Karnataka High Court
Smt.Shekhan Bi W/O Late Mohammed ... vs Swaroop K.N. S/O ... on 9 March, 2022
Bench: S.Sunil Dutt Yadav, K.S.Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
MFA No.103576 OF 2019 (MV-D)
BETWEEN:
SMT. SHEKHAN BI
W/O LATE MOHAMMED GOUSE
AGED 52 YEARS, OCC:HOUSEWIFE,
R/O DOOR NO.50, WARD NO.24,
NALA STREET, NEAR MOHAMMADIA SCHOOL,
COWL BAZAAR, BALLARI-583101.
....APPELLANT
(BY SRI. MANJUNATH G PATIL, ADVOCATE)
AND:
1. SWAROOP K.N S/O DR. NAGABHUSHANA K.V.
AGED 39 YEARS, OCC: DRIVER OF THE CAR
BEARING REG. NO.KA-35/N-3766
2. SMT. GIRIJAMBA B.E.
W/O SWAROOP K.N.
AGED ABOUT 35 YEARS,
OCC: DRIVER OF THE CAR BEARING
REG. NO.KA-35/N-3766
R1 AND R2 ARE R/O NO.172, 3RD MAIN ROAD,
SHIVANAGAR, RAJAJINAGAR, BENGALURU
AND ALSO R/O R9/3, JSW TOWNSHIP,
JSW STEEL LTD., VIDYANAGAR,
2
THORANAGAL, SANDUR-TALUK,
BALLARI DISTRICT-583215.
3. THE DIVISIONAL MANAGER
HDFC ERGP GENERAL INSURANCE,
CO. LTD., KAPPAGAL ROAD,
BALLARI-583101
....RESPONDENTS
(BY SRI. NAGARAJ C KOLLOORI, ADVOCATE FOR R3)
(NOTICE TO R1 AND R2 DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MV ACT, PRAYING THIS HON'BLE COURT TO ENHANCE THE
COMPENSATION FROM RS.7,95,000/- TO RS.35,70,000/- IN
MVC NO.927/2017 DATED 12.6.2019 ON THE FILE OF THE
1ST ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT-V,
BALLARI IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
K.S. HEMALEKHA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for orders, with the
consent of learned counsel for both sides, it is taken up for
final disposal.
2. The claimant has preferred this appeal
assailing the judgment and award dated 12.6.2019 passed
in MVC No.927/2017 on the file of the learned I Addl.
Senior Civil Judge and Member, MACT-V, Ballari (for short,
'Tribunal') seeking enhancement of compensation.
3. The claim petition was filed under Section 166
of the MV Act claiming compensation of Rs.35,70,000/-
with interest at the rate of 24% per annum on account of
death of M. Siraj S/o Late Mohammed Ghouse in a road
traffic accident that occurred on 11.11.2017, when the
deceased Siraj along with his friend was proceeding on the
motorcycle Yamaha bearing registration No.KA-37/E-815,
driver of the car bearing registration No.KA-35/N-3766
came in a rash and negligent manner and dashed against
the motorcycle, due to the impact of the accident, the
deceased sustained grievous injuries and succumbed to
the same during treatment. The claimant being mother of
the deceased averred that the deceased was hale and
healthy, was doing bar bending work and thereby earning
Rs.500/- per day and he was sole earning member of the
family.
4. In pursuance of the summons issued by the
Tribunal, respondents 1 to 3 appeared through their
respective counsel and filed written statements.
5. Respondent Nos.1 and 2 being driver and
owner of the car contended that the accident occurred due
to rash and negligent riding of the rider of the motorcycle
and not due to negligence on the part of the driver of the
car.
6. Respondent No.3-Insurance Company
contended that the accident occurred due to negligence on
the part of the rider of the motorcycle and also contended
that the driver of the car did not possess valid and
effective driving license as on the date of the accident and
hence, sought to absolve the liability.
7. The Tribunal on the basis of the pleadings and
material evidence on record held that the accident
occurred due to rash and negligent driving of the driver of
the car bearing registration No.KA-35/N-3766 and
fastened the liability on the insurance company and
awarded a compensation of Rs.7,95,000/- with interest at
the rate of 6% per annum from the date of petition till
date of realization. Aggrieved by the same, the claimant is
in appeal seeking enhancement of compensation.
8. Heard the learned counsel for the
appellant/claimant and learned counsel for the
respondent/insurance company and perused the material
on record.
