Abdul Wahab Sharif vs Siddalingegowda
2021 Latest Caselaw 2420 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF JUNE, 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

             M.F.A. NO.1453 OF 2019 (MV-D)
BETWEEN:
1.     ABDUL WAHAB SHARIF
       S/O RAHEEM SAB,
       AGED ABOUT 56 YEARS,

2.     ASMA TAJ
       DAUGHTER OF ABDUL WAHAB SHARIF,
       AGED ABOUT 27 YEARS,

3.     MUBARAK
       S/O ABDUL WAHAB SHARIF,
       AGED ABOUT 25 YEARS,

4.     SEEMA
       DAUGHTER OF ABDUL WAHAB SHARIF,
       AGED ABOUT 22 YEARS

       ALL ARE RESIDING AT
       NO.209/A, BEHIND MINHAZ MASJID NAGAR,
       J.P. NAGAR POST,
       BENGALURU-560 078.
                                               ... APPELLANTS

(BY SRI G.N. SUBRAMANI, ADVOCATE)

AND:

1.     SIDDALINGEGOWDA
       S/O. DODDALINGEGOWDA,
                              2



     SRIRAMASAGARA (V),
     HUNUNDA (P),
     KANAKAPURA (T),
     RAMANAGARA-562 119.

2.   TATA AIG GENERAL INSURANCE
     COMPANY LIMITED,
     OFFICE NO.69, 3RD FLOOR,
     J.P. & DEVI JAMBUKESHWARA ARCADE,
     MILLER'S ROAD, BENGALURU-560 052.
                                            ... RESPONDENTS

(BY SRI H.E. GUNDEGOWDA, ADVOCATE FOR R-1;
    SRI B. PRADEEP, ADVOCATE FOR R-2)
                           ---

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.11.2018,
PASSED IN MVC NO.7488/2017, ON THE FILE OF THE MEMBER,
PRINCIPAL MACT, BENGALURU (SCCH-1), PARTLY ALLOWING THE
CLAIM    PETITION    FOR    COMPENSATION   AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR HEARING, 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 28.11.2018 in MVC. 7488/2017 passed by the

Member Prl. Motor Accident Claims Tribunal, Bangalore.

(hereinafter referred to as 'the Tribunal' for short).

2. Facts giving rise to the filing of the appeal

briefly stated are that on 28.09.2017, when Farida left

her sheep for gazing in the gomal land situated at

Maralebekuppe village, Uyyamballi Hobli, Kanakapura

Taluk, and was returning to her residence by walk, at

that time, the rider of the motor cycle came from

Kanakapura towards Doddalahalli side in a rash and

negligent manner and dashed against Farida. Due to

the same, she succumbed to the injuries on the spot.

3. The claimants thereupon filed a petition

under Section 166 of the Act claiming compensation on

the ground that the deceased was aged about 48 years

at the time of accident and earning her livelihood as a

Shepherd and was earning a sum of Rs.30,000/- per

month. It was further pleaded that accident took place

solely on account of rash and negligent riding of the

motor cycle by its rider. The claimants claimed

compensation to the tune of Rs.20,00,000/- along with

interest.

4. The first respondent filed a written statement

denying all the averments. It was contended that the

accident occurred due to the negligent on the part of the

deceased Farida and not due to the negligent act of the

rider of the motor cycle. It was further contended that

the motor cycle was insured with the second respondent

and policy was in force and he had valid driving licence

as on the date of the accident and prayed for dismissal

of the petition.

5. The second respondent Insurance Company

filed written statement, contending that the rider of the

motor cycle was not holding a valid driving license to

ride the motor cycle as on the date of accident. The

issuance of policy in favour of the 1st respondent was

admitted and liability to pay the compensation, if any,

was subject to the terms of the policy. The date and

mode of accident, involvement of the vehicle in the

accident, age, avocation and income of the deceased

and the relationship of the deceased was also denied. it

was further contended that the accident occurred due to

negligence on the part of the deceased. Hence, sought

for dismissal of the petition.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant No.1 examined

himself as PW-1 and got exhibited documents namely

Ex.P1 to Ex.P11. The 1st respondent got himself

examined as RW1 and Nagendra P as RW2 and exhibited

documents at Ex.R1 to R3.

7. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place on

account of rash and negligent riding by the rider of the

motor cycle. It was further held, that as a result of

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the same. The Tribunal

further held that the claimants are entitled to a

compensation of Rs.4,19,000/- along with interest at the

rate of 6% per annum. However, the Tribunal by

applying the principle of pay and recovery since the rider

of the motor cycle was not having a valid driving license

directed the Insurance Company to pay the

compensation to the claimants at the first instance and

then recover the same from the owner of the motor

cycle. Being aggrieved, this appeal is filed seeking

enhancement of the amount of compensation.

8. Learned counsel for the claimants submitted

that the Tribunal has grossly erred in assessing the

income of the deceased as Rs.7,000/- per month instead

of Rs.11,000/- per month It is further submitted that

the Tribunal has erred in not making an addition to the

tune of 25% 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.

9. On the other hand, learned counsel for the

respondents submitted that the claimants have not

produced any documents to substantiate that they are

the legal representatives of the deceased Farida. It is

further submitted that the amount of compensation

awarded by the Tribunal is just and proper and does not

call for any interference.

10. We have considered the submissions made

by the learned counsel for the parties and have perused

the record. The only question which arises for our

consideration in this appeal is with regard to the

quantum of compensation.

11. The claimants have produced notarized copy

of Adhar card at Ex.P9 which discloses that name of the

husband of the deceased shown as Abdul Wahab Sharif.

In the claim petition and as well in the examination-in-

chief, the claimants have specifically stated that they are

legal heirs of the deceased Farida. Nothing is elicited in

the cross-examination of PW1 to disbelieve the same.

The respondents in their examination-in-chief have not

denied that the claimants are not the legal

representatives of the deceased Farida. The Tribunal

considering the material on record has rightly held that

the claimants have proved the relationship with the

deceased.

12. 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 48 years and was a shepherd

by avocation. The accident is of the year 2017.

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.11,000/- per month.

13. 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.13,750/-. Since, the

number of dependents are 4, therefore, 1/4th of the

amount has to be deducted towards personal expenses

and therefore, the monthly dependency comes to

Rs.10,313/-. Taking into account the age of the

deceased which was 48 years at the time of accident,

the multiplier of '13' has to be adopted. Therefore, the

claimants are held entitled to (Rs.10,313/- x 12 x 13)

i.e., Rs.16,08,750 /- 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. Thus, the claimants are held entitled to

Rs.1,60,000/-. In addition, claimants are held entitled

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

expenses.

15. Thus, in all, the claimants are held entitled

to enhanced compensation of Rs.17,98,750/- as against

Rs.4,19,000/- awarded by the Tribunal. The enhanced

compensation shall carry interest at the rate of 6% p.a.

from the date of petition till realization.

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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