United India Insurance Co. Ltd vs Najma Munavar Budansab
2022 Latest Caselaw 2631 Kant

        IN THE HIGH COURT OF KARNATAKA,
                 DHARWAD BENCH

     DATED THIS THE 17TH DAY OF FEBRUARY 2022

                       PRESENT

       THE HON'BLE MR. JUSTICE S.G. PANDIT

                        AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

        MFA CROB No.100095 OF 2017 (MV-D)
                        C/W
           MFA No.100205 OF 2017 (MV-D)


IN MFA CROB No.100095 OF 2017

BETWEEN:

1.   NAJMA MUNAVAR BUDANSAB
     W/O LATE SRI. MUNAVAR
     AGED ABOUT 41 YEARS

2.   SANIYA M D/O MUNAVAR K.B.
     AGED ABOUT 21 YEARS

3.   KASHISH D/O MUNAVAR K.B
     AGED ABOUT 17 YEARS
     REP. BY HER MOTHER AND NATURAL
     GUARDIAN CROSS OBJECTOR NO.1

4.   FALAK M D/O MUNAVAR K.B
     AGED ABOUT 8 YEARS
     REP. BY HER MOTHER AND NATURAL
     GUARDIAN CROSS OBJECTOR NO.1.

5.   FATIMA BUDANSAB
                           2



      AGED ABOUT 73 YEARS
      MOTHER OF THE DECEASED.

     ALL ARE R/O AYYAPPA NAGAR,
     SIRSI, UTTAR KANNADA-581401.
                                ..CROSS OBJECTORS
(BY SMT. V. VIDYA, ADVOCATE)

AND

1.    KRISHNA CHOWDA NILANNAVAR
      R/O BHUTESHWAR KATTE
      SIRSI, UTTAR KANNADA DISTRICT-581401

2.    UNITED INDIA INSURANCE CO. LTD.,
      BRANCH OFFICE,
      MOODI COMPLEX,
      HOSAPETE ROAD, SIRSI (N.K.)
      REP. BY ITS BRANCH MANAGER.
                                         ...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R2)
(R1-NOTICE HELD SUFFICIENT.

      THIS CROSS OBJECTION IS FILED UNDER ORDER 41
RULE 22 OF CPC PRAYING TO ALLOW THE CROSS
OBJECTION AND AWARD HIGHER COMPENSATION AND
MODIFY THE JUDGMENT AND AWARD DATED 16.8.2016
PASSED IN MVC NO.183/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE & ADDL. MACT AT SIRSI AND PASS SUCH
OTHER ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS
FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE.

IN MFA NO.100205/2017

BETWEEN:

UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE,
MOODI-COMPLEX, HOSPETE ROAD,
SIRSI (N.K.), REP. THROUGH
THIRD PARTY CLAIMS HUB,
                             3



#3, ENKAY COMPLEX, KESHWAPUR,
HUBBALLI-580023, REP. BY ITS
ASSISTANT MANAGER.
                                          ...APPELLANT
(BY SMT. PREETI SHASHANK, ADV.)

AND

1.    NAJMA MUNAVAR BUDANSAB
      AGED ABOUT 41 YEARS, OCC:HOUSEWIFE,

2.    SANIYA M D/O MUNAVAR K.B.
      AGED ABOUT 21 YEARS, OCC:STUDENT,

3.    KASHISH D/O MUNAVAR K.B
      AGED ABOUT 17 YEARS, OCC:STUDENT,
      REP. BY HER MOTHER AND NATURAL
      GUARDIAN CROSS OBJECTOR NO.1

4.    FALAK M D/O MUNAVAR K.B
      AGED ABOUT 8 YEARS
      REP. BY HER MOTHER AND NATURAL
      GUARDIAN CROSS OBJECTOR NO.1.

5.    FATIMA BUDANSAB
      AGED ABOUT 73 YEARS
      OCC:HOUSEWIFE

      ALL ARE R/O AYYAPPA NAGAR,
      SIRSI, TQ:SIRSI,
      UTTAR KANNADA-581401.

6.    KRISHNA CHOWDA NILANNAVARA
      R/O BHUTESHWAR KATTE,
      SIRSI, TQ:SIRSI (U.K.)-581401.
                                      ...RESPONDENTS
(BY SMT. V. VIDYA, ADVOCATE FOR R1 TO R5)
(R6- NOTICE DISPENSED WITH)
                                  4



     THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 PRAYING TO CALL FOR THE
RECORDS CONNECTED WITH MVC NO.183/2014 ON THE FILE
OF THE COURT OF SENIOR CIVIL JUDGE AND ADDL. MACT,
SIRSI AT SIRSI EXAMINE THE SAME AND MODIFY THE
AWARD DATED 16.8.2016 TO REDUCE THE COMPENSATION
TO JUST LEVEL IN THE INTEREST OF JUSTICE.

