Karnataka High Court

Mr. Babu Sherif @ Babu S vs M/S Tata Aig General Insurance Co. ... on 21 June, 2022

Bench: Anant Ramanath Hegde

                             1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF JUNE, 2022

                        BEFORE

  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

           M.F.A.NO.6761 OF 2016 (MV-I)
                       C/W
           M.F.A.NO.6762 OF 2016 (MV-D)

IN M.F.A.NO.6761/2016:

BETWEEN:

MR. BABU SHERIF @ BABU S,
S/O SARDAR SHERIF,
AGED ABOUT 29 YEARS,
RESIDING AT 554/A,
SOMESHWARA NAGAR,
SIDDAPURA,
OPP.LITTLE ANGELS SCHOOL,
1ST BLOCK, JAYANAGAR
BANGALORE-560 011.                      ...APPELLANT

(BY SRI GURUDEV PRASAD K T, ADV.)

AND:

  1. M/S TATA AIG GENERAL INSURANCE
     CO. LTD., 69, 2ND FLOOR,
     J P & DEVI JAMBUKESHWARI
     ARCADE, MILLERS ROAD,
     BANGALORE-560 052,
     BY ITS MANAGER.

  2. MR JAVEED KHAN,
     MAJOR,
     S/O KHASIM KHAN,
     R/AT NO.28, 7TH MAIN,
     GURAPPANAPALYA,
                               2




     BANNERGHATTA ROAD,
     BANGALORE-560 029.                  ...RESPONDENTS

(BY SRI RAVI S SAMPRATHI, ADV. FOR R1,
 V/O/DT: 11.03.22, NOTICE TO R2 IS DISPENSED)
                          ----
      THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 27.05.2016 PASSED IN MVC
NO.857/2015 ON THE FILE OF THE MEMBER, PRINCIPAL
M.A.C.T, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

IN M.F.A.NO.6762/2016:

  1. SMT. ZAKIRA BANU @ JAKIRA,
     W/O LATE AFSAR PASHA,
     AGED ABOUT 46 YEARS.

  2. IMRAN PASHA,
     S/O LATE AFSAR PASHA,
     AGED ABOUT 28 YEARS.

  3. MUBARAK PASHA,
      S/O LATE AFSAR PASHA,
     AGED ABOUT 21 YEARS.

  4. MISS FIRDOS BANU,
     D/O LATE AFSAR PASHA,
     AGED ABOUT 26 YEARS.

ALL ARE RESIDING AT NO.129,
BADAMAKHAN, H SIDDAIAH ROAD,
OPP.MTR HOTEL,
BANGALORE-560027.                           ...APPELLANTS

(BY SRI GURUDEV PRASAD K.T, ADV.)
                                     3




AND:

  1. M/S TATA AIG GENERAL INSURANCE CO. LTD.,
     69, 2ND FLOOR,
     J P & DVI, JAMBUKESHWARI ARCADE,
     MILLERS ROAD,
     BANGALORE-560052,
     BY ITS MANAGER.

  2. MR JAVEED KHAN,
     S/O KHASIM KHAN
     MAJOR,
     R/AT NO.28, 7TH MAIN,
     GURAPPANAPALYA,
     BANNERGHATTA ROAD,
     BANGALORE-560029.                               ...RESPONDENTS

(BY SRI RAVI S SAMPRATHI, ADV. FOR R1,
 V/O/DT: 17.03.2022, NOTICE TO R2 IS DISPENSED)
                          ----
      THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 27.05.2016 PASSED IN MVC
NO.1120/2015 ON THE FILE OF THE MEMBER, PRINCIPAL
M.A.C.T AT BENGALURU (S.C.C.H-1), PARTLY ALLOWING THE
CLAIM    PETITION   FOR   COMPENSATION     AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-


                            JUDGMENT

This appeal is filed by the claimant seeking

enhancement of compensation challenging the judgment

and award dated 27.05.2016 in MVC No.857/2015 passed

by the Member Principal Motor Accident claims Tribunal,

Bengaluru, (SCCH-1).

2. For the sake of convenience, parties are

referred as per their rank before the Tribunal.

