Mrs Rekha Charistable Maben vs Mr Muhammed Kunhi B
2021 Latest Caselaw 2029 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 31ST DAY OF MAY 2021

                       PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

            M.F.A. NO.3632 OF 2019 (MV-D)
BETWEEN:

1.     MRS. REKHA CHARISTABLE MABEN
       W/O LATE NAVEEN UDAYA KUMAR
       AGED ABOUT 48 YEARS

2.     MASTER REAN EBNEZER MABEN
       S/O LATE NAVEEN UDAYA KUMAR
       AGED ABOUT 20 YEARS

       BOTH ARE RESIDING AT 4-154/2/13
       KONDANA STREET, BEERI KONDANA DWARA,
       KOTEKAR, MANGALORE TALUK,
       D.K. DISTRICT-575 012.
                                       ... APPELLANTS

(BY SRI RAVISHANKAR SHASTRY G., ADV.)

AND:

1.     MR. MUHAMMED KUNHI B
       S/O HAMEED, MAJOR,
       R/O ZAREEN MANZIL,
       KARUVALAM, PADANNAKKAD POST,
       NILESHWAR, KASARAGOD
       KERALA STATE-671 328.
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2.   NEW INDIA ASSURANCE CO. LTD.,
     1ST FLOOR, CITY PLAZA,
     OPP: LIC OF INDIA MARKET JUNCTION,
     NILESHWARA, KASARAGOD
     REPRESENTED BY ITS DIVISIONAL MANAGER,
     DIVISIONAL OFFICE, 4TH FLOOR,
     FORTUNE AVERY JUNCTION,
     ABOVE MALABAR GOLD, FALNIR,
     MANGALORE TALUK,
     D.K. DISTRICT-575 004.
                                      ...RESPONDENTS

(BY SRI B.S. SACHIN, ADVOCATE FOR R-1;
    R-2 SERVED)
                         ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
28.02.2019, PASSED IN MVC NO.1583/2016, ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT,
MANGALURU, D.K., 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 28.02.2019 passed by the Motor Accident Claims

Tribunal and Principal Senior Civil Judge, Mangaluru,

D.K. in MVC No.1583/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.07.2016, the deceased

Naveen Udaya Kumar was proceeding as a rider in a

motorcycle from Kotekar Beeri side towards Thokkottur

side. When he reached to a place called near Adka

Bhagavathi Bus Stop, Someshwar Village, Mangalore

Taluk, a Innova Car bearing Registration No. KL/60- E-

0799, which was being driven by its driver in a rash and

negligent manner, came from the opposite direction and

dashed against the motorcycle of the deceased. As a

result of the aforesaid accident, the deceased 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 52 years

at the time of accident and was working as a Swimming

Coach (Master) at Prestige School, Jappinamogaru,

Mangaluru and at Jai Hind Swimming Club, Mangaluru

and was earning a sum of Rs.24,000/- per month. It

was further pleaded that the accident took place solely

on account of rash and negligent driving of the Innova

car by its driver. The claimants claimed compensation to

the tune of Rs.40,00,000/- along with interest.

4. The Insurance Company filed written

statement, in which the mode and manner of the

accident was denied. 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.

The Insurance Company also denied that the offending

vehicle was being driven in a rash and negligent

manner. Hence, sought for dismissal of the claim

petition.

5. 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 got exhibited documents namely

Ex.P1 to Ex.P18. The respondents examined

Sri P Narasimha Prabhu, Deputy Manager of New India

Assurance Co. Ltd. and got exhibited documents namely

Exs.R1 to R3. The Claims Tribunal, by the impugned

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

account of rash and negligent driving by the driver of

the offending Innova car. It was further held that as a

result of 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.7,30,000/- along with interest at the

rate of 6% per annum. Being aggrieved, this appeal is

filed seeking enhancement of the amount of

compensation.

6. Learned counsel for the claimants submitted

that the Tribunal has grossly erred in assessing the

income of the deceased as Rs.9,500/- per month and in

any case, the same ought to have been taken at

Rs.24,000/- per month as per Exs.P13, 14 and 15. 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. He further

submitted that the Tribunal has committed an error in

fastening the liability on the owner of the vehicle to pay

the compensation since no credible evidence is placed

before the Tribunal by the Insurance Company so as to

substantiate its claim that the owner of the offending

Innova Car did not have valid permit to ply the vehicle

in question as on the date of accident.

7. The 2nd respondent - Insurance Company

though served with notice has remained unrepresented.

8. Learned counsel for the 1st respondent

submitted that the Tribunal erred in holding that the

offending vehicle was not having valid permit to ply the

vehicle as on the date of accident. Hence, fastening the

liability on the owner of the offending vehicle requires to

be set aside.

9. We have considered the submissions made

by learned counsel for the parties and have perused the

record.

10. The question which arises for our

consideration in this appeal is with regard to the liability

fastened on the owner of the vehicle to pay the

compensation and also the quantum of compensation.

