Karnataka High Court

Abdul Rahman Shariff vs S M Devaraj on 10 October, 2022

Bench: H T Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF OCTOBER 2022

                          BEFORE

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

                MFA No.9407 OF 2012(MV)

BETWEEN:

1.     Abdul Rahaman Shariff,
       S/o Late Abdul Rasheed,
       Aged about 60 years.

2.     Jhamruth Begum,
       W/o Abdul Rahaman Shariff,
       Aged about 50 years.

3.     Hina Kouser,
       D/o Abdul Rahaman Shariff,
       Aged about 30 years.

4.     Aaisha Kouser,
       D/o Abdul Rahaman Shariff,
       Aged about 28 years.

5.     Hayath Mohammed Shariff,
       S/o Abdul Rahaman Shariff,
       Aged about 20 years.

       All are residents of
       No. 2830, 5th Cross, Sade Road,
       Mandi Mohalla, Mysore.            ... Appellants

(By Smt. Ambika, Advocate for
Sri. Mohd Sheriff, Advocate)
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AND:

1.     S.M. Devaraj,
       S/o H. Nanjegowda,
       Aged about 40 years,
       Sankenahally Village,
       Doddapura Post, Hassan Taluk.

2.     Divisional Manager,
       New India Assurance Co. Ltd.,
       D.O. 2, Chamarajapuram,
       Mysore.                     ... Respondents

(By Sri.O.Mahesh, Advocate for R2:
Notice to R1 is served but unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:25.01.2011 passed
in MVC No.722/2011 on the file of the Presiding Officer,
Fast Track Court-1 and Member, Additional MACT, Mysore,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.

      This MFA, coming on for admission, this day, this
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 25.01.2012 passed

by the Fast Track Court-I and Additional Motor

Accident Claims Tribunal at Mysore in MVC

No.722/2011.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 01.03.2011 at about 0.30

hours the deceased Nawaz Mohammed Shariff was

proceeding on a motor bike bearing registration

No.KA-55/J-3783 from Kavalande to Mysore. When

they reached Golur Village, he stopped the motor bike

to repair another motor bike. At that time, a lorry

bearing registration No. KA-03/D-4883 which was

being driven in a rash and negligent manner, dashed

against the two motor bikes. As a result of the

aforesaid accident, the deceased sustained grievous

injuries and succumbed to the injuries at the spot.

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

Nos.1 and 2 appeared through counsel and filed

written statements in which the averments made in

the petition were denied. The age, occupation and

income of the deceased are 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 negligence of the deceased himself. It was

further pleaded that the liability is subject to terms

and conditions of the policy. It was further pleaded

that the quantum of compensation claimed by the

claimants is exorbitant. Hence, they sought for

dismissal of the petition.

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 other two witnesses as PW-2 and PW-3 and got

exhibited documents namely Ex.P1 to Ex.P15. On

behalf of respondents, no witness was examined but

got exhibited 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.3,24,000/- along with interest at the rate of 8%

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 earning Rs.15,000/- per month by working as a

Lab Assistant in Rifa-Hul-Muslimeen Educational Trust.

But the Tribunal is not justified in taking the monthly

income of the deceased as only Rs.4,000/-.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. vs. PRANAY SETHI AND

OTHERS reported in 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 same

may be considered.

Thirdly, as per the law laid down by the Hon'ble

Supreme Court in the case of PRANAY SETHI

(supra), the claimants are entitled for Rs.15,000/-

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

'funeral expenses'.

Fourthly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. Vs. NANU RAM reported in

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'.

Fifthly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, she 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.15,000/- 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.

Fourthly, in view of the law laid down by a

Division Bench of this Court in the case of

MS.JOYEETA BOSE AND OTHERS vs.

VENKATESHAN.V AND OTHERS (MFA 5896/2018

and connected matters disposed of on

24.8.2020), the rate of interest awarded by the

Tribunal at 8% p.a. is on the higher side. Hence, he

sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and the original

records.

9. It is not in dispute that Nawaz Mohammed

Shariff 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.15,000/- 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 2011, the notional

income of the deceased has to be taken at Rs.6,500/-

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.9,100/-. Since the deceased was

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

income of the deceased towards personal expenses

and remaining amount, i.e., Rs.4,550/- has to be

taken as his contribution to the family. The deceased

was aged about 23 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.9,82,800/- (Rs.4,550*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' .

10. Thus, the claimants are entitled to the

following compensation:

           Compensation under              Amount in
              different Heads                (Rs.)
          Loss of dependency                  9,82,800
          Funeral expenses                      15,000
          Loss of estate                        15,000
          Loss of Filial consortium             80,000
                          Total             10,92,800

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.10,92,800/- as against

Rs.3,24,000/- awarded by the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (interest @ 6% p.a. on the enhanced

compensation) from the date of filing of the claim