Farida W/O Aslam Shaikh And Ors vs Yusuf S/O Abdul Rehman Bagawan And ...
2022 Latest Caselaw 5620 Kant

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        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

     DATED THIS THE 29TH DAY OF MARCH, 2022
                     BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

            MFA No.201316/2021 (MV)
BETWEEN:

1.   SMT. FARIDA
     W/O ASLAM SHAIKH,
     AGED ABOUT: 28 YEARS,
     OCC: HOUSEHOLD,

2.   NOORJAHA
     D/O ASLAM SHAIKH,
     AGED ABOUT 12 YEARS,
     OCC: NIL,

3.   MUMINA D/O ASLAM SHAIKH,
     AGED ABOUT 10 YEARS,
     OCC: NIL,

4.   ALALJEENA
     D/O ASLAM SHAIKH,
     AGED ABOUT 7 YEARS,
     OCC: NIL,
     APPELLANTS-2 TO 4 BEING
     MINORS ARE REP. BY THEIR
     NATURAL MOTHER AND
     M/G THE APPELLANT-1.

5.   SMT. BEBI
     W/O NURAHMED SHAIKH,
     AGED ABOUT 60 YEARS,
     OCC: COOLIE,
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     ALL ARE R/O. NEW GHARKUL,
     SOLAPUR.
     NOW RESIDING AT SHAIKH COLONY,
     RAILWAY STATION ROAD,
     NEAR GOLGUMBAZ,
     VIJAYPUR-586 101.
                                  ... APPELLANTS
(BY SRI S.S.MAMADAPUR, ADVOCATE)
AND:
1.     SRI. YUSUF
       S/O ABDUL REHMAN BAGAWAN,
       AGE: MAJOR, OCC: BUSINESS,
       R/O: A-47, KARNIK NAGAR,
       NEAR GANESH TEMPLE,
       SOLAPUR-413 003

2.     THE BRANCH MANAGER,
       THE ORIENTAL INSURANCE CO. LTD.,
       S.S.FRONT ROAD,
       VIJAYPUR-586 101.
                                   ... RESPONDENTS

(BY SRI SUDARSHAN M,, ADVOCATE FOR R2;
 V/O DTD. 21.01.2022 NOTICE TO R1 IS D/W)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MV ACT PRAYING TO
ENHANCE THE COMPENSATION AMOUNT BY SUITABLY
MODIFYING THE JUDGMENT AND AWARD DATED
20.11.2020 PASSED BY THE HON'BLE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM AND MACT-V, VIJAYPUR IN MVC
NO.214/2016, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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                          JUDGMENT

This appeal is filed by the petitioner under Section

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

aggrieved by the judgment and award dated 20.11.2020

passed by the Prl. Senior Civil Judge and CJM and Motor

Accident Claims Tribunal No.V, Vijayapura (for short

hereinafter referred to as 'the Tribunal') in MVC

No.214/2016.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellants are the petitioners and

respondents are the respondents before the Tribunal.

3. Facts giving rise to filing of this appeal are as

under:

On 11.08.2015 on Solapur-Akkalkot Road, near

Old Akkalkot Naka in front of A-1 Hotel, Solapur the

deceased - Aslam was proceeding on motorcycle bearing

Reg.No.MH-13/AB-6636 in a slow and cautious manner

in moderate speed, at that time the driver respondent

No.1 drove the Truck/Tanker bearing Reg.No.MH-13/B-

0701 in a rash and negligent manner and dashed to the

motorcycle and caused the accident, due to which, the

rider of the motorcycle fell down and sustained head

injuries and succumbed to the injuries on the spot. The

petitioners being the legal representatives of the

deceased filed the claim petition under Section 166 of

the Act seeking compensation on account of death of

Aslam in the road traffic accident.

4. Respondent No.1 filed the written statement

denying the averments made in the claim petition with

regard to age, income and nature of work undertaken by

the deceased and denied the manner of the accident.

