Karnataka High Court
Basha Sab vs Mosin on 10 March, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL No.8317 OF 2019 (MV-D)
BETWEEN:
1. BASHA SAB,
S/O BUDEN SAB,
AGED ABOUT 61 YEARS,
2. JAIRABI,
W/O BASHA SAB,
AGED ABOUT 51 YEARS,
BOTH ARE R/AT MUTUGUPPE GRAMA,
SORABA TALUK,
SHIVAMOGGA DISTRICT - 577 201.
... APPELLANTS
(BY SRI.M.V.MAHESWARAPPA, ADVOCATE)
AND:
1. MOSIN,
S/O SYED PEER SAB,
AGED ABOUT 32 YEARS,
R/A ARENDURU GRAMA,
KAVACHURU POST,
SIDDAPURA TALUK,
UTTARA KANNADA DISTRICT - 578 201.
2. HANEEF SAB,
S/O BUDEN SAB,
AGED ABOUT 42 YEARS,
R/A MUTAGUPPE GRAMA,
SORABA TALUK,
SHIVAMOGGA DISTRICT - 577 201.
3. THE BRANCH MANAGER,
-2-
NATIONAL INSURANCE CO. LTD.,
SHIVAMOGGA BRANCH,
SHIVAMOGGA - 577 201.
... RESPONDENTS
(BY SRI.E.I.SANMATHI, ADVOCATE FOR R3;
R1, R2 SERVED UNREPRESENTED)
*****
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S U/S 173(1) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED 01/08/2018, PASSED IN MVC
NO.216/2016, ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC., AND AMACT-15, SHIKARIPURA,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellants-
claimants challenging the impugned judgment and
award dated 01.08.2018 passed in
M.V.C.No.216/2016 on the file of the Senior Civil
Judge and AMACT-15 at Shikaripura (hereinafter
referred to as 'the Tribunal' for brevity).
2. This appeal is founded on the ground of
inadequacy of compensation.
3. Brief facts of the case:
On 19.08.2012 daughter of claimants namely
Kum.Apsara Begum was traveling as a pillion rider
in the motor cycle bearing Reg. No.KA-31/R-2606
driven by respondent No.2 from Siddapura towards
Thattikere village. When the said bike reached near
Thattikere bridge in Soraba Taluk, at about 6.30
p.m., the same was toppled down due to the rash
and negligent driving by respondent No.2, due to
which, the rider as well as the pillion rider were fell
down from the bike and sustained grievous injuries.
The minor daughter of claimants sustained grievous
injuries on her head and all over the body.
Immediately, she was shifted to the Government
Hospital, Soraba. Thereafter, she was shifted to
Mc.Gann Hospital, Shivamogga.
Despite timely treatment given to her, she
succumbed to the injuries at about 11.30 p.m. on
the very same day in the said hospital. The minor
girl Apsara Begum was studying in 10th standard as
on the date of the accident and she was aged about
16 years. Unfortunate parents of the minor girl
have lost love and affection of the minor girl due to
rash and negligent riding of respondent No.2.
Having lost the company of beloved daughter, the
claimants being the parents have filed claim petition
before the Tribunal seeking for compensation for
the death having occurred due to the rash and
negligent driving by respondent No.2.
2. On the notice being issued respondent
No.1 being the owner of the offending motorcycle
and respondent No.2 being the rider of the said
motorcycle have appeared before the Court and did
not file statement of objections. Respondent No.3
being the Insurer of respondent No.1 has filed
statement of objections denying the claim made by
the claimants. It is pleaded by respondent No.3-
Insurer that respondent No.1 who is the owner of
the vehicle despite having the knowledge and being
aware of the fact that respondent No.2- rider of the
bike did not have valid driving licence as on the
date of the accident, permitted him to ride the
vehicle and thereby violated the policy conditions.
Therefore, it is contended that the Insurer is not
liable to pay any compensation for the accident
having caused by respondent No.2 in violation of
the terms and conditions prescribed under the
policy. Further, respondent No.3- Insurer denied
the age of the deceased amongst other grounds of
denial.
3. Based on the pleadings, the Tribunal has
framed relevant issues to decide the matter.
