Karnataka High Court
Sri Jameel Pasha @ Jameel Basha vs Sri Chilla Thirupathaiah on 1 June, 2022
Bench: B.Veerappa, K S Hemalekha
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MFA No. 2944 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO. 2944 OF 2021 (MV)
BETWEEN:
1. SRI JAMEEL PASHA @ JAMEEL BASHA,
S/O LATE ABDUL GANI,
AGED ABOUT 50 YEARS
2. SMT. SHAMSHAD BANU,
W/O JAMEEL PASHA @
JAMEEL BASHA,
AGED ABOUT 45 YEARS,
3. SRI RAFIQ AHAMED,
S/O JAMEEL PASHA @
JAMEEL BASHA
AGED ABOUT 25 YEARS
3. SRI UMAR FAROOQ
Digitally signed by S/O JAMEEL PASHA @
GAVRIBIDANUR
SUBRAMANYA JAMEEL BASHA,
GUPTA SREENATH
Location: High AGED ABOUT 17 YEARS,
Court of Karnataka
ALL ARE RESIDENTS OF:
BEHIND CHIKKA MASJID,
SIRA ROAD, PAVAGADA TOWN,.
TUMKURU DISTRICT
NOW RESIDING AT
KHAJI MOHALLA,
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MFA No. 2944 of 2021
1ST WARD, MADHUGIRI TOWN,
TUMAKURU DISTRICT - 572132.
...APPELLANTS
(BY SRI. SATHISHA T., ADVOCATE)
AND:
1. SRI CHILLA THIRUPATHAIAH,
S/O CHILLA SANNA BALANNA,
AGED ABOUT 40 YEARS,
R/O 3-61-4, ELLUTAL,
ELLUTAL VILLAGE, PUTLUR,
ANANTHAPURA DISTRICT,
ANDHRA PRADESH - 510001.
2. CHOLAMANDALAM N. S. GENERAL
INSURANCE COMPANY LTD.,
ANANTHAPUR CIE,
GANESHAM ENCLAVE,
18/169, UMA NAGAR,
THILAK ROAD, OLD TOWN,
ANANTHAPURA TOWN,
ANANTHAPURA DISTRICT,
A. P.,
NOW REPRESENTED BY
CHOLAMANDALAM N. S.,
GENERAL INSURANCE COMPANY LTD.,
UNIT NO.4, 9TH FLOOR,
LEVELE-06, 59TH CROSS,
GOLDEN HIGHTS COMPLEX,
RAJAJINAGAR,
BANGALORE - 560010.
...RESPONDENTS
(BY SRI SUNIL KUMAR K., ADVOCATE;
SRI H.S. LINGARAJUM ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED
01.06.2022)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
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MFA No. 2944 of 2021
AWARD DATED 20.04.2021 PASSED IN MVC NO.344/2019 ON
THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE AND MACT,
TUMAKURU, SITTING AT MADHUGIRI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ORDERS THIS DAY, K.S. HEMALEKHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is preferred by the claimants assailing
the judgment and award dated 20/04/2021, passed in M.V.C.
No.344/2019 on the file of the IV Addl. District Judge & MACT,
Tumakuru, sitting at Madhugiri, (hereinafter referred to as "the
Tribunal" for short), seeking enhancement of compensation.
2. The parties herein are referred to as per their ranking
before the Tribunal for the sake of convenience.
3. The claimants filed the claim petition under Section
166 of the Motor Vehicles Act, 1988 ('the Act' for short),
seeking compensation of Rs.50,00,000/- on account of death
of one Syed Shaheena Banu in a fatal road traffic accident that
occurred on 24.11.2018, while the deceased along with her
parents and her elder brother were returning in Maruthi-800
car bearing Registration No.KA-03-N-7744. At that time, one
MFA No. 2944 of 2021
Mahindra Bolero bearing Registration No.AP-02-TF-0388 driven
by its driver came in a rash and negligent manner and dashed
against the Maruthi car and due to the impact of the accident,
the deceased Syed Shaheena Banu succumbed to the injuries.
The claimants are the parents and brother of the deceased.
It is the contention of the claimants that Syed Shaheena Banu
was very hale and healthy at the time of the accident and was
working in a company earning Rs.30,000/- per month and she
was the only bread winner of the family. Thereby sought for
compensation.
4. In pursuance of the notice issued by the Tribunal,
respondent No.1 appeared and filed the written statement
denying the averments made in the claim petition.
Respondent No.2/Insurance company appeared and filed
objections denying the age, occupation and also the occurrence
of the accident. It is the contention of the Insurance
Company that there is no nexus in between the driver of the
vehicle and the alleged accident and sought for dismissal of the
claim petition.
MFA No. 2944 of 2021
5. The Tribunal on the basis of the pleadings framed
following issues:
1. Whether the petitioners prove that an accident
is occurred on 24.11.2018 at about 11.45 p.m.
near Nallekamanahalli Village, Madhugiri-
Pavagada main Road, Medigeshi Hobli,
Madhugiri Taluk, Tumkur Dist., due to rash and
negligent driving of Mahendra Bolero bearing
Registration No. AP-02-TF-0388 by its driver
and the deceased Syed Shaheena Banu D/o
Jameel Pasha @ Jameel Basha died due to
injuries sustained in the said accident?
2. Are petitioners entitled for compensation? If
so? How much and from whom?
6. In order to substantiate their case, the claimant No.2
examined herself as PW.1 and got marked 24 documents at
Ex.P-1 to P-24. On the other hand, the respondent
No.2/Insurance company examined its Assistant Manager as
RW.1 and got marked copy of insurance policy as Ex.R1.
7. The Tribunal, on the basis of the pleadings, evidence
and the material on record, answered issue No.1 in the
affirmative and issue No.2 partly in the affirmative holding that
MFA No. 2944 of 2021
the accident occurred due to the rash and negligent driving of
rider of Mahendra Bolero bearing Registration NO.AP-02-TF-
0388 and due to the impact of the accident, the deceased Syed
Shaheena Banu D/o Jameel Pasha succumbed to the injuries
and fastened the liability upon respondent No.2/insurance
company and awarded compensation of Rs.16,80,000/- with
interest at the rate of 6% per annum from the date of petition
till the date of realization.
8. Aggrieved by the quantum of compensation awarded
by the Tribunal being on meager side, the present appeal is
filed by the claimants for enhancement of compensation.
9. The respondent No.2/Insurance Company has not
preferred any appeal against the impugned Judgment & Award
passed by the Tribunal.
10. We have heard the learned counsel for the patties.
11. Sri Sathisha T, learned counsel for the
appellants/claimants would contend that the Tribunal has taken
the income of the deceased at Rs.10,500/- without considering
that the deceased was B.Com graduate and was working in a
MFA No. 2944 of 2021
company earning Rs.30,000/- per month and thus the income
taken by the Tribunal at Rs.10,500/- is on the lower side and
that the Tribunal awarded compensation of Rs.44,000/- only
under the head of 'loss of consortium' without considering the
number of dependants, who are '4' in number. It is also
contended by the learned counsel that future prospects taken
by the Tribunal is not as per the dictum of the Apex Court in
the case of National Insurance Company Limited -vs
Pranayh Sethi and others reported in (2017)16 SCC 680 and
same needs to be 40%. Thus, sought to contend that,
compensation awarded by the Tribunal needs to be enhanced
and allow the appeal.
12. Per contra, Sri Sunil Kumar .K., learned counsel
appearing for Respondent No.2/Insurance Company while
justifying the impugned Judgment & Award passed by the
Tribunal would contend that the Tribunal has rightly taken the
income of the deceased at Rs.10,500/- as there are no
documents produced by the claimants to show the actual
income of the deceased though it is alleged that the deceased
was earning Rs.30,000/- per month. In the light of this, award
of compensation by the Tribunal is just and proper and does
MFA No. 2944 of 2021
not call for any interference by this Court and sought for
dismissal of the appeal.
13. Having heard learned counsel for the parties and on
perusal of the material on record, the only point that would
arise for our consideration in the present appeal is:
"Whether the claimants/appellants have made out
any case for enhancement of compensation in the
facts and circumstances of the present case?"
