Divisional Manager vs Smt. Tabassum Banu
2021 Latest Caselaw 786 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

                  M.F.A. NO.4537 OF 2015
                           C/W
                M.F.A. NO.4538 OF 2015 &
             M.F.A. CROB NO.44 OF 2016 (MV-D)


M.F.A. NO.4537 OF 2015
BETWEEN:

DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE
MELGIRI PLAZA, MCC B BLOCK
DENTAL COLLEGE ROAD
DAVANAGERE 577 004
REGIONAL MANAGER
NATIONAL INSURANCE CO LTD.,
REGIONAL OFFICE, SUBHARAM COMPLEX
14, M G ROAD, BANGALORE-560 001.
                                            ... APPELLANT
(BY MR. A.N. KRISHNASWAMY, ADV.,)

AND:

1.     SMT. TABASSUM BANU
       W/O LATE MOHAMMED JABIVULLA
       D/O LATE N.B. MOHAMMED RAFI
       NOW AGED ABOUT 30 YEARS
       OCC: HOUSEWIFE.
                              2




2.   YAYIYA ZAID
     D/O LATE N.B. MOHAMMED JABIVULLA
     NOW AGED ABOUT 6 YEARS.

3.   JAMAL USJUHA
     S/O LATE N.B. MOHAMMED JABIVULLA
     NOW AGED ABOUT 3 YEARS.

4.   BABAZANSAB
     S/O LATE N.B. MOHAMMED HUSEIN SAB
     NOW AGED ABOUT 70 YEARS.

5.   SMT. REHAMAT .B
     W/O BABAZANSAB
     NOW AGED ABOUT 64 YEARS
     OCC: HOUSEWIFE.

     ALL R/O D.NO. 550/17-BA-1
     NEAR NOORANI MASEEDI
     AMARAPPANA TOTA
     DAVANAGERE 577001.

6.   ASAK ULLA M
     S/O ABDUL GHANI
     NOW AGED ABOUT 46 YEARS
     R/O I MAIN ROAD
     AZAD NAGAR
     DAVANAGERE-577 001.

7.   RUDRANAIK
     S/O DODA SANKANAIK
     NOW AGED ABOUT 55 YEARS
     R/A DOOR # 290, YADEHALLI VILLAGE
     DAGINAKATTE POST
     CHANNAGIRI TALUK-577 213
     DAVANAGERE DISTRICT.
                                            ... RESPONDENTS
(BY MR. M.V. HIREMATH, ADV., FOR R1, R4 TO R7
R2 & R3 ARE MINORS REPTD. BY R1)

                           ---

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.12.2014 PASSED

IN MVC NO.633/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, 7TH MACT, DAVANAGERE, AWARDING A COMPENSATION OF RS.36,55,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

M.F.A. NO.4538 OF 2015 BETWEEN:

DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE MELGIRI PLAZA, MCC B BLOCK DENTAL COLLEGE ROAD DAVANAGERE 577 004 REGIONAL MANAGER NATIONAL INSURANCE CO LTD., REGIONAL OFFICE, SUBHARAM COMPLEX 144, M G ROAD, BANGALORE-560 001.

... APPELLANT (BY MR. A.N. KRISHNASWAMY, ADV.,)

AND:

1. SMT. NAJUBUNNISA W/O ABDUL BASHEER NOW AGED ABOUT 63 YEARS OCC: HOUSEWIFE.

2. NOOR SUHIL @ ARBAZ S/O K.C. MOHAMMED NOW AGED ABOUT 15 YEARS.

3. SANIYA NAAZ D/O K.C. MOHAMMED NOW AGED ABOUT 10 YEARS.

RESPONDENTS NO.2 & 3 HEREIN SINCE MINORS REP. BY THEIR NATURAL GUARDIAN/GRANDMOTHER THE RESPONDENT NO.1 HEREIN.

