Smt Masthamma Eshwara Naik vs Sri Dhinda Magdoom Hammed
2021 Latest Caselaw 2122 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 4TH DAY OF JUNE 2021

                            PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

             M.F.A. NO.4233 OF 2018 (MV-D)
BETWEEN:

1.     Smt.Masthamma Eshwara Naik
       Aged about 51 years
       w/o Eshwara Jattappa Naik.

2.     Sri Eshwara Jattappa Naik
       Aged about 55 years
       s/o late Jatta Naik.

3.     Sri Mahadeva Naik
       Aged about 28 years
       s/o Eshwara Jattappa Naik.
4.     Kumari Madevi
       aged about 26 years
       d/o Eshwara Jattappa Naik.
5.     Smt.Sharada
       Aged about 31 years
       d/o Eshwara Jattappa Naik.
All are r/a Alivegadde
Shirur Post and village
Kundapura Taluk
Udupi District - 576 228.                 ... Appellants

(By Sri Nagaraja Hegde, Advocate)
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AND:

1.     Sri Dhinda Magdoom Hammed
       Aged Major, s/o Hammed
       r/a Gulnaz Baugh, Daragh Road
       Murdeshwara, Bhatkal Taluk
       Uttara Kannada District - 581350.

2.     The United India Insurance Co. Ltd.,
       Kundapura Branch, S L N Complex
       NH-66, Voderhobli, Kundapura -
       576 201, Reptd., by its Divisional
       Manager.                           ... Respondents

(By Sri P B Raju, Advocate for R2)

      This M.F.A. is filed under Section 173(1) of MV Act
against the judgment and award dated 28.09.2017 passed in
MVC No.998/2015, on the file of the Senior Civil Judge and
Member, Additional MACT, Kundapura, partly allowing the
claim petition for compensation and seeking enhancement of
compensation.

    This M.F.A. coming on for orders, this day,
HEMANT CHANDANGOUDAR J., delivered the following:

                         JUDGMENT

This appeal under Section 173(1) of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act', for short) is

filed by the claimants seeking enhancement of the amount of

compensation against the judgment dated 28.09.2017 in

MVC No.998/2015 passed by the Senior Civil Judge and

Member, Additional MACT, Kundapura.

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

stated are that on 10.10.2015, the deceased Nagesh

Eshwara Naik was riding his motor cycle bearing Regn.

No.KA-47-L-6703 from Sarpanakatte side towards Bhatkal.

When he reached near Sarpanakatte, Police Check Post,

Bhatkal Taluk, a Swift Car bearing Regn. No.KA-20-Z-491

came from Bhatkal towards Kundapura being driven by its

driver in a high speed and in rash and negligent manner

dashed against Nagesh Eshwara Naik, as a result, Nagesh

Eshwara Naik sustained grievous injuries and succumbed to

the same.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 22 years at the time of

accident and was working as Red Stone Cutting Machine

Operator and earning Rs.18,000/- per month. It was further

pleaded that the accident took place solely on account of

rash and negligent driving of the offending vehicle by its

driver. The claimants claimed compensation to the tune of

Rs.26,60,000/- along with interest.

4. The 1st respondent - owner of the offending

vehicle filed written statement contending that the driver of

the car was holding valid and effective driving license to drive

the car. The vehicle was insured with the 2nd respondent -

Insurance Company, which is valid from 13.8.2015 to

12.8.2016. He prays for dismissal of the claim petition.

5. The 2nd respondent - 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 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. The age, avocation and

income of the deceased was also denied and it was pleaded

that the claim of the claimants is exorbitant and excessive.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimants examined three witnesses as

PWs.1 to 3 and got exhibited documents namely Ex.P1 to

Ex.P12. The respondents neither examined any witnesses but

got exhibited the Insurance Policy at Ex.R1. The Claims

Tribunal, by the impugned judgment, inter alia, held that the

accident took place on account of rash and negligent driving

of the offending vehicle by its driver. It was further held, that

as a result of the aforesaid accident, the deceased sustained

injuries and succumbed to the same. The Tribunal further

held that the claimants are entitled to a compensation of

Rs.8,28,000/- along with interest at the rate of 6% per

annum. Being aggrieved, this appeal has been filed seeking

enhancement of the amount of compensation.

7. Learned counsel for the claimants submitted that

the Tribunal has grossly erred in assessing the income of the

deceased at Rs.7,000/- per month instead of Rs.18,000/-

per month having regard to the fact that the deceased was

working as Red Stone Cutting Machine Operator. He further

submitted that the Tribunal has deducted 50% of the income

towards personal expenses instead of 1/4th since there were

five dependents, though the deceased was a bachelor. In

support of his submission, he has placed a reliance on the

decision of the Apex Court in the case of NATIONAL

INSURANCE CO. LTD., -VS- BIRENDER AND OTHERS

reported in ACJ 2020 759.

8. On the other hand, learned counsel for the

Insurance Company submitted that no evidence has been

adduced by the claimants to prove the income of the

deceased before the Tribunal and that the Tribunal has

rightly taken the income of the deceased notionally at

Rs.7,000/- per month. It is further submitted that the

amount of compensation awarded by the Tribunal is just and

proper and does not call for any interference.

9. We have considered the submissions made by

learned counsel for the parties and have perused the record.

10. The only question which arises for our

consideration in this appeal is with regard to the quantum of

compensation.

11. Admittedly, the claimants have not produced any

evidence with regard to the income of the deceased. It is

also not in dispute that deceased at the time of accident was

aged about 22 years and was working as Red Stone Cutting

Machine Operator. Therefore, if notional income of the

deceased is assessed as per the guidelines issued by the

Karnataka Legal Services Authority, notional income comes

to Rs.9,000/- per month.

12. The Tribunal has deducted 50% of the income of

the deceased towards personal expenses on the ground that

he was a bachelor. The Apex Court in the case of NATIONAL

INSURANCE CO. LTD., -VS- BIRENDER AND OTHERS

(supra) has held that legal representatives have right to

apply for compensation and it would be bounden duty of the

Tribunal to consider the application irrespective of the fact

whether the concerned legal representative was fully

dependent on the deceased and not to limit the claim

towards conventional heads only. In view of the decision of

the Apex Court, 1/4th of the income of the deceased should

be deducted towards personal expenses since there are five

dependants including the brother, who was a major as on the

date of accident, and was also dependant on the income of

the deceased.

13. Taking into account the age of the deceased who

was 22 years at the time of accident, the multiplier of '18'

has to be adopted and 40% of the assessed income is to be

added to the income of the deceased towards 'future

prospectus'. Hence, the claimants are held entitled to

(Rs.9,000/- + 40% = 12,600/- divided by 4 = 9,450/-x 12 x

18) i.e., Rs.20,41,200/- on account of `loss of dependency'.

14. In view of law 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 of love

and affection, which comes to Rs.2,00,000/-. The

compensation amount of Rs.30,000/- towards loss of estate

and funeral expenses is maintained. Thus, in all, the

claimants are held entitled to a total compensation of

Rs.22,71,200/- which carries interest at the rate of 6% p.a.

from the date of petition till the realisation. To the aforesaid

extent, the judgment passed by the Claims Tribunal is

modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

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