3. Heard the learned advocate for the appellant

and the learned advocate for respondents No.1. Notice to

respondent No.2 is dispensed with as there is no dispute

as to the liability of insurer.

4. Brief facts of the case :-

On 04.01.2015 at about 5.00 p.m., petitioner along

with others was in Id-milad procession. The procession

was proceeding on the left side of K.R. Road and when it

came near Annakutira Hotel, K.R. Market, LGV Tempo

bearing registration No.KA-20-934 being driven in high

speed, rashly and negligently came from K.R. Road and

dashed against pedestrians including the petitioner. The

injured including the petitioner were shifted to the Victoria

Hospital. The petitioner was aged 28 years mechanic by

profession earning Rs.600/- per day at the time of accident

is the claim. He incurred Rs.40,000/- towards treatment

and suffered permanent disability. Therefore sought for

compensation of Rs.6,00,000/-.

5. The Tribunal after appreciating the evidence on

record awarded the compensation as under :-

i) Injury, Pain and Suffering Rs.40,000/-

ii) Medical expenses Rs.50,046/-

iii) Loss of income during laid up Rs.22,500/-

period (7500X3)

iv) Attendant, conveyance and Rs.10,000/-

             other           miscellaneous
             expenses
      v)     Loss of income on account of       Rs.1,44,000/-
             disability
      vi)    Loss of amenities of life          Rs.20,000/-

             Total                              Rs.2,86,546/-

6. The claimant being aggrieved has preferred

this appeal seeking enhancement.

7. There is no dispute over the fact that

respondent No.1 insurer has insured the vehicle of

respondent No.2. Hence, the question is whether the

claimant is entitled to claim enhancement of the

compensation? The claimant was aged 28 years at the

time of accident and according to him he was earning

Rs.15,000/- per month as a mechanic. The claimant

sustained type III B open fracture of right lateral

malleoles. He was treated as inpatient from 04.01.2015 to

13.01.2015. The discharge certificate at Ex.P14 would

reveal that the claimant has suffered "Type III B open

fracture of right lateral malleolus. The doctor has assessed

30.31% of permanent disability to the right lower limb and

15.15% to the whole body. The claimant was aged 31

years and in the absence of income, Tribunal has assessed

income of the claimant at Rs.7,500/- per month. As per

the chart prepared by the Karnataka State Legal Service

Authority notional income for the accident for the year

2015 is to be taken at Rs.9,000/- per month. The

compensation under the loss of income would

Rs.9000X12(Months)X16(Multiplier)X10/100(percentage of

disability)=1,72,800/-. The Tribunal has awarded

Rs.1,44,000/- under the said head. Thus enhanced

compensation would Rs.28,800/-.

8. Under the said head Loss of income during the

laid-up period of three months, the award would be

enhanced to Rs.27,000/- (9000X3=27000) as against

Rs.22,500/- is awarded by the Tribunal.

9. Considering the nature of the injuries suffered

by the claimant, this Court is of the opinion that

compensation is to be enhanced to Rs.60,000/- towards

injury, pain and suffering as against of Rs.40,000/-

awarded by the Tribunal.

10. It is noticed that the Tribunal has awarded

Rs.20,000/- towards loss of amenities in life and this Court

is of the view that under the said head is to be enhanced

to Rs.30,000/-.

11. The claimant is entitled to enhanced

compensation as under :-

i) Injury, Pain and Suffering Rs.60,000/-

ii) Medical expenses Rs.50,046/-

iii) Loss of income during laid up Rs.27,000/-

period (9000X3)

iv) Attendant, conveyance and Rs.10,000/-

        other          miscellaneous
        expenses
 v)     Loss of income on account of    Rs.1,72,800/-
        disability
 vi)    Loss of amenities of life       Rs.30,000/-

        Total                           Rs.3,49,846/-

Less the amount awarded by Rs.2,86,546/- the Tribunal Rs.63,300/-

12. The enhanced compensation is Rs.63,300/-.

Hence, the following :-

ORDER

(i) Appeal is allowed-in-part. The impugned judgment

and award dated 27.05.2016 passed by the Principal

Motor Accident Claims Tribunal, Bangalore (SCCH-1) in

MVC No.857/2015 is modified.

