Karnataka High Court

Nagina vs Ganapathi on 5 January, 2021

Author: Nataraj Rangaswamy

                         1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 05TH DAY OF JANUARY 2021

                      BEFORE

THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

MISCELLANEOUS FIRST APPEAL NO.3093 OF 2017 (MV-D)


BETWEEN:

1.    NAGINA
      W/O LATE MAHAMMED ZAKRIYA,
      AGED ABOUT 47 YEARS,

2.    AFSANA
      D/O LATE MAHAMMED ZAKRIYA,
      AGED ABOUT 24 YEARS,

3.    ASIF
      S/O LATE MAHAMMED ZAKRIYA,
      AGED ABOUT 22 YEARS,

4.    AJEEMA
      S/O LATE MAHAMMED ZAKRIYA,
      AGED ABOUT 23 YEARS

      ALL ARE RESIDING AT
      SHANTHINAGAR,
      2ND CROSS, KELADI ROAD,
      SAGAR TOWN,
      SAGAR TALUK-577401,
      SHIVAMOGGA DISTRICT.
                                    ... APPELLANTS
[BY SRI. PRUTHVI WODEYAR, ADVOCATE (THROUGH VC)]
                           2


AND:

1.     GANAPATHI
       S/O KANNAPPA,
       AGED ABOUT 36 YEARS,
       R/O MALVE,
       SAGAR TALUK-577401,
       SHIVAMOGGA DISTRICT.
       DRIVER OF THE BAJAJ C.T. 100 BEARING
       REG.NO.KA-15/J.5255
       DL.NO.KA.15201300007421
       VALID FROM 06.11.2013 TO 31.12.2029

2.     RAMAPPA
       S/O BEERAPPA,
       AGED ABOUT 46 YEARS,
       R/O KAGODU,
       SAGAR TALUK-577401
       SHIVAMOGGA DISTRICT
       OWNER OF THE BAJAJ C.T 100 BEARING
       REG.NO.KA-15/J.5255.

3.     THE DIVISIONAL MANAGER
       THE NATIONAL INSURANCE COMPANY LTD.,
       HARSHA COMPLEX,
       B.H. ROAD,
       SAGAR-577401
       SHIVAMOGGA DISTRICT
       POLICY NO.610600/31/09/6200019147
       VALID FROM 23-4-2016 TO 12-01-2017
                                     ... RESPONDENTS
[BY SRI. A.M.VENKATESH, ADVOCATE FOR RESPONDENT
NO.3 (THROUGH VC)]

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD 16.02.2017
PASSED IN MVC NO.761/2016 ON THE FILE OF THE V
ADDITIONAL   DISTRICT   AND   SESSIONS  JUDGE,
                                    3


SHIVAMOGGA, SITTING AT SAGAR, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT THROUGH VIDEO CONFERENCE DELIVERED
THE FOLLOWING:

                         JUDGMENT

This is an appeal filed by the claimants seeking

enhancement of compensation awarded by the

V Additional District and Sessions Judge and Additional

MACT., Shivamogga sitting at Sagar (henceforth referred

to as 'Tribunal') in terms of the Judgment and Award

dated 16.02.2017 in MVC No.761/2016.

2. The parties shall henceforth be referred to as

they were arrayed before the Tribunal.

3. The claim petition discloses that the

claimants are the legal representatives of one

Mahammed Zakriya who died in a road accident on

11.06.2016. It is stated that the deceased was riding

his moped on 11.06.2016 and when he reached Arabbi

Madarasa, a bike bearing registration No.KA-15-J-5255

(hereinafter referred to as the 'offending motor bike')

being ridden by its rider in a rash and negligent

manner, dashed against the moped. As a result, the

deceased fell down and sustained serious head injuries

and was shifted to Nanjappa Hospital, Shivamogga,

where he was administered first aid and then to

Mangaluru Neuro Hospital, where the doctors advised

the claimants that the condition of the deceased was

precarious and advised them to take him back to home.

Accordingly, the claimant took the deceased back on

12.06.2016, on which day he succumbed to the

injuries. The claimants contended that they are all

dependent on the deceased and the deceased was a

business man and was earning a sum of Rs.15,000/-

per month and as a result of the untimely death of the

deceased, they lost the love and affection of the

deceased. They stated that the jurisdictional police

have registered a case in Crime No.214/2016 against

the rider of the offending motor bike for the offences

punishable under Sections 279, 337 and 304(A) of IPC.

The claimants filed a petition under Section 166 of the

Motor Vehicles Act, 1988, claiming compensation of a

sum of Rs.61,60,000/- from the owner and the insurer

of the offending motor bike.

4. The claim petition was contested by the

owner and the rider of the offending motor bike. They

admitted the accident but denied that the rider of the

offending motor bike was negligent. The insurer of the

offending motor bike denied the averments made in the

claim petition and denied the relationship of the

claimants with the deceased. It was contended that the

accident occurred due to the rash and negligent riding

of the moped by the deceased and that he did not

possess a valid licence at the time of the accident. The

insurer therefore, contended that the accident was

solely due to the fault of the deceased and the rider of

the offending motor bike was in no way responsible for

the accident. Based on these contentions, the claim

petition was set down for trial.

