Karnataka High Court
Smt. Nasima Banu vs Punith U S on 25 September, 2023
Bench: C M Joshi
-1-
NC: 2023:KHC:34875
MFA No. 4713 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 4713 OF 2018 (MV-D)
BETWEEN:
1 . SMT. NASIMA BANU,
W/O. ANSER AHMAD,
@ ANWER AHMAD,
AGED ABOUT 41 YEARS.
2 . NAGMA KOUSAR,
D/O. ANSER AHMAD,
@ ANWER AHMAD,
AGED ABOUT 23 YEARS.
3 . SHAHUL AHAMMAD,
S/O. ANSER AHMAD,
@ ANWER AHMAD,
AGED ABOUT 21 YEARS.
ALL ARE R/A: NO.2/13,
Digitally signed 9TH CROSS, GURUR MAIN ROAD,
by T S
NAGARATHNA NACHANAHALLIPALYA,
Location: High MYSURU-570 008.
Court of
Karnataka ...APPELLANTS
(BY SRI SHANTHARAJ.K, ADVOCATE)
AND:
1. PUNITH U S,
S/O SRI SOMASHEKARA U.B.,
AGE MAJOR,
R/A: NEAR BANUPRAKASH SCHOOL,
UPPALLI INDAWARA POST,
CHIKKMAGALUR-577 101.
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MFA No. 4713 of 2018
2. UNITED INDIA INSURANCE COMPANY LIMITED,
REPRESETNED BY ITS MANAGER,
PRINCE OF WALES ROAD,
BALLAL CIRCLE,
CHAMARAJAPURAM,
MYSURU-577 005.
...RESPONDENTS
(BY SRI B.A RAMAKRISHNA, ADVOCATE FOR R-2,
NOTICE TO R-1 D/W VIDE ORDER DATED 05.02.2019.)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:12.01.2017 PASSED IN MVC
NO.175/2016 ON THE FILE OF THE JUDGE, PRINCIPAL COURT
OF SMALL CAUSES AND MACT, MYSURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award dated
12.01.2017 passed in MVC No.175/2016 by the learned Judge,
Principal Court of Small Causes and MACT, Mysuru, whereby
the claim petition came to be partly allowed granting
compensation of Rs.9,71,200/- and seeking enhancement of
compensation, the petitioners have approached this Court in
appeal.
2. The brief facts are as below:
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MFA No. 4713 of 2018
On 14.09.2015 at about 12.30 p.m., Sri Ansar Ahamad @
Anwar Ahamad being a pedestrian was standing in front of Gopi
Shop at APMC., Mysuru, at that time, respondent No.1 drove
his Lorry bearing No.KA-01-D-2906 in a rash and negligent
manner and dashed to Sri. Ansar Ahamad @ Anwar Ahamad
and due to which, he fell down and sustained injuries and
succumbed to the injuries on the spot itself. Further, it was
contended that, prior to accident, the deceased was hale and
healthy and earning Rs.15,000/- p.m. by doing loading and
unloading Work at APMC., Mysuru and maintaining his family
consisting of wife and children. The accident in question
occurred due to the rash and negligent driving of respondent
No.1 only and the respondent Nos.1 and 2 being the driver-
cum-owner and insurer of the offending vehicle are jointly and
severally liable to pay the compensation. Hence, prayed for
adequate compensation.
3. In pursuance of issuance of notice, respondent
Nos.1 and 2 appeared before the Tribunal through their counsel
and filed their separate objection statements.
4. Respondent No.1 denied the petition averments in
toto and contended that the compensation and interest claimed
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MFA No. 4713 of 2018
by the petitioners is highly excessive and exorbitant and prayed
to dismiss the petition against him.
5. Respondent No.2 filed its written statements
denying the entire averments made in the petition and
contended that, the compensation and interest claimed by the
petitioners is highly excessive and exorbitant and its liability is
subject to terms and conditions of the policy and driver holding
effective Driving Licence to drive the offending vehicle. It was
further contended that the respondent No.1 has violated the
conditions of policy and therefore, prayed to dismiss the
petition with cost.
6. On the basis of the above pleadings, the Tribunal
framed appropriate issues and the petitioner No.1 was
examined as PW.1 and Exs.P1 to P10 were marked in evidence.
The respondent No.1 was examined as RW.1 and official of the
respondent No.2 was examined as RW.2. Exs.R1 to R10 were
marked in evidence.
7. After hearing the arguments by both the sides, the
Tribunal determined compensation of Rs.9,71,200/- under
different heads as below and awarded a sum of Rs.7,76,960
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MFA No. 4713 of 2018
after deducting 20% towards contributory negligence on the
deceased:
AMOUNT
PARTICULARS
(IN RS.)
Loss of dependency 8,11,200/-
Loss of consortium 50,000/-
Love and affection 40,000/-
Loss of estate 30,000/-
Transportation and funeral expenses 25,000/-
Loss of life expectancy 15,000/-
TOTAL 9,71,200/-
8. Being aggrieved by the judgment and award, the
petitioners have approached this Court in appeal.
9. On issuance of notice, the respondent No.2
appeared through its counsel and notice to the respondent No.1
was dispensed with.
