Karnataka High Court
Smt.Daihalima vs Raghuveer on 4 January, 2022
Bench: S G Pandit, Anant Ramanath Hegde
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A. No. 103398/2016 (MV)
BETWEEN:
1. SMT. DAIHALIMA W/O SIKANDAR LALMIYA,
AGE: 46 YEARS, OCC: HOUSEWIFE.
2. SUHAIL S/O SIKANDAR LALMIYA,
AGE: 25 YEARS, OCC.: STUDENT.
3. SABAHAT ANJUM D/O SIKANDAR LALMIYA,
AGE: 23 YEARS, OCC.: STUDENT.
4. UMME HABIBA D/O SIKANDAR LALMIYA,
AGE: 20 YEARS, OCC.: STUDENT.
5. IRAM SHADAB D/O SIKANDAR LALMIYA,
AGE: 17 YEARS, OCC.: STUDENT.
6. SAJEEL AHMED S/O SIKANDAR LALMIYA,
AGE: 14 YEARS, OCC.: STUDENT.
7. SIMRA MAHEEN D/O SIKANDAR LALMIYA,
AGE: 17 YEARS, OCC.: STUDENT.
SINCE APPELLANTS NO. 5 TO 7 ARE MINORS
REP. BY M/G APPELLANT NO.1.
ALL ARE R/AT LATTIPETH, KORAKERI ONI,
(BAHABADA) OLD HUBBALLI, HUBBALLI,
NOW AT JANNAT NAGAR,
2
DHARWAD-580 007.
- APPELLANTS
(BY SRI. SIDDAPPA S. SAJJAN, ADVOCATE)
AND:
1. RAGHUVEER S/O SHRINIVAS DONGERKERRY,
AGE: MAJOR, OCC.: BUSINESS, R/O NO. 6,
1ST MAIN ROAD, CHANDRA REDDY LAYOUT,
P.O. VIVEK NAGAR, BENGALURU-560 047.
2. B.S. IRFAN AHMED KHAN,
AGE: MAJOR, OCC.: BUSINESS,
R/O B.A. SHABBIR AHMED,
DR. UMER SHARAIFF ROAD,
D# 12/13, BASAVANAGUDI,
BENGALURU-560 004.
3. THE DIVISIONAL MANAGER,
ICICI LOMBARD GENERAL ASSURANCE CO. LTD.,
OPPOSITE BELLAD SHOW ROOM,
NEAR BANNI GIDA STOP,
DIST: DHARWAD-580 020.
4. THE DIVISIONAL MANAGER,
THE NEW INDIA INSURANCE CO. LTD.,
SARASWATI SADAN, OPP: KITTLE COLLEGE,
P.B. ROAD, DHARWAD-580 007.
5. SUPREME TRANSPORT SOLUTION PVT. LTD.,
JAMNAGAR ESTATE, ASLALI DASCROI,
AHMEDABAD-380 001.
- RESPONDENTS
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R3,
SRI M.Y. KATAGI, ADVOCATE FOR R4,
NOTICE TO R1, R2 & R5 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V. ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 22.02.2016 PASSED IN M.V.C. NO. 52/2014 ON
THE FILE OF THE LEARNED PRL. SR. CIVIL JUDGE AND MEMBER,
AMACT, DHARWAD & ETC.
3
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, S.G. PANDIT J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though the appeal is listed for admission, with
consent of both sides, appeal is taken up for disposal.
2. The appellants are before this Court not being
satisfied with the compensation awarded under the
judgment and award dated 23.02.2016 passed in M.V.C.
No. 52/2014 on the file of the learned Prl. Sr. Civil Judge &
AMACT, Dharwad and praying for enhancement of
compensation.
Appellants are the wife and children of deceased
Sikandar Lalmiya who died in a motor vehicle accident that
occurred on 22.10.2013 involving bus bearing Regn. No.
KA-01-D-7906 and lorry bearing Regn. No. GJ-01-CT-1312.
The accident and the consequent death of the victim is not
in dispute in this appeal. The appellants are before this
Court praying for enhancement of compensation.
3. The claimants-appellants filed claim petition u/S
166(1) of the Motor Vehicles Act claiming compensation for
the death of Sikandar Lalmiya in road traffic accident. The
Tribunal on appreciation of the material on record awarded
the following compensation.
Loss of dependency ` 17,52,960.00
Medical Bills ` 1,40,887.00
Loss of consortium ` 10,000.00
Loss of estate ` 20,000.00
Transportation, funeral and obsequies ` 10,000.00
Total ` 19,33,847.00
While awarding compensation the Tribunal assessed income
of the deceased at `2,00,000/- per annum and deducted
1/5th towards personal expenses.
4. We have heard Sri Siddappa S. Sajjan, learned
counsel for the appellants-claimants and Sri Nagaraj C.