     THIS APPEAL AND CROSS OBJECTION COMING ON FOR
ORDERS, THIS DAY, S.G. PANDIT J., DELIVERED THE
FOLLOWING:

                        JUDGEMENT

Though the appeal and cross objection are listed for

orders, they are taken up for final disposal, with the

consent of learned counsel for both the parties.

       2.      The   insurer     is      in         appeal   in    MFA

No.102005/2017         questioning            the       quantum     of

compensation awarded by the Tribunal, which is excessive

and exorbitant. The claimants are in cross-objection in MFA

Crob No.100095/2017 praying for enhancement of

compensation, not being satisfied with the compensation

awarded under judgment and award dated 16.08.2016

passed in MVC No.183/2014 on the file of the learned

Senior Civil Judge and Addl. MACT, Sirsi (for short,

'Tribunal').

3. The claimants, who are the wife, children and

mother of the deceased Munavar Budansab, filed a claim

petition under Section 166 of the Motor Vehicles Act, 1988

seeking compensation for the accidental death of Munavar

Budansab that occurred on 9.4.2014 involving Motor Cycle

bearing registration No.KA-31/S-9316. It is stated that the

deceased was aged 48 years as on the date of the accident

and he was running a Cloth Shop and thereby earning Rs.1

lakh per month.

4. On issuance of notice, the insurer appeared

and filed objections denying the entire claim petition

averments.

5. The claimants in support of their case

examined PW1 to PW4 apart from marking the documents

as Exs.P1 to P1162. Respondents examined RW1 and RW2

and marked the documents as Exs.R1 to R4. The Tribunal

on scrutiny of the material on record awarded total

compensation of Rs.43,99,000/- with interest at 6% per

annum on the following heads:

      Loss of Dependency            Rs.22,81,500/-
      Towards loss of consortium    Rs.   25,000/-
      Funeral expenses              Rs.   10,000/-
      Transportation of dead body   Rs.    5,000/-
      Towards Loss of estate        Rs.   40,000/-
      Loss of love & affection      Rs.   50,000/-
      Towards medical expenses      Rs.19,87,500/-
            Total                   Rs.43,99,000/-

6. While awarding the above compensation, the

Tribunal assessed the notional income of the deceased at

Rs.15,000/- per month, added 30% of the assessed

income towards future prospects, deducted 1/4th towards

personal and living expenses of the deceased and applied

multiplier of 13. The claimants not being satisfied with the

quantum of compensation awarded by the Tribunal are

before this Court praying for enhancement of

compensation and insurer is in appeal questioning the

quantum of compensation awarded by the Tribunal on the

ground that compensation is exorbitant and excessive.

7. Heard the learned counsel for the claimants as

well as learned counsel for the insurance company and

perused the appeal papers.

8. Smt. V. Vidya, learned counsel for the

claimants in support of her cross objection would contend

that the notional income of the deceased assessed by the

Tribunal at Rs.15,000/- per month is on the lower side,

since the deceased was earning Rs.1 lakh per month by

doing cloth business. She further submits that claimant

No.1 being wife of the deceased would be entitled to

Rs.44,000/- towards spousal consortium, claimants 2 to 4-

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

each towards parental consortium and claimant No.5-

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

towards filial consortium as held by the Hon'ble Apex Court

in the case of Magma General Insurance Company

Ltd., Vs. Nanu Ram and Others, reported in 2018 ACJ

2782. Thus, she prays for allowing the cross objection

and to dismiss the appeal filed by the insurance company.

9. Per contra, Smt. Preeti Shashank, learned

counsel appearing for the insurance company in support of

her appeal would contend that the claimants have not

produced any credible document to substantiate their

contention that the deceased was earning Rs.1 lakh per

month by doing cloth business. She further submits that

the Tribunal placing reliance on Ex.P953 and P954 which

are VAT registration forms for the year 2013 and 2014,

assessed the notional income of the deceased at

Rs.15,000/- per month, which needs no interference. It is

her submission that the Tribunal committed an error in

adding 30% of the assessed income towards future

prospects instead of 25%, wherever the deceased was in

the age group of 40 to 50 years, as held by the Hon'ble

Apex Court in the case of National Insurance Company

Limited Vs. Pranay Sethi & Others, 2017(16) SCC

680. She further submits that the Tribunal also

committed an error in awarding excess amount on the

head of loss of estate at Rs.40,000/- and Rs.50,000/-

towards loss of love and affection. Thus, she prays for

dismissal of the cross objection filed by the claimants and

reduce the compensation by allowing the appeal filed by

the insurance company.

