Karnataka High Court

Smt Apsana W/O Hamaju @ Hanju @ Amijat ... vs Smt Dhanalaxmi M. Shrinivas on 3 June, 2024

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                                                            NC: 2024:KHC-D:7327
                                                             MFA No. 102704 of 2022




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 3RD DAY OF JUNE, 2024

                                                 BEFORE
                              THE HON'BLE MR JUSTICE VENKATESH NAIK T
                      MISCELLANEOUS FIRST APPEAL NO. 102704 OF 2022 (MV-D)

                      BETWEEN:


                      1.   SMT. APSANA W/O. HAMAJU @ HANJU
                           @ AMIJAT VADRALI, AGE: 27 YEARS,
                           OCCUPATION: HOUSEHOLD WORK,
                           R/O. INDIRA NAGAR, JANATA PLOT,
                           SANKESHWAR-591313, TALUKA HUKKERI,
                           DISTRICT: BELAGAVI.


                      2.   KUMARI NADIRA D/O.HAMAJU @ HANJU
                           @ AMIJAT VADRALI,
                           AGE 08 YEARS, OCCUPATION: STUDENT.


                      3.   KUMARI SUHAN D/O. HAMAJU @ HANJU
                           @ AMIJAT VADRALI, AGE: 06 YEARS,
Digitally signed by        OCCUPATION STUDENT,
MANJANNA E
Location: HIGH
COURT OF
                           SINCE APPELLANTS 2 AND 3 ARE MINORS
KARNATAKA
                           REPRESENTED BY THEIR NATURAL
                           MOTHER APPELLANT NO. 1,
                           SMT. APSANA W/O HAMAJU @ HANJU
                           @ AMJAT VADRALI,
                           R/O INDIRA NAGAR, JANATA PLOT,
                           SANKESHWAR-591313,
                           TALUKA: HUKKERI, DISTRICT: BELAGAVI.


                      4.   SMT. JUBEDA W/O. MOHAMMADALI VADRALI,
                           AGE: 53 YEARS,
                           OCCUPATION: HOUSEHOLD WORK,
                               -2-
                                    NC: 2024:KHC-D:7327
                                        MFA No. 102704 of 2022




     R/O. INDIRA NAGAR, JANATA PLOT,
     SANKESHWAR-591313,
     TALUKA: HUKKERI,
     DISTRICT: BELAGAVI.


                                                  ...APPELLANTS
(BY SMT. SUNANDA P. PATIL, ADVOCATE)


AND:


1.   SMT. DHANALAXMI M. SHRINIVAS
     AGE: 40 YEARS, OCCPUATION: BUSINESS,
     R/O. #402, LAVAKUSH NAGAR,
     L.G. RAMANNA LAYOUT,
     LAGGERE, BENGALURU-560058.


2.   THE BRANCH MANAGER,
     UNITED INDIA INSURANCE COMPANY LTD,
     MARUTI GALLI, BELAGAVI 590 001.


                                                ...RESPONDENTS
(BY SRI. N. R. KUPPELUR, ADV. FOR R2;
     NOTICE TO R1 SERVED)


       THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
19.08.2021 PASSED IN MVC NO.666/2019 ON THE FILE OF THE
SENIOR CIVIL JUDGE, AND THE         MOTOR ACCIDENT CLAIMS
TRIBUNAL, HUKKERI, ITINERARY COURT AT SANKESHWAR, 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:
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                                         NC: 2024:KHC-D:7327
                                           MFA No. 102704 of 2022




                            JUDGMENT

Though this appeal is listed for admission, with the

consent of learned counsel appearing for the parties, the

matter is taken up for final disposal.

2. For the sake of convenience, the parties are

referred to as per their rank referred to in the claim petition

before the Tribunal.

3. The appeal is filed by the claimants under Section

173(1) of the Motor Vehicles Act, 1988 (for short, "M.V. Act")

aggrieved by the judgment and award dated 19.08.2021 on the

file of the Senior Civil Judge and MACT, Hukkeri, Itinerary Court

at Sankeshwar (for short, "Tribunal"), whereby the Tribunal

awarded an amount of Rs.23,78,640/- as compensation.

