Karnataka High Court

Smt. B. Sazia W/O Late Zakir ... vs Sri. Allah Bakshi @ Basha S/O ... on 21 September, 2022

Bench: H.P.Sandesh

                                                        -1-




                                                                MFA No. 24376 of 2011


                                        IN THE HIGH COURT OF KARNATAKA

                                                 DHARWAD BENCH

                                   DATED THIS THE 21ST DAY OF SEPTEMBER, 2022

                                                      BEFORE
                                       THE HON'BLE MR JUSTICE H.P.SANDESH
                                  MISCELLANEOUS FIRST APPEAL NO. 24376 OF 2011
                                                      (MV-D)
                             BETWEEN:

                             1.    SMT. B. SAZIA
                                   W/O. LATE ZAKIR HUSSAIN @ ZAKIR
                                   AGE: 27 YEARS, OCC: HOUSEWIFE
                                   R/O. ULLAGADDAVALA BEEDHI
                                   WARD NO. 11, URVAKONDA
                                   NOW R/O. C/O. RAJA HUSSAIN
                                   TADIPATHRI, NEAR RAMA TALKIES
                                   NOORANI MASZID
                                   HOSPET, DIST: BELLARY
                                                                          ...APPELLANT

                                   (BY SRI. HANUMANTHAREDDY SAHUKAR,ADVOCATE)

                             AND:

          Digitally signed
          by J MAMATHA
                             1.    SRI. ALLAH BAKSHI @ BASHA
J         Location:
          Dharwad
                                   S/O. FAKRUDDIN SAB
MAMATHA   Date:
          2022.09.27               AGE: 32 YEARS
          12:34:35 +0530
                                   OCC: DRIVER OF LORRY BEARING
                                   NO. AP-21/W-3314
                                   R/O. BOYA STREET
                                   URAVAKONDA ANANTHAPUR DISTRICT
                                   ANDRA PRADESH STATE.

                             2.    SRI. KHAJA MODIN N
                                   S/O. N. HAJI PEERA SAHEB
                                   AGE: MAJOR, OWNER OF THE LORRY
                                   BEARING NO. AP-21/W-3314
                             -2-




                                    MFA No. 24376 of 2011


     DOOR NO.2-37-1, CHERIOPALLY VILLAGE

     OWK, KURNOOL DISTRICT
     ANDRA PRADESH STATE

3.   M/S. BAJAJ ALLIANZ GENERAL
     INSURANCE CO. LTD.
     BY ITS MANAGER
     SEETHARAM COMPLEX
     DOUBLE ROAD, BELLARY
                                           ...RESPONDENTS

       (BY SRI S.K. KAYAKAMATH, ADVOCATE FOR R3;
            NOTICE TO R1 IS DISPENSED WITH;
            NOTICE TO R2 IS HELD SUFFICIENT)

     THIS MFA IS FILED U/S.173(1) OF M.V. ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED:18.06.2010,
PASSED IN M.V.C. NO.869/2009 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL-IX, BELLARY, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR FINAL HEARING THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard the learned counsel for the appellant and also

the learned counsel appearing for the respondents.

2. The factual matrix of the case of the claimant before

the Tribunal is that her husband late Zakeer Hussain met

with an accident and he succumbed to the injuries.

MFA No. 24376 of 2011

Hence, she made a claim petition to the Tribunal. The

Tribunal after assessing both oral and documentary evidence

allowed the claim petition awarding compensation of

Rs.4,21,500/- with interest at the rate of 6% p.a. Being

aggrieved by the judgment and award, the claimant has filed

the present appeal seeking for enhancement of compensation.

3. Learned counsel appearing for the

appellant/claimant submits that the Tribunal has taken the

income of the deceased at Rs.3,000/- and has deducted

1/3rd towards personal expenses of the deceased. But, the

Tribunal committed an error in not considering the future

prospects while awarding the compensation. He further

submits that the liability is fastened on the owner on the

ground that the driver of the offending vehicle did not

possess valid and effective driving licence. Hence, the

judgment and award of the Tribunal calls for interference

of this Court.

