Mumtaz Begum W/O Valisab ... vs Shekarappa S/O Thimmanna
2022 Latest Caselaw 4179 Kant

                              1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 11TH DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
               MFA No.201746/2015 (MV)
Between:

1.     Mumtaz Begum W/o Valisab Tamarhalli,
       Age: 51 years, Occ: Household,

2.     Valisab S/o Mohiddin Sab T,
       Age: 53 years, Occ: Nil,

3.     Firdos D/o Valisab T,
       Age: 21 years, Occ: Nil,
     All are R/o H.No.694, B.D.C.C. Bank Colony,
     Hospet, Tq: Hospet, Dist: Bellary.
                                           ... Appellants
(By Sri Veeranagouda, Advocate)

And:
1.     Shekarappa S/o Thimmanna,
       Age: 53 years, Occ: Owner of Auto
       Bearing Reg.No.KA.33/8436,
       R/o Kalabelagundi village,
       Tq. and Dist. Yadagir-585 201.

2.    The Oriental Insurance Co., Ltd.,
      Divisional Office, N.G. Complex,
      Opp. Mini Vidhana Soudha, Station road,
      Gulbarga-585102
      Through its Divisional Manager.
                                         ... Respondents
(By Sri Sanjay M. Joshi, Advocate for R2;
 Notice to R1 served)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to allow the appeal and
modify the judgment and award dated 15.04.2014 in MVC
No.110/2012 passed by the Member M.A.C.T. II, at
Yadgiri, by enhancing the compensation as claimed in the
claim petition.


      This appeal coming on for Admission, this day, the
Court delivered the following:-


                       JUDGMENT

This appeal is filed by the claimants under Section

173(1) of the Motor Vehicles Act (for short 'the Act')

challenging the judgment and award dated 15.04.2014

passed by the Motor Accident Claims Tribunal-II, Yadgiri

(for short hereinafter referred to as 'the Tribunal') in

MVC No.110/2012.

2. Parties are referred to as per their ranking

before the Tribunal. Appellants are petitioners and

respondents are respondents before the Tribunal.

3. Facts giving rise to filing of this appeal are

that on 14.04.2012 at 12.00 noon the deceased-Moula

Hussain was proceeding on motorcycle bearing

registration No.AP-13/AA.3726 from the side of

Hyderabad towards Shahapur, at that time, driver of

auto bearing registration No.KA.33/8436 came from

opposite side in a high speed and in a rash and

negligent manner and dashed to the motorcycle and

caused accident. Due to which, the deceased-Moula

Hussain fell down and sustained grievous injuries and

died in the accident. Petitioners being the legal

representatives of deceased-Moula Hussain, filed claim

petition under Section 166 of the Act seeking

compensation of Rs.30,00,000/- with interest due to

death of Moula Hussain in the road traffic accident.

4. Respondent No.2 filed written statement

denying the averments made in the claim petition and

admitted that the vehicle of respondent No.1 was

insured with respondent No.2 at the time of accident,

but denied its liability. It is contended that the driver of

the offending vehicle was not possessing valid and

effective driving licence at the time of accident and

respondent No.1 has violated the terms and conditions

of the policy. Therefore, respondent No.1 is liable to pay

compensation and not respondent No.2 and prayed to

dismiss the claim petition.

5. The Tribunal on the basis of the pleadings of

the parties framed the following issues:

i. Whether petitioners prove that, on 14.04.2012 at 12.00 noon near on Madwar-Kalabelagundi main road near Kalabelagundi village deceased Moula Hussain was proceeding on motorcycle No.AP.13/AA.3726 from the side of Hyderabad towards Shahapur, at that time the driver of auto No.KA.33/8436 came from the opposite side with high speed rashly and negligently and dashed to the motorcycle and caused accident

and deceased was fell down and he was sustained grievous injuries and died in the accident?

ii. Whether respondent No.2 proves that, the driver of auto did not possess any valid DL at the time of accident?

iii. Whether petitioners are entitled the compensation? If so, what rate and against whom?

iv. What order or award?

6. In order to prove the case, petitioners

examined petitioner No.1 as PW.1 and got marked the

documents as Exs.P1 to P23. The respondents did not

adduce either oral or documentary evidence.

7. The Tribunal after recording the evidence

and after considering the material on record held that

the petitioners have proved that the deceased Moula

Hussain died in the accident, which occurred on

14.04.2012, due to the rash and negligent driving of the

driver of the offending vehicle and held that respondent

No.2-Insurance company has failed to prove that the

driver of the offending vehicle had no valid and effective

driving licence at the time of accident and further held

that the petitioners are entitled to compensation and

consequently, allowed the claim petition in part

awarding compensation of Rs.8,77,400/- along with

interest at the rate of 6% per annum from the date of

claim petition till the date of realization and further held

that the respondents are jointly and severally liable to

pay compensation and directed respondent No.2 to

deposit the compensation amount.

8. Being dissatisfied with the compensation

awarded by the Tribunal, the petitioners/appellants have

filed this appeal seeking enhancement of compensation.

