Karnataka High Court
Rehana Banu vs Subhas M Naik on 7 August, 2024
-1-
NC: 2024:KHC:31519
MFA No. 10446 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO.10446 OF 2012 (MV)
BETWEEN:
1. REHANA BANU,
AGED ABOUT 32 YEARS,
D/O LATE FATHIMA,
R/AT NEAR PALLI, FERRY ROAD,
KUNDAPURA KASBA,
KUNDAPURA - 576201.
APPELLANT
(BY SMT. SWATHI G. HEGDE., ADVOCATE FOR SRI. PAVANA
CHANDRA SHETTY. H)
AND:
1. SUBHAS M. NAIK.,
S/O MASTHAPPA,
R/O JATTANAMANE,
MANNAKALI, BHATKAL,
Digitally signed by
PRAJWAL A N.K. DISTRICT - 581320.
Location: HIGH COURT
OF KARNATAKA 2. UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, BHATKAL,
REP BY ITS BRANCH MANAGER - 581320.
RESPONDENTS
(BY SRI. O MAHESH FOR R2.,ADVOCATE;
V/O DTD 11/09/2015 NOTICE TO R1 IS DISPENSED WITH)
THE MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.08.2012 PASSED IN MVC
NO.969/2005 ON THE FILE OF THE PRESIDING OFFICER, FAST
-2-
NC: 2024:KHC:31519
MFA No. 10446 of 2012
TRACK COURT, MACT, KUNDAPURA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC,.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal the petitioner has challenged the
judgment dated 06.08.2012 passed in MVC.No.969/2005
by the Fast Track and Motor Vehicle Accidents Claims
Tribunal, Kundapura ('the Tribunal' for short).
2. For the sake of convenience, the parties herein
are referred as per their ranking before the Tribunal.
3. Brief fact of the case are on 29.07.2005 at
about 8:30 p.m., near Bhatkal Bus stand on NH-17, the
deceased Fathima mother of the petitioner, while walking
on the side of the road a auto rickshaw bearing Reg.No.
KA-30-5727, hit against her, due to which she sustained
injuries and died on 05.08.2005. The petitioner who is the
daughter of the deceased, seeking grant of compensation
NC: 2024:KHC:31519
has approached the Tribunal. The claim was opposed by
the insurance company. The Tribunal after taking evidence
and hearing both the parties, allowed the petition and
awarded sum of `1,20,000/- and directed the insurance
company to deposit and recover the same from the owner
of the auto rickshaw. Pleading inadequacy and seeking
enhancement and also challenging the liability passed
against the owner, the petitioner has filed this appeal on
various grounds.
4. Heard Ms. Swathi G. Hegde, learned counsel for
the appellant and Sri. O. Mahesh, learned counsel for the
respondent - insurance company.
5. It is contended by the learned counsel for the
petitioner that as per the PM report the age of the
deceased is 35-45 years. The petitioner was 23 years at
the time of the accident and the Tribunal instead of taking
said age taken the age of 50-55 and applied the '11'
multiplier instead '16'. The Tribunal has not assessed
adequate compensation under conveyance heads, the
NC: 2024:KHC:31519
income taken by the Tribunal at `1,500/- is contrary to the
prevailing wages earned by a coolie in the year 2005. It is
further contended that the driver was holding LMV driving
license, which is sufficient to drive the auto rickshaw and
there is no violation of the policy condition and the
insurance company has to pay the compensation.
6. Per contra, learned counsel for the insurance
company has contended that petitioner has not placed any
evidence to show deceased was earning `15,000/- p.m,.
The Tribunal has rightly considered the notional income at
`1,500/- and adequately compensated the petitioner and it
is not a case for enhancement. It is further contended that
the vehicle involved is a auto rickshaw passenger vehicle
and the driver is holding Light Motor Vehicles (LMV)
driving license. He has no authority to drive the transport
auto rickshaw. The insurance company has rightly raised
the contention that it can award liability for violation of
terms an conditions of the policy. The owner has to pay
NC: 2024:KHC:31519
the compensation and order of the Tribunal to the
insurance company to deposit is not proper.