10. Admittedly the offending Innova car which

was registered as Tourist vehicle was issued with valid

permit from 7.7.2012 to 6.7.2017. The Insurance

Company has not taken a defence that the offending

Innova car was not having valid permit to ply as a

tourist vehicle as on the date of accident. However, the

Insurance Company got examined RW1 Sri Narasimha

Prabhu and got exhibited Ex.R1 i.e. letter issued by the

Joint Transport Commissioner to contend that the

offending Innova car was not having valid permit to ply

as on the date of accident. The Tribunal by considering

Ex.R2 held that there was no permit as on the date of

accident to ply the vehicle and the same amounts to

fundamental breach of policy conditions. The Apex

Court in the case of AMRIT PAUL SINGH AND ANR. -

VS- TATA AIG GENERAL INSURANCE COMPANY

LTD., AND ORS. reported in 2018 SAR (Civil) 768.

AMRIT PAUL SINGH (supra) has held that the use of a

vehicle in a public place without a permit is a

fundamental statutory infraction. In the present case,

though the Insurance Company has not taken a defence

that the offending vehicle was not having valid permit,

however, has produced Ex.R1 to substantiate the claim

that the offending vehicle was not having valid permit.

The author of Ex.R1 is not examined by the Insurance

Company so as to prove the genuineness of the said

document when the claimants have disputed the

genuineness of the said document during the cross-

examination of RW1. The Insurance Company having

not taken the defence in its written statement and also

having not examined the author of Ex.R1, the Tribunal

has committed an error in holding that the offending

vehicle was not having valid permit as on the date of

accident. Hence, it is held that the Insurance Company

cannot absolve of its liability to pay the compensation

and fastening the liability on the owner is set aside.

11. The claimants to substantiate their claim that

the deceased was earning a sum of Rs.24,000/- per

month as Swimming Coach have produced salary

certificate at Exs.P13, 14 and 16. PW4 - Vishwanatha M

was authorized by the Prestige International School to

produce Ex.P13 and give evidence on behalf of the

School. Perusal of Ex.P13 indicates that the gross salary

of Rs.18,000/- was paid by the Prestige International

School to the deceased who worked as Swimming Coach

from 20.6.2016 to 28.7.2016. Perusal of Ex.P14

indicates that the deceased was paid consolidated salary

of Rs.6,000/- per month by Jai Hind Swimming Club to

the deceased, who worked as Assistant Swimming

Coach for three years. Ex.P16 is the certificate dated

2.3.2015 issued by the Karnataka Swimming Association

(Regd.) certifying that the deceased had participated in

the "Short Course on Learn to Swim and Water Safety

(Level - 1) conducted by Karnataka Swimming

Association and Manipal University. Perusal of Ex.P16

indicates that the deceased was a certified swimming

coach.

12. It is evident from the evidence of PW3 -

Ramakrishna Rao, Secretary of Jai Hind Swimming Club

that the deceased worked as Assistant Swimming Coach

for three years prior to his death and he was paid

consolidated salary of Rs.6,000/- per month. The

evidence of PW4 who deposed on behalf of Prestige

International School also establishes that the deceased

worked as Swimming Coach and he was paid salary of

Rs.17,800/- per month after deducting Rs.200/- towards

professional fee. The entries in Ex.P12 i.e. bank pass

book issued by Corporation Bank would indicate that on

4.7.2016, a sum of Rs.6,000/- towards salary for the

month June, 2016 was deposited by the Jai Hind

Swimming Club to the bank account of the deceased and

on 8.8.2016 a sum of Rs.17,800/- towards salary was

deposited by the Prestige International School ie. after

the death . Nothing is elicited in the cross examination

of PWs.3 and 4 to disbelieve the claim of the claimants

that the deceased was earning Rs.24,000/- per month

as Swimming Coach. However, the Tribunal holding that

the deceased was not the permanent employee but

worked on temporary basis assessed the monthly

income of the deceased at Rs.7,500/- per month

considering the daily wages of Rs.249/- paid to the

unskilled labour under Rural Employment Guarantee

Scheme. The deceased was a Swimming Coach at

Prestige International School from 26.2.2016 to

28.7.2016, which indicates that the deceased was hired

as Swimming Coach on temporary basis. Hence,

considering the evidence on record and also the

deceased was a Swimming Coach by avocation, it would

be appropriate to assessed the monthly income of

Rs.15,000/-.

13. It is not in dispute that the deceased at the

time of accident was aged about 52 years and was a

Swimming Coach by avocation. 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 assessed income has to be added on account

of future prospects. Thus, the monthly income comes to

Rs.18,750/-. Since, the number of dependents are two,

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

towards personal expenses and therefore, the monthly

dependency comes to Rs.16,50,000/-. Taking into

account the age of the deceased which was 52 years at

the time of accident, the multiplier of '11' has to be

adopted. Therefore, the claimants are held entitled to

(Rs.15,000/- x 1/3 x 11 x 12 x 25%) i.e.,

Rs.16,50,000/- on account of loss of dependency.

14. In view of the 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 love and

affection. Thus, the claimants are held entitled to

Rs.80,000/-. In addition, claimants are held entitled to

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

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

a total compensation of Rs.17,60,000/-. Since the

accident is of the year 2016, the prevailing rate of

interest for the year 2016 in respect of fixed deposits for

one year in nationalized banks being 6%, the aforesaid

amounts of compensation shall carry interest at the rate

of 6% from the date of filing of the petition till the

realization of the amount of compensation. The 2nd

respondent - Insurance Company is fastened with the

liability to pay the compensation amount of

Rs.17,60,000/- awarded to the claimants. To the

aforesaid extent, the judgment passed by the Claims

Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE bkm