Further, it is contended that the accident has taken

place due to the negligence on the part of the rider of

the motor cycle. So, there is no negligence on the part

of the driver of Truck. Further, it is contended that the

said Truck was insured with respondent No.2. Therefore,

respondent No.2 is liable to pay the compensation and

prayed to dismiss the claim petition.

5. Respondent No.2 filed the written statement

reiterating the averments made in the written statement

filed by respondent No.1.

6. The Tribunal on the basis of the pleadings of

the parties framed the issues:

7. The petitioners in support of their claim

petition examined petitioner No.1 as P.W.1 and

examined one eye witness as P.W.2 a nd got marked the

documents as Exs.P1 to P10. The official of respondent

No.2 was examined as RW.1 and got marked the

document as Ex.R1.

8. The Tribunal, after recording the evidence

and considering the material on record, allowed the

claim petition in part and awarded compensation of

Rs.8,35,000/- along with interest at the rate of 6% per

annum from the date of petition till the date of deposit.

Further, respondent Nos.1 and 2 are jointly and

severally liable to pay the compensation.

9. Being dissatisfied with the compensation

awarded by the Tribunal, the petitioners/appellants have

filed this appeal seeking enhancement of compensation.

10. Heard the learned counsel for the appellants

and also the learned counsel for respondent No.2.

11. The learned counsel for the petitioners

submits that the compensation awarded by the Tribunal

is on the lower side. Hence, he submits that the appeal

may be allowed and the compensation may be

enhanced.

12. Per contra, the learned counsel for the

respondents supports the impugned judgment and

award passed by the Tribunal. He further submits that

the compensation awarded by the Tribunal is just and

reasonable and does not call for any interference.

Hence, he prayed to dismiss the appeal.

13. 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.

14. It is not in dispute that the deceased - Aslam

met with an accident and succumbed to the injuries in

the road traffic accident. In order to prove the accident,

the petitioners have produced copy of the charge sheet

and marked as Ex.P-6. Ex.P-6 discloses that the

accident was occurred due to rash and negligent driving

of the driver of the offending vehicle. The claimants

have not produced any documents with regard to the

income of the deceased. In the absence of proof of the

income, the income is taken as per the chart provided

by the Karnataka State Legal Services Authority, the

notional income will have to be taken into consideration.

In terms of the chart, for the accident of the year 2015,

the income of the petitioner will have to be taken at

Rs.8,000/- as against Rs.5,000/- per month taken by

the Tribunal. To the aforesaid amount, as the deceased

was aged 30 years, 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 the case of National Insurance

Company Limited vs. Pranay Sethi and Others

reported in AIR 2017 SC 5157. Thus, the monthly

income comes to Rs.11,200/-. Further, deceased-

Aslam is having 5 dependents, 1/4th has to be

deducted out of Rs.11,200/-, it comes to Rs.8,400/-

(11,200/- - 2,800/- = 8,400/-). Therefore, the

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

Taking into account the age of the deceased which

was 30 years at the time of accident, multiplier of '17'

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 petitioners are entitled to a sum

of Rs.17,13,600/- (8,400 x 12 x 17) on account of

loss of dependency as against Rs.7,65,000/- awarded

by the Tribunal.

15. 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 petitioners are entitled to a sum of

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

petitioners are 5 in number, hence the compensation

towards loss of consortium would be Rs.2,00,000/-

(40,000 x 5). In addition, the petitioners are entitled

for a sum of Rs.15,000/- towards 'funeral expenses'

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

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

sum of Rs.19,43,600/- as against Rs.8,35,000/-

awarded by the Tribunal. The petitioners are entitled

for enhanced compensation of Rs.11,08,600/- with

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

petition, till its realization.

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   dated   is
             modified.

iii. The petitioners are entitled to an enhanced compensation of Rs.11,08,600/- along with interest at the rate of 6% per annum from the

date of petition till the date of realization.

      iv.   Respondent        No.2     is    directed    to
            deposit     the   compensation        amount

before the Tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.

Sd/-

JUDGE ssb