Smt Jagadeeshwari S vs Mr Riyazulla Hindupuram
2022 Latest Caselaw 5413 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

             M.F.A. NO.584 OF 2020 (MV-D)

BETWEEN:


1.     SMT.JAGADEESHWARI S
       W/O.LATE PRAVEEN K
       @ PRAVEEN KUMAR
       AGED ABOUT 27 YEARS

2.     MASTER GIRISH KUMAR P
       S/O.LATE PRAVEEN K
       @ PRAVEEN KUMAR
       AGED ABOUT 3 YEARS

3.     SMT.KALYANI P
       W/O.LATE KUMAR
       AGED ABOUT 53 YEARS

       2ND MINOR APPELLANT IS
       REPRESENTED BY NATURAL
       GUARDIAN/MOTHER, 1ST APPELLANT

       ALL ARE RESIDING AT NO.48
       MISSION BLOCK, MARIKUPPAM POST
       K.G.F TOWN
       KOLAR DISTRICT
                                        .. APPELLANTS

       (BY SRI GOPALA KRISHNA N., ADVOCATE)
AND:


1.     MR.RIYAZULLA HINDUPURAM
       S/O.H.FAKRUDDIN SAHEB
       MAJOR
       RESIDING AT NO.3-96-53-1/2
                             2

     N.S.PET PUNGANUR TOWN
     CHITTOR DISTRICT
     ANDHRA PRADESH - 517 247

2.   M/S UNITED INDIA INSURANCE
     COMPANY LIMITED
     REGIONAL OFFICE
     5TH FLOOR, KRUSHI BHAVAN
     NRUPATUNGA ROAD
     HUDSON CIRCLE
     BENGALURU - 560 001
     BY ITS MANAGERT
                                          ... RESPONDENTS

     (BY SRI K.KESHAVA KUMAR REDDY, ADVOCATE FOR
R-2; NOTICE TO R-1 IS DISPENSED WITH V.O.D.
05.01.2022)

                           ***


     THIS    MISCELLANEOUS       FIRST   APPEAL   IS    FILED

UNDER   SECTION   173(1)    OF    MOTOR      VEHICLES    ACT

AGAINST THE JUDGMENT AND AWARD DATED 25.01.2019,

PASSED IN MVC NO.7534/2017 ON THE FILE OF THE I-

ADDITIONAL     SMALL   CAUSES       JUDGE,     AND     MABE,

BENGALURU , PARTLY ALLOWING THE CLAIM PETITION

FOR COMPENSATION AND SEEKING ENHANCEMENT OF

COMPENSATION AND ETC.


     THIS APPEAL COMING ON FOR HEARING, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:
                              3


                          JUDGMENT

This is an appeal preferred by the claimant being

aggrieved by the judgment and award dated 25.01.2019

passed in MVC No. 7534/2017 before the MACT, Bangalore

(SCCH-11) (hereinafter referred to as 'the Tribunal') and

seeking for an enhancement of the compensation.

2. Brief Facts:

On 30.03.2017 when the deceased Praveen.K. @

Praveen Kumar, was going towards KGF from Kuppam by

riding a Hero Passion Motor cycle bearing registration No.

TN-20 CF-6473 along with his friend one Kaviarasan on the

pillion seat, slowly and cautiously on the left side of the

road, when he reached near Doddakallahalli Cross on

Kuppam - KGF Road, Bangarpet Taluk, Kolar District, one

Eicher goods tempo bearing registration No. AP-02 TA-9659

came from opposite direction driven by its driver at high

speed in a rash and negligent manner, lost control over the

vehicle, went to its wrong side of the road and dashed

against the said Motor cycle. Due to the said impact the

deceased fell down and sustained grievous injuries and

succumbed to the same on the spot.

3. It is submitted that the deceased was hale and

healthy and aged about 28 years as on the date of

accident. He was working as aluminum fabricator and glass

fitter at DECOFABS, No.21 C, FCI Road, Devasandra

Industrial Area, Bengaluru-560 016 and drawing salary of

Rs.18,000/- per month and in the future he would have

earned more with hike in the salary. It is stated that he is

a skilled worker having enormous experience in the field. It

is stated that the deceased was the only sole bread winner

of the family and the appellants herein were the dependent

on the income of the deceased for their daily sustenance

and future lively hood. Due to the untimely death of the

deceased caused by the rash and negligent manner of

driving by the driver of the offending vehicle they have lost

their beloved husband, father and son respectively. It is

further stated that the deceased was aged 28 years at the

time of accident and due to untimely death they lost source

of income of the family and hence they preferred claim

petition for compensation from the respondents.