(ii) The appellant/claimant is entitled for enhanced

compensation of Rs.63,300/ along with interest @ 6%

p.a. from the date of the petition till realisation.

(iii) The respondent/insurance company shall

deposit the amount within eight weeks after deducting

the amount, if any, already paid.

(iv) In all other aspects, the award of the Tribunal is

undisturbed.

MFA NO.6762/2016

JUDGMENT

This appeal is filed by the claimants seeking

enhancement of compensation challenging the judgment

and award dated 27.05.2016 in MVC No.1120/2015 passed

by the Member Principal Motor Accident claims Tribunal,

Bengaluru, (SCCH-1).

2. For the sake of convenience, parties are

referred as per their rank before the Tribunal.

3. Heard the learned advocate for the appellants

and the learned advocate for respondents No.1. Notice to

respondent No.2 is dispensed with as there is no dispute

as to the liability of insurer.

4. Brief facts of the case :-

On 04.01.2015 at about 5.00 p.m., deceased Afsar

Pasha along with others was in Id-milad procession. The

procession was proceeding on the left side of K.R. Road

and when it came near Annakutira Hotel, K.R. Market, LGV

Tempo bearing registration No.KA-20-934 being driven in

high speed, rashly and negligently came from K.R. Road

and dashed against pedestrians including the deceased.

Afsar Pasha was shifted to the Victoria Hospital. He

succumbed to the injuries. He was aged 55 years at the

time of accident. The claimants being wife and children

filed claim petition seeking compensation of

Rs.20,00,000/- The deceased was aged 55 years engaged

in scrap business earning Rs.15,000/- per month at the

time of accident is the claim. The claimants claimed to

have incurred Rs.1,00,000/- towards hospitalization and

funeral expenses. Therefore sought for compensation of

Rs.20,00,000/-.

5. The Tribunal after appreciating the evidence on

record awarded the compensation as under :-

i) Loss of dependency Rs.7,59,000/-

ii) Compensation to the family Rs.1,00,000/-

members (children and family members other than wife) for loss of love and affection deprivation of protection, social security etc.,

iii) Compensation to the widow of Rs.50,000/-

the deceased for loss of love and affection, pains and sufferings, loss of consortium, deprivation of protection, social security etc.,

iv) Cost incurred on account of Rs.10,000/-

funeral and ritual expenses Total Rs.9,19,000/-

6. The claimants have preferred this appeal

seeking enhancement.

7. The deceased was aged 55 years at the time of

accident. No proof is produced relating to the income of

deceased. The Tribunal has taken the monthly income @

Rs.7,500/-. As per the chart prepared by the Karnataka

State Legal Services Authority, for the accident of the year

2015, notional income has to be taken @ Rs.9,000/- per

month 10% to be added towards future prospects. Since

there are four dependents, 1/4th is to be deducted towards

personal expenses of the deceased. Hence, loss of

dependency would Rs.9900(monthly income+900 future

prospects)X 12(Months)X11 (Multiplier)X3/4(after

deducting 1/4 towards personal expenses)=Rs.9,80,100/-.

8. The compensation awarded under the heads of

consortium, funeral expenses and loss of estate is to be

modified as per the ratio laid down by the Hon'ble Apex

Court reported in (2017) 16 SCC 680 in the case of

National Insurance Company Limited V/s. Pranay

Sethi and others and in the case of Magma General

Insurance Company Limited V/s. Nanu Ram Alias

Chuhru Ram and Others reported in (2018) 18 SCC 130.

As there are four dependents, Rs.40,000/- each to each of

the claimants has to be awarded towards loss of

consortium.

9. The claimants are entitled to compensation as

under :-

i) Loss of dependency Rs.9,80,100/-

ii) Loss of consortium Rs.1,60,000/-

  iii)         Loss of estate                        Rs.15,000/-

  iv)          Cost incurred on account of Rs.15,000/-
               funeral and ritual expenses
               Total                       Rs.11,70,100/-

Less the amount awarded by Rs.9,19,000/- the Tribunal Rs.2,51,100/-

10. The enhanced compensation is Rs.2,51,100/-.