Karnataka High Court

M/S. Royal Sundaram General ... vs Sri. Md. Aazmathulla on 27 June, 2022

Bench: H T Prasad

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 27TH DAY OF JUNE 2022

                          BEFORE

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

                MFA No.4943 OF 2019(MV)
                          C/W
                MFA No.5113 OF 2020(MV)

IN MFA 4943/2019
BETWEEN:

M/s Royal Sundaram General
Insurance Co. Ltd.,
No.667/1-1149/1, Pratap Arcade,
1st Floor, New jail Circle,
SHivarmogga-577201.

Represented by Divisional Office,
No.30, 3rd Floor, JNR City Centre,
Raja Ram Mohan Roy Road,
Sampangirama Nagar,
Bangalore -560 027.
Represented by Manager.                   ... Appellant

(By Sri.Ravi S Samprathi., Advocate)

AND:

1.     Sri. Md. Aazmathulla,
       S/o Md. Khasimsab,
       Aged about 57 years.

2.     Smt. Ulfathunnisa,
       W/o Md. Hajmathulla,
       Aged about 48 years.
                             2



3.   Miss. Shajiyabanu,
     D/o Md. Hajmathulla,
     Aged about 22 years.

4.   Miss. Afsanabanu,
     D/o Md. Hajmathulla,
     Aged about 20 years.

     All are residing at:
     Ajjanagudi Road, Asasr Mohalla,
     Challakere, Chitradurga District.

5.   Sri. Chandrashekarappa K.E.,
     S/o Eashwarappa K.,
     Aged about 45 years,
     R/o Mallekatte Village,
     Davanagere Taluk & District.        ... Respondents

(By Sri.Vijay Kumar T., Advocate for R1 to R4:
Sri. R. Suresh, Advocate for R5)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:22.04.2019 passed
in MVC No.1424/2016 on the file of the Senior Civil Judge,
JMFC, Additional MACT, Hiriyur, awarding compensation of
Rs.21,90,000/- with interest at 7.5% p.a. from the date of
filing of petition till is entire realization.

IN MFA No 5113/2020
BETWEEN:

1.   Md. Aazmathulla,
     S/o Md. Khasimsab,
     Aged about 58 years.

2.   Ulfathunnisa,
     W/o Md. Hajmathulla,
     Aged about 49 years.
                               3



3.     Miss. Shajiyabanu,
       D/o Md. Hajmathulla,
       Aged about 23 years.

4.     Afsanabanu,
       D/o Md. Hajmathulla,
       Aged about 21 years.

       All are residing at:
       Ajjanagudi Road, Asasr Mohalla,
       Challakere, Chitradurga District-577522.
                                                  ...Appellants
(By Sri. Vijay Kumar T., Advocate)

AND:

1.     Authorized Officer,
       Royal Sundaram Insurance Co. Ltd.,
       # No.667/1-1149/1,
       Pratap Arcade, 1st Floor,
       New Jail Circle,
       SHivamogga-577201.

2.     Chandrashekarappa K.E.,
       S/o Eshwrappa K.,
       Aged about 46 years,
       R/at Mallekatte Village,
       Davanagere Taluk & District-577001.
                                              ...Respondents
(By Sri. Ravi S Samprathi, Advocate for R1:
Notice to R2 is dispensed with)

       This MFA is filed under Section 173(1) of MV Act
against the Judgment and award dated: 22.04.2019
passed in MVC No.1424/2016, on the file of the Senior
Civil judge and JMFC, and Additional MACT, Hiriyur, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
                              4




      These MFAs, coming on for hearing, this day, this
Court, delivered the following:

                      JUDGMENT

MFA No.4943/2019 is filed by the Insurance

Company whereas MFA No.5113/2020 is filed by the

claimants under Section 173(1) of the Motor Vehicles

Act, (for short, 'the Act') being aggrieved by the

judgment and award dated 22.04.2019 passed by the

MACT, Hiriyur in MVC No.1424/2016. Since the

challenge is to the same judgment, both the appeals

are clubbed together, heard and common judgment is

being passed.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 14.01.2016 at about 2.45

p.m. the deceased Md.Aazmathulla was proceeding on

motorcycle bearing registration No.KA-16/K-436

towards Hiriyur. At that time, a lorry bearing

registration No.KA-17/C-2380 which was being driven

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 at the spot.

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

Nos.1 and 2 appeared through counsel and filed

separate written statements in which the averments

made in the petition were denied. The age,

occupation and income of the deceased are 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 another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P15. On behalf of

respondents, neither any witness was examined nor

got exhibited documents. 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.21,90,000/- along with interest at the rate of 7.5%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, these appeals have been filed.

6. Sri Vijayakumar T., theThe learned counsel

for the claimants has raised the following contentions:

Firstly, at the time of the accident the deceased

was working under P'W-2 and he was earning

Rs.15,000/- per month in Fish Farm and the Tribunal

has rightly considered the notional income of the

deceased as Rs.15,000/- per month.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. vs. PRANAY SETHI AND

OTHERS reported in AIR 2017 SC 5157, the

Tribunal has failed to consider addition of future

prospects.

Thirdly, the Tribunal considering the fact that the

father of the deceased was age old and his unmarried

sisters are entirely depending upon the income of the

deceased, has rightly deducted 1/3rd of the income of

the deceased towards his personal expenses.

Fourthly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. Vs. NANU RAM reported in

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'.

Fifthly, 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, Sri Ravi S.Samprathi,

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.15,000/- per month, except

examining PW-2 they have not produced any

document to establish that he was earning

Rs.15,000/- per month.

Secondly, deceased was a bachelor. As per the

law laid down by the Hon'ble Apex Court in the case of

SARLA VERMA AND OTHERS -V- DELHI

TRANSPORT CORPORATION AND ANOTHER

reported in (2009) 6 SCC 121, instead of deducting

50% towards personal expenses of the deceased the

Tribunal has erroneously deducted 1/3rd.

Thirdly, since the claimants have not established

the income of the deceased, they are not entitled for

compensation towards 'future prospects'.

Fourthly, 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.

Fifthly, in view of the law laid down by a Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters

disposed of on 24.8.2020), the rate of interest

awarded by the Tribunal at 7.5% p.a. is on the higher

side. 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

Md.Aazmathulla died in the road traffic accident

occurred due to rash and negligent driving of the

offending vehicle by its driver.

The claimants have examined the employer

Sampath Kumar as PW-2, he has deposed that he was

paying Rs.15,000/- per month to the deceased but he

has not produced any document to establish the

same. The claimants have also not produced any

document much less the bank statement 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 2016, the notional income of the deceased has

to be taken at Rs.9,500/- p.m. 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.13,300/-. Since the deceased was a bachelor, in

view of the law laid down by the Hon'ble Apex Court in

the case of SARLA VERMA (supra), it is appropriate

to deduct 50% of the income of the deceased towards

personal expenses and remaining amount, i.e.,

6,650/- has to be taken as his contribution to the

family. The deceased was aged about 23 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.14,36,400/- (Rs.6,650*12*18) 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' and claimant Nos. 3 and 4, sisters are

entitled to Rs.40,000/- each under the head '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            14,36,400
         Funeral expenses                 15,000
         Loss of estate                   15,000
         Loss of love and                 80,000
         affection
         Loss of Filial consortium         80,000
                         Total         16,26,400

11. In the result, the appeals are disposed of.

The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.16,26,400/- as against

Rs.21,90,000/- awarded by the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the interest

awarded by the Tribunal at 7.5% p.a. is scalled down

to @ 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the