Karnataka High Court

Naziya vs Razak G on 8 April, 2024

                                             -1-
                                                        NC: 2024:KHC:14502
                                                      MFA No. 4216 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 8TH DAY OF APRIL, 2024

                                           BEFORE
                             THE HON'BLE MR JUSTICE C M JOSHI
                     MISCELLANEOUS FIRST APPEAL NO. 4216 OF 2017 (MV-D)
                BETWEEN:

                NAZIYA,
                AGED ABOUT 40 YEARS,
                D/O LATE GANGA POOJARTHI,
                R/AT AMBADEKALLU DARKAS,
                NITTE VILLAGE AND POST,
                KARKALA TALUK,
                UDUPI DISTRICT-574 110.
                                                              ...APPELLANT
                (BY MISS SWATI G HEGDE, ADVOCATE FOR
                SRI PAVANA CHANDRA SHETTY, ADVOCATE [PH])

                AND:

                1.     RAZAK G,
                       AGED ABOUT 31 YEARS,
Digitally
signed by              S/O UMARABBA,
NANDINI R              R/AT 1-217, JAVANARA KATTE,
Location:              BELAPU POST AND VILLAGE,
High Court of          UDUPI TALUK & DIST.-576 101.
Karnataka
                2.     THE BRANCH MANAGER,
                       THE UNITED INDIA INSURANCE CO.LTD.,
                       UDUPI BRANCH,
                       P.B.NO.78, JEWEL PLAZA,
                       1ST FLOOR, MARUTHI VEETHIKA,
                       UDUPI-576 101.

                3.     MOHAMMED THOUFIQ,
                            -2-
                                        NC: 2024:KHC:14502
                                     MFA No. 4216 of 2017




    AGED ABOUT 43 YEARS,
    S/O YUSUF,
    R/AT DOOR NO.1-6E,
    DEVI NAGAR 1ST CROSS,
    3RD CROSS ROAD, PARKALA,
    UDUPI TALUK & DIST.-576 101.
                                           ...RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R2;
    R1 & R3 NOTICE D/W V/O DATED 20.11.2018)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.01.2017 PASSED IN MVC
NO.231/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is by the claimant in MVC No.231/2016

assailing the quantum of the compensation awarded by

the learned Senior Civil Judge and Addl. MACT, Karkala,

dated 24-01-2017.

2. It is the case of the petitioner-appellant herein

that on 20-11-2015 at about 3.30 p.m., deceased Ganga

Poojarthi was walking by the side of the Karkala-Padubidri

highway near Rotary Bhavan, Nitte village, carrying a load

NC: 2024:KHC:14502

of green gross on her head. A Maruthi 800 car bearing

Reg.No.KA.02.N.3429 came from Nitte side towards

Karkala and dashed against the deceased Ganga

Poojarthi, resulting in severe injuries to her; and she was

shifted to Spandana Maternity and General Hospital,

Karkala and later, she was shifted to Wenlock Hospital

Mangalore; and where she succumbed to the injuries at

6.45 p.m. on the same day. It was stated that the

deceased Ganga Poojarthi was earning Rs.15,000/- per

month by rearing cows and selling milk and the petitioner

has spent huge amount towards obsequies and other

rituals. It is stated that the petitioner, who is the

daughter of the deceased Ganga is entitled for

compensation.

3. On appearance before the Tribunal, respondent

No.2, Insurer filed the written statement contending that

the compensation claimed by the petitioner is highly

exorbitant, imaginary and untenable in law. The Insurance

Company has also denied the quantum of the

NC: 2024:KHC:14502

compensation claimed by the petitioner. It further

contended that the driver of the said Maruthi car was not

having valid driving licence and the policy was issued by

the Insurance Company with certain conditions and there

was violation of conditions of the policy and therefore, the

petitioner is not entitled for compensation. It was also

alleged that the accident occurred due to the negligence

on the part of the deceased, who abruptly came in the way

of driver. Though the owner of the Maruthi 800 car was

arrayed as a party, the insured was not the party before

the Tribunal. Later, the said irregularity has been rectified

by impleading the insured as a party respondent No.3. The

owner of the vehicle as well as the insured have not

appeared before the Tribunal and therefore, they were

placed exparte.

