Karnataka High Court
Smt. K Rameeza vs Mr. Balakrishna Alva on 3 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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MFA No. 5661 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5661 OF 2021 (MV-D)
BETWEEN:
1. SMT. K RAMEEZA
W/O LATE HASAINAR,
AGED ABOUT 26 YEARS
2. BABY NAFEESATH SURAIYA @ RIMSHA
D/O LATE HASAINAR
AGED ABOUT 1 1/2 YEARS
MINOR REPRESENTED BY MOTHER
K.RAMEEZA,
W/O LATE HASAINAR
BOTH ARE R/AT MANI MAJAL HOUSE,
GOLTHAMAJALU VILLAGE,
KALLADKA POST-574222
BANTWAL TALUK, D.K
3. MR. MAHAMMAD
Digitally signed
by MADHURI S S/O LATE ABAB BEARY
Location: High AGED ABOUT 61 YEARS,
Court of
Karnataka
4. SMT NEBISA,
W/O MAHAMMAD
AGED ABOUT 56 YEARS
BOTH R/AT H.NO. S-56,
NEKKITA PUNI HOUSE,
SATHYA SAI VIHAR POST-574235
ALAKE, BANTWAL TALUK, D.K
...APPELLANTS
(BY SRI. PRASANNA K., ADV. FOR
SRI. CHANDRANATHA ARIGA K., ADVOCATE)
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MFA No. 5661 of 2021
AND:
1. MR. BALAKRISHNA ALVA,
S/O SHEENA ALVA,
AGED ABOUT MAJOR,
R/AT 21/241, BONDALA HOUSE,
PANEMANGALURU POST-574231
BANTWAL TALUK, D.K.
2. BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, VARANASHI TOWERS,
MISSION STREET, BUNDER,
MANGALURU-575001.
...RESPONDENTS
(BY SRI. B.S.KRISHNA, ADV. FOR R2,
R1 SERVED BUT UNREPRESENTED.
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 19.03.2020 PASSED IN MVC
NO. 961/2018 ON THE FILE OF THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE AND MEMBER, MACT, DAKSHINA KANNDA,
MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants-claimants under
Section 173(1) of Motor Vehicles Act, 1973 challenging the
judgment and award dated 19.03.2020 passed in MVC
No.961/2018 by the Motor Accident Claims Tribunal &
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Principal District and Sessions Judge, D.K., Mangaluru
seeking enhancement of compensation.
2. Heard the arguments of the learned counsel for
the appellants and learned counsel for respondent No.2-
Insurance Company.
3. The status of the parties before the Tribunal is
retained for the sake of convenience.
4. Brief facts of the case are as under:
On 26.03.2018, the deceased Mr. Hassainar was
driving the Auto rickshaw bearing Registration No.KA-19-
AC-1329 from Vittal side towards Kalladka side along with
his wife Smt. Rameeza and minor daughter baby
Nafeesath Suraiya. He was driving his Auto rickshaw
slowly on his correct side observing the rules and
regulations of the traffic and when he reached near a place
called Golthamajal in Kalladka Vittal Road at about 3.00
p.m., one goods pick up vehicle bearing registration
No.KA-19-C-3176 came from Kalladka side towards vital
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side i.e. from opposite direction with high speed and in a
rash and negligent manner and dashed to the auto
rickshaw, due to which, the driver of auto rickshaw, his
wife and his minor daughter sustained grievous injuries.
Immediately they were all shifted to Father Muller's
hospital, Thumbay and since the driver of auto rickshaw
since he sustained injuries to his head and abdomen, he
underwent 5 major surgeries. Further, he was admitted to
Vinaya Nursing Home, for better treatment. On
11.04.2018, inspite of better treatment, the driver of
autorickshaw succumbed to the accidental injuries
sustained by him. It is further stated that the accident
was occurred due to rash and negligent driving of the
driver of the Goods Pick up vehicle bearing registration
No.KA-19-C-3176. The respondents being the owner and
insurer of the said vehicle are jointly and severally liable to
pay the compensation to the appellants-claimants. Hence,
the claim petition was filed by the appellants-claimants
under Section 166 of the MV Act, seeking compensation.
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4. In response to the summons, respondent No.1
has appeared through his respective counsel and has filed
his written statement denying the factum of accident. The
vehicle was insured with respondent No.2-insurance
company and policy was in force at the time of accident.
Similarly, respondent No.2-insurance company has also
filed written statement by accepting the liability to pay
compensation to the appellants-claimants. The charge
sheet has been filed against the driver of the goods pick
up vehicle which is evident from Ex.P5 and also it has
amicably settled the other two claim petitions namely MVC
Nos.985/2018 and 1092/2018 before Lokadalath for
Rs.1,52,000/- and Rs.1,10,000/- respectively arising out
of same accident. As such, prayed for dismissal of the
claim petition.
