Karnataka High Court
Intiyaz @ Intiyaz Pasha vs Syed Khaza on 4 July, 2022
Bench: B.Veerappa, K S Hemalekha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL No.10526/2018 (MV-D)
BETWEEN:
1. INTIYAZ @ INTIYAZ PASHA,
AGED ABOUT 53 YEARS,
S/O SHAIK HUSSAIN SAB.
2. NAGEENA,
AGED ABOUT 23 YEARS,
D/O INTIYAZ @ INTIYAZ PASHA,
BOTH ARE R/AT
MAHALAKSHMI LAYOUT,
KOLAR TOWN - 563 101.
...APPELLANTS
(BY MISS. NAZEEFA M. MULLA, ADVOCATE FOR
SRI PAVANA CHANDRA SHETTY H., ADVOCATE)
AND:
1. SYED KHAZA,
AGED BY MAJOR,
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S/O AMEER JAIN,
SHAHID NAGAR,
KOLAR - 563 101.
2. UNITED INDIA INSURANCE CO. LTD.,
SUGUNA NURSING HOME BUILDING,
NEAR KSRTC BUS STAND,
ANTHARAGANGE ROAD,
KOLAR - 563 101.
...RESPONDENTS
(BY SRI A.N. KRISHNASWAMY, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 27.09.2018, PASSED IN
MVC NO.500/2015, ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE
AND MACT, KOLAR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSTION AND SEEKING
ENHNCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, K.S.HEMALEKHA J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
The present appeal is preferred by the claimants
who are the husband and daughter of deceased
Naseemunnisa, assailing the judgment and award
dated 27/09/2018 in MVC.No.500/2015 on the file of
the Principal Senior Civil Judge & MACT at Kolar,
(hereinafter referred to as 'the Tribunal' for short)
seeking enhancement of compensation, whereby the
Tribunal has awarded compensation of Rs.70,000/-
with interest at 6% per annum from the date of
petition till the date of realization.
2. The claimants filed claim petition under
Section 163A of the Motor Vehicles Act, 1988 seeking
compensation on account of death of Naseemunnisa,
who succumbed to the injuries sustained in a road
traffic accident that occurred on 28/06/2015 when the
deceased was proceeding in a motorcycle bearing
registration No.KA-07/S-5950 as a pillion rider, at
that time, the rider of the motorcycle one Nayaz
Pasha and when they reached Kurugal Gate, Kolar-
Chikkaballapur Road, Nayaz Pasha rode the
motorcycle in a rash and negligent manner jumped
the road humps, due to which the deceased fell down
and sustained grievous injuries and succumbed to the
injuries.
3. It is the contention of the claimants that
the deceased was working as a coolie making beedi
and agarbathi and was earning Rs.10,000/- per month
and the claimants being the husband and daughter of
the deceased, completely depending upon the income
of the deceased and thus, sought for the
compensation.
4. Pursuant to the notice issued by the
Tribunal, respondent No.1 remained absent and
hence, placed ex parte. Respondent No.2/insurance
company appeared through counsel and filed
statement of objection.
5. Respondent No.2/insurance company
contended that the accident occurred due to the
negligence on the part of the rider of the motorcycle
bearing registration No.KA-07/S-5950 and denied that
the deceased was earning Rs.10,000/- per month.
The insurance company contended that the liability of
the insurance company is subject to the terms and
condition of the policy as the vehicle was insured with
the insurance company.
6. The Tribunal, on the basis of the pleadings
of the parties, framed the following issues:
"(i) Whether the petitioners prove that deceased
Naseemunnisa Paha died due to road traffic
accident occurred on 28-6-2015 at about
8.30 a.m. at Kurugal Gate, Kolar-C.B.Pur
Road due to the rash and negligent act of the
rider of two wheeler bearing No.KA-07-S-
5950?
(ii) Whether petitioners are entitled for
compensation? If so, from whom and how
much?"
7. In order to substantiate the contentions of
the claimants, the husband of the deceased examined
himself as PW.1 and one witness Dr. M.Govindaraju as
PW.2 and got marked documents at Exs.P-1 to P-14.
On the other hand, respondent No.2/insurance
company examined the administrative officer as RW.1
and no document is produced on behalf of respondent
No.1.
8. The Tribunal on the basis of the pleadings,
oral and documentary evidence, held that the accident
occurred due to the rash and negligent riding of the
rider of the motorcycle bearing registration No.KA-
07/S-5950 and fastened the liability on the insurance
company awarding compensation of Rs.70,000/- with
interest at the rate of 6% per annum from the date of
petition till the date of realisation.