5. Before the Tribunal, the claimant No.3 was

examined as PW1 and marked documents as Exs.P1 to

P15, while, the insurer marked Exs.R1 to R4 with

consent but it did not examine any witness.

6. The Tribunal based on Exs.P2, 3, 4, 5 and 7

held that the rider of the offending motor bike was

negligent and was responsible for the accident and

thus, held the issue No.1 in favour of the claimants. In

so far as the issue regarding the quantum of

compensation payable to the claimants, the Tribunal

noticed that the deceased was aged 55 years at the time

of the accident. It also noticed that the deceased was

not having any proof of avocation or income from his

avocation and therefore, the Tribunal felt it appropriate

to consider the notional income of the deceased at a

sum of Rs.6,000/- per month. It also noticed that the

deceased had left behind the claimants and deducted

1/3rd towards personal expenses of the deceased and

awarded the following compensation.

             Heads under which                Amount in
           compensation awarded                Rupees
  Loss of dependency                           5,28,000
  Medical bills                                  34,490
  Loss of consortium                             15,000
  Love and affection                             15,000
  Loss of estate                                 15,000
  Funeral and obsequies ceremony                 10,000
  Transportation of body                          5,000
                      Total                    6,22,490


     7.     Feeling    aggrieved   by   the   quantum     of

compensation awarded by the Tribunal, the claimants

are in appeal and contend that the notional income

considered by the Tribunal is far less than what is

considered by this Court in the matters referred to Lok

Adalath. Learned counsel also contended that the

Tribunal committed an error in deducting 1/3rd of the

notional income towards the personal expenses of the

deceased as there were more than three dependents and

as per the Judgment of the Apex Court in the case of

National Insurance Company Limited Vs. Pranay

Sethi reported in AIR 2017 SC 5157, the Tribunal

ought to have deducted 1/4th towards living expenses of

the deceased. The learned counsel also contended that

the Tribunal failed to award compensation towards 'loss

of future prospects' at the rate of 10% of the actual

income of the deceased as per the Judgment of the Apex

Court in the case of Pranay Sethi (supra). He therefore,

contended that the compensation awarded by the

Tribunal deserves to be modified and enhanced.

8. Per contra, the learned counsel for the

insurer contended that the deceased was 55 years old at

the time of his death and in the absence of any proof

regarding his avocation as a business man, the Tribunal

was justified in accepting the notional income of the

deceased at a sum of Rs.6,000/- per month. The

learned counsel also submitted that the claimant Nos.2,

3 and 4 who were all major by age and were said to be

not dependent on the deceased and therefore, the

Tribunal was justified in deducting 1/3rd towards the

living expenses of the deceased.

9. This Court perused the records of the

Tribunal and the grounds urged in the appeal

memorandum.

10. It is relevant to note that soon after the

accident on 11.06.2016, a complaint was lodged on

12.06.2016 by a relative of the deceased and a case in

Crime No.214/2016 was registered against the rider of

the offending motor bike. The complaint bears clear

reference to the details of the offending motor bike and

that the rider of the offending motor bike rode it in a

rash and negligent manner and dashed against the

moped which was ridden by the deceased. Following

the complaint, the jurisdictional police have investigated

the case and filed a charge sheet against the rider of the

offending motor bike. The Tribunal had rightly held

that the rider of the offending motor bike was negligent

and was responsible for the accident. The insurer of the

offending motor bike and the owner have not challenged

this finding of the Tribunal. They have also not

challenged the quantum of compensation awarded by

the Tribunal.

11. So far as the claim for compensation is

concerned, as rightly contended by the learned counsel

for the claimants, the notional income of the deceased

ought to have been considered at a sum of Rs.9,500/-

per month as has been done by this Court in the cases

referred to Lok Adalath for settlement. Thus, in order to

maintain uniformity, it is appropriate that the notional

income of the deceased is considered at a sum of

Rs.9,500/- per month. In addition, the deceased was

aged 55 years and therefore, there was possibility of

future prospects by which he could have augmented his

income and as per the Judgment of the Apex Court in

the case of Pranay Sethi (supra), 1/4th of the actual

income could be deducted towards the personal

expenses of the deceased. Since, the claimants are all

majors by age, the question of grant of loss of parental

consortium would not arise. If the same is taken into

consideration, the compensation awarded by the

Tribunal deserves to the reconsidered and recalculated

as follows:

            Heads under which                 Amount in
          compensation awarded                 Rupees
  Loss of dependency                           10,34,550
  (Rs.9,500x10% -1/4x11x12)
  Reimbursement of medical expenses                 34,490
  Loss of consortium                                15,000
  Loss of love and affection                        15,000
  Loss of estate                                    15,000
  Funeral and other obsequies                       12,000
  ceremony
  Transportation of dead body                        5,000
                     Total                    11,31,040

12. In view of the above, the appeal is allowed

in part and the impugned Judgment and Award of the

Tribunal awarding compensation of Rs.6,22,490/- is

modified and enhanced to a sum of Rs.11,31,040/-,

which is payable by the insurer to the claimants

alongwith interest @ 6% per annum from the date of

claim petition till the date of realization.

13. The insurer is directed to deposit the

compensation amount within a period of one month

from the date of receipt of a certified copy of this

Judgment.

14. Out of the amount that may be deposited,