Karnataka High Court
Sri. Ramajan Budansab Saiyyad vs Sri. Mahantesh Basavaraj Ramapur on 11 January, 2023
Bench: Ravi V.Hosmani
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MFA No. 102257 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISC. FIRST APPEAL NO. 102257 OF 2018 (MV-D)
BETWEEN:
1. SRI. RAMAJAN BUDANSAB SAIYYAD,
AGE: 42 YEARS,
OCC:COOLIE, R/O. BATAKURKI,
TALUK:RAMDURG,
DISTRICT:BELAGAVI-590001.
2. KUMAR ALLABAX,
S/O. RAMAJAN SAIYYAD
AGE:22 YEARS,
OCC:STUDENT, R/O. BATAKURKI,
TALUK:RAMDURG,
DISTRICT:BELAGAVI-590001.
3. KUMARI PATIMA,
D/O. RAMAJAN SAIYYAD,
AGE: 19 YEARS,
OCC:STUDENT, R/O. BATAKURKI,
TALUK:RAMDURG,
DISTRICT:BELAGAVI-590001.
4. KUMARI KHATIJA,
D/O. RAMAJAN SAIYYAD
AGE: 16 YEARS,
OCC:STUDENT,
R/O. BATAKURKI, TALUK:RAMDURG,
DISTRICT:BELAGAVI-590001.
5. KUMAR MOHAMMAD,
S/O. RAMAJAN SAIYYAD
AGE:14 YEARS,
OCC:STUDENT,
R/O. BATAKURKI, TALUK:RAMDURG,
DISTRICT:BELAGAVI-590001.
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MFA No. 102257 of 2018
6. KUMARI MOMTAZ,
D/O. RAMAJAN SAIYYAD
AGE:14 YEARS,
OCC:STUDENT,
R/O. BATAKURKI, TALUK:RAMDURG,
DISTRICT:BELAGAVI-590001.
APPELLANTS NO.4 TO 6 ARE MINORS REPRESENTED
BY THEIR GUARDIAN APPELLANT NO.1
...APPELLANTS
(BY SRI. H M DHARIGOND, ADVOCATE)
AND:
1. SRI. MAHANTESH BASAVARAJ RAMAPUR,
AGE: 35 YEARS,
OCC:BUSINESS,
R/O.H.NO.18-24J,
BANGLEDUDDE ROAD,
TALUK:KARKAL, DISTRICT:UDUPI.
2. ICICI LOMBARD GENERAL INSURANCE CO. TD.,
ICICI LOMBARD HOUSE,
414 VEER SAVARKAR MARG,
NEAR SHIDDIVINAYAK TEMPLE,
PRABHADEVI MUMBAI-25,
THROUGH ITS REGIONAL MANAGER,
ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
GOKUL ROAD NEAR GARDEN HOTEL,
HUBBALLI, DISTRICT:DHARWAD-580001.
...RESPONDENTS
(BY SRI. S K KAYAKAMATH, ADVOCATE FOR R2;
R1 - DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 25.11.2017
PASSED IN MVC NO.2701/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, RAMDURG, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 102257 of 2018
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated
25.11.2017 passed by Senior Civil Judge and
Additional MACT, Ramdurg in MVC.no.2701/2014,
this appeal is filed by claimants for enhancement of
compensation.
2. Brief facts as stated are that in an accident
that occurred on 18.07.2014, deceased -
Smt.Hussainbhi traveling in Van bearing registration
no.KA-20/D-1468 due to rash and negligent driving
by its driver, she sustained fatal injuries and died.
3. Alleging loss of dependency, her husband
and five children filed claim petition under Section
166 of Motor Vehicles Act, against owner and insurer
of offending vehicle.
4. On service of summons, owner did not
appear. He was placed ex-parte. Only insurer filed
MFA No. 102257 of 2018
objections denying claim petition averments and
contending that accident was not due to rash and
negligent driving of vehicle by its driver and that
liability of insurer was subject to observance of
terms and conditions of policy. It was specifically
contended that insured vehicle was Goods vehicle
and not meant for carrying passengers. Therefore,
there was violation of policy conditions and sought
for dismissal of claim petition.
