Smt. Sunitha vs Kalandar Shafi
2021 Latest Caselaw 1982 Kant

Citation : 2021 Latest Caselaw 1982 Kant
Judgement Date : 26 May, 2021

Karnataka High Court

Smt. Sunitha vs Kalandar Shafi on 26 May, 2021

Author: H.P. Sandesh

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 26TH DAY OF MAY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.5557/2014 (MV)

BETWEEN:

1.   SMT. SUNITHA
     W/O LATE SHIVAKUMAR
     AGED ABOUT 22 YEARS

2.   CHANDRASHEKAR
     S/O MUDDASHETTY
     AGED ABOUT 67 YEARS

3.   BHARATAMMA
     S/O CHANDRASHEKAR
     AGED ABOUT 62 YEARS

4.   HARSHITH KUMAR
     S/O LATE SHIVAKUMAR
     AGED ABOUT 3 YEARS

     APPELLANT NO.4 IS MINOR
     SON OF LATE SHIVAKUMAR
     REPRESENTED BY MOTHER
     APPELLANT NO.1.

     ALL ARE RESIDING AT
     HALEKOTE HOBLI
     HALENARASIPURA TALUK
     HASSAN DISTRICT-578 201
                                           ... APPELLANTS
             (BY SRI KARUNAKAR P., ADVOCATE)
                               2



AND:

1.     KALANDAR SHAFI
       S/O MAYYADI
       AGED ABOUT 27 YEARS
       BUSINESSMAN
       R/O NEAR MOODUSHEDDE COLONY
       MOODUSHEDDE
       MANGALORE-575 001.

2.     BRANCH MANAGER
       ICICI LOMBARD GENERAL INSURANCE
       COMPANY LIMITED, ZENITH HOUSE
       KESHAVARA KHADE MARG
       MAHALAXMI, MUMBAI.
                                             ... RESPONDENTS

           (BY SRI B. PRADEEP, ADVOCATE FOR R2;
              R1-SERVED AND UNREPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04.02.2014
PASSED IN MVC.NO.97/2012 ON THE FILE OF THE
VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER,
MACT, D.K., MANGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS MFA COMING ON FOR FURTHER ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed challenging the judgment and award

passed in M.V.C.No.97/2012 dated 04.02.2014 on the file of the

IV Additional District Judge and Member, Motor Accident Claims

Tribunal, D.K., Mangalore questioning the quantum of

compensation awarded by the Tribunal.

2. The factual matrix of the case is that on 13.10.2011

at about 6.30 p.m., when the deceased was standing by the side

of N.H-66 near M.C.F., Panambur, Mangalore Taluk, the driver of

the Maruthi Car bearing No.KA-19-MB-8614 drove the same in a

rash and negligent manner and dashed against the deceased.

As a result, he sustained injuries and succumbed to the same.

3. The claimants, who are the parents, wife and minor

son have filed the claim petition before the Tribunal for

compensation claiming that the deceased was selling sugarcane

juice and was earning Rs.7,500/- p.m. On account of the

untimely death of the deceased, the family has lost the earning

member of the family. The claim petition is opposed by the

respondent-insurance company by filing the objection statement.

4. The first claimant examined herself as P.W.1 and

examined another witness as P.W.2 and got marked the

documents Exs.P1 to P10(a). The respondents have not led any

evidence. The Tribunal, after considering both oral and

documentary evidence placed on record, awarded compensation

of Rs.11,10,000/- with interest at 6% per annum. Being

aggrieved by the judgment and award, the claimants have

preferred this appeal contending that the income of the

deceased taken by the Tribunal at Rs.4,000/- per month is very

meager since, the accident has taken place in the year 2011 and

the deceased was aged about 32 years as on the date of the

accident. Hence, it requires interference of this Court.

5. Per contra, learned counsel appearing for the

respondent-insurance company would submit that though the

income of the deceased was taken at Rs.4,000/- per month,

while calculating the loss of dependency, the Tribunal has added

50% of the salary which is not permissible, since his avocation is

self-employment and hence, the Tribunal ought to have taken

40%. The learned counsel would also vehemently contend that

the Tribunal also committed an error in awarding a sum of

Rs.2,25,000/- on the other conventional heads and hence, it

requires interference of this Court.

6. Having heard the arguments of respective counsel,

the point that arise for consideration before this Court is:

"Whether the Tribunal has committed an error in awarding just and reasonable compensation and it requires interference of this Court".

7. Having heard the arguments of learned counsel for

both the parties, it is evident that the Tribunal while calculating

the loss of dependency considered the income of the deceased at

Rs.4,000/- per month. It is rightly pointed out by the learned

counsel for the appellants that notional income ought to have

been taken at Rs.6,500/- per month in the absence of any proof

regarding the income of the deceased. However, the Tribunal

has taken only Rs.4,000/- per month and hence, the loss of

dependency requires to be recalculated by taking the income of

the deceased at Rs.6,500/- per month. If 40% is added towards

future prospects instead of 50% as taken by the Tribunal, it

comes to Rs.9,100/- per month and 1/4th has to be deducted

from the same towards personal expense since, there are four

claimants. After deducting 1/4th from the income at the rate of

Rs.9,100/-, it comes to Rs.6,825/- per month. Accordingly, a

sum of Rs.13,10,400/- (6,825x12x16) is awarded under the

head loss of future prospects.

8. On the other conventional heads, a sum of

Rs.2,25,000/- has been awarded by the Tribunal. In view of the

principles laid down by the Apex Court in National Insurance

Company Limited v. Pranay Sethi and Others reported in

(2017) 16 SCC 680, a sum of Rs.70,000/- is awarded towards

conventional heads as against Rs.2,25,000/-.

9. The claimants are also entitled for medical expenses

of Rs.94,000/-, attendant and conveyance charges of Rs.3,000/-

since, the deceased succumbed to the injuries subsequent to the

accident after taking treatment. After revisiting the

compensation on all the other heads, the claimants are entitled

for a total compensation of Rs.14,77,400/- as against

Rs.11,10,000/- awarded by the Tribunal.

10. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award passed in M.V.C.No.97/2012 dated 04.02.2014 on the file of the IV Additional District Judge and Member, Motor Accident Claims Tribunal, D.K., Mangalore is modified granting compensation of Rs.14,77,400/- as against Rs.11,10,000/- with interest at 6% per annum.