELLORE
       TAMIL NADU STATE 632 001

2.     THE ORIENTAL INSURANCE COMPANY LTD.,
       OLD NO.29/B, NEW NO.NC 238,
       ARCOT ROAD,
       JAMBUBALA COMPLEX
       1ST FLOOR, VELLORE
       TAMIL NADU STATE 632 004

3.     MR. MEHAMOODA BI
       W/O WAZIR SAB
       AGED ABOUT 90 YEARS
       R/O ADINAYAKANAHALLI VILLAGE
       HONNAVALLI HOBLI,
       TIPTUR TALUK
       TUMAKUR DISTRICT 572 201
                                          ...RESPONDENTS

       (BY SRI. K.S. LAKSHMINARAYANAPPA, ADVOCATE FOR
           SRI. A.M. VENKATESH, ADVOCATE)
                                      3




     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED.15.07.2019 PASSED IN MVC
NO.799/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, TIPTUR, SEEKING ENHANCEMENT OF COMPENSATION.

    THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                               JUDGMENT

This appeal is filed by the claimants under Section 173 of

Motor Vehicles Act, 1988, challenging the Judgment and Award

dated 15.07.2019 passed by MACT, Tiptur in MVC No.799/2014

whereby, the Tribunal has granted a compensation of

Rs.7,50,000/- with 9% interest per annum fastening the liability

on the Insurance Company.

2. Brief facts of the case are that on 27.11.2013, Asif

pasha along with his friend Shankaranaika was travelling in a

goods auto bearing Registration No.44-44-1243 in

Channarayapattana. When they reached near Ayyarahalli gate at

4.45 p.m., the driver of a lorry bearing Registration No.TN-23-

BC-1056 has driven the same in a rash and negligent manner

and dashed against the goods auto. Due to the impact, Asif

pasha sustained grievous injuries and succumbed to the injuries.

His wife and children have filed the claim petition under Section

166 of the Motor Vehicles Act, 1988, claiming compensation.

The mother of the deceased has been made as respondent No.3.

3. On service of notice, respondent No.1 since

remained unrepresented, was placed ex-parte. Respondent No.3

appeared through counsel but did not file any written statement.

Respondent No.2 appeared through counsel and filed written

statement denying the averments made in the claim petition.

4. On the basis of pleadings of both parties, the

Tribunal has framed the following issues:

5. The claimants to prove their case examined first

claimant as P.W.1 and examined one more witness

Shankaranaika as P.W.2 and produced 25 documents.

Respondents examined two witnesses and marked four

documents. On appreciation of the oral and documentary

evidence, the Tribunal has awarded a compensation of

Rs.7,50,000/- with 9% interest saddling the liability on the

Insurance Company. Being aggrieved by the same, the claimants

have filed this appeal for enhancement of compensation.

6. Sri. Chandrashekaraiah B., learned counsel

appearing for the claimants contended that at the time of

accident, deceased was earning Rs.50,000/- per month. The

Tribunal has assessed the monthly income of the deceased at

Rs.4,500/- and the same is on the lower side. He further

contended that in view of the Judgment of the Apex Court in the

case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI

AND OTHERS reported in AIR 2017 SC 5157, the claimants

are entitled to 40% of the income of the deceased towards

future prospects and Rs.15,000/- for loss of estate and

Rs.15,000/- for funeral expenses. Lastly he contended that

there are four dependents i.e., wife, children and mother. The

Tribunal instead of deducing 1/4th has deducted 1/3rd of income

for personal expenses. Hence he sought for enhancement of

compensation.

7. Per contra, Sri K.S. Lakshminarayanappa, learned

counsel appearing for the Insurance Company contended that

even though the claimants have claimed that deceased was

earning Rs.50,000/- per month, they have not produced any

document to prove the same. Therefore the Tribunal has rightly

assessed the notional income of the deceased as Rs.4,500/- per

month. He further contended that since the claimants failed to

establish the income of the deceased, they are not entitled for

future prospects. Since there are three claimants, the Tribunal

has rightly deducted 1/3rd of the income of the deceased for

personal expenses. He further contended that the compensation

awarded by the Tribunal for love and affection is on higher side.

The same is contrary to the Judgment of the Apex Court in the

case of MAGMA GENERAL INSURANCE CO. LTD. -V- NANU

RAM reported in 2018 ACJ 2782. Lastly he contended that the

interest awarded by the Tribunal at 9% per annum is on higher

side. Therefore he contended that considering the age and

avocation of the deceased, the entire compensation awarded by

the Tribunal is just and reasonable. Hence, he sought for

dismissal of the appeal.

8. Heard learned counsel for parties. Perused the

impugned Judgment and Award.

9. It is not in dispute that Asif Pasha died in road traffic

accident occurred on 27.11.2013 due to rash and negligent

driving of the driver of lorry bearing Registration No. TN-23-BC-

1056. Even though the claimants have claimed that deceased

was earning Rs.50,000/- per month, they have not produced any

document to prove the same. In the absence of any

documentary evidence to prove that income, notional income

has to be assessed as per the guide lines issued by the

Karnataka State Legal Services Authority. For the accident

occurred in the year 2013, the notional income is Rs.8,000/- per

month. In addition 40% of the income of the deceased has to

be added for future prospects in view of the Judgment of the

Apex Court in the case of PRANAY SETHI (supra). The

claimants are wife and two children of the deceased and mother

of the deceased has been made as respondent No.3 in the

original proceedings. Therefore there are four dependents.

1/4th of the income of the deceased has to be deducted for

personal expenses. At the time of the accident, deceased was

aged about 36 years. The multiplier applicable to that age group

is 15. Accordingly, loss of dependency has been re-assessed as

follows:

Rs.8,000 + 40% - ¼ x 12 x 15 = Rs.15,12,000/-

10. In addition, claimants are entitled for Rs.15,000/- for

loss of estate and Rs.15,000/- for funeral expenses. In view of

the Judgment of the Apex Court in MAGMA GENERAL

INSURANCE CO. LTD. (supra), first appellant is entitled to

Rs.40,000/- for spousal consortium and appellant Nos.2 and 3

are entitled to Rs.40,000/- each, for parental consortium.

Respondent No.3, mother is entitled for Rs.40,000/- for filial

consortium.

11. Thus, the claimants are entitled to the following

compensation:

              Compensation under                 Amount in
                 different Heads                   (Rs.)
            Loss of dependency                     15,12,000
            Funeral expenses                          15,000





             Loss of estate                              15,000
             Loss of spousal consortium                  40,000
             Loss of Parental                            80,000
             consortium
             Loss of filial consortium                40,000
                              Total              *17,02,000

The claimants are entitled to a total compensation of

Rs.*17,02,000/-.

The Insurance Company is directed to deposit the

compensation amount along with interest @ 6% p.a. from the

date of filing of the claim petition till the date of realization,

within a period of six weeks from the date of receipt of copy of

this judgment. The enhanced compensation carries interest @

6% p.a.

To the aforesaid extent, the judgment of the Claims

Tribunal is modified.

Accordingly, the appeal stands allowed in part.

In view of disposal of the appeal, I.A.1/2021 does not