Karnataka High Court

Fathimabi @ Fathima vs Shailesh Kumar on 23 November, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                      NC: 2023:KHC:42207
                                                    MFA No. 6962 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 23RD DAY OF NOVEMBER, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 6962 OF 2022 (MV)
                   BETWEEN:

                   1.    FATHIMABI @ FATHIMA
                         W/O SUBHAN SAB
                         NOW AGED ABOUT 47 YEARS

                   2.    BUDEN SAB @ BUDEN
                         S/O SUBHAN SAB
                         NOW AGED ABOUT 33 YEARS

                   3.    JABIULLA
                         S/O SUBHAN SAB
                         NOW AGED ABOUT 31 YEARS

                   4.    SADHIQULLA
                         S/O SUBHAN SAB
                         NOW AGED ABOUT 29 YEARS

Digitally signed
by                 5.    MEHABOOBBHASHA
DHANALAKSHMI             @ MAHABASHA
MURTHY
Location: High           S/O SUBHAN SAB
Court of                 NOW AGED ABOUT 27 YEARS
Karnataka

                   6.    SHABBIR
                         S/O SUBHAN SAB
                         NOW AGED ABOUT 25 YEARS

                   7.    MEHRUNNISA
                         W/O LATE WAHAB SAB
                         NOW AGED ABOUT 70 YEARS
                         ALL ARE RESIDING AT
                         KUMBARA BHEEDI
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                                          NC: 2023:KHC:42207
                                       MFA No. 6962 of 2022




     GOPALAPURA, HIRIYUR TOWN
     CHITRADURGA DISTRICT.
                                               ...APPELLANTS
(BY SRI. RAGHU R., ADVOCATE)

AND:

1.   SHAILESH KUMAR
     MAJOR
     S/O RAM SEWAK
     R/AT NO J002 KEERTHI HARMONY
     APRT. RAMMURTHY NAGARA
     BENGALORE NORTH (D) 560016.

2.   THE MANAGER
     THE RELIANCE GEN INSURANCE CO LTD
     MAGNUR COMPLEX
     B D ROAD CHITRADURGA 577501.
                                             ...RESPONDENTS
(BY SRI.C LAKSHMINARAYANA., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH V/O DATED: 12.10.2023)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:17.07.2017
PASSED IN MVC NO.80/2015 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, HIRIYUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL, 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

NC: 2023:KHC:42207

the judgment dated 17.07.2017 passed by the Senior Civil

Judge & JMFC, Hiriyur (for short 'the Tribunal') in MVC

No.80/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.11.2014 at 8.50 a.m. the

deceased Subhan Sab was proceeding on a motorcycle

bearing registration No.KA-16/S-9446 from Hiriyur town to

APMC. When he was near Hanuman Saw Mill, at that

time, a car bearing registration No.KA-03/MS-1138 which

was being driven in a rash and negligent manner, dashed

against the vehicle of the deceased. As a result of the

aforesaid accident, the deceased fell down, 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.

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4. On service of summons, the respondent Nos.1

and 2 appeared through counsel and respondent No.2 filed

written statement 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 accident

was due to the rash and negligent riding of the motorcycle

by the deceased himself. It was further pleaded that the

driver of the offending vehicle did not possess valid driving

licence as on the date of the accident. 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, he 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 another witness as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P11. On behalf of respondents, no witness was

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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.8,71,200/- along with interest at the rate of 7.5% 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:

(i) Firstly, the claimants claim that at the time of the

accident the deceased was earning Rs.15,000/- per

month. But the Tribunal is not justified in taking the

monthly income of the deceased as only Rs.5,000/-.

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(ii) 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 reported in

AIR 2017 SC 5157, the claimants are entitled for

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

towards 'funeral expenses'.

(iii) Thirdly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM reported in 2018

ACJ 2782, each of the claimants are entitled for

compensation under the head of 'loss of love and affection

and consortium'. Hence, he prays for allowing the appeal.

7. On the other hand, the learned counsel for the

Insurance Company has raised the following contentions:

(i) 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.

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(ii) Secondly, the Tribunal has considered addition of

30% instead of 25% contrary to the law laid down by the

Apex Court in the case of PRANAY SETHI (supra).

(iii) Thirdly, there are only four claimants who are

depending upon the income of the deceased. The Tribunal

has erred in deducting 1/5th towards personal expenses of

the deceased.

(iv) Fourthly, considering the age and avocation of

the deceased, the compensation awarded by the Tribunal

is just and reasonable.

(v) Lastly, in view of the Division Bench decision 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 interest granted by the Tribunal at the

rate of 7.5% p.a. is on the higher side. Hence, he prays

for dismissal of the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award.

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9. It is not in dispute that Subhan Sab died in the

road traffic accident occurred on 29.11.2014 due to rash

and negligent driving of the car bearing registration

No.KA-03/MS-1138 by its driver.

10. The claimants have not produced any evidence or

documents with regard to the income of the deceased.

Therefore, the notional income has to be assessed as per

the guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken place in

the year, the notional income has to be taken at

Rs.8,500/- p.m. To the aforesaid amount, since the

deceased was aged about 48 years 25% 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.10,625/-, out of which, since there are four

claimants who are depending upon the deceased, it is

appropriate to deduct 1/4th towards personal expenses and

therefore, the monthly income comes to Rs.7,969/- and

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the multiplier applicable to his age group is '13'. Thus, the

claimants are entitled to compensation of Rs.12,43,164/-

(Rs.7,969*12*13) on account of 'loss of dependency'. In

addition, the claimants are entitled to Rs.15,000/- on

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

'funeral expenses'. In view of the law laid down by the

Supreme Court in MAGMA GENERAL INSURANCE

(supra), the claimants are entitled for compensation of

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

11. Thus, the claimants are entitled to the following

compensation:

            Compensation under        Amount in
              different Heads           (Rs.)

           Loss of dependency            12,43,164

           Funeral expenses                 15,000

           Loss of estate                   15,000

           Loss of spousal                  40,000
           consortium

           Loss of Parental               2,00,000
           consortium
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            Loss of Filial consortium       40,000

                          Total         15,53,164

12. In view of the above, I pass the following order: