Karnataka High Court

Smt. Shameem Taj vs M/S United India Insurance Co., ... on 16 June, 2022

Bench: H T Prasad

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16TH DAY OF JUNE 2022

                    BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

         MFA No.6117 OF 2019 (MV)

BETWEEN:

1.   SMT. SHAMEEM TAJ
     W/O. LATE SUYD ALMAZ,
     AGED ABOUT 49 YEARS.

2.   KUM. HEENA KOUSAR
     D/O. LATE SUYD ALMAZ,
     AGED ABOUT 25 YEARS.

3.   MR. SYED SALMAN
     D/O. LATE SUYD ALMAZ,
     AGED ABOUT 22 YEARS.

4.   MASTER:SYED SAHID
     D/O LATE SUYD ALMAZ,
     AGED ABOUT 10 YEARS.

     SINCE THE 4TH APPELLANT IS MINOR
     REPRESENTED BY HIS MOTHER AND NATURAL
     GUARDIAN SMT. SHAMMEM TAJ
     W/O. LATE SYED ALMAZ.

     ALL ARE R/AT NO.117,
     UPPPARPETE VILLAGE,
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     CHANDRAHALLI POST,
     CHINTHAMANI TALUK,
     CHIKKABALLAPURA DISTRICT.
     PIN -563 125.
                                  ...APPELLANTS

(BY SRI. GURUDEV PRASAD K.T., ADVOCATE)

AND:

1.   M/S UNITED INDIA INSURANCE CO., LTD.,
     MOTOR CLAIMS HUB,
     NO.18, 6TH FLOOR, NEAR KRUSHI BHAVAN
     HUDSON CIRCLE,
     BENGALURU -560 001.
     REPRESENTED BY ITS MANAGER.

2.   M/S. SRI. RANGA FUEL STATION
     PROP. SOWBHAGYAMMA,
     BPCL DEALER, T.BEGUR VILLAGE,
     NH TUMKUR MAIN ROAD,
     BENGALURU RURAL DIST.
     PIN-562 123.
                                 ...RESPONDENTS

(BY SRI. JANARDHAN REDDY., ADVOCATE FOR R1,
    SRI. P.M.SIDDAMALLAPPA, ADVOCATE FOR R2)

    THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST     THE    JUDGMENT    AND    AWARD
DATED:18.12.2017 PASSED IN MVC NO.1391/2017
ON THE FILE OF THE V ADDITIONAL SMALL CAUSES
JUDGE   AND    XXIV   ACMM,  MEMBER,   MACT,
BENGALURU (SCCH-20), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
                                3




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

                        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 dated 18.12.2017 passed

by the Motor Accident Claims Tribunal & V Additional

Judge, Court of Small Causes, Mayohall unit,

Bangalore in MVC No.1391/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.01.2017, when the

deceased Syud Almaz was proceeding on his motor

cycle bearing registration No.KA-07-H-6309, along

with pillion rider on IOC road, near Hunasehalli Cross,

Jadigenahalli Hobli, Bangalore, at that time, a lorry

bearing registration No.KA-52-8481, which was being

driven in a rash and negligent manner, dashed against

the deceased motor cycle. 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 respective counsel and filed

written statement 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 Shameem

Taj as PW-1, Syed Salman as PW-2 and Dr. S.A.

Somashekar as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P21. On behalf of respondents,

neither any witnesses were examined nor any

documents were produced. The Claims Tribunal, by

the impugned judgment, inter alia, held that the

accident took place on account of rash and negligent

driving of the offending vehicle by its driver, 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.9,42,000/- along with interest at the rate of 9%

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, the claimants claim that the deceased

was aged about 52 years at the time of the accident

and he was earning Rs.20,000/- per month by doing

scrap business. But the Tribunal is not justified in

taking the monthly income of the deceased as merely

as Rs.9,000/-.

Secondly, 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'.

Thirdly, the compensation awarded by the

Tribunal under the conventional heads 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.20,000/- 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, 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.

Lastly, he contended that the interest awarded

by the tribunal at 9% is on higher side, contrary to

the judgment of a Division Bench of this Court in the

case of JOYEETA BOSE -V- UNITED INSURANCE

CO. Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that deceased Syud

Almaz died in the road traffic accident occurred due to

rash and negligent driving of the offending vehicle by

its driver.

The claimants claim that deceased was earning

Rs.20,000/- per month. But they have not produced

any documents to prove the income of the deceased.

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, the Tribunal has rightly

added 10% of the income on account of future

prospects in view of the law laid down by the

Constitution Bench of the Supreme Court in the case

of NATIONAL INSURANCE CO. LTD. -v- PRANAY

SETHI AND OTHERS. Thus, the monthly income

comes to Rs.12,100/-. The Tribunal has rightly

deducted 1/3rd 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 52 years at the time of the accident

and multiplier applicable to his age group is '11'.

Thus, the claimants are entitled to compensation of

Rs.10,64,800/- (Rs.12,100*12*2/3*11) 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'. Claimant No.1, wife of the

deceased is entitled for compensation of Rs.40,000/-

under the head of 'loss of spousal consortium'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.2, 3 & 4, 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            10,64,800
       Funeral expenses                 15,000
       Loss of estate                   15,000
       Loss of spousal                  40,000
       consortium
       Loss of Parental                    1,20,000
       consortium
                      Total          12,54,800

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.12,54,800/- as against

Rs.9,42,000/- awarded by the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra), enhanced

compensation carries interest at 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest at

9%p.a. (enhanced compensation shall carry interest

at 6% per annum) from the date of filing of the claim