5. The Tribunal has framed the following issues:
1. "whether the petitioners prove the accident
dated 26.03.2018 was due to actionable
wrong of the driver of the Goods pick up
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vehicle bearing registration No.KA-19-C-3176
resulting in the death of Hasainar?
2. Whether petitioners are entitled for grant
for compensation? If so, how much and from
whom?
3. What order or award?"
6. In order to prove the case of claimants,
petitioner No.1 examined herself as PW.1 and got marked
57 documents. Respondents have not led any evidence on
their behalf and respondent No.2-insurance company got
marked 3 documents.
7. After hearing the arguments on both side, the
Tribunal has allowed the petition in part by awarding
compensation of Rs.15,46,000/- together with interest at
9% p.a. from the date of petition till the date of realization
and also held respondent Nos.1 and 2 are jointly and
severally liable to pay the compensation to the claimants
and respondent No.2 - insurance company is directed to
deposit the amount within a period of one month from the
date of award.
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8. Being aggrieved by the compensation awarded
by the tribunal, the claimants are before this Court
challenging the impugned judgment and award.
9. Learned counsel for the claimants contended
that the deceased was an agriculturist and autorickshaw
driver earning Rs.20,000/- per month. But the Tribunal
has considered monthly income of the deceased at
Rs.10,000/- which is not correct. As per the notional
income recognized by the Karnataka State Legal Services
Authority, an income of Rs.12,500/- is to be considered for
the accident occurred in the year 2018. Therefore, prays
to enhance the income of the deceased from Rs.10,000/-
to Rs.12,000/- p.m. Further, he contended that the
Tribunal erred in deducting 1/3 from the total income of
the deceased and the deduction ought to have been 1/4 of
the total income of the deceased since there are four
dependents.
10. Learned counsel further contends that the
Tribunal has not awarded compensation under the head
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'parental consortium' and the deceased was admitted to
hospital for better treatment as inpatient due to
accidental injuries sustained by him. During that period,
some expenses were incurred towards food, nourishment
and attendant charges but the Tribunal has not awarded
the compensation under the head 'food, nourishment and
attendant charges'. As such, he prays to allow the appeal.
11. Per contra, the learned counsel for respondent
No.2-insurance company supported the judgment and
award passed by the Tribunal. Further, he fairly admits
that the income considered by the Tribunal could be
enhanced to Rs.12,500/- p.m. and with regard to
compensation awarded under conventional heads by the
Tribunal is just and proper which does not call for
interference by this Court and in all other heads, the
Tribunal has awarded reasonable compensation.
Therefore, on these grounds, he seeks dismissal of the
appeal.
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12. Having heard the learned counsel for appellants
and learned counsel for respondent No.2-insurance
company, the following point would arise for my
consideration:
"Whether consideration of the monthly
income of the deceased and also deduction
made towards personal expenses of the
deceased by the Tribunal require interference
at the hands of this Court?" If so, what
order?
13. On perusal of records, the accident dated
26.10.2018 was due to rash and negligent act of the driver
of goods pick up vehicle which is not in dispute and the
said vehicle was insured with respondent No.2 and they
have not seriously disputed the liability and also they have
settled the issues in respect of two other claims in MVC
Nos.985/2018 and 1092/2018 arising out of same
accident. Therefore, only the question arises is in respect
of monthly income of the deceased which was considered
by the Tribunal while calculating 'loss of dependency'. The
Tribunal has taken the monthly income of the deceased at
Rs.10,000/-. But in the Lokadalath, they are considering
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the monthly income of the injured/deceased based on the
year of accident. As such, Rs.12,500/- is the income to
be considered for the accident occurred in the year 2018.
The deceased was an agriculturist and auto rickshaw
driver. When such being the case, considering
Rs.10,000/- as monthly income by the Tribunal is very
meagre and it should be enhanced to Rs.12,500/- p.m.
14. As regards deducting 1/3 of the income of
deceased towards his personal and living expenses by the
Tribunal is not correct. But as per settled principle of law
laid by the Hon'ble Apex Court in the case of Smt.Sarla
Verma & Others. Vs. Delhi Transport Corpn
And Another reported in AIR 2009 SC 3104, if
number of dependants is between 4-6, the deduction
towards personal and living expenses of the deceased
would be 1/4. But the Tribunal has taken 1/3 which is not
correct and therefore, in this regard, the finding of the
Tribunal is requires to be modified and 1/4 of the income
has to be deducted instead of 1/3.