9. Aggrieved by the quantum of compensation
awarded by the Tribunal, the present appeal is filed by
the claimants seeking enhancement. No appeal is
preferred by the insurance company.
10. Heard learned counsel for the
appellants/claimants and the learned counsel for the
respondent/insurance company and perused the
material on record carefully.
11. Learned counsel for the appellants Nazeefa
M.Mulla appearing for Sri Pavanchandra Shetty, learned
counsel, would contend that the award of compensation
of the Tribunal to the extent of Rs.70,000/- is without
considering the fact that the deceased was earning
Rs.10,000/- per month by doing coolie work i.e.,
making beedi and agarbathi and would contend that the
Tribunal has not awarded any amount under the head
loss of dependency. It is further contended that even
assuming that the claimants have not produced any
documents to show the actual income, the Tribunal
ought to have considered that the petition is filed under
Section 163A of the MV Act and the maximum income
as per Section 163A of the said Act is Rs.40,000/- per
annum. This being so, the Tribunal has fell in error in
awarding lesser compensation than as contemplated
under Section 163A of the Act. It is further contended
that the Tribunal has awarded a very meager amount
under the conventional heads and thus, sought to
enhance the compensation.
12. Per contra, learned counsel, Sri
A.N.Krishnaswamy for respondent No.2/insurance
company would contend that the award of
compensation is just and proper in the absence of
any material evidence on record that the deceased
was earning Rs.10,000/- p.m., the Tribunal was
justified in awarding a compensation of Rs.70,000/-
and thus contended that the award of the Tribunal is
just and proper and does not call for any interference
at the hands of this Court and thus, sought for
dismissal of the appeal.
13. Having heard learned counsel for the
parties and having perused the material on record, the
only point that arises for consideration is:
"Whether the claimants are entitled for
enhanced compensation as contemplated
under Section 163A of the MV Act. ?
14. It is not in dispute that the accident
occurred on 28/06/2015 and the deceased
Naseemunnisa succumbed to the injuries and the
claimants are the husband and daughter of the
deceased. It is also not in dispute that the deceased
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was working in the beedi and agarbathi factory,
however, though the claimants contended that the
deceased was earning Rs.10,000/- per month, no
material is forthcoming to establish the same.
However, it is relevant to note that the petition is filed
under Section 163A MV Act and in regard to the
statutory provision, its limited application for
quantifying the income is maximum to Rs.40,000/-
per annum. This being so, the maximum income as
per Section 163A of the MV Act needs to be
considered. Taking into consideration the income of
the deceased at Rs.40,000/- per annum and applying
the multiplier 13 as the deceased was aged about 48
years and deducting 1/3rd towards the personal
expenses as the dependents are two in number, in
light of the judgment of the Apex Court in the case of
Sarla Verma vs. Delhi Transport Corporation
[(2009)6 SCC 121] (Sarla Verma). Thus, the total
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income under the head loss of dependency would be
Rs.3,46,666/- (40,000 x 13 x 2/3). Under the
conventional head, the claimant is entitled for
Rs.9,500/-.
15. On re-assessing the material on record, the
claimants are entitled for just and proper
compensation as under:
Loss of dependency : Rs.3,46,666/-
Conventional head : Rs. 9,500/-
----------------
Total : Rs.3,56,166/-
=========
16. The Tribunal has awarded a sum of
Rs.70,000/- deducting the same from Rs.3,56,166/-,
the claimants are entitled for enhanced compensation
of Rs.2,86,166/- with interest at the rate of 6% per
annum from the date of petition till the date of
realisation. Accordingly, we answer the point framed
for consideration partly in the affirmative.
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17. In the result, we pass the following
ORDER
(i) Miscellaneous first appeal is allowed in
part.
(ii) The impugned judgment and award dated
27/09/2018 in MVC.No.500/2015 on the file
of Prl. Senior Civil Judge & MACT, Kolar is
hereby modified and the claimants are
entitled for compensation of Rs.3,56,166/- as
against Rs.70,000/- and the enhanced
compensation which the claimants are entitled
is Rs.2,86,166/- with interest at the rate of
6% p.a. from the date of petition till the date
of the realisation
(iii) The insurance company is directed to deposit
the enhanced compensation within six weeks
form the date of receipt of a certified copy of
this order.
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(iv) On such deposit, the amount to be released in
favour of the claimants as per the
apportionment by the Tribunal.
(v) Trial Court record to be transmitted to
the concerned Court forthwith.
No order to costs.
Sd/-
JUDGE
Sd/-
JUDGE
S*
