Karnataka High Court
Nayaz Ahmed vs Indu L Patel on 18 July, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.1349 OF 2020(MV)
BETWEEN:
1. NAYAZ AHMED
S/O LATE ABDUL AMIR SAB
@ AMIRSAB
AGED ABOUT 24 YEARS
2. KUM JABEENA
D/O LATE ABDUL AMIR SAB
@ AMIRSAB
AGED ABOUT 26 YEARS
BOTH ARE RESIDING AT
KAGEKODAMAGGE VILLAGE
THALLIKATTE POST
BHADRAVATHI TALUK.
...APPELLANTS
(BY SRI. M V MAHESWARAPPA, ADV.)
AND
1 . INDU L PATEL
S/O LOKESHAPPA
AGED ABOUT 43 YEARS
2
JUNIOR ASSISTANT D C C BANK
HOLEHONNUR
R/O DWC 137/1A
HUTHA COLONY
BHADRAVATHI
SHIVAMOGGA-577201.
2 . THE BRANCH MANAGER
NATIONAL INSURNACE CO LTD
DIVISIONAL OFFICE
HARSHA COMPLEX
IST FLOOR, B H ROAD
SHIVAMOGGA-577201.
...RESPONDENTS
(BY SRI.SURESH KUMAR H M., ADV. FOR R1:
SMT. GEETHA RAJ, ADV. FOR R2:)
THIS MFA IS FILED UNDER SECTION.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DATED:18.01.2019 PASSED IN MVC NO.42/2018 ON
THE FILE OF THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SHIMOGA, SITTING AT
BHADRAVATHI, ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) has been filed by the claimants being
aggrieved by the judgment and award dated
18.1.2019 passed by the IV Addl. District and
Sessions Judge, Shimoga, sitting at Bhardravathi in
MVC 42/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 6.2.2017 when the deceased
Abdul Ameer Sab was proceeding by walk from
Tallikate side towards Kagekodamagge Village, near
Sattar Sab Poultry farm, at that time, a motorcycle
bearing registration No.KA-18-R-5918 which was
being ridden in a rash and negligent manner, dashed
against the deceased. As a result of the aforesaid
accident, the deceased sustained grievous injuries and
succumbed to the injuries.
3. The claimants filed a petition under Section
166 of the Act seeking compensation for the death of
the deceased along with interest.
4. On service of summons, the respondents
appeared through their counsel and filed written
statements in which the averments made in the
petition were denied.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimants, in order to
prove their case, examined claimant No.1 as PW-1
and got exhibited documents namely Ex.P1 to Ex.P14.
On behalf of respondents, one witness was examined
as RW-1 and got exhibited documents namely Ex.R1
to Ex.R3. The Claims Tribunal, by the impugned
judgment, inter alia, held that the accident took place
on account of rash and negligent riding of the
offending vehicle by its rider, as a result of which, the
deceased sustained injuries and succumbed to the
injuries. The Tribunal further held that the claimants
are entitled to a compensation of Rs.526,000/- along
with interest at the rate of 6% p.a. and directed the
Insurance Company to deposit the compensation
amount along with interest. Being aggrieved, this
appeal has been filed.
6. The learned counsel for the claimants has
raised the following contentions:
Firstly, he contended that deceased was working
as a carpenter and he was aged about 56 years at the
time of the accident. Even as per the guidelines issued
by the Karnataka State Legal Services Authority, for
the accident taken place in the year 2017, the notional
income of the deceased has to be taken at
Rs.11,000/- p.m. But the Tribunal is not justified in
taking the monthly income of the deceased as merely
as Rs.9,000/-.
Secondly, as per the law laid down by the
Hon'ble Supreme Court in the case of NATIONAL
INSURANCE CO. LTD. -v- PRANAY SETHI AND
OTHERS [AIR 2017 SC 5157], in case the deceased
was self-employed or on a fixed salary, an addition of
10% of the established income towards 'future
prospects' should be the warrant where the deceased
was between the age group of 50-60 years. The same
may be considered.
Thirdly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ
2782], each of the claimants are entitled for
compensation of Rs.40,000/- under the head of 'loss
of love and affection and consortium'.
Fourthly, considering the age and avocation of
the deceased, the overall compensation awarded by
the Tribunal is on the lower side. Hence, he prays for
allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has raised the following
counter-contentions:
Firstly, even though the claimants claim that the
deceased was earning Rs.10,000/- per month, the
same is not established by the claimants by producing
documents. Therefore, the Tribunal has rightly
assessed the income of the deceased notionally.
Secondly, since the claimants have not
established the income of the deceased, they are not
entitled for compensation towards 'future prospects'.
Thirdly, the claimants are major children of the
deceased and they are not depending on the income
of the deceased. On appreciation of oral and
documentary evidence and considering the age and
avocation of the deceased, the overall compensation
awarded by the Tribunal is just and reasonable.
Hence, he prays for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award of the Tribunal.
9. It is not in dispute that deceased Abdul
Ameer Sab died in the road traffic accident occurred
due to rash and negligent riding of the offending
vehicle by its rider.
The claimants claim that deceased was earning
Rs.10,000/- per month by doing carpenter work. But
they have not produced any documents to prove the
income of the deceased. The Division Bench of this
Court in MFA 1863/2017 disposed of on 23.6.2020 has
held that even though if the income pleaded by the
claimants is far less than the notional income, this
Court can exercise power under Order 41 Rule 33 of
CPC and award just and reasonable compensation. In
the absence of proof of income, the notional income
has to be assessed. As per the guidelines issued by
the Karnataka State Legal Services Authority, for the
accident taken place in the year 2017, the notional
income of the deceased has to be taken at
Rs.11,000/- p.m.
To the aforesaid income, 10% has to be added
on account of future prospects in view of the law laid
down by the Constitution Bench of the Supreme Court
in 'PRANAY SETHI' (supra). Thus, the monthly
income comes to Rs.12,100/-. Since the claimants
are major children of the deceased, the Tribunal has
rightly deducted 50% of the income of the deceased
towards personal expenses and remaining amount has
to be taken as his contribution to the family. The
deceased was aged about 56 years at the time of the
accident and multiplier applicable to his age group is
'9'. Thus, the claimants are entitled to compensation
of Rs.653,400/- (Rs.12,100*12*9*50%) on account of
'loss of dependency'.
In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of
estate' and compensation of Rs.15,000/- on account
of 'funeral expenses'.
In view of the law laid down by the Supreme
Court in the case of 'MAGMA GENERAL
INSURANCE' (supra), claimant Nos.2 and 3, children
of the deceased are entitled for compensation of
Rs.40,000/- each under the head of 'loss of parental
consortium'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 653,400
Funeral expenses 15,000
Loss of estate 15,000
Loss of parental 80,000
consortium
Total 763,400
11. In the result, the appeal is allowed in
part. The judgment of the Claims Tribunal is modified.
The claimants are entitled to a total
compensation of Rs.763,400/- as against
Rs.526,000/- awarded by the Tribunal.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. from the date of filing of the claim petition till the
date of realization, within a period of six weeks from
the date of receipt of copy of this judgment.
In view of the order dated 18.7.2022 passed by
this Court, the claimants are not entitled for interest
for the delayed period of 224 days in filing the appeal.
Sd/-
JUDGE
DM