4. The claim petition was filed by the claimants

seeking compensation of Rs.25,00,000/- on account of death of

Humju @ Hamjat Mohammad Vadrali. On 25.12.2018 at about

11:00 p.m., deceased Salim Babu Sayyed being rider,

alongwith his friend Humju @ Hamjat Mohammad Vadrali, who

was pillion rider, were proceeding on Hero Honda Splendor

motorcycle bearing chassis No.MBLHAR07XJHK20993 and

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engine No.HA10AGJHK40852 from Hubballi on Dharwad by-

pass road and when they came near Ramya Residency, the

driver of offending Tempo Traveller vehicle bearing registered

No.KA-02/AD-8414 came in high speed, rash and negligent

manner and dashed to the motorcycle of deceased. Due to the

said impact, the rider of the motorcycle, Salim Babu Sayyed

and the pillion rider, Humju sustained fatal injury and Humju @

Hamjat Mohammad Vadrali died in the KIMS Hospital, Hubballi

on account of accidental injuries.

5. The claimants filed a petition under Section 166 of

the M.V. Act on the ground that claimant No.1 is wife of

deceased Humju, claimant Nos.2 and 3 are daughters of

deceased and claimant No.4, who is mother of deceased. The

deceased was hale and healthy, aged about 26 years and was

doing cooking contract work and centring work, thereby he was

earning Rs.25,000/- per month and was contributing the same

to his family and due to the death of Humju, they have lost the

sole bread earner in the family and they have sought for

enhancement of compensation.

NC: 2024:KHC-D:7327

6. Heard the learned counsel appearing for the

claimants and respondent No.2 - Insurance Company and

perused the judgment and award of the Tribunal. As there is no

dispute regarding death of deceased Humju, died in a road

traffic accident that occurred on 25.12.2018, due to rash and

negligent driving by the driver of the Tempo Traveller bearing

registered No.KA-02/AD-8414 and liability of the insurer of

Tempo Traveller, the points that arise for Court's consideration

in the appeal are:

"i. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement? ii Whether 20% negligence saddled upon the driver of the Tempo Traveller of motorcycle and 80% liability saddled upon the Insurance Company is just and proper?"

7. From the perusal of the pleadings, documents,

evidence on record, it appears that, PWs.1 and 2 in their

evidence clearly stated that the alleged incident took place due

to the negligence on the part of the driver of the Tempo

Traveller vehicle bearing registered No.KA-02/AD-8414 and the

accident took place while he over taking his vehicle, he dashed

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to the motorcycle of deceased persons from hind side. Further,

the contents of charge sheet discloses that, at para 17 the

driver of the offending Tempo Traveller came in a rash and

negligent and caused the accident. The specific defence of

respondent - Insurance Company is that, the accident occurred

due to rash and negligent riding of the motorcycle by the

deceased - Salim Babu Sayyed, as such, they are not liable to

pay any compensation to the claimants. Admittedly, no issue

has been framed in this regard under Order XIV of CPC and no

rebuttal evidence has been adduced by respondent No.2 -

Insurance Company to substantiate their contention before the

Tribunal. Therefore, the Tribunal without appreciating the legal

aspects, fixed the contributory negligence on the rider of

motorcycle and driver of Tempo Traveller in the ratio of 20:80,

which is not in accordance with law. The finding of Tribunal as

to contributory negligence on the ground that the rider of

motorcycle was riding the motorcycle without possessing a

driving licence is equally unsustainable. Driving without a valid

driving licence may expose the claimants to other liabilities, but

no inference of contributory negligence can be arrived on that

NC: 2024:KHC-D:7327

basis. The similar ratio laid down in the case of Saraswati

Palariya vs. New India Assurance Company Limited1.

8. Further, if a person drives a vehicle without licence,

he commits an offence. Whereas, in this case, no fault is

committed by pillion rider. Therefore, the ratio of 20:80 as

fixed by the Tribunal as contributory negligence, has no basis.

In fact, the driver of the Tempo Traveller is liable to pay entire

compensation on account of death of deceased Humju.

9. After hearing the learned counsel appearing for the

parties and perusing the judgment and award of the Tribunal, I

am of the view that the compensation awarded by the Tribunal

is not just and reasonable and hence, it is required to be

enhanced.

10. The claimants in order to prove their case examined

wife of deceased Humju and mother of deceased Salim Babu as

PWs.1 and 2 and got exhibited documents namely Exs.P1 to

P10. On behalf of the respondents, none of the witness has

been examined. The Insurance Company relied upon Ex.D1 -

Insurance Policy. The very fact that the deceased alongwith

2019 ACJ 42

NC: 2024:KHC-D:7327

rider of the motorcycle, proceeded in the motorcycle, the driver

of Tempo Traveller came in a rash and negligent manner from

hind side and dashed against the motorcycle of the deceased, is

not in dispute. Hence, the rider and pillion rider were sustained

fatal injuries and succumbed to the injuries.

