Karnataka High Court

Smt. Usmanparveen W/O Abdulrazak ... vs M/S Vivek Transporters And Ors on 1 February, 2022

Bench: S.R.Krishna Kumar, K S Hemalekha

                             1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 01ST DAY OF FEBRUARY 2022

                         PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                            AND

      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

              MFA NO.30503/2013 (MV)

BETWEEN:

1.     Smt. Usmaparveen
       W/o Abdulrazak Kureshi,
       Aged about 27 years, Occ: HH work.

2.     Kumari Bibialiya
       D/o Abdulrazak Kureshi,
       Aged about 2 years,
       Since minor rep. by her
       Natural guardian appellant No.1.

3.     Rafiq S/o Ameersab Kureshi,
       Aged about 54 years, Occ: Business,

4.     Rukiyabi, W/o Rafiq Kureshi,
       Aged about 47 years, Occ: HH Work,

       All R/o Mullagasi,
       Shahapur Gate, Bijapur.
                                             ... Appellants

(By Smt. Ratna N. Shivayogimath, Advocate)
                               2


AND:

1.     M/s. Vivek Transports,
       H-99, Sector-17, Gurgaon,
       (Hariyana State)

2.     Bharti Axa Gen. Ins. Co. Ltd.,
       1st Floor, The Ferns Icon
       Survey No.28, Next to Akme
       Ballet Doddanekundi,
       Off: Quarter Ring Road,
       Bangalore-37.

3.     Yasin, S/o Qayyum Qureshi,
       Shastrinagar, Solapur,
       Dist: Solapur, Maharashtra.

4.     The New India Assurance Co. Ltd.,
       Gurukul road, Bijapur-586 101.
                                             ... Respondents

(Sri. C.S. Kalburgi, Advocate for R2;
 Smt. Shashikala Jahagirdar, Advocate for R4;
 Notice to R1 & R3 is dispensed with)

       This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying set aside the
judgment and award dated 07.06.2012 passed by the
MACT No.VII, Bijapur in MVC No.543/2011 and award the
compensation of Rs.25,48,000/- as prayed for in the claim
petition.


       This appeal coming on for Final Hearing this day,
K.S. Hemalekha J., delivered the following:
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                              JUDGMENT

The claimants in MVC No.543/2011 have preferred

this appeal, seeking enhancement of compensation by

assailing the judgment and award dated 07.06.2012

passed by the Motor Accident Claims Tribunal-VII, Bijapur

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

2. The claimants filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988 before the

Tribunal, claiming compensation of Rs.30,00,000/- on

account of death of one Abdulrazak Kureshi, who died in a

fatal road accident that occurred on 23.02.2011,

contending that on 23.02.2011 at about 11.00 p.m. on

NH-218 road near Mantur petrol pump, the deceased along

with one Gous went to Kerur for cattle business and after

completion of their business while returning to Bijapur in

407 vehicle bearing No.MH13/R9299 and came near

Mantur petrol pump, at that time a lorry bearing

No.HR55/K3914 came from opposite direction in a rash

and negligent manner and dashed against 407 vehicle, in

which the deceased succumbed to the injuries and the said

Gous sustained injuries. The claimants are the wife, minor

daughter and parents of deceased Abdulrazak Kureshi. At

the time of the accident, the deceased was hale and

healthy and was earning Rs.8,000/- per month by doing

cattle business and the claimants were dependent upon

the deceased.

3. On issuance of notice by the Tribunal,

respondent No.1-owner of the lorry and respondent No.2

insurance company, respondent No.3-owner of 407 vehicle

and respondent No.4-insurance company appeared.

4. Respondent No.2-insurer of the lorry bearing

No.HR55/K3914 filed objections and contended that the

false complaint has been filed by the inmate of the 407

vehicle that the accident occurred due to the rash and

negligent driving of the driver of the lorry bearing

No.HR55/K3914 and contended that the accident occurred

due to the rash and negligent driving of the driver of 407

vehicle.

5. Respondent No.3-the owner of 407 vehicle

filed objections denying the accident and contended that

the vehicle is insured with respondent No.4.

6. Respondent No.4-insurer of 407 vehicle

company filed objections contending that the driver of 407

vehicle did not possess valid and effective driving licence.

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

the Tribunal framed the following:

ISSUES

1. Whether petitioner proves that on 23-2-11 at about 11 hrs. on NH218 road near Mantur petrol pump 15 km. away from Managuli the deceased was traveling in vehicle bearing No.MH13/R9299 towards Bijapur near Mantur petrol pump at this time one lorry bearing No.HR55/K3914 came from opposite direction in a rash and negligent manner and dashed to vehicle and caused the accident?

2. Whether petitioner further proves that due to the accidental injuries deceased Abdulrazak succumbed to death?

3. Whether petitioner further proves that they are legal heirs of deceased Abdulrazak Kureshi?

4. Whether petitioner further proves that they are entitled for compensation if so, how much and from whom?

5. What order or award?

8. In order to substantiate their case, claimant

No.1 examined herself as PW.1, who is the wife of

deceased Abdulrazak Kureshi and examined the

eyewitness Gous as PW.2 and the doctor as PW.3 and

marked documents as Exs.P1 to P14. On the other hand,

respondent No.4 got examined its Manager as RW.1 and

marked Exs.R1 and R2 - policy. Respondent No.2-insurer

of the vehicle bearing Reg.No.HR55/K3914 did not lead

any evidence, nor marked any document.

