Smt Ramlath @ Ramlatha vs United India Insurance Co Ltd
2021 Latest Caselaw 2430 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.639 OF 2018 (MV-D)
BETWEEN:

      SMT. RAMLATH @ RAMLATHA
      W/O LATE ABDUL RAHIMAN,
      AGED ABOUT 26 YEARS,
      R/AT KINYA MOOSA HOUSE,
      MAYYADDI MANZIL,
      KOTEPURA, ULLALA,
      MANGALURU-575 020.
                                              ...APPELLANT

(BY SRI GURUPRASAD B.R., ADVOCATE)

AND:



1.    UNITED INDIA INSURANCE CO. LTD.,
      VARANASHIU TOWER,
      MISSION STREET, BUNDER,
      MANGALURU-575 001,
      REPRESENTED BY ITS MANAGER.

2.    BASHEER B
      S/O KAMAL,
      AGED ABOUT 42 YEARS,
                               2




     R/O. NO.8-128D,
     BATTAPADY HOUSE,
     SOMESHWARA, UCHILA,
     MANGALURU-575 022.

3.   ABDUL KHADER @ K.A. KHADER
     S/O LATE AHAMAD BHAVA @ BAWA,
     AGED ABOUT 77 YEARS,

4.   JUBAIDA
     W/O ABDUL KHADER @ K.A. KHADER,
     AGED ABOUT 57 YEARS,

     RESPONDENTS NO.3 AND 4 BOTH ARE
     R/AT KINYA MOOSA HOUSE,
     MAYYADDI MANZIL, KOTEPURA,
     ULLALA, MANGALURU-575 020.
                                            ...RESPONDENTS
(BY SRI S. KRISHNA KISHORE, ADVOCATE FOR R-1;
    V/O DATED 08.01.2021 AND 23.02.2021 NOTICE TO
    R-2, R-3 AND R-4 D/W)

                          ---
     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
18.09.2017, PASSED IN MVC NO.297/2016, ON THE FILE OF
THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MACT, D.K., MANGALURU, PARTLY ALLOWING THE CLAIM
PETITION     FOR     COMPENSATION    AND     SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION, 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) has

been filed by the claimant seeking enhancement of the

amount of compensation, against the judgment dated

18.09.2017 in MVC. 297/2016 passed by the VI Additional

District & Sessions Judge and Motor Accident Claims Tribunal,

Dakshina Kannada, Mangaluru. (hereinafter referred to as

'the Tribunal' for short).

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

stated are that on 24.10.2015, Abdul Rahiman was

proceeding on his motor cycle from Mangaluru towards

Thokkottu side by observing the rules and regulations. At

that time, an autorickshaw driven by its driver with high

speed, in a rash and negligent manner, came from the hind

side and dashed against the motor cycle. As a result of the

aforesaid accident, Abdul Rahiman 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 38 years at the time of

accident and was engaged in commercial accounts service

and was earning Rs.3,00,000/- per annum. It was further

pleaded that accident took place solely on account of rash

and negligent driving of the auto by its driver. The claimants

claimed compensation to the tune of Rs.50,00,000/- along

with interest.

4. The first respondent filed a written statement

admitting that the autorickshaw was insured with the second

respondent and also admitted he had valid driving licence as

on the date of the accident and prayed for the dismissal of

the petition.

5. The insurance company filed written statement,

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

was also pleaded that the deceased himself rode the

motorcycle in a rash and negligent manner and dashed

against the autorickshaw and hence liability could not be

fastened on the Insurance company. It was further pleaded

that the driver of the autorickshaw was not holding valid and

effective driving licence nor had valid fitness permit to drive

the auto 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 claimant No.1 examined herself as PW-1

and examined one witness as P.W.2 and got exhibited

documents namely Ex.P1 to Ex.P27. The respondents neither

adduced any evidence nor produced any document.

7. The Claims Tribunal, by the impugned judgment,

inter alia, held that the accident took place on account of

rash and negligent driving of the autorickshaw by its driver.

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.18,09,000/- along with

interest at the rate of 6% per annum. Being aggrieved, this

appeal has been filed seeking enhancement of the amount of

compensation.

8. Learned counsel for the claimant submitted that

the Tribunal has grossly erred in assessing the income of the

deceased as Rs.13,500/- per month instead of assessing the

income of the deceased as per the income tax returns filed

by the deceased for the financial year 2013-2014. It is

further submitted that the Tribunal has 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.

9. On the other hand, learned counsel for the

insurance company submitted that except income tax

returns 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 at Rs.13,500/- 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.

10. 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 this

appeal is with regard to the quantum of compensation.

11. Admittedly, the claimants have produced the

income tax returns for the financial year 2011-12, 2012-

2013, 2013-14 and 2014-15 at Exs.P21 to P23. The accident

occurred on 24.10.2015. The income tax returns filed for the

financial year 2013-2014 at Ex.P.23 it would be relevant for

the purpose of assessing the income of the deceased

indicates that the income of the deceased was 2,23,400/- per

annum after deductions. However, the Tribunal has not

considered the income tax returns at Ex.P.23 for assessing

the income of the deceased. In the absence of contrary

evidence the income of the deceased reflected in the income

tax returns should be taken as conclusive proof. Hence, by

considering Ex.P.23 the income of the deceased is assesed at

18,617/- per month as against Rs.13,500/- assessed by the

Tribunal.

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, 40% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.26,064/-. Since, the number of dependents are

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

towards personal expenses and therefore, the monthly

dependency comes to Rs.17,376/-. Taking into account the

age of the deceased which was 38 years at the time of

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

the claimants are held entitled to (Rs.17,376 x 12 x 15) i.e.,

Rs.31,27,680 /- on account of loss of dependency.

13. 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.1,20,000/-. In addition, claimants are held entitled to

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

expenses.

14. Thus, in all, the claimants are held entitled to

enhanced compensation of Rs. 32,77,680 /- as against

Rs. 18,09,000/- 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

HR