Karnataka High Court
Mr Abdul Khadar vs The Managing Partner on 31 May, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.3317 OF 2019(MV)
BETWEEN:
1. MR. ABDUL KHADAR,
S/O ABDUL RAHIMAN,
AGED ABOUT 53 YEARS,
2. SMT. MUMTHAZ @ MUMTAJ,
W/O ABDUL KHADAR,
AGED ABOUT 46 YEARS,
3. KUM.SAJIDA,
D/O ABDUL KHADAR,
AGED ABOUT 27 YEARS,
4. MOHAMMED AZEEM,
S/O ABDUL KHADAR,
AGED ABOUT 22 YEARS,
ALL ARE R/AT NANADAVARA BASTHI HOUSE,
SAJIPA MUNNAR VILLAGE,
PANEMANGALORE POST, BANTWAL TALUK,
PRESENTLY RESIDING AT URUNDADI GUDDE,
PANJIMOGARU POST, MANGALURU TALUK,
D.K. DISTRICT - 575 019.
...APPELLANTS
(BY SRI. RAVISHANKAR SHASTRY G, ADVOCATE)
2
AND:
1. THE MANAGING PARTNER,
SRI GANESH SHIPPING AGENCY,
SRIRAM BUILDING, KOTARA CHOWKI,
MANGALURU, D.K.DISTRICT - 575 006.
2. NATIONAL INSURANCE COM.,LTD.,
SECOND FLOOR, INLAND ORNATTE,
OPPOSITE: HOTEL OCEAN PEARL,
KODIALBAIL, MANGALURU, D.K.,
REPRESENTED BY ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI.ANUP SEETHARAMA RAO, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
28.09.2018 PASSED IN MVC NO.1125/2016 ON THE FILE
OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MEMBER, MACT-IV, D.K., MANGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS, 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 28.09.2018 passed
by the Motor Accident Claims Tribunal, Dakshina
Kannada, Mangaluru in MVC No.1125/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 10.06.2016 the deceased
along with another was traveling from Adyarkatte
towards Nandavara in an Auto Rickshaw bearing
Registration No.KA-19-AB-319. When they reached
near Vaibhava Hallin Valachil at about 05.00 P.M., a
container lorry bearing Registration No.KA-19-AA-
7581 came from B.C.Road side in high speed and in a
rash and negligent manner and lost control over the
vehicle, dashed the lorry against the median. Then the
container lorry crossed the median, entered other side
of the lane and hit against the Maruthi Car bearing
Registration No.KA-19-N-964 and toppled on Auto
Rickshaw. 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 respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied. It was pleaded that the petition
itself is false and frivolous in the eye of law. It was
further pleaded that the accident was due to the rash
and negligent driving of the driver of the Auto
Rickshaw and not on the part of the driver of the
lorry. The liability is subject to terms and conditions of
the policy. The age, occupation and income of the
deceased are denied. It was further pleaded that the
quantum of compensation claimed by the claimants is
exorbitant. Hence, he sought for dismissal of the
petition.
The respondent No.1 did not appear before the
Tribunal inspite of service of notice and hence was
placed ex-parte.
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-1
and examined two more witnesses as PW-3 and PW-4
got exhibited documents namely Ex.P1 to Ex.P11 and
Ex.P18 to Ex.P23. On behalf of respondents, no
witness was examined but exhibited a document
namely Ex.R1. 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.14,08,446/-
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. Sri Ravishankar Shastry. G., learned
counsel for the claimants has raised the following
contentions:
Firstly, the claimants claim that the deceased
was aged about 20 years at the time of the accident
and he was earning Rs.500/- per day by working as
Painter. To prove the same, they have examined the
employer of the deceased as PW-4 and produced
Salary Certificate as per Ex.P.18 issued by PW-4. But
the Tribunal without considering income of the
deceased as Rs.500/- per day, has considered as
Rs.7,500/- per month is on lower side.
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 and they are also
entitled for Rs.15,000/- towards 'loss of estate' and
Rs.15,000/- towards 'funeral expenses'. The same
may be considered.
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'.
Lastly, the compensation awarded by the
Tribunal under the conventional heads is on the lower
side. Hence, he prays for allowing the appeal.
7. Per contra, Sri Anup Seetharama Rao, 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.500/- per day and they have
examined employer of the deceased, they have not
produced any Bank Statement to show that he was
receiving Rs.500/- per day. Therefore, the Tribunal
has disbelieved the versions of the claimants, has
considered 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'.
Lastly, 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 records.
9. It is not in dispute that Abdul Zameer 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.500/- per day. But the Tribunal has disbelieved the
versions of the claimants, has rightly assessed the
notional income. While assessing the notional income,
the Tribunal has considered the notional income of the
deceased Rs.7,500/- is on lower side. Therefore, 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 2016, the notional
income of the deceased has to be taken at Rs.9,500/-
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.13,300/-. Since the deceased
was a bachelor at the time of the accident, it is
appropriate to deduct 50% of the income of the
deceased towards personal expenses and therefore,
the monthly income comes to Rs.6,650/-. The
deceased was aged about 20 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.14,36,400./- (Rs.6,650*12*18) 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'.
The compensation of Rs.5,68,446/- awarded by
the Tribunal towards 'Medical Expenses' is just and
reasonable.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 14,36,400
Funeral expenses 15,000
Loss of estate 15,000
Loss of Filial consortium 80,000
Medical Expenses 5,68,446
Total 21,14,846
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.21,14,846/- as against
Rs.14,08,446/- 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.
Sd/-
JUDGE
HA/-