4. ASAK ULLA M S/O ABDUL GHANI NOW AGED ABOUT 46 YEARS

R/O I MAIN ROAD AZAD NAGAR DAVANAGERE-577 001.

5. RUDRANAIK S/O DODA SANKANAIK NOW AGED ABOUT 56 YEARS R/A DOOR # 290, YADEHALLI VILLAGE DAGINAKATTE POST CHANNAGIRI TALUK-577 213 DAVANAGERE DISTRICT.

... RESPONDENTS (BY MR. K.P. RAVISHANKAR, ADV., FOR R1 R2 & R3 ARE MINORS REPTD. BY R1 V/O DTD:28/05/2019 NOTICE TO R4 & R5 IS D/W)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.12.2014 PASSED IN MVC NO.1011/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & 7TH MACT, DAVANAGERE, AWARDING A COMPENSATION OF RS.21,53,880/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

M.F.A. CROB NO.44 OF 2016 BETWEEN:

1. SMT. TABASSUM BANU W/O LATE MOHAMMED JABIVULLA D/O LATE N.B. MOHAMMED RAFI NOW AGED ABOUT 32 YEARS OCC: HOUSEWIFE.

2. YAVIYA ZAID D/O LATE N.B. MOHAMMED JABIVULLA NOW AGED ABOUT 8 YEARS.

3. JAMAL USJUHA S/O LATE N.B. MOHAMMED JABIVULLA NOW AGED ABOUT 5 YEARS.

(CROSS OBJECTOR NO.2 & 3 ARE MINORS REP. BY THEIR NATURAL GUARDIAN

MOTHER/CROSS OBJECTOR NO.1).

4. BABAZANSAB S/O LATE N.B. MOHAMMED HUSEIN SAB NOW AGED ABOUT 72 YEARS.

5. REHAMAT .B W/O BABAZAN SAB NOW AGED ABOUT 66 YEARS OCC: HOUSEWIFE.

ALL ARE R/O D.NO. 550/17-BA-1 NEAR NOORANI MASEEDI AMARAPPANA TOTA DAVANAGERE 577001.

... CROSS OBJECTORS (BY MR. M.V. HIREMATH, ADV.,)

AND:

1. ASAK ULLA M S/O ABDUL GHANI NOW AGED ABOUT 48 YEARS R/O I MAIN ROAD AZAD NAGAR DAVANAGERE-577 001 (DRIVER OF SYANTRO CAR BEARING REG NO.KA-17/MA-2555).

2. RUDRANAIK S/O DODDA SANKANAIK NOW AGED ABOUT 57 YEARS R/O DOOR # 290, YADEHALLI VILLAGE DAGINAKATTE POST CHANNAGIRI TALUK-577 213 DAVANAGERE DISTRICT (OWNER OF SYANTRO CAR BEARING REG NO.KA-17/MA-2555).

3. THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE MELGIRI PLAZA, MCC B BLOCK DENTAL COLLEGE ROAD DAVANGERE-577004.

... RESPONDENTS

(BY MR. A.N. KRISHNASWAMY, ADV., FOR R3 V/O DTD:25-02-2020 NOTICE TO R1 IS D/W R2 SERVED)

---

THIS M.F.A. CROB IS FILED UNDER ORDER 41, RULE 22 OF CPC, R/W SEC 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.12.2014 PASSED IN MVC NO.633/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, 7TH MACT, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE M.F.As. AND M.F.A. CROB COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A.No.4537/2015 and M.F.A.No.4538/2015 under

Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter

referred to as 'the Act' for short) have been filed by the

insurance company, whereas, M.F.A. Crob No.44/2016 has

been filed by the claimants seeking enhancement of the

amount of compensation. Since, the appeals as well as the

cross objection arise out of the same accident and against

the judgment dated 18.12.2014 passed by the Motor

Accident Claims Tribunal (hereinafter referred to as 'the

Tribunal' for short), they were heard together and are being

decided by this common judgment.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 08.09.2012, the deceased Mohammed

Jabiuallah in M.F.A.No.4537/2015 was riding a motorcycle

bearing Registration No.KA-17-EE-99 along with the

deceased Khutizaul Kubra in M.F.A.No.4538/2015 who was

traveling as the pillion rider. When they reached near

Mailligallu Village, a Santro car bearing Registration No. KA-

17-MA-2555, which was being driven by its driver in a rash

and negligent manner, came from the opposite direction and

dashed against the motorcycle of the deceased. As a result of

the aforesaid accident, both the deceased sustained grievous

injuries and succumbed to the same.