14. The date, time and occurrence of the accident are not
in dispute. It is also not in dispute that the accident occurred
due to the rash and negligent driving of driver of the Mahendra
Bolero vehicle bearing Registration No.AP-02-TF-0388 and due
to which, the deceased Syed Shaheena Banu succumbed to the
injuries. It is also not in dispute that the jurisdictional Police
registered criminal case in Crime No.112/2018 under sections
279, 337 and 304A of IPC against the driver of the offending
vehicle. The same is evidenced from Ex.P3/FIR and Ex.P8 -
final report/charge sheet. Thus, the dispute is only with regard
to quantum of compensation awarded by the Tribunal. It is the
contention of the learned counsel for the appellants/claimants
MFA No. 2944 of 2021
that the deceased was working in a private company and
earning Rs.30,000/- per month. It is relevant to note that the
claimants have not produced any documentary evidence to the
effect that the deceased was earning Rs.30,000/- per month
except oral testimony of PW.1. In the absence of any
documentary evidence by the claimants, as per the guidelines
issued by the Karnataka State Legal Services Authority, for the
accident that occurred in the year 2018, the notional income to
be taken is Rs.12,500/- per month. As the deceased was aged
24 years as per the dictum of the Apex Court in the case of
National Insurance Company Limited -vs- Pranay Sethi
and others [2017 ACJ 2700], adding 40% towards future
prospects, the total income would come to Rs.17,500/-. As
the deceased was a bachelor, after deducting 50% towards
personal expenses, net income would come to Rs.8,750/-, in
terms of dictum of the Apex Court in the case of Sarla Verma -
vs- Delhi Transport Corporation [(2009)6 SCC 121}. As the
deceased was 24 years, the applicable multiplier is '18'. Thus,
the total compensation under the head of 'loss of dependency'
would be Rs.18,90,000/- (8750 x 12 x 18).
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MFA No. 2944 of 2021
15. The Tribunal has awarded compensation of
Rs.44,000/- under the head loss of consortium without
considering the fact that the dependants were '4' in number.
As per the dictums of the Apex Court in United India
Insurance Company Limited vs. Satinder Kaur and others
[AIR 2020 SC 3076] and Magma General Insurance
Company Ltd. (2018 ACJ 2782), the claimants are entitled
to consortium at Rs.40,000/- each i.e. Rs.1,60,000/-
(Rs.40,000/-x 4).
16. In so far as quantum of compensation awarded by
the Tribunal under the heads of 'transportation expenses',
'funeral expenses' and 'loss of estate', the same is just and
proper and does not call for any interference.
17. In view of the above, we answer the point raised in
the present appeal in the affirmative in favour of the claimants
holding that the claimants have made out a case for
enhancement of compensation, in the facts and circumstances
of the case.
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MFA No. 2944 of 2021
18. After re-assessing the material on record, we are of
the considered opinion that he claimants are entitled for just
and proper compensation as under:
Sl. Head of compensation Amount in Rs.
No.
1 Loss of dependency 18,90,000
2 Loss of consortium 1,60,000
3 Transportation expenses 15,000
4 Funeral expenses 16,500
5 Loss of estate 16,500
Total 20,98,000
19. The Tribunal has already awarded a sum of
Rs.16,80,000/- and deducting the same out of Rs.20,98,000/-,
the claimants are entitled to enhanced compensation of
Rs.4,18,000/- with interest at 6% per annum from the date of
petition till the date of realization.
20. In the result, we pass the following:
ORDER
(i) The appeal filed by the claimants is allowed in
part.
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MFA No. 2944 of 2021
(ii) The impugned Judgment & Award dated
20.04.2021 passed by the Tribunal is hereby
modified. The claimants are entitled for an
enhanced compensation of Rs.4,18,000/- (Rupees
four lakhs eighteen thousand only) with interest at
the rate of 6% per annum from the date of petition
till the date of realization.
(iii) The Insurance Company shall deposit the enhanced
compensation amount within a period of eight
weeks from the date of receipt of copy of this
judgment along with proportionate interest.
(iv) The apportionment, deposit and release of
compensation amount shall be as per the impugned
judgment of the Tribunal.
(v) The trial Court records be transmitted to the
concerned Court forthwith.
(vi) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
GSS
