Karnataka High Court
United India Insurance Co. Ltd vs Saifuneesa on 6 August, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:31193
MFA No. 5301 of 2020
C/W MFA No. 5306 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 5301 OF 2020 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5306 OF 2020(MV)
IN MFA 5301/2020
BETWEEN:
UNITED INDIA INSURANCE CO. LTD
ISSUING OFFICE 010981
MICRO OFFICE KVS COMPLEX
CHEMMAD TIRURANGADI POST
MALLAPURAM, KERALA-676303
REPRESENTED BY THE REGIOANL MANAGER
UNITED INDIA INSURANCE CO LTD
6TH FLOOR KRISHI BHAVAN, HUDSON CIRCLE
BENGALURU-560027 ...APPELLANT
(BY SMT. MANJULA N TEJASWI.,ADVOCATE)
Digitally signed by
HEMALATHA A AND:
Location: HIGH
COURT OF
KARNATAKA 1. SAIFUNEESA
D/O ABDUSSAMAD
W/O MOIDEEN
AGED ABOUT 34 YEARS
R/O MUSLIYARKURNAKATTIL HOUSE
KOTTUMALA OORAKAM
MELMURI KERALA-677519.
2. MUHAMMED RAFEEQUE K T
S/O ABDUSSAMAD
AGED ABOUT 37 YEARS
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MFA No. 5301 of 2020
C/W MFA No. 5306 of 2020
3. ASMABI K T
D/O ABDUSSAMAD
AGED ABOUT 33 YEARS
RESIDENT OF VITTYAN HOUSE
TRIKKULAM, TIRURANGADI
MALAPPURAM,
KERALA-676306.
4. YAHYA
S/O ABDUSSAMAD
AGED ABOUT 32 YEARS
5. SAKARIYA
S/O ABDUSSAMAD
AGED ABOUT 29 YEARS
R2,R4 & R5 ARE RESIDENT OF
KANHIRATHODI HOUSE
NANNAMBRA CHERUMUKKU
TIRURANGADI MANNAPPURAM
CHERUMUKKU, KERALA-676306.
6. MOHAMMED KUTTY K T
S/O KUNHEEN K T
AGE 57 YEARS
R/O CHOLOKKAPARAMBAN HOUSE
CHERUMUKKU POST, TIRUR
MALLAPURAM DISTRICT
KERALA STATE-676306. ...RESPONDENTS
(BY SRI. M V MAHESWARAPPA.,ADVOCATE FOR R1 TO R5:
NOTICE TO R6 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:07.02.2020
PASSED IN MVC NO.1468/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, XIX MACT, CHIKKANAYAKANAHALLI,
AWARDING COMPENSATION OF RS.11,93,200/- WITH
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MFA No. 5301 of 2020
C/W MFA No. 5306 of 2020
INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITIONS
TILL REALIZATION.
IN MFA 5306/2020
BETWEEN:
UNITED INDIA INSURANCE CO. LTD
ISSUING OFFICE 010981
MICRO OFFICE KVS COMPLEX
CHEMMAD TIRURANGADI POST
MALLAPURAM, KERALA-676303
REPRESENTED BY THE REGIONAL MANAGER
UNITED INDIA INSURANCE CO LTD
6TH FLOOR KRISHI BHAVAN, HUDSON CIRCLE
BENGALURU-560027 ...APPELLANT
(BY SMT. MANJULA N TEJASWI.,ADVOCATE)
AND:
1. SAIFUNEESA
D/O ABDUSSAMAD
W/O MOIDEEN
AGED ABOUT 34 YEARS
R/O MUSLIYARKURNAKATTIL HOUSE
KOTTUMALA OORAKAM
MULMURI KERALA-677519.
2. MUHAMMED RAFEEQUE K T
S/O ABDUSSAMAD
AGED ABOUT 37 YEARS
3. ASMABI K T
D/O ABDUSSAMAD
AGED ABOUT 33 YEARS
RESIDENT OF VITTYAN HOUSE
TRIKKULAM, TIRURANGADI
MALAPPURAM,
KERALA-676306.