4. On service of notice, respondent No.1 - Owner

of the offending vehicle remained absent and was placed

exparte. Respondent No.2 - Insurer, with whom offending

vehicle was insured, contested the claim petition and filed

its statement of objections. Respondent No.2 - Insurer

submitted that the Policy was in force and it denied the

claim made by the claimants, inter alia, also took up a plea

that the accident occurred due to the fault of the deceased

and it denied the avocation of the deceased. Hence, denied

the liability on itself to pay the compensation and sought

for dismissal of the claim petition.

5. On the basis of the pleading the Tribunal

framed relevant issues.

6. In order to prove and establish his case, the

first claimant herself got examined as PW1 and got marked

Ex.P1 to P15. She also got examined another witness as

PW2, who is non other than the Proprietor of the Firm in

which deceased was employed and also got marked Ex.P16

to P19.

7. The respondents, on the other hand, did not

step into the witness box or neither lead any evidence to

counter the case of the claimant nor they produced any

documents in support of their case.

8. After hearing both sides and providing sufficient

opportunity to both parties, the Tribunal awarded

compensation in a sum of Rs.16,88,332/- with interest at

the rate of 9% per annum from the date of claim petition

till the date of payment. The Tribunal fixed liability on both

the respondent Nos.1 and 2 jointly and severally but

directed respondent No.2 - Insurer to pay the

compensation.

9. Being aggrieved by the Judgment and award of

the Tribunal, the claimant has preferred this appeal seeking

for enhancement.

10. Learned counsel for the claimants contends that

the impugned order passed by the Tribunal is erroneous

and Tribunal has awarded a meager and inadequate

compensation resulting in mis-carriage of justice to the

claimant. He further contends that Tribunal has committed

a serious error in awarding only paltry sum of

Rs.16,88,332/- and the same requires to be enhanced. He

further contends that the Tribunal has failed to take proper

income to arrive at a compensation which ought to be just

compensation.

11. Learned counsel for claimants further contends

that the Tribunal failed to take into consideration the

relevant materials which have been exhibited before the

Court more specifically Ex.P14 to P19, which depicts salary

and attendance register of the deceased apart from oral

evidence adduced by PW1 and PW-2, to arrive at just

compensation and assessment of proper income. He

further contends that Tribunal has erred in not awarding

just compensation under the head loss of consortium. He

further contends that on these grounds Tribunal committed

serious error in awarding meager compensation by not

considering proper income and has committed an error

leading to miscarriage of justice to the claimant. Hence, on

those grounds he seeks to allow the appeal and enhance

the compensation.

12 Per contra, learned counsel Mr. K.Keshav

Kumar Reddy, learned counsel for respondent No.2 -

Insurer vehemently contends that judgment and award

passed by the Tribunal is reasoned and considered order

and the Tribunal has considered all aspects of income,

multiplier, loss of future income so also pain and sufferings

and accordingly awarded just and reasonable compensation

and the same does not warrant interference by this Court.

13. Learned counsel for respondent No.2 - Insurer

further contends that the Tribunal has appreciated the

material evidence both oral and documentary and on the

basis of the same compensation has been awarded, which

is just and reasonable and the same does not call for

interference at the hands of this Court. He further contends

that no material proof has been produced by the claimant

before Court, which would be authentic to show proof of

income of the deceased. When there being no basis for

actual proof of income Tribunal has rightly taken average

income of Rs.8,500/- and accordingly compensation has

been awarded, which does not call for inference. He further

contends that on all other heads the Tribunal awarded just

and reasonable compensation which also des not call for

interference by this Court. On the basis of these

submissions he prays to dismiss the appeal and confirm the

judgment and award passed by the Tribunal.

14. Having heard the learned counsel for appellants

- claimants and respondent No.2 - Insurer this Court will

have to decide as to:

"(1) Whether the compensation awarded by the Tribunal is just and reasonable?

     (2)    Whether the Tribunal has erred in not
            considering      material         documents
            produced both oral and documentary?


     (3)    Whether the claimant is entitled for
            enhancement?"


     15.    On   careful   examination   of    entire   material

documents including original documents and on the basis of

the elaborate submission made by both the learned

counsel, I am of the opinion that claimants are entitle to

marginal indulgence for enhancement of compensation as

tribunal has awarded meager compensation for the reasons

mentioned herein below.