7. I have given my anxious consideration to the
arguments addressed by the learned counsel for both
parties and perused the records.
8. The material on record point out that on
29.07.2005 there was an accident at about 8:30 pm, the
auto rickshaw in question was hit against the deceased,
due to which she sustained injuries and died on
05.08.2005. The petitioner is unmarried daughter of the
deceased, as a dependent entitled for the compensation.
9. Questioning the liability insurance company also
filed the appeal in MFA.No.10359/2012 (MV) before this
Court and the said appeal on 29.11.2019 came to be
dismissed. The copy of the said judgment is made
available. On perusal of the same, it is pertinent note that
the Coordinate Bench of this Court referring the judgment
in the case of MUKUND DEWANGAN V/S ORIENTAL
INSURANCE COMPANY LTD., reported in AIR 2017 SC
NC: 2024:KHC:31519
3668, held that the driving license held by the driver to
drive the LMV is sufficient to drive the auto rickshaw. In
view of the findings recorded between the parties and in
the light of the principle laid down in the MUKUND
DEWANGAN case there is no violation of terms and
conditions of the policy and the insurance company has to
shoulder the liability on the part of the owner.
10. As regarding the quantum of compensation the
Tribunal has assessed the loss of dependency at
`1,10,000/- taking the notional income of the deceased at
`15,000/- p.a,. Incidental expenses of `10,000/- is
awarded. PM report points out that the deceased was aged
35-45 years. There is no proof for age of the deceased at
the time of the accident. In the claim petition the
petitioner has mentioned her age as 25 years, if her age is
25 years, the age of the mother cannot be 35 years. The
Tribunal considered that the petitioner is 35 years elder
than the mother on the basis of evidence of petitioner and
thereby, taken the age of deceased at 50-55 years and
NC: 2024:KHC:31519
applied '15' multiplier. There is no error in assessing the
age and application of multiplier. A person with no proof of
income in the year 2005 will earn not less than `3,000/-
and therefore, the notional income of the deceased has to
be taken at `3,000/.
11. In a case of this nature the compensation has
to be determined following the Principles laid down by
Hon'ble Apex Court in the case of NATIONAL
INSURANCE COMPANY LTD V/S PRANAY SETHI AND
ORS. (2017)16 SCC 680., SARALA VERMA (SMT) AND
OTHERS V/S DELHI TRANSPORT CORPORATION AND
ANOTHER. (2009) SCC 121., and MAGMA GENERAL
INSURANCE COMPANY V/S NANU RAM ALIAS
CHUBRU RAM AND ORS. (2018)18 SCC 130.
12. If these principles are applied 10% future
prospects is to be added. The petitioner is the sole
dependent, 50% has to be deducted towards personal
expenses. Loss of dependency comes to 3,000 + 300
(10%) - 1,650 (50%) =1,650 X 12 X 11 =2,17,800/-.
NC: 2024:KHC:31519
Towards loss of love and affection `10,000/-, loss of estate
`5,000/-, Funeral expenses `5,000/- is assessed. Thereby
the petitioner is entitled for total compensation of
`2,37,800/-. It is just compensation that the petitioner is
entitled under the facts and circumstances of the case.
13. Liability is concerned insurance company is
required to indemnify the insurer and compensation shall
carry interest at 6% p.a,. Hence, the appeal merits
consideration, in the result, the following;
ORDER
i) The appeal is allowed in part;
ii) The impugned judgment and award is
modified;
iii) The petitioner would be entitled to total
compensation of `2,37,800/- and enhanced
compensation of `1,17,800/- with interest at
6% p.a., from the date of petition till date of
deposit;
iv) Both the respondents are jointly and severally
liable to pay the compensation;
NC: 2024:KHC:31519
v) The insurance company is directed to deposit
the compensation with interest at 6% p.a.,
within 8 weeks from the date of receipt of
certified copy of this judgment.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
PNV