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MFA No. 5301 of 2020
C/W MFA No. 5306 of 2020
4. YAHYA
S/O ABDUSSAMAD
AGED ABOUT 32 YEARS
5. SAKARIYA
S/O ABDUSSAMAD
AGED ABOUT 29 YEARS
R2,R4 & R5 ARE RESIDENT OF
KANHIRATHODI HOUSE
NANNAMBRA CHERUMUKKU
TIRURANGADI MANNAPPURAM
CHERUMUKKU, KERALA-676306.
6. MOHAMMED KUTTY K T
S/O KUNHEEN K T
AGE 57 YEARS
R/O CHOLOKKAPARAMBAN HOUSE
CHERUMUKKU POST, TIRUR
MALLAPURAM DISTRICT
KERALA STATE-676306. ...RESPONDENTS
(BY SRI. M V MAHESWARAPPA.,ADVOCATE FOR R1 TO R5:
NOTICE TO R6 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:07.02.2020
PASSED IN MVC NO.1469/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, XIX MACT, CHIKKANAYAKANAHALLI,
AWARDING COMPENSATION OF RS.9,34,000/- WITH INTEREST
AT 6 PERCENT P.A. FROM THE DATE OF PETITIONS TILL
REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 5301 of 2020
C/W MFA No. 5306 of 2020
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. These appeals under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act', for
short) have been filed by the Insurance Company being
aggrieved by the judgment and award dated 07.02.2020
passed by the Senior Civil Judge and JMFC and XIX MACT,
Chikkanayakanahalli (hereinafter referred to as 'the
Tribunal') in MVC Nos.1468/2018 and 1469/2018,
respectively. Since the challenge is connected to the same
accident, both the appeals are clubbed together, heard
and common judgment is being passed.
2. Facts giving rise to the filing of the appeals briefly
stated are that on 24.07.2018 deceased Safiya and Abdul
Samad were proceeding in a Maruti Alto car bearing
registration No.KA-55/F-651 Yadgiri to Mysore via Bidar -
Mysore Highway, at that time, the driver of the said
vehicle drove the same in a rash and negligent manner,
due to which the vehicle turtled and caused the accident.
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As a result of the aforesaid accident, the deceased persons
sustained grievous injuries and succumbed to the injuries.
3. The claimants filed petitions under Section 166 of the
Act seeking compensation for the death of the deceased
along with interest.
4. Upon service of notice, the respondent Nos.1 and 2
appeared through counsel and respondent No.2 filed
written statement denying the averments made in the
claim petitions.
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 the case,
examined claimant No.2 in both the petitions as PW-1 and
PW-2, and got exhibited documents namely Ex.P1 to
Ex.P49. On behalf of respondents, one witness was
examined as RW-1 and got exhibited document namely
Ex.R1. The Claims Tribunal, by the impugned judgment,
inter alia, held that the accident took place on account of
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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
compensation of Rs.11,93,200/- and Rs.9,34,000/-,
respectively, along with interest @ 6% p.a. and directed
the Insurance Company to deposit the compensation
amount along with interest. Being aggrieved, these
appeals have been filed.
6. The learned counsel appearing for the Insurance
Company has raised the following contentions:
(i) Firstly, the claimants are major sons and married
daughters and they are not depending upon the income of
the deceased. In the course of cross-examination of PW1,
he has admitted that the daughters are married and they
are living separately and the sons - brothers of PW1 are
living separately and doing business.
(ii) Secondly, the deceased and the claimants are living
in separate places. Therefore, they are not depending
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upon the income of the deceased. But the Tribunal erred
in holding that the claimants are dependents of the
deceased. In support of her contention, she relied on the
judgments of this Court in MFA No.7070/2014 disposed of
on 13.06.2023 and MFA No.2204/2021 disposed of on
20.02.2024.
(iii) Thirdly, the sons and daughters, being the legal
representatives, can file the claim petition, since they are
not dependents, they are only entitled to the
compensation under the head 'loss of estate'. In support
of her contention, she relied on the judgment of a Division
Bench of this Court in the case of A.MANAVALAGAN vs.
A.KRISHNAMURTHY AND OTHERS reported in ILR
2004 Kar.3268.
(iv) Fourthly, in the cross-examination, PW1 has
admitted that the age of his mother was 55 years at the
time of the accident. But the Tribunal erred in considering
the age of the deceased as 50 years.
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(v) Fifthly, the claimants are major sons and
daughters, the Tribunal erred in deducting 1/5th of the
income of the deceased towards personal expenses.
(vi) Lastly, since the claimants have not filed any
appeal, their case for enhancement on the heads of future
prospects and loss of consortium cannot be considered.
Hence, she sought to allow the appeals.
7. Per contra, the learned counsel for the claimants has
raised the following contentions:
(i) Firstly, the claimants are the sons and daughters
of the deceased, they are the legal representatives of the
deceased and they are wholly depending upon the income
of the deceased. Therefore, the Tribunal has rightly
granted the compensation under the head 'loss of
dependency'.
(ii) Secondly, as per the postmortem report, the age
of the mother of the claimants is shown as 50 years. The
Tribunal has rightly considered the age of the mother as
50.
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(iii) Thirdly, even though the claimants have not filed
any appeal, under Order 41 Rule 33 of CPC, this Court can
grant just and reasonable compensation.
(iv) Fourthly, the deceased persons were earning
Rs.25,000/- and Rs.40,000/- per month respectively. The
monthly income assessed by the Tribunal is on the lower
side.
(v) Fifthly, 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 [AIR 2017
SC 5157], the claimants are entitled to addition of future
prospects.
(vi) Lastly, as per the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ
2782], each of the claimants are entitled to compensation
of Rs.40,000/- under the head of 'loss of love and affection
and consortium'. Hence, he sought to dismiss the appeals.
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8. Heard the learned counsel for the parties and perused
the judgment and award of the Tribunal and the original
records.
9. It is not in dispute that Safiya and Abdul Samad died
in the road traffic accident occurred on 24.07.2018 due to
rash and negligent driving of the offending vehicle by its
driver.
10. The claimants are the sons and daughters. In the
evidence of PW1, he has admitted that the daughters are
married and living separately with their husbands and in
respect of major sons, even though they are living
separately, they are depending upon the income of the
deceased. In his chief-examination, he has deposed that
prior to the accident, the deceased Abdul Samad having
very good experience in Bakery business was running
Bakery and condiments and also doing seasonal business
thereby he was earning above Rs.40,000/- per month and
maintaining the family consisting of himself and his wife
and children - the claimants. Since the deceased was
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looking after the affairs of the family of the claimants, the
entire family was depending upon the income of the said
deceased Abdus Samad.
11. In the cross-examination of PW1, he has also
admitted that the sons are doing business and living
separately. He has denied the suggestion that they are not
depending upon the income of the deceased. Considering
the evidence of PW1 and pleading in the petition, I am of
the opinion that the sons are depending upon the income
of the deceased. In so far as the married daughters are
concerned, they are living separately with their husbands.
It is admitted that they are not depending upon the
income of the deceased.
12. In respect of the age of the mother of the claimants
is concerned, no document has been produced by the
claimants. In the evidence, PW1 has admitted that he was
aged about 55 years at the time of the accident.
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Therefore, at the time of the accident the age of the
deceased has to be considered as 55 years.
13. In respect of the contention of the claimants that
under Order 41 Rule 33 of CPC, this Court can enhance
the compensation is concerned, this aspect has been
considered by the Apex Court in the case of RANJANA
PRAKASH AND OTHERS vs. DIVISIONAL MANAGER
AND OTHERS reported in 2011(14) SCC 639. The
relevant paragraphs 7 and 8 are extracted below:
"7. This principle also flows from Order 41
Rule 33 of the Code of Civil Procedure which
enables an appellate court to pass any order
which ought to have been passed by the trial
court and to make such further or other order
as the case may require, even if the respondent
had not filed any appeal or cross-objections.
This power is entrusted to the appellate court to
enable it to do complete justice between the
parties. Order 41 Rule 33 of the Code can
however be pressed into service to make the
award more effective or maintain the award on
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other grounds or to make the other parties to
litigation to share the benefits or the liability,
but cannot be invoked to get a larger or higher
relief. For example, where the claimants seek
compensation against the owner and the
insurer of the vehicle and the Tribunal makes
the award only against the owner, on an appeal
by the owner challenging the quantum, the
appellate court can make the insurer jointly and
severally liable to pay the compensation, along
with the owner, even though the claimants had
not challenged the non-grant of relief against
the insurer. Be that as it may.