16. It is not in dispute that on 30.03.2017 when the

deceased Praveen.K. @ Praveen Kumar, was going towards

KGF from Kuppam by riding a Hero Passion Motor cycle

bearing registration No. TN-20 CF-6473 along with his

friend one Kaviarasan on the pillion seat, slowly and

cautiously on the left side of the road, when he reached

near Doddakallahalli Cross on Kuppam - KGF Road,

Bangarpet Taluk, Kolar District, one Eicher goods tempo

bearing registration No. AP-02 TA-9659 came from opposite

direction driven by its driver at high speed in a rash and

negligent manner, lost control over the vehicle, went to its

wrong side of the road and dashed against the said Motor

cycle. It is not in dispute that due to the said impact the

deceased fell down and sustained grievous injuries and

succumbed to the same on the spot.

17. It is not in dispute that the deceased was hale

and healthy and aged about 28 years as on the date of

accident. It is contended that he was working as aluminum

fabricator and glass fitter at DECOFABS, No.21 C, FCI Road,

Devasandra Industrial Area, Bengaluru-560 016 and

drawing salary of Rs.18,000/- per month and in the future

he would have earned more with hike in the salary. It is

stated that he is a skilled worker having enormous

experience in the field. It is stated that the deceased was

the only sole bread winner of the family consisting of wife,

minor son and aged mother, who are dependent on the

income of the deceased for their daily sustenance and

future lively hood.

18. In order to substantiate the fact that the

accident caused due to rash and negligent manner of

driving by the driver of the offending vehicle the claimant

No.1 examined herself as PW1, who is non other than the

wife of the deceased and got produced Ex.P1 to P6 to P15,

which are police records. These police records are not

questioned or challenged neither by the driver of the

offending vehicle or respondents herein. The police having

laid charge sheet after conducting investigation and enquiry

same is not challenged before any jurisdictional Court and

neither before Tribunal or this Court. No material evidence

is produced to show that these documents are fabricated,

concocted and not being genuine and hence it is safely

concluded by the Tribunal that rash and negligent manner

of driving by the driver of the offending vehicle the accident

caused resulting in death of the deceased.

19. Now coming to the aspect of avocation, income

and age of the deceased. Though the claimants in their

claim petition pleaded that the deceased was working as as

aluminum fabricator and glass fitter at DECOFABS, No.21 C,

FCI Road, Devasandra Industrial Area, Bengaluru-560 016

and drawing salary of Rs.18,000/- per month, they have

not produced any document to that effect. However,

Ex.P14 salary certificate to show that deceased was earning

Rs.15,000/- as salary from the said private firm as an

employee. The age of the deceased as 28 years is not in

dispute. In order to establish the income of the deceased,

PW1 has stated and produced Ex.P14, which shows that he

is getting salary of Rs.15,000/-.

20. PW2, who is owner of the private firm and

employer of the deceased. He has produced Ex.P16 to P19.

Ex.P19 being the attendance register for the period of six

months. On perusal of Ex.P19, it is apt that name of the

deceased is mentioned at Sl. No.10 in the attendance

register of the private firm for the month of March 2006, so

also, during March 2017, wherein his name is mentioned at

Sl. No.13, which show that he attended as an employee in

the said private firm. This document at Ex.P19 cannot be

ignored and it has to be accepted on its evidentiary value

corroborated with the evidence of PW2, to establish that

deceased was working in the said firm as aluminum

fabricator.

21. Next aspect is what is the established income of

the deceased. PW2 in his evidence has deposed that

deceased was employed as helper and thereafter his salary

was increased from time to time and his salary at the time

of accident was Rs.13,500/- per month and his salary was

due for hike in the month of April 2017. Therefore, the

salary of the deceased was due for the month of April 2017

at Rs.14,000/-. On perusal of Ex.P14 and P19, though it is

disputed, it is apparent on record that deceased was

employed with the said private firm and was working as

Aluminum Fabricator from 2006 till 2017, as on the date of

accident. Though his salary certificate at Ex.P14 shows that

the deceased was paid salary of Rs.15,000/- per month,

PW2, who is employer of the deceased, has stated that he

is earning salary of Rs.13,500/- per month as on the date

of his death and his salary was due for increase during the

month of April 2017 to Rs.15,000/- per month. Hence, the

salary ought to have been assessed by the Tribunal on the

basis of Ex.P4 and P19 and also the statements made by

PW2, is at Rs.13,500/-. Though there may be slight

variation in Ex.P14 - salary certificate, which is issued on

18.07.2018. Under these circumstances, the assessment of

the Tribunal at Rs.8,500/- per month would not be proper.

