Karnataka High Court
Iqbal Alam vs Sana Faisal Rizvi on 24 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No. 3289 OF 2022 (MV)
BETWEEN:
1. IQBAL ALAM
S/O MATLOOB ALAM,
NOW AGED ABOUT 55 YEARS,
2. NILUFAR ALAM
W/O IQBAL ALAM,
NOW AGED ABOUT 50 YEARS,
3. INSHA ALAM
D/O IQBAL ALAM,
NOW AGED ABOUT 15 YEARS,
APPELLANT NO.3 IS MINOR
REPRESENTED BY HER
N/G FATHER APPELLANT NO.1.
ALL ARE R/AT NO.2,
LOYOLA SCHOOL AREA,
BISTUPUR, BISTUPUR,
JAMSHEDPUR,
JHARKHAND-831 001.
...APPELLANTS
(BY SRI. RAGHU R., ADVOCATE)
2
AND:
1. SANA FAISAL RIZVI
W/O SYED INAMUL HASSAN,
NOW AGED ABOUT 25 YEARS,
OWNER OF MARUTHI CAR NO.
KA-03-NE-0133,
R/A RIZVI GARDENS, BUDIGERE CROSS,
OLD MADRAS ROAD, NIRMALA FARM,
BENGALURU NORTH-560 049.
2. THE BRANCH MANAGER
ICICI LOMBARD GEN. INS. CO. LTD.
BRANCH OFFICE, 2ND FLOOR,
BELLAND AND COMPANY BUILDING,
ABOVE HERO HONDA SHOW ROOM,
BANNIGIDA SHOP, GOKUL ROAD,
HUBLI-580 030.
...RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R2
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
17.12.2021 PASSED IN MVC NO. 44/2020 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
HIRIYUR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, 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 dated 17.12.2021 passed
by the Court of Senior Civil Judge & Additional Motor
Accident Claims Tribunal, Hiriyur in MVC No.44/2020.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 24.11.2019, at about 7.00
a.m., when the deceased Eshan Alam @ Alam Eshan
was proceeding in a car bearing registration No.
KA.03.NE.0133, along with its driver from Bengaluru
to Goa to attend 1st respondent's work. When the
vehicle reached near Adivala village, Hiriyur on NH.4,
at that time, the said driver of the car, which was
being driven in a rash and negligent manner, dashed
against the lorry bearing registration
No.TN.28.AC.4664. 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 respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied.
The respondent No.1 did not appear before the
Tribunal inspite of service of notice and hence was
placed ex-parte.
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 Iqbal Alam
as PW-1 and got exhibited documents namely Ex.P1
to Ex.P17. 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.17,40,000/-
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, the claimants claim that the deceased
was aged about 21 years at the time of the accident
and he was earning Rs.21,500/- per month by
working as Assistant Manager at United Developments
Pvt. Ltd. The claimants have produced Ex-P7 to 11
true copies of the pay slips, inspite of that the Tribunal
is not justified in taking the monthly income of the
deceased as merely as Rs.15,000/-.
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
40% of the established income towards 'future
prospects' should be the warrant where the deceased
was below the age of 40 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, 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.21,500/- per month and
accepting producing of Ex-P7 to 11 true copies of the
pay slips. But they have not examined the employer
to prove the same. 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.
Hence, he prays 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 Eshan
Alam @ Alam Eshan has 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.25,500/- per month. Except producing Ex-P7 to 11
true copies of the pay slips, they have not examined
the employer to prove the same. Therefore, the
Tribunal has rightly assessed the notional income of
the deceased as Rs.15,000/-.
To the aforesaid income, 40% 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.21,000/-. Since, the deceased
was a Bachelor, 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 21 years at the time of the accident and
multiplier applicable to his age group is '18'. Thus,
the claimants are entitled to compensation of
Rs.22,68,000/- (Rs.21,000*12*18*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.1 and 2, parents
of the deceased are entitled for compensation of
Rs.40,000/- each under the head of 'loss of filial
consortium'. Claimant No.3 is entitled for Rs.40,000/-
under the head of 'loss of love and affection'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 22,68,000
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Loss of Love and 40,000
affection
Total 24,18,000
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.24,18,000/- as against
Rs.17,40,000/- 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.
Sd/-
JUDGE
JY
