Karnataka High Court

Mr. Moideen Kunhi vs Mr. Rohithashwa on 24 May, 2022

Bench: H T Prasad

                        1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 24TH DAY OF MAY 2022

                   BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

          MFA No.4340 OF 2018(MV)


BETWEEN

1 . MR. MOIDEEN KUNHI
    S/O. IBRAHIM. M,
    AGED 46 YEARS,

2 . SMT. ZOURA @ FATHIMATH ZUHARA
    W/O. MR. MOIDEEN KUNHI,
    AGED 42 YEARS,

3 . MR. IBRAHIM NASEER. M
    S/O. MR. MOIDEEN KUNHI,
    AGED 24 YEARS,

4 . KUM. NAFEESDHATH NAZMEENA. M
    D/O. MR. MOIDEEN KUNHI,
    AGED 22 YEARS,

5 . MR. YOUSUF NIZAR. M
    S/O. MR. MOIDEEN KUNHI,
    AGED ABOUT 17 YEARS,

   THE APPELLANT NO.5 IS A MINOR,
   AND REPRESENTED BY HIS FATHER
                         2




      AND NEXT FRIEND THE
      APPELLANT NO.1 HEREIN

      ALL ARE R/O. MUGERU HOUSE,
      KATUKUKKE,
      ENMAKAJE VILLAGE,
      KASARGOD,
      KERALA STATE,

      PRESENTLY R/AT ZOHARA MANZIL,
      PADEEL, BAJAL,
      MANGALURU TALUK.
                                      ...APPELLANTS
(BY SRI GURUPRASAD B R, ADVOCATE)

AND

1 . MR. ROHITHASHWA
    S/O. RAMANNA,
    AGED 39 YEARS,
    PANDITHA MOLE HOUSE,
    PUNCHA VILLAGE,
    BANTWAL TALUK-574 243

2 . UNIVERSAL SAMPO GENERAL
    INSURANCE CO. LTD.,
    BRANCH CITY TRADE CENTRE,
    I FLOOR, OPP. CITY HOSPITAL,
    KADRI,
    MANGALURU TALUK-02,

   REPRESENTED BY ITS MANAGER.
                                ...RESPONDENTS
(BY SRI H.N.KESHAV PRASHANTH, ADVOCATE FOR
R2;
                            3




NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
25.05.2017, PASSED IN MVC NO.435/2014, ON THE
FILE OF THE IV ADDITIONAL DISTRICT JUDGE &
MEMBER,    MACT,   D.K.  MANGALURU,    PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants being

aggrieved by the judgment dated 25.5.2017 passed

by the IV Addl. District Judge and Member, MACT,

Dakshina Kannada, Mangalore in MVC 435/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 28.12.2013, the deceased

Mohammed Zaheer was proceeding as a pillion rider

on motorcycle bearing registration No.KL-14-L-3995

from kamblabettu Vittal towards Mugeru of Enmakaje

Village, Kasargod and at that time, a Toofan car

bearing registration No.KA-19-C-4339 which was

being driven in a rash and negligent manner, dashed

against the motorcycle. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondents

appeared through their respective counsel and filed

written statements in which the averments made in

the petition were denied.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-4

and another witness as PW-5 and got exhibited

documents namely Ex.P1 to Ex.P44. On behalf of

respondents, two witnesses were examined as RW-1

and 2 and got exhibited documents namely Ex.R1 to

Ex.R11. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the deceased sustained injuries and succumbed to the

injuries. The Tribunal further held that the claimants

are entitled to a compensation of Rs.8,73,000/- along

with interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the claimants has

raised the following contentions:

Firstly, the claimants claim that the deceased

was aged about 22 years at the time of the accident

and he was earning Rs.20,000/- per month by

working as Computer Operator in Spar Hyper Mart.

But the Tribunal is not justified in taking the monthly

income of the deceased as merely as Rs.6,000/-.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157], in case the deceased

was self-employed or on a fixed salary, an addition of

40% of the established income towards 'future

prospects' should be the warrant where the deceased

was below the age of 40 years. The Tribunal has failed

to consider the same.

Thirdly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ

2782], each of the claimants are entitled for

compensation of Rs.40,000/- under the head of 'loss

of love and affection and consortium'.

Fourthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

counter-contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.20,000/- per month, the

same is not established by the claimants by producing

documents. Therefore, the Tribunal has rightly

assessed the income of the deceased notionally.

Secondly, since the claimants have not

established the income of the deceased, they are not

entitled for compensation towards 'future prospects'.

Thirdly, on appreciation of oral and documentary

evidence and considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal.

9. It is not in dispute that deceased

Mohammad Zaheer died in the road traffic accident

occurred due to rash and negligent driving of the

offending vehicle by its driver.

The claimants claim that deceased was earning

Rs.20,000/- per month. But they have not produced

any documents to prove the income of the deceased.

In the absence of proof of income, the notional income

has to be assessed. As per the guidelines issued by

the Karnataka State Legal Services Authority, for the

accident taken place in the year 2013, the notional

income of the deceased has to be taken at Rs.8,000/-

p.m.

To the aforesaid income, 40% 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' (supra). Thus, the monthly

income comes to Rs.11,200/-. Since the deceased

was a bachelor, it is appropriate to deduct 50% of the

income of the deceased towards personal expenses

and remaining amount has to be taken as his

contribution to the family. The deceased was aged

about 22 years at the time of the accident and

multiplier applicable to his age group is '18'. Thus,

the claimants are entitled to compensation of

Rs.12,09,600/- (Rs.11,200*12*18*50%) on account

of 'loss of dependency'.

In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of

estate' and compensation of Rs.15,000/- on account

of 'funeral expenses'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.1 and 2, parents

of the deceased are entitled for compensation of

Rs.40,000/- each under the head of 'loss of filial

consortium' and claimant Nos.3, 4 and 5, brothers

and sister of the deceased are entitled for

compensation of Rs.40,000/- each under the head of

'loss of love and affection'.

10. Thus, the claimants are entitled to the

following compensation:

          Compensation under                 Amount in
             different Heads                   (Rs.)
         Loss of dependency                   12,09,600
         Funeral expenses                        15,000
         Loss of estate                          15,000





       Loss of filial consortium               80,000
       Loss of love and                       120,000
       affection
                        Total           14,39,600

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.14,39,000/- as against

Rs.8,73,000/- awarded by the Tribunal.

The Insurance Company is directed to deposit

the compensation amount along with interest at 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment.

In view of the order dated 09.03.2020 passed by

this Court, the claimants are not entitled for interest