10. Arguments by both the sides were heard.
11. Learned counsel appearing for the appellants have
contended that the alleged contributory negligence to the
extent of 20% is nothing but a fiction by the Tribunal. He
contends that the evidence on record is clear and the deceased
was a pedestrian and therefore, no negligence could have been
fastened upon him. It is contended that the compensation
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MFA No. 4713 of 2018
awarded by the Tribunal is also inadequate and the age of the
deceased as borne out from the ration card should have been
considered by the Tribunal.
12. Per contra, learned counsel appearing for
respondent No.2-Insurance company contended that the PM
report show that the deceased had consumed alcohol and that
the accident happened at a distance of 15 feet from the edge of
the road and therefore, the Tribunal has rightly come to the
conclusion that there was disability to the extent of 20% on the
part of the deceased.
13. The PM report at Ex.P3 show that the stomach and
its contents had not shown any presence of the alcohol.
However, the Medical Officer has opined that "death is due to
multiple injuries sustained but however, the deceased had
consumed alcohol at the time of death". Except this, there is
nothing else to show that the alcohol consumed by the
deceased was sufficient enough to attribute contributory
negligence to him. The spot sketch produced at Ex.R8 shows
that the accident had occurred just in front of Gopi Provision
Stores and the spot was about 15 feet from the edge of the
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MFA No. 4713 of 2018
road. The road was 60 feet wide and therefore, it can be
inferred that accident occurred at the centre of the left lane of
the road. RW.1 in his affidavit has not stated anything as to
why he could not drive the lorry on the right side of the place
where the deceased was standing. Under these circumstances,
the evidence on record show that there was no reason for the
deceased to be at a distance of 15 feet from the edge of the
road, which comes in the center of the left lane of the road. The
PM report and other Police papers show that the left front tire
had run over the deceased causing the accident. The Tribunal
in the impugned judgment has stated that the sketch do not
show the existence of Gopi Stores, as such, it had not bestowed
its attention on the relative distance of the spot of the accident
to the edge of the road vis-à-vis the width of the road. In the
considered opinion of this Court, the extent of the contributory
negligence fastened upon the deceased is high. The accident
occurred inside the premises of the APMC yard, where
obviously the driver of the lorry should have taken more
caution. Under these circumstances, the contributory
negligence on account of the consumption of the alcohol by the
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MFA No. 4713 of 2018
deceased coupled with the spot of the accident is to the extent
of 15%.
14. The Tribunal has considered the age of the
deceased to be 50 years based on the PM report. Obviously,
the age in the PM report is an assessment by the Medical
Officer. However, the ration card is based on a declaration
made by the deceased at an undisputed point of time. The
ration card shows the deceased was aged 44 years as on the
date of the issuance of the ration card, which is 24.11.2014.
The accident occurred in the year 2015. Therefore, the
deceased was aged 45 years as on the date of the accident.
15. The Tribunal has considered the notional income of
the deceased at Rs.6,000/- per month as there was no other
document proving the income. The guidelines issued by the
Karnataka State Legal Services Authority for settlement of the
disputes before the Lok-Adalat prescribed a notional income of
Rs.9,000/-p.m. for the year 2015. In umpteen number of
decisions, it has been held that the guidelines issued by the
KSLSA are in general conformity with the wages fixed under the
Minimum Wages Act and therefore, the notional income of the
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MFA No. 4713 of 2018
deceased is considered at Rs.9,000/- per month. Therefore, the
'loss of dependency' is calculated by considering the 'future
prospects' at 25% of same, which comes to Rs.2,250/-.
Therefore, the multiplicand is considered at Rs.11,250/- and
the 'loss of dependency' is calculated as Rs.11,250/- X 12 X 14
X 2/3 = Rs.12,60,000/- by adopting multiplier '14' for the age
of 45 years.
16. The Tribunal has awarded a compensation of
Rs.50,000/- for 'loss of consortium', Rs.40,000/- for 'love and
affection' and Rs.30,000/- towards 'loss of estate'. In view of
the decision of the Hon'ble Apex Court in the case of
NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY
SETHI AND OTHERS1, the compensation under the above
heads is fixed and there cannot be any deviation from it and
there shall be an enhancement of 10% for every three years
and therefore, compensation under the head of 'loss of
consortium' or 'loss of love and affection' is held to be
Rs.48,400/- and the compensation under the head of 'loss of
estate' and 'funeral expenses' are held to be at Rs.18,150/-
each.
AIR 2017 SC 5157
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MFA No. 4713 of 2018
17. Therefore, the petitioners are entitled for the
modified compensation under different heads as below:
AMOUNT
PARTICULARS
(IN RS.)
Loss of dependency 12,60,000/-
loss of consortium and loss of
48,400/-
love and affection
loss of estate 18,150/-
funeral expenses 18,150/-
TOTAL 13,44,700/-
Less 15% towards 2,01,705/-
contributory negligence
Total compensation entitled 11,42,995/-
18. Thus, the petitioners are entitled for compensation
of Rs.11,42,995/- with interest instead of Rs.7,76,960/- and
therefore, the appeal deserves to be allowed in part. Hence,
the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award passed by the
Tribunal is modified by fixing 15% contributory negligence on
the deceased and by awarding a sum of Rs.11,42,995/- instead
of Rs.7,76,960/- together with interest at 6% p.a. from the
date of petition till its deposit.
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(iii) The respondent No.2/Insurance company is directed
to deposit the entire compensation amount within a period of
six weeks from the date of this order.
(iv) Rest of the order of the Tribunal stands unaltered.
Sd/-
JUDGE
NR/-
