Karnataka High Court

Safia Zubair vs United India Insurance Co Ltd on 8 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF JANUARY, 2021

                        PRESENT

          THE HON'BLE MRS.JUSTICE S.SUJATHA

                          AND

           THE HON'BLE MR. JUSTICE M.I.ARUN

                M.F.A.No.4339/2018 (MV)

BETWEEN :
1.     SAFIA ZUBAIR
       W/O LATE SHEIKH ZUBER AHMED
       AGED 47 YEARS

2.     IIHAM SHEIKH
       D/O LATE SHEIKH ZUBER AHMED
       AGED 22 YEARS

3.     MOHAMMED ANFAL
       S/O LATE SHEIKH ZUBER
       AGED 15 YEARS

4.     IBTHI SAM SHEIKH
       D/O LATE SHEIKH ZUBER
       AGED 13 YEARS

APPELLANTS 3 AND 4 BEING MINORS
ARE REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN THE
APPELLANT No.1.

ALL ARE R/AT FLAT No.202, 2ND FLOOR
TANWAM RESIDENCY
JEPPU-KUTHPADY ROAD
MARNAMIKATTE
MANGALURU-575002.                             ...APPELLANTS

              (BY SRI B.R.GURUPRASAD, ADV.)
                           -2-



AND :
1.      UNITED INDIA INSURANCE CO. LTD.,
        P.B.No.123, CHANNAGIRI ROAD
        BHADRAVATHI-577301.
        SHIVAMOGA DISTRICT
        REP. BY ITS MANAGER.

2.      R.GIRISH
        S/O D.B.LINGARAJU
        AGED 46 YEARS
        R/AT DANAPPA NILAYA
        NMC MAIN ROAD
        BHADRAVATHI-577301
        SHIVAMOGGA DISTRICT.                ...RESPONDENTS

           (BY SRI A.N.KRISHNA SWAMY, ADV. FOR R-1;
     V/O. DATED 08.01.2021, NOTICE TO R-2 DISPENSED WITH.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
02.03.2017 PASSED IN MVC No.504/2013 ON THE FILE OF THE
M.A.C.T., AND III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
MANGALURU, DAKSHINA KANNADA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

      THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is directed against the judgment and

award dated 02.03.2017 passed in MVC No.504/2013

on the file of the Motor Accidents Claims Tribunal and

III Additional Senior Civil Judge & JMFC, Mangaluru,

D.K. ['Tribunal' for short].

2. The claimants being the widow and children

of the deceased Sheikh Zuber Ahmed instituted the

petition under Section 166 of the motor vehicles Act,

1988 claiming compensation for the death of Sheikh

Zuber Ahmed in the road traffic accident.

3. It was averred in the claim petition that on

12.05.2012 at about 09.10 p.m., when the deceased

along with others were proceeding from Shivamogga

towards Bengaluru in Wagon R car bearing registration

No.KA-19-N-4533 near Ache-Chomanahalli Gate, NH-

206, a lorry bearing No.KA-14-A-0892 [offending vehicle]

came from Kadur side in rash and negligent manner

and dashed to the car. Due to the said impact, the

occupants of the car sustained grievous injuries and the

deceased died on the spot itself. The deceased, an

occupant was shifted Kadur Government Hospital

wherein he was declared as brought dead.

4. It was contended that the deceased was aged

about 48 years and working as an Engineer with M/s.

Eco Soft Water Technology, Bengaluru and drawing

salary of Rs.18,000/- p.m. The entire family members

were depending on the income of the deceased for their

livelihood. Due to the untimely death of the deceased,

the claimants have lost the sole bread earning member

of the family and are suffering from mental agony, loss

of dependency, loss of love and affection etc.,

5. It was further contended that the accident in

question occurred due to the rash and negligent driving

of the offending vehicle which was duly insured with the

second respondent - insurer. Accordingly, prayed for

awarding the compensation with interest.

6. After service of notice, both the respondents

appeared and filed written statement. The respondent

No.1 denying the petition averments contended that the

offending vehicle was loaded with gas cylinders, it was

driven by one Premprakash who had a valid license to

transport explosives. He had unloaded the gas cylinders

at Sira, Tumkur District. After that, he was compelled to

leave to his native place due to emergency leaving

behind the vehicle at Sira only. Then, this respondent

had sent one Shreedara to get the empty vehicle from

Sira who had licence to drive the offending vehicle at the

time of the alleged accident. The claim made by the

petitioners was challenged as exorbitant and baseless.

The accident took place on account of the deceased

himself owing to his own negligence for which this

respondent is not responsible.

7. The respondent No.2 - insurer contested the

claim taking the defence that the driver of the offending

vehicle had no valid and effective driving licence on the

date of alleged accident; the compensation claimed was

highly exorbitant, arbitrary and baseless; the deceased

was guilty of major contributory negligence. Hence,

sought for dismissal of the petition.

8. On the basis of the pleadings, issues were

framed by the Tribunal and answered in terms of the

reasons recorded in the impugned judgment, awarding

total compensation of Rs.20,49,000/- with interest at

6% p.a., from the date of the petition till its realization.

9. Being dissatisfied with the quantum of

compensation awarded, the claimants have preferred

the present appeal.

10. Learned counsel for the appellants

submitted that the compensation awarded by the

Tribunal is meager. The monthly income of the deceased

determined by the Tribunal at Rs.18,000/- p.m., is on

the lower side. The compensation awarded under the

different heads is meager. No future prospects has been

awarded by the Tribunal. Accordingly, sought for

enhancement of the compensation.

11. Learned counsel for the insurer justifying

the impugned judgment and award submitted that on

appreciation of ocular and documentary evidence, the

Tribunal has rightly awarded just and reasonable

compensation and the same does not call for any

interference by this Court. Accordingly, he sought for

dismissal of the appeal.

12. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

13. It is discernable from Ex.P9 that the

deceased was working as an Engineer with M/s. Eco

Soft Water Technology, Bengaluru and drawing salary of

Rs.18,000/- p.m. The finding recorded by the Tribunal

based on the ocular and documentary evidence

regarding monthly salary drawn by the deceased cannot

be faulted with. However, 40% of the same requires to

be added towards future prospects in terms of the

ruling of the Hon'ble Apex Court in National Insurance

Company Limited Vs. Pranay Sethi and others

((2017)16 SCC 680). Adding the same towards the

future prospects, the total income would be Rs.25,200/.

Deducting 1/4th towards personal and living expenses of

the deceased, applying the multiplier of 13, loss of

dependency would work out to Rs.26,32,500/- [22,500

x 12 x 13 x ¾].

14. In terms of the ruling of the Hon'ble Apex

Court in Pranay Sethi supra and New India

Assurance Company Limited V/s. Somwati And

Others [(2020) 9 SCC 644], the claimants are entitled to

compensation of Rs.1,90,000/- under the conventional

heads viz., Rs.1,20,000/- towards Parental consortium

[Rs.40,000/- to each child]; Rs.40,000/- towards spousal

consortium; Rs.15,000/- towards funeral expenses and

Rs.15,000/- towards loss of estate.

15. For the reasons aforesaid, the total

compensation awarded by the Tribunal is re-assessed

as under:

Amount [in Sl.No. Particulars Rs.]

1. Loss of dependency 26,32,500/-

Loss of Parental Consortium

2. 1,20,000/-

[Rs.40,000/- to each child]

3. Loss of spousal Consortium 40,000/-

  4.                Loss of Estate                    15,000/-
  5.               Funeral expenses                   15,000/-
                     Total                         28,22,500/-

Thus, the claimants shall be entitled to total

compensation of Rs.28,22,500/- with interest at the

rate of 6% per annum from the date of the claim petition

till the date of realization.

16. Hence, the following:

ORDER

i) The appeal is allowed in part.

- 10 -

ii) The total compensation awarded by the

Tribunal is modified and enhanced to

Rs.28,22,500/- as against Rs.20,49,000/-

with interest at the rate of 6% per annum