Karnataka High Court

Haveelanand Salins vs Mohammed Saleem on 3 January, 2022

Bench: Ravi V Hosmani

        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 3RD DAY OF JANUARY, 2022

                             BEFORE

         THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                M.F.A.No.127 OF 2019 (MV-D)

BETWEEN:

1.     HAVEELANAND SALINS
       AGED ABOUT 49 YEARS
       W/O RAVIRAJ SALINS

2.     RAVIRAJ SALINS
       AGED ABOUT 53 YEARS
       S/O DEVDAS SALINS

       BOTH ARE R/O D.NO.2-137
       MISSION COMPOUND
       MULOOR, UCHILA
       UDUPI TALUK AND DISTRICT-574 117.

                                               ...APPELLANTS

[BY KUMARI NAZEEFA M.MULLA, ADVOCATE FOR
    SRI PAVANA CHANDRA SHETTY, ADVOCATE (PH)]


AND:

1.     MOHAMMED SALEEM
       AGED ABOUT 41 YEARS
       S/O LATE MOHAMMED ISMAIL
       R/O TAWAKKAL, "TU HI ALLAH"
       BADAGABETTU, MANIPAL
       UDUPI TALUK AND DISTRICT-576 104.
                                    2




2.    THE RELIANCE INDIA GEN.INS.CO.LTD.,
      DIVISIONAL MANAGER
      DIVISIONAL OFFICE
      MAXIMUS COMMERCIAL COMPLEX
      4TH FLOOR, LIGHT HOUSE HILL ROAD
      HAMPANAKATTA, MANGALORE-575 001.
                                                         ...RESPONDENTS

(BY SRI. ASHOK N.PATIL, ADVOCATE FOR R2 (PH);
    NOTICE TO R1 DISPENSED WITH V/O DATED 30.03.2021 )

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING AGAINST THE JUDGMENT AND AWARD DATED 09.10.2018
PASSED IN MVC NO.578/2017 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

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


                             JUDGMENT

Challenging judgment and award dated 09.10.2018 passed by

Prl. Senior Civil Judge & Addl. MACT, Udupi, this appeal is filed by

claimant seeking enhancement of compensation.

2. Brief facts as stated are that in an accident that occurred

on 11.03.2017, Sri. Roilet Veeraj died when bus bearing

registration No.KA-20AA-9909 collided against his motorcycle

bearing registration No.GA-05H-9731. Claiming compensation on

account of his untimely death, his parents filed claim petition

against owner and insurer of bus under Section 166 of the M.V. Act,

1988.

3. The claim petition was contested. Tribunal framed issues,

recorded evidence and on appreciation of material on record, held

that accident occurred due to rash and negligent driving of driver of

bus. It further held that driver had valid and effective driving

licence at the time of accident and as bus was insured with

respondent no.2, it was liable to pay compensation. It determined

age of deceased as 22 years, occupation as MBA student and taking

his notional monthly income at Rs.10,000/-, adding 40% towards

future prospects, awarded total compensation of Rs.15,42,000/-

against insurer of bus. Not satisfied with compensation, claimants

are in appeal.

4. Ms. Nazeepa M. Mulla, advocate for Sri. Pavan Chandra

Shetty, learned counsel for appellants/claimants submitted that

award passed by tribunal was inadequate. It was further submitted

that tribunal erred in taking monthly income of deceased at

Rs.10,000/-, though he was a meritorious student pursuing his MBA

in a reputed institution at Mangaluru. It was further submitted that

award passed by tribunal under conventional heads was also

inadequate and sought enhancement.

5. On the other hand, Shri Ashok N. Patil, learned counsel

for respondent-insurer supported award and opposed enhancement.

It was further submitted that as on date of accident deceased was a

student and not an earning member. As deceased was pursuing his

MBA, claimants claim that he was working as accountant and

earning income would be cannot be presumed. Therefore, tribunal

was justified in taking his income on notional basis, hence prayed

for dismissal of appeal.

6. From the above submissions, occurrence of accident due

to rash and negligent driving of driver of bus leading to death of

Roilet Veeraj is not in dispute. Issuance of insurance policy and its

validity as on date of accident is also not in dispute. Tribunal

assessed compensation holding respondents no.1 and 2 jointly and

severally liable to pay the same. Insurer has not challenged the

same, hence liability of insurer is also not in dispute. Only claimants

are in appeal seeking enhancement. Therefore, point that arises for

consideration is:

            "Whether     claimants        are   entitled    for
            enhancement of compensation as sought
            for?"

7. In order to establish age, occupation and income of

deceased, claimants produced medical certificates, merit certificate,

caste certificate and certificate issued by college as per Exs.P.2 to

P.5 respectively.

8. From date of birth mentioned in Ex.P.2 - SSLC marks

card, age of deceased is determined as 24 years. The mark sheets

of SSLC, PUC, B.Com. disclose his academic accomplishment. He

has secured distinction marks in MBA course also. Notional income

for the year 2017 as adopted by Karnataka Legal Services

Committee for settlement of cases before Lok Adalat was

Rs.11,000/- for an ordinary coolie. Deceased being a meritorious

student cannot be equated with coolie. Therefore, tribunal was not

justified in assessing his monthly income at Rs.10,000/-. It would

be appropriate to determine his income at Rs.12,000/- per month.

8. Though learned counsel for respondent opposed such

assessment by relying upon decision of Judicature at Bombay,

Aurangabad Bench, in the case of Reliance General Insurance

Co., Vs. Muralidhar Surajmal Kabra and Ors. 2019 SCC Online

Bom. 1548, wherein it is held that improbability of finding

employment have to be borne in mind and income cannot be

determined by guess work. In the case on hand, merit of deceased

has been substantiated by production of marks card. In fact, if

claimants had examined officer from the institution regarding

prospects of employment in campus placements and average

expected salary, same would have to be taken. But their failure to

do so, would not lead to a situation where a meritorious educated

student is equated with a coolie. Hence, opposition of insurer

against enhancement of monthly income of deceased is without

substance.

Deceased was 22 years of age and a bachelor. Claimants are

parents. As per decision of Hon'ble Supreme Court in the case of

National Insurance Co., Ltd., Vs. Pranay Sethi & Ors., reported

in AIR 2017 SC 5157, 40% of monthly income has to be added

towards future prospects and 50% has to be deducted towards

personal expenses. The proper multiplier applicable would be '18'.

Thus, loss of dependency would be:

Rs.12,000/- + 40% - ½ X 12 X 18 = Rs.18,14,400/-.

9. Claimants being parents would be entitled to Rs.40,000/-

each towards 'loss of filial consortium'. They would also be entitled

to Rs.15,000/- towards 'funeral expenses' and Rs.15,000/- towards

'loss of estate'. Since more than 3 years have lapsed after

rendering decision in Pranay Sethi's case (supra), 10% has to be

added to award under conventional heads. Thus, total

compensation would be Rs.18,14,4000/- + Rs.1,21,000 =

Rs.19,35,400/-. Point for consideration is answered partly in

affirmative.

10. In the result , I pass following:

ORDER

Appeal is allowed in part with costs.

               Claimants    are     held       entitled   to       enhanced

      compensation          of     Rs.19,35,400/-              as   against

Rs.15,42,000/- awarded by tribunal. The same shall

carry interest at 6% per annum from date of petition

till deposit.

             Directions    issued   by   tribunal   regarding

       apportionment,     deposit and release shall apply   to

       enhanced compensation also.