Mrs. Sumathi vs Mr. Badral Muneer
2022 Latest Caselaw 1041 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF JANUARY, 2022

                       BEFORE

    THE HON'BLE MR.JUSTICE P.KRISHNA BHAT

                 M.F.A.No.499/2017 (MV)

BETWEEN:

MRS. SUMATHI
W/O LATE ANANDA SHETTY,
AGED ABOUT 52 YEARS,
R/AT H NO 1-8-511,
DADDALKAD, KOTTARA CROSS ROAD,
NEAR MARUTHI GLASS CO
ASHOK NAGARA POST,
URWASTORE, MANGALORE TALUK
D.K DISTRICT PIN 575012
                                     ...APPELLANT

(By Sri. RAVISHANKAR SHASTRY G, ADVOCATE)

AND:

1 . MR. BADRAL MUNEER
    S/O MOHAMMED
    AGED ABOUT 29 YEARS,
    R/AT UNAISHA MANZIL
    ATUR, KEMRAL VILLAGE,
    PAKSHIKERE, MANGALORE TALUK
    D.K. DISTRICT 575018

2 . NATIONAL INSURANCE CO LTD
    1ST FLOOR, EMJAYS BUILDING
    OP NETHRAVATHI BUILDING,
    BALMATTA
                                   2


   MANGALORE TALUK,
   D.K.DISTRICT PIN 575001
                                                 RESPONDENTS

(BY SMT. GEETHARAJ, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH V/O DATED 5.3.2018)


     THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DATED 16.11.2016 PASSED
IN MVC NO.1464/15 ON THE FILE OF THE MACT-II, 1ST
ADDITIONAL DISTRICT & SESSIONS JUDGE, D.K.,
MANGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION THROUGH
VIDEO CONFERENCING THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
                           JUDGMENT

This is an appeal at the instance of the claimant

seeking enhancement of compensation awarded by

the judgment and award dated 16-11-2016 in MVC

No. 1464/2015 by the learned MACT-II and I

Additional District and Sessions Judge, D.K.,

Mangaluru.

2. Brief facts are that, on 15-7-2015 at about

6-30 p.m. while one Ananda Shetty, husband of the

claimant was walking on the extreme side of the road

near Beach Cross, Mangaluru, along with his son, the

offending car bearing Registration No.KA.19/P.8256

came being driven in a rash and negligent manner and

dashed to Ananda Shetty, on account of which, he fell

on the road and died on the following day while

undergoing treatment.

3. Both the owner and the Insurance Company

contested the proceedings. But the owner did not file

any written statement. Insurance Company in its

written statement denied the material allegations

made in the claim petition.

4. During trial, the claimant who is the wife of

the deceased examined herself as PW1 and an eye

witness who happened to be the son of the claimant

as well as the deceased was examined as PW2. It is

submitted that in the claim proceedings only widow

was arrayed as claimant on the premise that her

children who are majors are not entitled to receive

any compensation. Exs.P1 to P13 were marked.

Respondents did not examine any witnesses and

policy of insurance is marked as Ex.R1.

5. Upon consideration of the evidence placed

and on hearing learned counsel on both sides, the

learned Tribunal allowed the claim petition in part

awarding a compensation of Rs.4,58,150/- with

interest at 6% p.a.

6. The learned Tribunal held that deceased was

contributorily negligent to the extent of 15% in

causing the accident.

7. Learned counsel for the appellant/claimant

contended before me that, learned Tribunal has

awarded a lessor compensation on several wrong

premises. His first submission is that, on the evidence

placed, especially, the charge-sheet and evidence of

PW2 etc., learned Tribunal could not have held that

deceased was contributorily negligent to the extent of

15%. On the other hand, proper appreciation of the

evidence showed that the driver of the car was

entirely negligent in causing the accident. His second

point of submission is that, learned Tribunal was in

error in deducting 50% of the income of the deceased

towards personal expenses even though he was a

married person having children, one of whom was

PW2 himself. His last contention is that, learned

Tribunal was further in error in taking the age of the

deceased as 63 years and on that basis taking

multiplier at '8'. He submitted that Ex.P11 which is the

copy of the Aadhar Card showed the date of birth of

the deceased as '01-01-1955' and since the accident

has taken place in 2015, he was aged only 60 years.

Accordingly, proper multiplier should be '9'. He

therefore, submits that the award of compensation

made by learned Tribunal is on the lower side and

unreasonable and therefore, it is required to be

enhanced.

8. Learned counsel Smt. Geetha Raj, per contra

contended that learned Tribunal upon appreciation of

entire evidence has awarded just and proper

compensation and therefore, the same is not liable to

be interfered with. She sought to contend that 50%

deduction made by learned Tribunal towards personal

expenses is fair and just particularly in the

circumstances of this case, namely that, only the

widow is arrayed as claimant and therefore, the

finding of the learned Tribunal on this count should be

upheld. She further contended that the learned

Tribunal was again right and justified in holding that

there was 15% contributory negligence on the part of

the deceased as the sketch map Ex.P6 clearly showed

that the spot of the accident is 10 feet inside the said

road. She therefore submitted that there is no

warrant for interfering with the finding of the learned

Tribunal and the appeal being devoid of merits is liable

to be dismissed.