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15. While dictating the judgment, the learned
counsel for respondent No.2-insurance company invites
attention of this Court by contending that the Tribunal has
rightly deducted 1/3 of income of the deceased as per
evidence on record by considering that the name of
petitoner No.2 is not shown in the ration card. The age of
petitioner No.2 is 1 1/2 years and the ration card may be
issued much prior to her birth. Such being the case,
merely non-mentioning of name of petitioner No.2 in
ration card is not a ground to deduct 1/3 of the income of
the deceased while calculating loss of dependency.
Therefore, petitioner No.2 has to be considered as
dependant of deceased and as such, 1/4 of income of the
deceased has to be deducted instead of 1/3.
16. The Tribunal was also not considered the aspect
of future prospects of the deceased and no reasons are
assigned for the same. Such being the case, it is just and
proper to award future prospects of deceased considering
the age of deceased by relying on the decision rendered
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by the Hon'ble Apex Court in the case of National
Insurance Co. Ltd. Vs. Pranay Sethi (2017) 16 SCC
680, wherein 40% of his monthly income is added
towards 'Loss of Future Prospects in Life', and the
appropriate multiplier to be taken is 16. Considering the
size of the family of deceased, 1/4 of his income is
deducted towards his personal expenses and the
remaining 3/4 is contributed to his family. Therefore, the
compensation under the head 'Loss of Dependency' is
reassessed and quantified as follows:
Rs.12,500/- +5,000/- (40% of 12,500) x3/4
x16x12= Rs.25,20,000/-
17. Further, the Tribunal has awarded
compensation of Rs.70,000/- towards 'Loss of consortium',
including loss of estate, transportation and funeral
expenses. But the Tribunal has not awarded
compensation as regards 'parental consortium''. Since the
parents of deceased are also considered as dependants of
deceased, it is required to award compensation under the
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said head also. As such by relying on the decision
rendered by the Hon'ble Apex Court in the case of Magma
General Insurance Co.Ltd. V. Nanu Ram, each of the
legal dependent of the deceased are entitled to get
Rs.40,000/- under the head 'loss of consortium'.
Therefore, the compensation of Rs.80,000/- (Rs.40,000
per person x 2) is awarded towards 'parental consortium'.
18. Further, it is mentioned that the deceased
immediately after the accident was admitted to the
hospital and treated as inpatient for 17 days and
underwent five major surgeries and again shifted to other
hospital for better treatment but unfortunately, he died on
11.4.2018. As such, the claimants have spent
Rs.3,96,039/- towards medical and other incidental
expenses, out of which Rs.2,00,000/- has been paid under
Mukyamanthrigala Santhwana scheme and the remaining
amount of Rs.1,96,000/- for which the claimants are
entitled to get under the head 'medical expenses and other
expenses'. The same is not required interference and it is
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kept intact. Further, the Tribunal has not awarded
compensation under the head 'food, extra nourishment
and attendant charges' since the deceased was admitted
to hospital as inpatient due to injuries suffered in a road
traffic accident. Hence, it is necessary to award
Rs.20,000/- towards 'food extra nourishment and
attendant charges'.
19. Thus in all, this Court has awarded the
compensation under various heads as follows:
Particulars Amount
in Rs.
Loss of dependency 25,20,000/-
Food, extra nourishment 20,000/-
and attendant charges
Medical expenses and 1,96,000/-
other expenses
Loss of estate, loss of 70,000/-
consortium and
transportation and funeral
Loss of parental 80,000/-
consortium
Total 28,86,000/-
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Hence, the appellants-claimants are entitled for a
total enhanced compensation of Rs.28,86,000/- as
against Rs.15,46,000/- awarded by the Tribunal.
20. Accordingly, I pass the following:
ORDER
i. Appeal allowed in part.
ii. The judgment and award dated 19.03.2020 passed in
MVC No.961/2018 by the Motor Accident Claims
Tribunal and Principal District and Sessions Judge,
D.K.Mangaluru is modified;
iii. The claimants are entitled to a sum of
Rs.28,86,000/- as against Rs.15,46,000/-;
iv. The enhanced compensation amount shall be paid by
the respondent-Insurance Company with interest @
6% per annum within a period of two months from
the date of receipt of a copy of this order;
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v. The amount if any deposited shall be transmitted to
the Tribunal.
vi. The apportionment made by the Tribunal is hereby
confirmed.
vii. Registry is directed to return the Trial Court records
to the Tribunal, along with certified copy of the order
passed by this Court forthwith without any delay.
viii. Draw award accordingly.
Sd/-
JUDGE
SSD