4. In order to substantiate the issues and
to establish the case, the claimant No.1 got himself
examined as P.W.1 and got marked documents at
Ex.P.1 to Ex.P.14 and another document was
marked as Ex.P.15 with consent through the
witness P.W.2. However, the respondents have not
stepped into the witness box to adduce evidence
and no document is marked on their behalf.
5. It is the vehement contention of learned
counsel appearing on behalf of the claimants that
the judgment and award passed by the Tribunal is
erroneous as it has not considered the evidence on
record both the oral and documentary and thereby,
Tribunal has erred in not appreciating the
prospective income of the minor girl and
accordingly, has committed serious error in
awarding meager compensation, thereby causing
miscarriage of justice to the claimants. It is further
contended by learned counsel for the claimants that
the deceased minor child was a very bright student
and was studying in 10TH standard and would have
gone to earn handsome salary after completing her
studies.
6. It is further contended by learned
counsel for the appellants- claimants that the
Tribunal has taken Rs.15,000/- per annum as the
income of the deceased minor girl for awarding
compensation which is erroneous in law. It is
contended that the Tribunal ought to have taken
Rs.40,000/- as income and the same ought to have
been added with 40% as additional loss of income
for computation of just and reasonable
compensation, which has not been adopted by the
Tribunal. Therefore, there is legal infraction and
infirmity in the judgment and award passed by
Tribunal. Learned counsel further contends that
under the head 'loss of love and affection' of the
beloved daughter and under the heads 'funeral
expenses' and 'loss of estate', the Tribunal has not
awarded reasonable compensation and the same
also requires enhancement.
7. On the basis of these submissions,
learned counsel for the appellants seeks to allow
the appeal and to enhance the compensation
awarded by the Tribunal.
8. Per contra, learned counsel
Sri E.I. Sanmathi appearing on behalf of respondent
No.3- Insurer vehemently contends that the
judgment and award of the Tribunal is correct and
the same is in accordance to the material produced
and the evidence adduced by the claimants. Hence,
the same does not call for interference by this
Court. He further contended that the Tribunal has
awarded just and reasonable compensation by
adopting a very reasonable method of computation
by taking Rs.15,000/- p.a. as income of the
deceased minor child and as the minor child was
aged 18 years, the Tribunal has adopted the correct
multiplier of '18' in view of the dictum of the
Hon'ble Apex Court in the case of Sarla Verma &
Others Vs. Delhi Transport Corporation and
Another reported inh 2009 ACJ 1298. Further,
under the head 'loss of dependency', the Tribunal
has awarded Rs.2,70,000/- which is just and
reasonable and which does not call for any
interference by this Court. He further contends that
there is no legal infraction or infirmity in the award
passed by the Tribunal under the head 'loss of
estate', 'transportation and funeral expenses' and
'loss of love and affection' as the same is
reasonably awarded by the Tribunal, which also
does not call for interference by this Court.
9. On these submissions, learned counsel
for the respondent No.3 prays for dismissal of the
appeal and to confirm the judgment passed by the
Tribunal without enhancing any compensation as
the same is just and reasonable.
10. Having heard learned counsel for the
claimants and learned counsel for respondent No.3-
Insurer, I am of the opinion that in the present
facts and circumstances of the case, on perusal of
the material evidence both the oral and
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documentary and having perused the impugned
judgment and award, the claimants certainly
deserve marginal indulgence with regard to
enhancement of compensation for the reasons
mentioned herein below.
11. It is not in dispute that the accident
occurred on 19.08.2012 while the minor daughter
viz., Apsara Begum was traveling as a pillion rider
in the motor cycle ridden by respondent No.2 was
due to the rash and negligent driving by respondent
No.2, thereby, the pillion rider- minor girl fell down
and sustained grievous injuries on her head and all
over the body. Due to the accident, the minor child
was admitted to the hospital and despite effective
treatment being given to her, she succumbed to the
injuries on the same day. In order to establish the
rashness and negligence of respondent no.2- rider
of the motorcycle, the claimant No.1 got examined
himself as P.W.1 and another witness was
examined as P.W.2 and marked documents from
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Ex.P.1 to Ex.P.15 which are the police records.
These police records are not challenged and
disputed either by rider of the motorcycle or by the
respondents herein. It is also seen from the
evidence on record that there is no material to
prove the contributory negligence by the minor
daughter, which has resulted in occurrence of the
accident.
12. However, in view of there being no such
evidence and since there is no challenge to the
registration of criminal case, it can be safely
concluded that the death due to the accident
occurred due to the rash and negligent riding of
respondent No.2.
13. Now this Court will have to assess what
would be the income of the minor child to arrive at
just compensation to be awarded to the deceased
minor child. Tribunal has taken the notional income
of Rs.15,000/- per annum for assessing the income
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and computation of compensation. Admittedly the
deceased minor child was 16 years old and was
studying in 10th standard and therefore, she was
not earning any income.
14. It is well settled that under the
circumstance where a minor child meets with an
accident leading to her/his death, the Court will
have to adopt notional income for assessing the
compensation and accordingly, the Division Bench
of this Court vide order dated 25.03.2021 passed in
M.F.A.No.784/2019 has held that, for the death of
16 years old minor child, the Court shall adopt the
methodology of calculation taking notional income
of Rs.40,000/- p.a. with future prospectus of 40%.
Taking into consideration the same, I deem it
appropriate to asses the notional income of the
deceased minor child as Rs.40,000/- per annum.
15. As per the judgment of Hon'ble Apex
Court in the case of National Insurance
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Company Limited Vs Pranay Sethi and others
reported in 2017 ACJ 2700 (SC), future prospects
of 40% will have to be added to the income so
arrived at by this court which would be Rs.56,000/-
(Rs.40,000x40%=16,000/-).
16. In view of the fact that the minor child
met with the accident would have certainly expend
some personal expenses, according to the judgment
of Pranay Sethi, 50% is to be deducted for personal
expenses. Accordingly, 56,000x50/100=
Rs.28,000/-, which would be assessed as 'Future
Loss of Income'.
17. In view of the fact that the minor child
was aged 16 years, the appropriate multiplier as
contemplated in the case of Sarla Verma and
others Vs Delhi Transport Corporation and anr
reported in 2009 ACJ 1298 would be `18'.
Therefore, applying multiplier of `18', `loss of
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future income' to the claimants for the death of the
minor child would be Rs.5,04,000/- (28,000X18).
18. The Tribunal has awarded Rs.35,000/-
towards 'loss of love and affection'. I am of the
opinion that this is on the lower side. Learned
counsel for the claimants submits that Rs.40,000/-
per head ought to have been awarded under the
head 'loss of love and affection'. I agree with the
contention of learned counsel for the appellants.
19. In view of the judgment of Hon'ble Apex
Court in the case of National Insurance
Company Limited Vs Pranay Sethi and others
reported in 2017 ACJ 2700 (SC), wherein, the
Hon'ble Apex Court has held that Rs.40,000/- per
head is to be awarded for the consortium in the
case of death of minor child to the parents. In such
circumstance, Rs.40,000/- per head will have to be
awarded to both the parents towards loss of
consortium. For the expenses towards 'funeral' and
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'transportation' and 'loss of estate', Rs.30,000/- has
been awarded by the Tribunal which is just and
proper and does not warrant interference.
20. In view of the discussions made above, I
am of the opinion that the Tribunal has erred in
awarding lesser compensation and the same
requires enhancement as discussed above.
21. Therefore, on the basis of the above
discussions and on hearing the submissions of
learned counsel, the compensation awarded by the
Tribunal requires to be enhanced and modified as
mentioned in the below table.
1 Loss of Estate Rs.15,000/-
2 Transpiration and Rs.15,000/-
Funeral Expenses
3 Loss of consortium Rs.80,000/-
(Rs.40,000+Rs.40,000)
4 Loss of future income Rs.5,04,000/-
Total Rs.6,14,000/-
22. Accordingly, I pass the following
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ORDER
i) The appeal is allowed in part.
ii) The judgment and award passed by the
Tribunal is modified.
iii) The appellants- claimants shall entitled
to total compensation of Rs.6,14,000/-
as against Rs.3,35,000/- awarded by the
Tribunal. All other terms and conditions
stipulated by the Tribunal stands intact.
iv) The respondent- Insurer shall pay the
enhanced compensation at the rate of
6% per annum within a period of six
weeks from the date of receipt of copy of
this order and the same shall be
deposited before the MACT.
Sd/-
JUDGE
PN