9. I have given my anxious consideration to the

submissions made by learned counsel for both sides

and bestowed my attention to the material on record.

10. The date of accident is 15-7-2015 and

there is no dispute about the fact that deceased died

on the following day. There is no material to clearly

establish the definite income of the deceased and

therefore notional income will have to be taken as

per the chart prepared by the State Legal Services

Authority which fixes the notional income of the

deceased in 2015 at Rs.9,000/- per month. Insofar as

the age of the deceased is concerned, Ex.P11 is the

copy of the Aadhar Card which shows that deceased

was born on 01-01-1955 and therefore, he was aged

60 years as on the date of his death. In view of the

same, the appropriate multiplier applicable is '9'.

11. The learned Tribunal has held that deceased

was negligent to the extent of 15% in causing the

accident. I have bestowed my careful consideration to

the pleadings, evidence of PWs 1 and 2 and also the

chargesheet, Ex.P9. PW2 is the eye witness and he

has clearly stated that deceased was walking by the

side of the road on the mud portion and on account of

car hitting him, he fell on the road. Insofar as Ex.P6

is concerned, he has stated that what is shown

therein was not the spot of the accident and it is the

spot where after the hitting of the car the deceased

had fallen. In the chargesheet, Ex.P9, the driver of

the car is shown as the accused and he is

chargesheeted for the offences. The respondents have

not chosen to examine the driver of the car who was

an important and material witness in the case to

explain the manner and circumstances of the accident.

In view of his non examination, adverse inference

should have been drawn against the respondents.

Taking into consideration the entire evidence placed,

there is no justification on the part of the learned

Tribunal to hold that there was contributory

negligence on the part of the deceased and on the

other hand, evidence clearly suggests that it is clearly

on account of rash and negligent driving of the driver

of the car accident has taken and accordingly, the

finding of the learned Tribunal is set aside.

12. Now the question that remains to be

considered is, whether the learned Tribunal is justified

in deducting 50% of the income of the deceased

towards his personal expenses. There is no dispute

about the fact that claimant is his widow. In the claim

petition, there is a clear pleading that apart from the

widow, deceased was having children. One of his

children is PW2 himself. In that view of the matter,

learned Tribunal was not correct in deducting 50% of

the income of the deceased towards his personal

expenses. Learned counsel for the Insurance Company

no-doubt contended that since only the widow is

arrayed as the claimant, the learned Tribunal was

justified in deducting 50% of the income towards the

personal expenses of the deceased.

13. On this aspect, learned counsel for the

claimant/appellant pointed out that the material

placed before the Tribunal clearly discloses that

deceased was having children and in view of the

prevailing position of law that major children are not

entitled to claim themselves as dependants and

further they were not entitled to receive any

compensation which situation is now altered by the

decision of the Hon'ble Supreme Court in the case of

National Insurance Company Limited Vs.

Birender and others reported in (2020) 11

Supreme Court Cases 356, the children were not

arrayed as claimants along with the widow. In that

view of the matter, I do not find any merit in the

contention of the learned counsel for the Insurance

Company especially in view of the material available

on record that deceased was having children.

Therefore, in view of the decision of the Hon'ble

Supreme Court in Sarla Verma's case which is

affirmed by the Constitution Bench of the Hon'ble

Supreme Court in the case of National Insurance

Company Limited Vs. Pranay Sethi and others

reported in AIR 2017 SC 5157, the proper deduction

towards personal expenses to be made is, 1/3rd of

the income of the deceased in this case.

14. Learned counsel for the Insurance Company

is right in her contention that learned Tribunal ought

to have awarded Rs.70,000/- towards compensation

on conventional heads and it was wrong in awarding

Rs.90,000/- under the said head.

15. Accordingly, the compensation which the

claimant/appellant is entitled to receive is required to

be recomputed. Towards loss of dependency- 9000 x

12 -1/3 x 9 =6,48,000/-. Under conventional heads

claimant is entitled to receive Rs.70,000/-. Medical

expenses awarded in a sum of Rs.29,000/- by the

learned Tribunal is maintained as the same is

supported by the necessary documents. Totally, the

claimant is entitled to Rs.7,47,000/-. The learned

Tribunal has awarded Rs.4,58,150/-. Therefore, the

enhanced compensation is Rs.2,88,850/-. On the

enhanced compensation, the claimant is entitled to

the interest at the rate of 6% p.a. from the date of

petition till the date of payment.

The Insurance Company shall deposit the

enhanced compensation awarded by this judgment

with interest within four weeks from the date of

receipt of the certified copy of this judgment.

Transmit the records to the learned Tribunal

forthwith.

The appeal is allowed in part accordingly.

Sd/-

JUDGE

tsn*