5. Thereafter, tribunal framed issues,
recorded evidence of claimants, wherein claimant
no.2 was examined as PW-1 and Exhibits P1 to P9
were marked. Insurer examined its official as RW-1
and got marked Exhibits R1 to R5.
6. On consideration, tribunal held that
accident had occurred due to rash and negligent
driving of offending vehicle by its driver, vehicle was
duly insured and valid as on date of accident and
MFA No. 102257 of 2018
therefore, insurer was liable to pay compensation. It
also held that claimants entitled for compensation as
follows:
Amount in
Sl.No. Heads of Compensation
Rupees
1. Loss of dependency 7,65,000/-
2. Funeral expenses and
15,000/-
transportation of dead body
3. Loss of love and affection 50,000/-
4. Loss of estate 25,000/-
Total 8,55,000/-
7. Sri. H.M. Dharigond, learned counsel
appearing for claimants - appellants sought
enhancement of compensation under following
heads:
i) Monthly income: On ground that
deceased was working as Coolie and
earning more than Rs.7,500/- per
month. But, tribunal considered meager
income of Rs.5,000/-.
ii) Future prospects: As per decision in
National Insurance Co. Ltd. v/s
Pranay Sethi and Ors., reported in AIR
MFA No. 102257 of 2018
2017 SC 2157, future prospects at 40%
was required to be added.
iii) Conventional Heads: As per decision in
United India Insurance Company Ltd.
v/s Satinder Kaur and Ors., reported
in AIR 2020 SC 3076, each of
dependent claimant was entitled for
compensation towards loss of
consortium.
And on above grounds sought for allowing
appeal.
8. On other hand, Sri. S.K. Kayakamath,
learned counsel for insurer supported award and
opposed enhancement. It was specifically contended
that claimants failed to establish income and
assessment by tribunal was justified.
9. From above submission, only point that
arises for consideration is:
"Whether claimants are entitled for
enhancement of compensation as
sought for?"
MFA No. 102257 of 2018
10. Insofar as income, though claimants stated
that deceased aged 30 years working as agricultural
coolie and earning Rs.7,500/- per month, no specific
evidence is led to substantiate same. In absence of
specific evidence, it has to be assessed on notional
terms. Notional income for year 2014 is Rs.7,500/-.
Thus, tribunal was not justified in considering lower
monthly income. Loss of dependency has to be
determined by considering Rs.7,500/- as monthly
income.
11. Admittedly deceased was aged 30 years
and she was self employed. Claim petition is filed by
husband and five children i.e. Six dependants.
Therefore, as per ratio in Pranay Sethi's case
(supra), multiplier applicable will be 17, addition of
future prospects will have to be at 40% and
deduction towards personal expenses will have to be
MFA No. 102257 of 2018
at 1/4 t h . Thus, Total compensation would be as
follows:
Amount in
Sl.No. Heads of Compensation
Rupees
1. Loss of dependency i.e.
16,06,500/-
Rs.7,500 + 40% - ¼ x 12 x 17
Conventional heads
2. Loss of consortium
2,40,000/-
Rs.40,000/- X 6
3. Funeral expenses 15,000/-
4. Loss of estate 15,000/-
Total 18,76,500/-
12. Point for consideration is thus answered
partly in affirmative as above. Hence, I pass
following:
ORDER
i. Appeal is allowed in part.
ii. Claimants are entitled for reassessed
compensation of Rs.18,76,500/- as
against Rs.8,55,000/- awarded by
tribunal, which shall carry interest at 6%
per annum from date of claim petition till
deposit.
MFA No. 102257 of 2018
iii. Insurer is directed to deposit enhanced
compensation within six weeks from date
of receipt of certified copy of this order.
iv. On deposit, claimant no.1 would be
entitled for 25% and remaining amount to
be shared by claimants no.2 to 6 equally.
v. Entire compensation towards share of
claimants no.2 to 6 is ordered to be kept
in fixed deposit for a period of 5 years
with liberty to seek for its release, in case
it is required for higher studies or for
marriage purposes.
vi. Entire compensation towards share of
claimant no.1 is ordered to be released.
SD/-
JUDGE
GRD