9. Sri. Manjunath G Patil, learned counsel for the
appellant/claimant in addition to the various contentions
urged in the appeal would contend that the income of the
deceased assessed by the Tribunal at Rs.7,500/- per
month is on the lower side, without considering the actual
income of the deceased as per evidence of PW1. He
further submits that the Tribunal ought to have assessed
the income of the deceased at Rs.10,250/- per month
taking note of the chart prepared by the Karnataka State
Legal Services Authority (for short, 'KSLSA'). It is
submitted that the Tribunal has not awarded any
compensation towards future prospects, since the claimant
would be entitled to future prospects at 40% of the
assessed income as held by the Honb'ble Apex Court in the
case of National Insurance Company Limited Vs.
Pranay Sethi and Others, (2017) 16 SCC 680. It is
further submitted that the compensation awarded under
the conventional heads is also on the lower side. Thus, he
sought to enhance the compensation by allowing this
appeal.
10. Per contra, Sri. Nagaraj C Kolloori, learned
counsel for the respondent-Insurance Company supporting
the impugned judgment and award would contend that the
compensation awarded by the Tribunal is just and proper
and same does not call for interference.
11. Having heard the learned counsel for the
parties and on perusal of the material on record, the only
point that would arise for consideration in this appeal is,
whether the judgment and award passed by the Tribunal,
insofar as quantum of compensation is concerned,
warrants interference?
12. The date, time and occurrence of the accident
resultant death of the deceased is not in dispute. It is also
not in dispute that the accident occurred due to rash and
negligent driving of the driver of the car bearing
registration No.KA-35/N-3766. The only dispute is with
regard to quantum of compensation awarded by the
Tribunal. The Tribunal assessed the income of the
deceased at Rs.7,500/- per month, which according to us
is on the lower side. In order to prove the income of the
deceased, the claimant has not produced any credible
document. In the absence of any material evidence to
establish the income of the deceased, this Court and Lok
Adalath, while settling the accidental claims of the year
2017 would assess the notional income of the deceased at
Rs.10,250/- per month, taking note of the chart prepared
by the KSLSA. In the instant case also, taking note of the
same, we deem it appropriate to assess the notional
income of the deceased at Rs.10,250/- p.m.
13. As per the dictum of the Hon'ble Apex Court in
the case of Pranay Sethi (supra), the claimant would be
entitled for addition of 40% of the assessed income
towards future prospects. Adding 40% of the assessed
income, the notional income of the deceased would be
Rs.14,350/- (Rs.10,250 +Rs.4,100). The deceased being
bachelor, 50% of the assessed income has to be deducted
towards personal and living expenses of the deceased and
considering the age of the deceased as 26 years, proper
multiplier to be applied is 17. Thus, the claimant would be
entitled for compensation under the head of loss of
dependency at Rs.14,63,700/- (Rs.14,350 x 12 x 17 x
½).
14. Further, in the light of decisions of the Hon'ble
Apex Court in the case of United India Insurance
Company Limited V/s Satinder Kaur and others
reported in AIR 2020 SC 3076 and Magma General
Insurance Company Ltd. Vs. Nanu Ram & Others
reported in 2018 ACJ 2782, the claimant being mother of
the deceased would be entitled to Rs.40,000/- towards
parental consortium and Rs.15,000/- each towards
funeral expenses and loss of estate. Thus, the claimant is
entitled for modified compensation under the following
heads:
Loss of dependency Rs.14,63,700/-
Parental Consortium Rs. 40,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
-----------------------------------------------------------
Total Rs.15,33,700/-
-----------------------------------------------------------
15. Thus, the claimant would be entitled for total
compensation of Rs.15,33,700/- as against Rs.7,95,000/-
awarded by the Tribunal. Accordingly, we answer point
No.1 in the affirmative holding that the claimant would be
entitled to enhanced compensation of Rs.7,38,700/-
(Rs.15,33,700 - Rs.7,95,000/-) with interest at the rate of
6% per annum from the date of petition till date of
realization.
16. In the result, we pass the following:
ORDER
a) The appeal filed by the claimant is
allowed in part.
b) The impugned judgment and award
passed by the Tribunal is modified to
the extent that the claimant would
be entitled to enhanced
compensation of Rs.7,38,700/-
with interest at the rate of 6% per
annum from the date of petition till
date of realization.
c) The respondent/insurance company
is directed to deposit the enhanced
compensation of Rs.7,38,700/- with
interest at 6% per annum within a
period of four weeks from the date of
release of this judgment.
d) Apportionment, disbursement and
deposit shall be made as per the
order of the Tribunal.
e) Draw modified award accordingly.
f) TCR to be transmitted to the Tribunal
forthwith.
g) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