Kolloori, learned counsel for respondent No.3 and perused
the entire records including the original records.
5. Learned counsel for the appellants contends that the
Tribunal committed an error in assessing the income of the
deceased at `2,00,000/- per annum. Learned counsel
referring to Exhibits P10 to P13, income tax returns for the
years 2008-09 to 2012-13 submits that his average income
would be `2,21,000/- which the Tribunal ought to have
taken for calculating the compensation on the head of loss
of dependency. Even though the average income was
`2,21,000/-, the Tribunal has taken only `2,00,000/- per
annum without assigning any reason.
6. Further the learned counsel would submit that the
Tribunal also failed to grant compensation on the head of
future prospects. The deceased was running garments and
electronic goods business and he had bright future.
Deceased was aged 51 years and claimants are entitled to
add 10% of the assessed income towards future prospects.
It is also submitted that the claimants would be entitled for
consortium of `40,000/- each as held by the Hon'ble apex
Court in Magma General Insurance Co. Ltd, V. Nanu
Ram and Others (2018 ACJ 2782). Thus, prays for
enhancement of compensation by allowing the appeal.
7. Per contra, learned counsel for the respondent No.3
submits that the quantum of compensation awarded by the
Tribunal is just and proper, which needs no interference.
8. On perusal of the records it is seen that the accident
which had taken place on 22.10.2013 involving bus bearing
Reg. No. KA-01-D-7906 and lorry bearing Regn. No. GJ-01-
CT-1312 and the accidental death of the victim is not in
dispute in this appeal. First claimant is the wife and
claimants No.2 to 7 are the children of the deceased.
9. Before the Tribunal, the claimants to establish income
of the deceased, placed on record Exs.P.10 to P.13, income
tax returns for the years 2008-09 to 2012-13. Income tax
returns would be the best and safest base for assessing the
income of a person. Perusal of Ex.P.10, income tax returns
for the year 2008-09 indicates income of `1,65,120/-,
perusal of Ex.P.11, income tax returns for the year 2009-10
indicates income of `1,67,856/-, perusal of Ex.P.12, income
tax returns for the year 2010-11 indicates income of
`2,22,125/-, perusal of Ex.P.13, income tax returns for the
year 2011-12 indicates income of `2,35,738/-. There was
steady increase in the income of the deceased from the
year 2008-09 onwards. The Tribunal committed an error in
assessing the income of the deceased at `2,00,000/- per
annum without any basis and reason. Normally when the
income tax returns are placed on record, income would be
determined on the basis of average of previous three years
income. If the average income of previous three years is
taken, the average income of the deceased would be
`2,21,000/- per annum, after deducting income tax and
professional tax. Hence, it would be appropriate to assess
the income of the deceased at `2,21,000/- per annum.
10. The deceased was aged 51 years and there is no
dispute with regard to the age of the deceased. The
Hon'ble Apex Court in the case of National Insurance
Company Limited v. Pranay Sethi and Others (AIR
2017 SC 5157) has made it clear that wherever the
deceased who aged between 50-60 years, the claimant
would be entitled for adding 10% of the established or
assessed income towards future prospects.
11. Claimant No.1 is the wife and claimants No.2 to 7 are
the children of the deceased. The Hon'ble Supreme Court
in Pranay Sethi supra has made it clear that the wife
would be entitled for consortium of `40,000/- and would be
entitled for compensation of `30,000/- under conventional
heads. Hon'ble Supreme Court has also made it clear in
Magma General Insurance Company supra that the
children of the deceased would be entitled for consortium of
`40,000/- each on the head of parental consortium. Thus
the claimants No.2 to 7 would be entitled for `40,000/-
each towards parental consortium. Thus the claimants are
entitled for the following modified compensation:
Loss of dependency ` 21,39,280.00
(221000x10% - 1/5x11)
Medical Bills ` 1,40,887.00
Loss of consortium (`40,000/-x7) ` 2,80,000.00
Loss of estate ` 20,000.00
Transportation, funeral and obsequies ` 30,000.00
Total ` 26,10,167.00
In the result, we pass the following order.
ORDER
The appeal is allowed in part. Consequently, the
impugned judgment and award dated 23.02.2016 passed in
M.V.C. No. 52/2014 by the learned Prl. Sr. Civil Judge &
AMACT, Dharwad is modified to the extend that the
appellants-claimants are entitled to a total compensation of
`26,10,167/- as against `19,33,847/- awarded by the
Tribunal along with interest at 8% p.a. However, the
apportionment of compensation among the claimants shall
be in the same ratio as per the award of the Tribunal.
The respondent No.3-insurer shall deposit the entire
award amount along with up to date interest within a period
of six weeks.
Registry to return the original records forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
bvv