11. The claimants have stated that prior to the death of

deceased Humju, he was doing cooking contract and centring

work, thereby earning Rs.25,000/-per month. However, no

material is placed on record to prove the income of the

deceased. In the absence of any proof with regard to income of

the deceased, the Tribunal considered the notional income of

deceased at Rs.13,250/-, which has no basis. Considering the

age of the deceased as 26 years, year of the accident as 2018,

his notional income is re-assessed at Rs.11,750/- per month in

place of Rs.13,250/- as arrived at by the Tribunal.

12. The claimants are wife, daughters and mother of

deceased Humju. Therefore, 1/4th of his income has to be

deducted towards his personal expenses and 3/4th of his

income has to be taken towards his family contribution and the

multiplier applicable to his age group is 17, in view of the ratio

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laid down in the case of National Insurance Company

Limited vs. Pranay Sethi and others2 and 40% of actual

income of the deceased should be added towards future

prospects. Therefore, the income of the deceased comes to

Rs.11,750/- + 40% = Rs.16,450/-.

13. In view of the ratio laid down in the case of Sarla

Verma (SMT) and others vs. Delhi Transport Corporation

and another3, since the number of dependants of family

members of the deceased Humju are only four, the deduction

towards personal living expenses of deceased is 1/4th.

Therefore, the monthly income of the deceased comes to

Rs.16,450 - 1/4th = Rs.12,337/- and annual income of the

deceased comes to Rs.12,337 X 12 = Rs.1,48,044/-. Since the

age of deceased is 26 years, the multiplier applicable would be

17. Therefore, the "loss of dependency" comes to

Rs.1,48,044/- X 17 = Rs.25,16,748/- (11,750 + 40% - ¼ X

12 X 17).

(2017) 16 SCC 680

(2009) 6 SCC 121

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14. In view of the law laid down by the Hon'ble

Supreme Court in the case of Magma General Insurance

Company Limited vs. Nanu Ram Alias Chuhru Ram and

others4, the claimant No.1 being the wife, claimant Nos.2 and

3 - daughters and claimant No.4 - mother of deceased Humju,

are entitled for compensation of Rs.40,000/- each under the

head "loss of consortium".

15. The accident is of the year 2018. In view of the

ratio laid down in the case of Pranay Sethi supra, the Hon'ble

Apex Court enhanced the compensation on conventional heads,

on percentage basis, once in every three years and the

enhancement should be at the rate of 10% in a span of three

years. Now almost five years have been elapsed and therefore,

the claimants are entitled for 10% escalation on loss of estate,

loss of consortium and funeral expenses. Hence, they are

entitled for Rs.1,60,000/- + Rs.16,000/- = Rs.1,76,000/- is

awarded towards "loss of consortium" as against Rs.60,000/-

awarded by the Tribunal.

(2018) 18 SCC 130

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16. In addition, the Tribunal has granted a

compensation of Rs.15,000/- under the head loss of estate and

funeral expenses which is not reasonable. Hence, additional

compensation of Rs.1,500/- each is granted under the head

loss of estate and funeral expenses. Hence, they are entitled

for Rs.16,500/- under the head "loss of estate" and

Rs.16500/- under the head "funeral expenses".

17. Thus, the claimants are entitled for the following

compensation:

Loss of dependency                                 Rs.25,16,748/-
(11,750 + 40% - ¼ X 12 X 17)
Loss of consortium                                     Rs.1,76,000/-
(40,000 X 4 + 10%)
Loss of estate                                        Rs.16,500/-
Funeral expenses                                      Rs.16,500/-
                   Total                          Rs.27,25,748/-
Less: Compensation awarded by Tribunal             Rs.23,78,640/-
                  Balance                          Rs.3,47,108/-

18. Accordingly, the appeal is allowed in part. The

judgment and award dated 19.08.2021 passed by the Senior

Civil Judge and MACT, Hukkeri, Itinerary Court, Sankeshwar is

modified to the extent stated hereinabove.

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NC: 2024:KHC-D:7327

The claimants are entitled for an enhanced compensation

of Rs.3,47,108/-/- with interest at 6% per annum from the

date of petition till the date of its realization.

The Respondent No.2 - Insurance Company is directed to

deposit enhanced compensation amount with interest at 6%

per annum within a period of six weeks from the date of receipt