4. Per contra, learned counsel appearing for the

Insurance Company submits that the vehicle involved is a

MFA No. 24376 of 2011

heavy goods vehicle and the driver was having only

licence to drive the light motor vehicle. He further

contends that the Tribunal committed an error in

deducting only 1/3rd towards personal expenses of the

deceased when there was only one dependent. Learned

counsel also relied on the judgment of this Court in GEETA

HUKUMCHAND BAGEWADI VS. SUNDARAWWA

SHIVARAY NAIKHE AND OTHERS

(M.F.A.No.20759/2012 DECIDED ON 15.04.2019)

wherein this Court deducted 50% towards the personal

expenses of the deceased since there was a sole claimant.

Hence, he submits that the impugned judgment and award

does not call for interference.

5. In reply, learned counsel for the

appellant/claimant would rely upon the judgment of this

Court in THE NATIONAL INSURANCE CO., LTD., VS.

SMT.GEETHA P.NAYAK (2011 (1) KCCR 734) wherein

at paragraph 8 this Court has distinguished the judgment

of the Hon'ble Apex Court and held that wherein the

MFA No. 24376 of 2011

number of dependants is only one i.e., the wife of the

deceased, the socio-economic aspects have to be

considered and that the widow has to spend her rest of life

either under the shelter of her parents or brother and

hence, the Tribunal has rightly deducted 1/3rd towards the

expenses of the deceased.

6. Having considered the contention of both the

counsel, it is not in dispute that the vehicle involved is a

heavy goods vehicle and the deceased had only licence to

drive light motor vehicle. The Hon'ble Apex Court in

MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.,

LTD., (2017) 14 SCC 663) has held that there was no

requirement to obtain separate endorsement to drive transport

vehicle, and if a driver is holding licence to drive light motor

vehicle, he can drive transport vehicle of such class without any

endorsement to that effect but here the vehicle is heavy goods

vehicle and not the LMV. When such being the case, the

liability has to be fastened on the insured but it has to be

modified as to 'pay and recover' from the insured after

making the payment by the insurer.

MFA No. 24376 of 2011

7. The other contention of the learned counsel for

the claimant that the income was taken at Rs.3,000/- p.m.

is concerned, there is force in the contention of the

learned counsel that notional income of Rs.4,250/- has to

be considered as the accident is of the year 2008. The

learned counsel for the claimant would submit that the

deceased was working as a driver and he was having a

driving licence and the same is marked as Ex.P.82. When

he was discharging his duty as a driver at the time of the

accident, the Court has to take note of the additional skill

of the deceased. However, the P.W.1 in the evidence

claims that the deceased was earning Rs.5,000/- per

month. When there is an admission with regard to the

income of the deceased at the time of the accident, the

Court has to take note of the admitted income i.e.,

Rs.5,000/- per month. Out of the income of Rs.5,000/-,

40% is to be added towards future prospects. If the same

is added, the income would be Rs.7,000/- (5,000 +

2,000). Out of the income of Rs.7,000/-, 50% is to be

MFA No. 24376 of 2011

deducted towards personal expenses, in view of the

judgment of the Apex Court in SARALA VARMA VS.

DELIHI TRANSPORT CORPORATION AND ANOTHER

reported in (2009) 6 SCC 121. This Court also, in the

latest judgment has held that, if the claimants are 2 or 3

in numbers, the Court has to deduct 1/3rd or 50% towards

personal expenses. Hence, this Court has to take note of

the same and if it is a case of wife claiming compensation

for the death of her husband, the Court has to take note of

the expenses deducted towards personal expenses and the

contention of the claimants to deduct 1/3rd cannot be

accepted.

8. Hence, after deducting 50% towards the

personal expenses, the income of the deceased would be

Rs.3,500/- per month. Taking the income of Rs.3,500/-

per month and applying the relevant multiplier of '16'

considering the age of the deceased, the loss of

dependency works out to Rs.6,72,000/- (3,500 x 12 x 16).

MFA No. 24376 of 2011

9. The claimant is also entitled for a sum of

Rs.73,000/- towards conventional heads and Rs.43,000/-

towards medical expenses, since the deceased died after a

prolonged treatment.

10. In view of the discussions made above, I pass

the following:

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award of the Tribunal is modified granting compensation of Rs.7,88,000/- as against the compensation awarded by the Tribunal in a sum of Rs.4,21,500/- with interest at the rate of 6% per annum.