9. On the basis of the pleadings, evidence and

material on record, the Tribunal held that the accident

occurred due to the rash and negligent driving on the part

of the driver of the lorry baring No.HR55/K3914 and

fastened the liability faintly on the owner and insurer of

the lorry bearing No.HR55/K3914 and awarded a

compensation of Rs.4,52,000/- along with interest at 6%

per annum from the date of petition till realization under

the following heads:

Towards loss of dependency Rs.4,32,000/- Towards loss of consortium Rs.5,000/- Towards loss of expectancy Rs.5,000/- Towards funeral expenses Rs.5,000/- Towards love and affection Rs.5,000/-

                     Total                      Rs.4,52,000/-

     10.   Being      not    satisfied   with    the    quantum    of

compensation awarded by the Tribunal, the claimants have

preferred the present appeal.

11. Heard the learned counsel for the

appellants/claimants and the learned counsel for

respondent No.2-insurance company and perused the

material on record.

12. Smt. Ratna N. Shivayogimath, learned counsel

for the appellants would contend that the deceased was

hale and healthy, aged about 32 years and having cattle

business and was earning Rs.8,000/- per month and the

notional income arrived at by the Tribunal at Rs.3,000/-

per month is much on the lower side. The compensation

awarded towards loss of consortium, love and affection,

funeral expenses to the tune of Rs.5,000/- each is much

on the lower side. The Tribunal has failed to consider that

the sudden death of the husband of claimant No.1 has

caused great loss to her and also to the parents of the

deceased.

13. Per contra Sri. C.S. Kalburgi, learned counsel

for respondent No.2-insurer of lorry bearing

No.HR55/K3914 would contend that the compensation

awarded by the Tribunal is just and proper and the manner

in which the Tribunal has assessed the compensation

would not call for any interference.

14. Having heard the learned counsel for the

parties, the only point that arises for consideration in this

appeal is,

Whether the appellants are entitled for enhanced compensation?

15. The fact that Abdulrazak Kureshi succumbed to

the injuries sustained by him in the accident that occurred

on 23.02.2011 due to the rash and negligent driving of the

driver of the lorry bearing No.HR55/K3914 is not in

dispute. However, the controversy is with regard to the

quantum of compensation awarded by the Tribunal.

16. The accident has occurred in the year 2011

and the deceased was doing cattle business and was

earning Rs.8,000/- per month. The Tribunal was not

justified in holding that the deceased was earning

Rs.3,000/- per month. The said assessment arrived at by

the Tribunal is on the lower side. Even assuming that the

claimants have not produced any evidence to show the

income of the deceased, as per the guidelines of the

Karnataka State Legal Services Authority, the notional

income for the accidents occurred in the year 2011 is to be

taken at Rs.6,000/- per month. Hence, considering the

income of the deceased at Rs.6,000/- per month and

adding 40% of it i.e., Rs.2,400/- towards future prospects

as per the judgment of the Hon'ble Apex Court in National

Insurance Company Limited vs. Pranay Sethi and

others reported in (2017) 16 SCC 680, the total income

of the deceased would be Rs.8,400/- per month. After

deducting 1/4th of it towards personal expenses of the

deceased and applying the multiplier of 16 since the

deceased was aged 32 years, the total compensation

payable towards loss of dependency would come to

Rs.12,09,600/- (Rs.8,400 x 12 x 16 x 3/4).

17. In view of the dictum of the Honble Apex

Court in Satinder Kaur @ Satwinder Kaur & Ors. v.

United India Insurance Co. Ltd. reported in AIR 2020

SC 3076 and Magma General Insurance Co. Ltd. vs.

Nanu Ram reported in 2018 ACJ 2782, the appellants,

who are four in number i.e., the parents, wife and

daughter of the deceased would be entitled to Rs.40,000/-

each towards loss of filial, spousal and parental consortium

respectively. Further, the appellants are entitled to

Rs.15,000/- towards loss of estate and Rs.15,000/-

towards funeral and obsequies ceremony.

18. Thereby, the appellants are entitled for total

compensation under various heads as under:

1. Towards loss of dependency Rs.12,09,600/-

2. Towards loss of filial, spousal Rs.1,60,000/- and parental consortium (Rs.40,000 x 4)

3. Towards loss of estate Rs.15,000/-

4. Towards funeral and obsequies Rs.15,000/-

       ceremony
                     Total                               Rs.13,99,600/-

        19.    The         Tribunal         has        already    awarded

compensation of Rs.4,52,000/-. Hence, after deducting the

same, the appellants are entitled for enhanced

compensation of Rs.9,47,600/- (Rs.13,99,600/- less

Rs.4,52,000/-) with interest at 6% per annum from the

date of petition till realization. In view of the same, the

point raised for consideration is answered in the

affirmative.

20. In the result, we pass the following

ORDER

i) The appeal is allowed in part.

ii) The judgment and award dated 07.06.2012 passed by the Tribunal in MVC No.543/2011 is hereby modified.

iii) The appellants/claimants are entitled for enhanced compensation of Rs.9,47,600/- with interest at 6% p.a. from the date of petition till realization.

iv) The apportionment, deposit and release of the enhanced compensation would be as per the award of the Tribunal.

v) Respondent No.2-insurance company shall deposit the compensation amount with updated interest within a period of four weeks from the date of receipt of a certified copy of this judgment.