4. On the basis of the above pleadings, the

Tribunal framed appropriate issues. The petitioner was

examined as PW1 and Exs.P1 to P11 were marked and the

respondent No.2 produced the copy of the Insurance

NC: 2024:KHC:14502

Policy, which came to be marked as Ex.R1 with consent of

both the parties.

5. After hearing the arguments, the Tribunal

awarded the compensation of Rs.2,48,400/- to the

petitioner fastening the liability on respondent No.2-

Insurance Company. The Tribunal had held that the

notional income of the deceased-Ganga was Rs.3,000/-

per month and by adopting multiplier of '7' owing to the

age of 65 years, it calculated the compensation by

awarding nominal amounts towards loss of love and

affection, funeral expenses and transportation charges.

6. Being aggrieved by the quantum of

compensation the petitioner is before this Court.

7. On issuance of notice, respondent No.2

Insurance Company has appeared through its counsel.

Notice to respondent Nos. 1 and 2 was dispensed with.

NC: 2024:KHC:14502

8. The Tribunal records have been secured and the

arguments by learned counsel appearing for the appellant

and the arguments by the appearing parties were heard.

9. The learned counsel appearing for the appellant

would submit that the Tribunal erred in assessing the

notional income of the deceased at Rs.3,000/- per month

since the accident had taken place on 20-11-2015. It is

submitted that the compensation awarded by the Tribunal

is abysmally low and therefore, there is a need to re-

assess the compensation.

10. A perusal of the records show that as per the

medical record the deceased was aged 65 years and

therefore, there is no doubt about the age of the

deceased. It is also pertinent to note that, there is no

conclusive evidence which would prove the income of the

deceased Ganga. Therefore, the Tribunal was also justified

in holding that the notional income has to be considered in

assessing the compensation.

NC: 2024:KHC:14502

11. The guidelines issued by the KSLSA for

settlement of the motor vehicle accident claims before

Lok Adalat prescribe the notional income for the year 2015

as Rs.9,000/- per month. In umpteen number of

decisions, this Court has held that the guidelines issued by

the KSLSA are in general consonance with the wages

fixed under the Minimum Wages Act, and therefore, it

would be proper to take into consideration the monthly

notional income of the deceased as per the guidelines of

the KSLSA. Therefore, the monthly notional income of the

deceased is taken at Rs.9,000/- per month.

12. In view of the judgment of the Apex Court in

the case of National Insurance Company Limited Vs.

Pranay Sethi and others,1 the compensation has to be

assessed by adding the future prospects in case the age

of the deceased is below 65 years. In the case on hand,

the age of the deceased was 65 years and therefore, the

compensation under the head of loss of dependency is

AIR 2017 SC 5157

NC: 2024:KHC:14502

calculated as Rs.9,000/- x 12 x 7 x 2/3 by adopting the

multiplier of 7 and deducting 1/3rd towards the personal

expenses of the deceased, which comes to Rs.5,04,000/-.

13. The judgment of the Apex Court in the case of

National Insurance Company Limited V. Pranay Sethi and

other (supra) states that there shall be an enhancement

of 10% on the funeral expenses, conveyance and the loss

of estate. Therefore, the petitioner is also entitled for a

sum of Rs.48,400/- under the head of loss of love and

affection for having lost her mother. The petitioner is also

entitled for a sum of Rs.18,150/- each under the head of

'Funeral expenses' and 'loss of estate'. Hence, the

petitioner is entitled for the total compensation of

Rs.5,88,700/- under the following heads:

           Loss of dependency                 Rs.5,04,000/-
           Loss of love and affection         Rs. 48,400/-
           Loss of estate                     Rs. 18,150/-
           Funeral expenses                   Rs. 18,150/-
                        Total                 Rs.5,88,700/-

14. For the aforesaid reasons, the appeal deserves

to be allowed in part. Hence, the following:

NC: 2024:KHC:14502

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award passed by the Tribunal is modified holding that the petitioner is entitled for the total compensation of Rs.5,88,700/- instead of Rs.2,48,400/- along with interest at 6% p.a. from the date of petition till its realization.

(iii) Insurance company is directed to deposit the compensation amount including the enhanced compensation together with interest within a period of 4 weeks.