10. There is no dispute with regard to the accident

and accidental death of deceased Munavar Budansab in the

appeal as well as cross objection. It is the contention of

the claimants that the notional income of the deceased

assessed by the Tribunal at Rs.15,000/- per month is on

the lower side and it ought to have assessed the same at

more than Rs.15,000/- per month, since the deceased was

running Cloth Shop and thereby earning Rs.1 lakh per

month. The claimants produced Ex.P953 and P954 which

are VAT registration forms for the year 2013 and 2014.

The said documents would disclose that the deceased was

running cloth shop and paying tax. The claimants have

not produced any independent document such as tax

returns or Bank statement to establish that the income of

the deceased was Rs.1 lakh. Based on the documents, the

Tribunal assessed the notional income of the deceased at

Rs.15,000/- per month, which in our view is just and

proper.

11. Further, the Tribunal committed an error in

adding 30% of the assessed income towards future

prospects of the deceased. In the case of Pranay Sethi

(supra), the Hon'ble Supreme Court has held that

wherever the deceased was aged between 40 to 50 years,

the claimants would be entitled for addition of 25% of the

assessed income towards future prospects. Therefore, in

the instant case, since the deceased was aged 48 years as

on the date of the accident, the claimants would be

entitled for addition of 25% of the assessed income

towards future prospects. Deduction of 1/4th towards

personal expenses and multiplier of 13 adopted by the

Tribunal is just and proper which needs no interference.

Thus, the claimants would be entitled to compensation on

the head of loss of dependency at Rs.21,93,672/-

(Rs.15,000 + Rs.3,750 (25% future prospects) =

Rs.18,750 - 1/4 (Rs.4,688) x 12 x 13 (multiplier).

12. It is well settled law that the 1st claimant being

wife of the deceased would be entitled to Rs.44,000/-

towards spousal consortium, claimants 2 to 4-children of

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

towards parental consortium and claimant No.5-mother of

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

filial consortium as held by the Hon'ble Apex Court in the

case of Magma General Insurance Co. Ltd. (supra).

Further, the compensation awarded on the head of loss of

estate at Rs.40,000/- is on the higher side. As held by the

Hon'ble Apex Court in the case of Pranay Sethi (supra),

the claimants would be entitled to Rs.15,000/- towards

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

transportation of dead body and funeral expenses. The

compensation awarded on the head of medical expenses at

Rs.19,87,500/- based on the medical bills produced by the

claimants is just and proper. Thus, the claimants would be

entitled for modified compensation on the following heads:

Sl.No.             Particulars                 Amount
1.       Loss of dependency                Rs.21,93,672/-
         (Rs.15,000 (income per month) +
         Rs.3,750 (25% towards future
         prospects) = Rs.18,750 - 1/4
         (Rs.4,688) x 12 (months) x 13
         (multiplier)
2.       Loss of estate                    Rs.   15,000/-
3.       Spousal consortium                Rs.   44,000/-
4.       Parental consortium               Rs. 1,20,000/-




5.     Filial consortium           Rs.   40,000-

6. Transportation of dead body Rs. 15,000/-

and funeral expenses

7. Medical expenses Rs.19,87,500/-

Total Rs.44,15,172/-

13. Thus, the claimants would be entitled to total

compensation of Rs.44,15,172/- as against

Rs.43,99,000/-awarded by the Tribunal.

14. Hence, we pass the following:

ORDER

a) Both appeal as well as cross objection are allowed in part.

b) The impugned judgment and award of the Tribunal is modified to the extent that the claimants are entitled to total compensation of Rs.44,15,172/- as against Rs.43,99,000/-awarded by the Tribunal.

c) The enhanced compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.

d) The insurance company shall deposit the enhanced compensation amount before the Tribunal within a period of

six weeks from the date of receipt of certified copy of this judgment.

e) On such deposit, the said amount shall be released in favour of the 1st claimant-wife.

f) Draw modified award accordingly.

g) Amount in deposit, if any, before this Court be transmitted to the Tribunal along with original records.

h) No order as to costs.

SD JUDGE

SD JUDGE

JTR