Smt Amitha vs Sri Mohammed Haseem
2021 Latest Caselaw 4871 Kant

                              1


        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
          DATED THIS THE 26TH DAY OF NOVEMBER, 2021
                           BEFORE
     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
               M.F.A NO. 5526 OF 2017 (MV-D)

BETWEEN:

1.   SMT. AMITHA
     W/O. LATE HANUMAN
     AGED 31 YEARS

2.   KUM. SINCHANA
     AGED ABOUT 6 YEARS
     D/O. LATE HANUMAN

3.   KUM.DRITI
     AGED ABOUT 4 YEARS
     D/O. LATE HANUMAN

APPELLANT NOS.2 AND 3 ARE MINORS
AND HENCE REPRESENTED BY HER
MOTHER NATURAL GUARDIAN
SMT.AMITHA, APPELLANT NO.1

ALL ARE RESIDING AT HARISCHANDRA
COMPOUND, SILVER GATE, KULSHEKAR POST,
MANGALURU, D.K.-575 005                        ...APPELLANTS

(BY SRI JEEVAN K, ADVOCATE)


AND:

1.     SRI MOHAMMED HASEEM
       S/O. ABDUL HAMEED
       R/O. DR.A.T.RAI COMPOUND
                                    2


        KANKANADY, MANGALURU
        MANGALURU, D.K-575 002

2.      THE MANAGER
        UNITED INDIA INSURANCE CO. LTD.
        VARANASI TOWERS
        MISSION STREET, BUNDER
        MANGALURU, D.K.-575 001                    ...RESPONDENTS

(BY SRI Y.P.VENKATAPATHI, ADVOCATE FOR R2)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 02.03.2017 PASSED IN MVC
NO.1496/2015 ON THE FILE OF THE IV ADDITIONAL DISTRICT
JUDGE AND MEMBER, MACT, DAKSHINA KANNADA, MANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The captioned appeal is filed against the judgment and award

dated 02.03.2017 passed in MVC.No.1496/2015 seeking

enhancement of compensation.

2. It is stated across the Bar that respondent No.2-

Insurance Company has satisfied the award determined by the

Tribunal. Therefore, the present appeal is purely confined to

quantum.

3. The appellants filed claim petition for having lost one

Hanuman who is the husband of appellant No.1 and father of

appellant Nos.2 and 3. The appellants filed claim petition by

contending that on 05.07.2014, at about 8.15 pm, when the said

Hanuman after purchasing vegetables and groceries from the

market, while returning to his home in bus bearing Reg.

No.KA-19-AB-3335, the driver of the offending bus, suddenly

applied brake and on account of which the said Hanuman who was

holding the vegetable bag lost his balance and was thrown out of

the bus through the front door. The appellants contended that the

said Hanuman fell down as a result of which, his head smashed to

the ground and he sustained multiple grievous injuries. Further,

they contended that he was shifted to Fr. Muller Medical College

Hospital, Kankanady, Mangalore. In spite of the best treatment, he

died on 06.07.2014. Hence, the appellants filed the claim petition

seeking for compensation of Rs.20,00,000/-. The appellants claim

that the deceased was working as a delivery boy with M/s.West

Coast Marketing and drawing a salary of Rs.9,000/- per month. To

substantiate the income of the deceased, the appellants produced

salary certificate as per Ex.P.21 and examined the

accountant/manager who had issued the salary certificate as per

PW.2.

4. The Tribunal having assessed the oral and documentary

evidence, however, declined to accept the salary certificate issued

by M/s.West Coast Marketing as per Ex.P.21 and also declined to

accept the ocular evidence of accountant/manager of M/s.West

Coast Marketing as PW.2. The Tribunal proceeded to assess the

income of the deceased notionally at Rs.7,000/- p.m. and awarded

compensation of Rs.10,20,000/- under the head 'loss of

dependency'. Under conventional heads, the Tribunal awarded a

sum of Rs.2,70,000/- and medical expenses at Rs.15,400/-. The

Tribunal, in all, awarded total compensation of Rs.13,05,400/- and

proceeded to direct the respondents to pay compensation of

Rs.13,05,400/-. It is further stated that the Tribunal erred in not

adding future prospects having regard to the fact that the deceased

was aged about 30 years. On this set of grounds, the appellants

prays this Court to enhance the compensation.

5. Heard learned counsel for the appellants and perused

the records.

6. The appellants specifically contended that the deceased

was employed with M/s.West Coast Marketing and earning a salary

of Rs.9,000/- per month. To substantiate their claim, the appellants

produced salary certificate issued by M/s.West Coast Marketing as

per Ex.P.21 and also examined the author of Ex.P.21 as PW.2. In

ocular evidence, PW.2 has stated that the deceased was drawing a

salary of Rs.9,000/- per month.

7. The Tribunal has disbelieved the salary certificate which

is produced as per Ex.P.21 coupled with ocular evidence of PW.2.

Though PW.2 has deposed to the effect that deceased was working

as a delivery boy in their firm from 01.11.2012 to 05.07.2014 and

was receiving Rs.9,000/- as salary, the Tribunal has not taken into

consideration the ocular evidence of PW.2. The Tribunal has

disbelieved Ex.P.21 and also not taken into consideration the ocular

evidence of PW.2 on the ground that there is variance in his

monthly allowance and therefore, having regard to the avocation of

the deceased, has assessed the income of the deceased at

Rs.7,500/- p.m.

8. This Court has meticulously examined the oral and

documentary evidence. PW.2 who is the authorized person and

claims to be the Manager is examined wherein he has stated in his

ocular evidence that deceased was drawing a salary of Rs.9,000/-

as he was working as a deliver boy. Even if this evidence is

discarded, this Court would find that there is credible evidence

indicating that deceased was employed with M/s. West Coast

Marketing. Therefore, in absence of income proof, having regard to

the date of accident which is of the year 2014, the income of the

deceased even if notionally assessed by placing reliance on the

chart issued by the legal services authority, the income has to be

taken at Rs.9,000/-. Therefore, by assessing the income of the

deceased at Rs.9,000/- and having regard to the age of the

deceased who was aged about 30 years as on the date of the

accident, 40% has to be added towards future prospects.

Accordingly, the income of the deceased is notionally assessed at

Rs.12,600/- and after deducting 1/3rd, the income is taken at

Rs.8,400/- and by applying multiplier of 17, the compensation re-

determined by this Court under the head 'loss of dependency' works

out to Rs.17,13,600/- (8,400x12x17).

9. By following the dictum laid down by the Hon'ble Apex

Court in the case of Magma General Insurance Co. Ltd., vs.

Nanu Ram alias Chuhru Ram & Ors.1 , a sum of Rs.1,50,000/- is

awarded under the conventional heads. The medical expenses of

Rs.15,400/- stands undisturbed. Hence, the total compensation

re-determined by this Court works out to Rs.18,79,000/. The

appellants are entitled for total compensation of Rs.18,79,000/- as

against Rs.13,05,400/- awarded by the Tribunal.

10. Accordingly, the appeal is allowed in part. The

appellants are entitled for enhanced compensation of Rs.5,73,600/-

with interest at the rate of 6% per annum from the date of petition

till realisation.

Sd/-

JUDGE

KPS

2018(9) SC 51