3. The claimants in M.F.A.No.4537/2015 thereupon

filed a petition under Section 166 of the Act claiming

compensation on the ground that the deceased was aged

about 37 years at the time of accident and was engaged in

steel business and was earning a sum of Rs.50,000/- per

month. The claimants claimed compensation to the tune of

Rs.2,00,00,000/- along with interest whereas the claimants

in M.F.A.No.4538/2015 thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 40 years at the time of

accident and was employed as a Urdu teacher at Milath

School, Channagiri and was earning a sum of Rs.15,569/- per

month. It was further pleaded that accident took place solely

on account of rash and negligent driving of the Santro Car by

its driver.

4. The insurance company filed written statement,

in which the mode and manner of the accident was denied. It

was also pleaded that the driver of the Santro car did not

hold a valid and effective driving license at the time of

accident and that the liability of the insurance company, if

any, would be subject to the terms and conditions of the

insurance policy. It was also pleaded that there was a delay

of one day in filing the complaint to the police by the

claimants. The ages, avocations and incomes of the deceased

persons were also denied and it was pleaded that the claims

of the claimants is exorbitant and excessive.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimants examined Najabunissa (PW1),

Indhudhara KM (PW2), Shahida Banu (PW3), Basappa (PW4),

Tabassum (PW5), Ahmad Jan (PW6) and got exhibited

documents namely Ex.P1 to Ex.P49. The respondents did not

adduce any oral evidence however Ex.R1 - Copy of Insurance

Policy was marked on its behalf. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident took

place on account of rash and negligent driving of the Santro

car by its driver. It was further held, that as a result of

aforesaid accident, the deceased persons sustained injuries

and succumbed to the same. The Tribunal further held that

the claimants in M.F.A.No.4537/2015 are entitled to a

compensation of Rs.36,55,000/- along with interest at the

rate of 6% per annum whereas the claimants in

M.F.A.No.4538/2015 were held entitled to Rs.21,53,880/-

along with interest at the rate of 6% per annum. Being

aggrieved, these appeals as well as cross objection has been

filed.

6. Learned counsel for the claimant in

M.F.A.Crob.44/2016 submitted that the Tribunal has grossly

erred in assessing the income of the deceased as Rs.20,000/-

per month and the same ought to have been decided by the

Tribunal on the basis of Ex.P332 VAT Registration Certificate.

It is further submitted that the Tribunal erred in not making

an addition to the tune of 40% to the income of the deceased

on account of future prospects in view of the law laid down

by the Supreme Court in 'NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS'

AIR 2017 SC 5157. It is further submitted that the sums

awarded under the heads 'loss of consortium' and 'funeral

expenses' are on the lower side and deserves to be enhanced

suitably.

7. On the other hand, learned counsel for the insurance

company submitted that no evidence has been adduced by

the claimants in M.F.A.No.4537/2015 to prove the income of

the deceased before the Tribunal and that the income of the

deceased which is assessed notionally at Rs.20,000/- per

month is on the higher side and is to be reduced accordingly.