In my opinion, the same requires interference by this Court.

22. It is vehemently contended by the learned

counsel for respondent No.2 - Insurer that in the absence

of any proof of income the Tribunal has assessed income of

the deceased correctly and in the alternative he submits

that the income of the deceased could be taken at

Rs.11,000/-, which is the notional income prescribed in the

Legal Services Authority Chart. In my opinion, if there is no

proof of income then only the said chart has to be referred.

But, in the present case on hand, claimants have stated on

oath regarding the income, avocation and age of the

deceased and have also examined PW2, who is employer of

the deceased and have produced Ex.P14 - salary

certificate, that the deceased was getting salary of

Rs.13,500/- per month at the time of accident and his

salary is due to be increased to Rs.15,000/- during the

month of April 2017. Therefore, it would be safe to assess

the income of the deceased at Rs.13,500/- per month

instead of Rs.8,500/- assessed by the Tribunal.

23. Admittedly, the deceased was aged about 28

years. In view of the judgment of the Apex Court in

National Insurance Company Limited vs. Pranay

Sethi and others, reported in (2017) 16 Supreme

Court Cases 680, 40% of the income has to be added

towards future prospects and thus as the income of the

deceased is assessed at Rs.13,500/- plus 40% of it, which

is Rs.5,400/-, and thus the income of the deceased would

be Rs.18,900/- per month. The deceased is survived by

his family of three dependants and 1/3rd of deductions

towards personal expenses, which come to Rs.6,300/-.

Therefore, the income of the deceased would be

Rs.12,600/- (Rs.18,900 - Rs.6,300/-).

24. In view of the fact that the deceased was aged

28 years at the time of accident, the proper multiplier

applicable, in view the judgment of the Apex Court in the

case of Sarla Verma (Smt) and others vs. Delhi

Transport Corporation and another, reported in

(2009) 6 Supreme Court Cases 121 would be 17.

Accordingly, multiplier 17 has been rightly adopted by the

Tribunal, which needs no inference by this Court.

25. In view of the above the claimant is entitled for

the compensation in a sum of Rs.25,70,400/-

(Rs.12,600/- X 12 X 17) as against Rs.16,18,332/- awarded

by the Tribunal under the head loss of dependency.

26. The Tribunal has awarded a sum of Rs.15,000/-

towards loss of estate and Rs.15,000/- towards funeral

expenses, which is just and reasonable and hence the same

is not disturbed.

27. The Tribunal has awarded a sum of Rs.40,000/-

towards loss of consortium, whereas in the present case on

hand there are three dependants, in view the judgment of

the Apex Court in National Insurance Company

Limited vs. Pranay Sethi and others, reported in

(2017) 16 Supreme Court Cases 680, each of the

dependant is entitle for a sum of Rs.40,000/-. Hence,

Rs.40,000/- X 3 = Rs.1,20,000/-, would be awarded

towards loss of consortium as against Rs.40,000/-

awarded by the Tribunal.

28. In view of the discussions made above, the

claimant would be entitled for the enhanced

compensation as mentioned in the table below.

      Sl.No.              Heads             Amount (Rs.)
        1.      Towards loss of estate         15,000=00

2. Towards loss of consortium 1,20,000=00

3. Towards funeral expenses 15,000=00

4. Towards loss of 25,70,400=00 dependency TOTAL: 27,20,400=00

29. Accordingly, I pass the following:

ORDER

i) The appeal is partly allowed.;

ii) Consequently, the judgment and award dated

25.01.2019 passed in MVC No. 7534/2017

before the MACT, Bangalore (SCCH-11), is

modified.;

iii) The compensation awarded by the Tribunal in

a sum of Rs.16,88,332/- is enhanced to

Rs.27,70,400/- (Rupees twenty seven lakhs

seventy thousand four hundred only),

iv) All other conditions imposed by the Tribunal

being left intact.;

v) The insurer shall pay the differential enhanced

compensation amount within a period of six

weeks from the date of receipt of a copy of

this judgment.

vi) Registry to send back the trial Court records.

vii) No order as to costs.

Sd/-

JUDGE

VK