8. Where an appeal is filed challenging the
quantum of compensation, irrespective of who
files the appeal, the appropriate course for the
High Court is to examine the facts and by
applying the relevant principles, determine the
just compensation. If the compensation
determined by it is higher than the
compensation awarded by the Tribunal, the
High Court will allow the appeal, if it is by the
claimants and dismiss the appeal, if it is by the
owner/insurer. Similarly, if the compensation
determined by the High Court is lesser than the
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compensation awarded by the Tribunal, the
High Court will dismiss any appeal by the
claimants for enhancement, but allow any
appeal by the owner/insurer for reduction. The
High Court cannot obviously increase the
compensation in an appeal by the
owner/insurer for reducing the compensation,
nor can it reduce the compensation in an
appeal by the claimants seeking enhancement
of compensation."
In view of the law laid down by the Apex Court in
RANJANA PRAKASH (supra), this Court cannot enhance
the compensation amount in the appeals filed by the
Insurance Company.
Re. quantum in MFA No.5301/2020:
14. Even though the claimants claim that the deceased
was earning Rs.25,000/- per month, but failed to produce
supporting documents to substantiate their claim. In the
absence of proof of income, the notional income has to be
assessed. According to the guidelines issued by the
Karnataka State Legal Services Authority, for accidents
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occurred in the year 2018, the notional income of the
deceased shall be taken at Rs.12,500/- p.m. To the
aforesaid income, 10% 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.13,750/-. Since the claimants are major sons and
daughters, it is appropriate to deduct 1/3 of the income of
the deceased towards personal expenses and remaining
amount, i.e., Rs.9,167/- has to be taken as his
contribution to the family. The deceased was aged about
55 years at the time of the accident and multiplier
applicable to her age group is '11'. Thus, the claimants
are entitled to compensation of Rs.12,10,044/-
(Rs.9,167*12*11) on account of 'loss of dependency'.
15. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of estate'
and compensation of Rs.15,000/- on account of 'funeral
expenses'.
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16. In view of the law laid down by the Supreme Court
in the case of 'MAGMA GENERAL INSURANCE' (supra),
claimant Nos.1 to 5, children of the deceased are entitled
for compensation of Rs.40,000/- each under the head of
'loss of parental consortium'. Thus, the claimants are
entitled to compensation of Rs.14,40,044/-.
Re. quantum in MFA No.5306/2020:
17. Even though the claimants claim that the deceased
was earning Rs.40,000/- per month, but failed to produce
supporting documents to substantiate their claim. In the
absence of proof of income, the notional income has to be
assessed. According to the guidelines issued by the
Karnataka State Legal Services Authority, for accidents
occurred in the year 2018, the notional income of the
deceased shall be taken at Rs.12,500/- p.m. Since the
claimants are major sons and daughters, it is appropriate
to deduct 1/3 of the income of the deceased towards
personal expenses and remaining amount, i.e., Rs.8,334/-
has to be taken as his contribution to the family. The
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deceased was aged about 60 years at the time of the
accident and multiplier applicable to his age group is '9'.
Thus, the claimants are entitled to compensation of
Rs.9,00,072/- (Rs.8,334*12*9) on account of 'loss of
dependency'.
18. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'loss of estate'
and compensation of Rs.15,000/- on account of 'funeral
expenses'.
19. In view of the law laid down by the Supreme Court
in the case of 'MAGMA GENERAL INSURANCE' (supra),
claimant Nos.1 to 5, children of the deceased are entitled
for compensation of Rs.40,000/- each under the head of
'loss of parental consortium'. Thus, the claimants are
entitled to total compensation of Rs.11,30,072/-.
20. In the result, the following order is passed:
ORDER
a) The appeals are disposed of.
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b) In view of the law laid down by the Apex Court in the
case of RANJAN PRAKASH (supra), the compensation
awarded by the Tribunal is retained.
c) The amount in deposit before this Court is ordered to
be transferred to the Tribunal, forthwith.
d) In view of disposal of the appeals, all pending
applications stand disposed of.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
CM