It is further submitted that the Tribunal erred in making a

deduction of 1/5th from the income of the deceased instead

of 1/4th as the number of dependants is 6. It is also

submitted that the Tribunal in M.F.A.No.4538/2015 erred in

not deducting professional tax from the income of the

deceased.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The only question which arises for our consideration in these

appeals is with regard to the quantum of compensation. Now

we may advert to the quantum of compensation in

M.F.A.No.4537/2015. Admittedly, the claimants have not

produced any evidence with regard to the income of the

deceased. PW6 Assistant Commissioner of Commercial Tax

has produced Ex.P46 to Ex.P48 Sales tax returns of KMC

Steels. Ex.P30 and Ex.P31 disclose that the deceased was a

partner in KMC Trust and Educational institution. However,

we deem it appropriate to assess the monthly income of the

deceased at Rs.15,000/- per month.

9. In view of the law laid down by the Constitution

Bench of the Supreme Court in 'NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS'

AIR 2017 SC 5157, 40% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.21,000/-. Since, the number of dependents is

6, therefore, 1/4th of the amount has to be deducted

towards personal expenses and therefore, the monthly

dependency comes to Rs.15,750/-. Taking into account the

age of the deceased which was 40 years at the time of

accident, the multiplier of '15' has to be adopted. Therefore,

the claimants are held entitled to (Rs.15,750x12x15) i.e.,

Rs.28,35,000/- on account of loss of dependency.

10. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA INSURANCE

CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL

NO.2705/2020 DECIDED ON 30.06.2020 each of the

claimant's are entitled to a sum of Rs.40,000/- on account of

loss of consortium and loss love and affection. Thus, the

claimants are held entitled to Rs.2,40,000/-. In addition,

claimants are held entitled to Rs.30,000/- on account of loss

of estate and funeral expenses. The amount of compensation

awarded under the head 'medical expenses' is maintained.

Thus, in all, the claimants are held entitled to a total

compensation of Rs.37,30,000/-. Since the accident is of the

year 2012, the prevailing rate of interest for the year 2012 in

respect of fixed deposits for one year in nationalized banks

being 8%, the aforesaid amount of compensation shall carry

interest at the rate of 8% from the date of filing of the

petition till the realization of the amount of compensation. To

the aforesaid extent, the judgment passed by the Claims

Tribunal in M.F.A.No.4537/2015 is modified.

11. Now we may advert to the quantum of

compensation in M.F.A.No.4538/2015. Admittedly, deceased

was aged about 44 years and admittedly used to earn

Rs.15,569/- per month. However, we find that the Tribunal

has not deducted an amount of Rs.200/- towards

professional tax from the monthly salary of the deceased.

Therefore, the monthly salary come to Rs.15,369/- per

month.

12. In view of the law laid down by the Constitution

Bench of the Supreme Court in 'NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS'

AIR 2017 SC 5157, 25% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.19,212/-. Since, the number of dependents is

3, therefore, 1/3rd of the amount has to be deducted

towards personal expenses and therefore, the monthly

dependency comes to Rs.12,808/-. Taking into account the

age of the deceased which was 44 years at the time of

accident, the multiplier of '14' has to be adopted. Therefore,

the claimants are held entitled to (Rs.12,808x12x14) i.e.,

Rs.21,51,744/- on account of loss of dependency.

13. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA

INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.'

IN CIVIL APPEAL NO.2705/2020 DECIDED ON

30.06.2020 each of the claimant's are entitled to a sum of

Rs.40,000/- on account of loss of consortium and loss love

and affection. Thus, the claimants are held entitled to

Rs.1,20,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. The amount of compensation awarded under the

head 'medical expenses' is maintained. Thus, in all, the

claimants are held entitled to a total compensation of

Rs.23,01,744/-. Since the accident is of the year 2012, the

prevailing rate of interest for the year 2012 in respect of

fixed deposits for one year in nationalized banks being 8%,

the aforesaid amount of compensation shall carry interest at

the rate of 8% from the date of filing of the petition till the

realization of the amount of compensation. To the aforesaid

extent, the judgment passed by the Claims Tribunal in

M.F.A.No.4538/2015 is modified. The amounts in deposit in

the appeals filed by the insurance company, if any, shall be

transmitted to the claims tribunal.

Accordingly, the appeals as well as the cross objection

are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS