Karnataka High Court
The Divisional Manager vs M.A. Rahman And Ors on 21 June, 2021
Author: S.G.Pandit And M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF JUNE 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MISCELLANEOUS FIRST APPEAL NO.201211/2018 (MV)
C/W
MFA Crob.No.200066/2018 (MV)
MFA NO.201211/2018:
Between:
The Divisional Manager
New India Assurance Co. Ltd.
Sangameshwar Colony
S.B. Temple Road
Kalaburagi
(Now represented by Authorized
Signatory, Hubli)
... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
And:
1. M.A. Rahman
S/o Khaja Hussain Kureshi
Age: 63 Years, Occ: Nil
2. M.A. Razak
S/o M.A. Rahman Kureshi
Age: 33 Years, Occ: Agriculture
3. Mubarak Ahmed
S/o M.A. Rahman Kureshi
Age: 31 Years, Occ: Private Work
2
4. Vikar Alam
S/o M.A. Rahman Kureshi
Age: 32 Years, Occ: Mechanic
5. Parveen Begum
D/o M.A. Rahman Kureshi
Age: 29 Years, Occ: Household
6. Shaheeda Begum
D/o M.A. Rahman Kureshi
Age: 26 Years, Occ: Household
7. Rabiya Begum
D/o M.A. Rahman Kureshi
Age: 34 Years, Occ: Household
8. Ameena Begum
D/o M.A. Rahman Kureshi
Age: 27 Years, Occ: Household
9. Gousiya Begum
D/o M.A. Rahman Kureshi
Age: 23 Years, Occ: Household
All R/o Khaja Colony, Ward No.18
Shahapur, Tq. Shahapur
Dist. Yadagir - 585 201
10. Bhimarao S/o Bhagappa Jamadar
Age: 43 Years, Occ: Business
R/o Market Yard Parisar
Shanivarpeth, Karad, Taluk Karad
Dist. Satara - 415 110
Maharashtra
... Respondents
(Sri Babu H. Metagudda, Advocate for R1 to R9;
V/o dt. 08.08.2018, notice to R10 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to set aside the judgment
and award dated 26.02.2018 in MVC No.332/2015 passed by the
Senior Civil Judge and Additional MACT, Shahapur.
3
MFA Crob.No.200066/2018
Between:
1. M.A. Rahman
S/o Khaja Hussain Kureshi
Age: 62 Years, Occ: Nil
2. M.A. Razak
S/o M.A. Rahman Kureshi
Age: 32 Years, Occ: Agriculture
3. Mubarak Ahmed
S/o M.A. Rahman Kureshi
Age: 30 Years, Occ: Private Work
4. Vikar Alam
S/o M.A. Rahman Kureshi
Age: 31 Years, Occ: Mechanic
5. Parveen Begum
D/o M.A. Rahman Kureshi
Age: 28 Years, Occ: Household
6. Shaheeda Begum
D/o M.A. Rahman Kureshi
Age: 25 Years, Occ: Household
7. Rabiya Begum
D/o M.A. Rahman Kureshi
Age: 33 Years, Occ: Household
8. Ameena Begum
D/o M.A. Rahman Kureshi
Age: 26 Years, Occ: Household
9. Gousiya Begum
D/o M.A. Rahman Kureshi
Age: 22 Years, Occ: Household
All R/o Khaja Colony, Ward No.18
Shahapur, Tq. Shahapur
Dist. Yadagiri - 585 101
... Cross-Objectors
(By Babu H. Metagudda, Advocate)
4
And:
1. Bhimarao S/o Bhagappa Jamadar
Age: 42 Years, Occ: Business
R/o Market Yard Parisar
Shanivarpeth, Karad, Tq. Karad
Dist. Satara - 415 110
Maharashtra
2. The Divisional Manager
New India Insurance Co. Ltd.
Sangameshwar Colony
S.B. Temple Road
Kalaburagi - 585 101
... Respondents
(Smt. Preeti Patil Melkundi, Advocate for R2;
V/o dt. 26.04.2019, notice to R1 is dispensed with)
This Cross-Objection is filed under Order 41 Rule 22 of
CPC, praying to allow the cross-objection and modify the judgment
and award dated 26.02.2018 passed in MVC No.332/2015 by the
Senior Civil Judge and Additional MACT at Shahapur by
enhancing the compensation from Rs.40,10,000/- with 6%
interest to Rs.99,50,192/- with 12% interest.
These appeal and cross-objection having been heard and
reserved for judgment on 11.06.2021, coming on for
pronouncement of Judgment this day, M.G.S.KAMAL, J.,
delivered the following:-
JUDGMENT
MFA No.201211/2018 is filed by the Insurance
Company under Section 173(1) of the Motor Vehicles Act
(hereinafter referred to as 'the Act') and
MFA Crob.No.200066/2018 is filed under Order 41 Rule 22
CPC by the claimants against the judgment and award
dated 26.02.2018 passed in MVC No.332/2015 on the
file of Senior Civil Judge and Motor Accident Claims
Tribunal, Shahapur (hereinafter referred to as 'the
Tribunal').
2. Facts giving rise to filing of the above
appeals briefly stated are that on 01.08.2015 at about
9.30 a.m., deceased Allahkhan was inspecting the road
on the main road of Chittapur Wadi, at that time lorry
bearing registration No.MH-50/1875 driven by its driver
in a rash and negligent manner dashed against the
deceased and ran over him. As a result of which,
deceased died on the spot.
3. Thereafter, the claimants being the father,
brothers and sisters of the deceased filed petition under
Section 166 of the MV Act seeking compensation of
Rs.99,50,192/- on the ground that the deceased was
aged about 35 years and he was working as Civil
Engineer in Mehul Construction Private Limited and
was getting a salary of Rs.45,000/- per month at the
time of the accident. That the deceased was only
earning member of the family and the untimely death of
the deceased had caused hardship to the claimants.
The death was due to the rash and negligent driving of
the offending vehicle.
4. Upon service of notice, respondent Nos.1
and 2 appeared through their counsel and filed
statement of objections inter alia denying the age,
occupation and income of the deceased and also the
nature of the accident. Respondent No.1 contended
that the offending vehicle had all the relevant
documents and that in the event of payment of
compensation, the same shall be paid by the insurance
company. Respondent No.2 had also contended that
the driver of the offending lorry did not have valid and
effective licence. Hence sought for dismissal of the
petition.
5. Based on the pleadings of the parties, the
Tribunal framed issues and recorded evidence. The
claimant No.4 being the brother of the deceased
examined himself as P.W.1 and one Mr. Mallikarjun S/o
Iyyappa examined as P.W.2 and got exhibited 15
documents as Exs.P.1 to P15 on their behalf. On behalf
of the respondent, one Mr. Bheemarao examined as
R.W.1 and 5 documents were marked as Exs.R1 to R5.
6. The Tribunal by its judgment and award
held that the accident occurred due to the rash and
negligent driving of the lorry by its driver. The Tribunal
further held that the claimants are entitled to a
compensation of Rs.40,10,000/- along with interest at
6% per annum from the date of petition till the date of
deposit and directed the respondent to pay the aforesaid
compensation within three months from the date of the
award in the proportion as ordered. Being aggrieved by
the same, the Insurance Company has filed MFA
No.201211/2018 and the claimants have filed MFA
Crob.No.200066/2018 seeking enhancement of
compensation.
7. The learned counsel for the Insurance
Company submitted that the Tribunal grossly erred in
determining the income of the deceased at Rs.40,000/-
per month in the absence of any documentary proof. It
is further submitted that the Tribunal erred in
considering the claimants being the father, brothers and
sisters of the deceased to be the dependents entitled for
the compensation which is contrary to the judgment of
the Apex Court in Sarala Varma's case. That all the
claimants being major, and father not being dependent,
the question of determination of dependency does not
arise. The grant of compensation under the non-
pecuniary heads is erroneous and that the claimants
would be entitled only as per the Apex Court judgment
in the case of National Insurance Company Limited
vs Pranay Sethi and others reported in (2017) 16
SCC 680. Hence, sought for setting aside of the
impugned judgment and award.
8. On the other hand, learned counsel for the
claimants contended that the award of compensation of
Rs.40,10,000/- with interest at 6% by the Tribunal is
without consideration of the material evidence available
on record. The Tribunal erred in not awarding the
future prospect and the compensation under
conventional head and loss of love and affection. He
relied upon the decision of the Apex Court in the case of
National Insurance Company Limited vs. Birender
Kumar and Others, reported 2020 SC Online 28 and
contended that the father, brothers and sisters are to be
considered as the legal representatives entitled for
compensation. He relied upon the deposition of P.W.2
Mallikarjun, Public Relation Officer of Mehul
construction, Ex.P.8 salary certificate dated 31.07.2015
issued by Mehul Construction Company Limited and
Exs.P.9 to P.15 being the documents evidencing the
qualification of the deceased Allahkhan and contended
that the deceased was earning Rs.40,000/- per month
as salary and other allowances. Hence, sought for
enhancement.
9. Heard the learned counsel for the parties
and perused the records.
10. The issues that arise for consideration are
with regard to the eligibility of claimants to claim
compensation and the determination of quantum of
compensation.
11. The appellant - insurance company has
contended that the claimants being father, brothers and
sisters of the deceased were not dependents on the
income of the deceased and were thus not entitled for
compensation. The Apex Court in the case of National
Insurance Company Limited Vs. Birender and Ors.
(supra) has held that the legal representatives of the
deceased are entitled to make an application for
compensation in view of Section 166(1)(c) of the Act. It
has been further held that even the major married and
earning sons of the deceased being a legal
representatives have the 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. Thus, in view of this position of
law, the contention of the learned counsel for the
insurance company to the effect that the claimants are
not eligible for compensation cannot be accepted.
12. As regards the quantum of compensation
though it is claimed that the deceased was earning a
sum of Rs.40,000/- per month, however, no evidence
has been led by the claimants in this regard. Ex.P.8 is a
certificate purportedly issued on the letter head of
Mehul Construction Company Limited. The said
document is dated 31.07.2015 with regard to the salary
as on July 2015. The author of the said document has
not been examined. One Mallikarjun P.W.2 a Public
Relation Officer of the said Company has been
examined. However, in the cross-examination he has
deposed that he has neither produced any document
with regard to the deceased working in the company as
a Senior Civil Engineer nor he has produced any
document to show that he himself is working in the said
company. Except the above, no other material evidence
is produced to establish the income of the deceased.
However, the Tribunal taking into consideration of the
suggestion made in the cross-examination of P.W.1
suggesting the income of the deceased to be
Rs.18,000/- per month and based on the document
evidencing the qualification of the deceased has
assessed the monthly income of the deceased at
Rs.40,000/- which in our considered opinion is not
proper.
13. In the absence of acceptable material
evidence to establish the income, notional income needs
to be taken based on the chart prepared by the
Karnataka State Legal Services Authorities. In the
instant case the accident has occurred on 01.08.2015.
As per the chart, the notional income for the year 2015
is Rs.8,000/- per month. Considering the professional
qualification of Diploma in Civil Engineering possessed
by the deceased and in the facts and circumstances of
the case, we deem it appropriate to assess the income of
the deceased at Rs.15,000/- per month. To the said
monthly income, as the deceased was aged 35 years,
40% has to be added towards future prospects as per
the law laid down by the Constitution Bench of the Apex
Court in the case of National Insurance Company
Limited Vs. Pranay Sethi and Others (supra). The
monthly income of the deceased comes upto
Rs.21,000/- (Rs.15,000/- + 40% = Rs.6,000/-). Since
the deceased was unmarried, 50% has to be deducted
towards his personal expenses. The monthly income of
the deceased would therefore be Rs.10,500/-. Since the
age of the deceased at the time of accident was below 35
years, the appropriate multiplier of '16' is to be applied.
The loss of dependency computed as above, the
claimants would be entitled for a total sum of
Rs.20,16,000/-. [Rs.15,000/- + 40% (Rs.6,000/-) =
Rs.21,000/- - 50% (towards personal expenses) =
Rs.10,500/- x 12 x 16 (multiplier) =Rs.20,16,000/-].
14. The Tribunal has awarded an aggregate sum
of Rs.1,70,000/- towards loss of love and affection, loss
of estate and funeral and other expenses. In view of
the law laid down by the Hon'ble Apex Court in Magma
General Insurance Company Limited Vs. Nanu Ram
& Ors. reported in (2018) 18 SCC 130, which is later
confirmed by the Apex Court in case of United India
Insurance Company Limited Vs. Satinder Kaur &
Ors. reported in AIR 2020 SC 3076, the claimants are
entitled to Rs.40,000/- each on account of 'loss of love
and affection'. In addition to the above, a sum of
Rs.15,000/- is awarded towards loss of estate and
Rs.15,000/- towards funeral expenses. Thus, the
claimants are entitled for the compensation as under:
Heads By Tribunal By this Court
Loss of dependency Rs.38,40,000/ Rs.20,16,000/-
-
Towards love and Rs.50,000/- Rs.3,60,000/-
affection to Petitioner
Loss of estate and future Rs.1,00,000/- Rs.15,000/-
prospects
Funeral expenses Rs.20,000/- Rs.15,000/-
Total Rs.40,10,000/- Rs.24,06,000/-
Thus, the claimants are entitled for reduced
compensation of Rs.24,06,000/- with interest @ 6% per
annum from the date of petition till the date of
realization.
The Insurance Company shall deposit the
aforesaid compensation with interest as aforesaid,
within a period of six weeks from the date of receipt of a
certified copy of this judgment.
Accordingly, both the appeal and MFA Crob. are
disposed off and the judgment and award of the
Tribunal is modified.
The amount in deposit made by the Insurance
Company shall be transmitted to the Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
RSP