9. Heard the learned counsel for the petitioners

and the learned counsel for respondent No.2 /Insurance

company.

10. The learned counsel for the petitioners

submits that the deceased-Moula Hussain was working

as Maintenance Engineer and was earning Rs.14,381/-

per month. In support of their contention, the

petitioners have produced salary certificate marked as

Ex.P8. He further submits that the Tribunal has

committed an error in not adding future prospects while

calculating loss of dependency. He further submits that

the Tribunal has taken the age of the mother of the

deceased for applying the multiplier and the same is

contrary to the law laid down by the Hon'ble Apex Court

in the case of M/s Royal Sundaram Alliance

Insurance Company Ltd., Vs. Mandala Yadagari

Goud and Ors., reported in AIR 2019 SC 1825.

Hence, he submits that the compensation awarded by

the Tribunal is on the lower side and on these grounds,

he prays to allow the appeal.

11. Per contra, the learned counsel appearing for

respondent No.2/Insurance company supports the

impugned judgment and award passed by the Tribunal.

12. I have perused the records and considered

the submissions made by the learned counsel for the

parties. The point that arises for consideration is with

regard to quantum of compensation.

13. The occurrence of the accident, involvement

of the offending vehicle in the accident and death of the

deceased-Moula Hussain in the accident are not in

dispute. In order to establish that the accident occurred

due to rash and negligent driving of the driver of the

offending vehicle, petitioners have produced copy of

charge sheet which is marked as Ex.P3. Ex.P3 discloses

that the accident occurred due to rash and negligent

driving of the driver of the offending vehicle.

14. Perusal of the impugned judgment would

indicate that the petitioners/appellants have contended

in the petition that the deceased-Moula Hussain was

working as Maintenance Engineer and was earning

Rs.14,381/- per month. In order to support their

contentions, the petitioners have produced copy of the

salary certificate marked as Ex.P8. Ex.P8 discloses that

the deceased was earning Rs.14,381/- per month. In

order to prove the contents of Ex.P8, petitioners have

not examined the author of the document i.e., employer

of the deceased. Mere marking of document does not

prove the income. However, the Tribunal has accepted

the monthly income of the deceased at Rs.12,000/- per

month. The income assessed by the Tribunal is just and

proper. While calculating the loss of dependency, the

Tribunal has not added future prospects as per the law

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

National Insurance Company Limited vs. Pranay

Sethi and Others reported in AIR 2017 SC 5157.

The deceased was aged about 32 years as on the date of

the accident. Therefore 40% of the income has to be

added towards future prospects. To the aforesaid

income of the deceased i.e., Rs.12,000/-, 40% of the

said amount 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's case. Thus, the monthly income comes to

Rs.16,800/-. Out of which, considering that the

deceased was a bachelor, I deem it appropriate to

deduct 50% of the said income towards personal

expenses of the deceased and therefore, the monthly

income of the deceased comes to Rs.8,400/-. The

Tribunal while applying multiplier has taken the age of

petitioner No.1. The Hon'ble Apex Court in Mandala

Yadagari Goud's case (supra) held that if the

deceased is a Bachelor, age of the deceased has to be

taken while applying the multiplier for calculating the

loss of dependency. The Tribunal has committed an

error in taking the age of the mother i.e., petitioner

No.1 for the purpose of applying multiplier while

calculating the loss of dependency. Taking into account

the age of the deceased which was 32 years at the time

of accident, multiplier of 16 has to be adopted as per the

judgment of the Hon'ble Supreme Court in the case of

Sarla Verma vs. Delhi Transport Corporation

reported in (2009) 6 SCC 121. Therefore, the

claimants are entitled to a sum of Rs.16,12,800/- (8,400

x 12 x 16) on account of loss of dependency as against

Rs.8,42,400/- awarded by the Tribunal.

15. Further, in view of the law laid down by the

Hon'ble Supreme Court in the case of Magma

General Insurance Company Limited vs. Nanu

Ram Alias Chuhru Ram & Others reported in

(2018) 18 SCC 130, each petitioner is entitled to a

sum of Rs.40,000/- towards loss of consortium. The

petitioners are 3 in number, hence the compensation

towards loss of consortium would be Rs.1,20,000/-

(40,000 x 3). In addition, the petitioners/appellants

are entitled a sum of Rs.15,000/- towards funeral

expenses and Rs.15,000/- under the head of loss of

estate.

16. Thus, in all, the claimants are entitled to a

sum of Rs.17,62,800/- as against Rs.8,77,400/-

awarded by the Tribunal.

17. In view of the above discussion, I proceed to

pass the following:

ORDER

i. The appeal is allowed in part.

   ii.           The impugned judgment and award
                 passed by the Tribunal is modified.


   iii.          The   petitioners      are    entitled    to   an
                 enhanced            compensation               of

Rs.8,85,400/- with interest at the rate of 6% per annum from the date of petition till the date of realization.

iv. The respondent No.2/insurance company is directed to deposit the enhanced compensation amount before the Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.

Registry is directed to return the Trial Court

Records.

Sd/-

JUDGE NB*