Karnataka High Court
The Authorized Signatory vs Sri.Khasimmiya S/O Mohammadgouse ... on 29 May, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 102034 of 2020
C/W MFA No. 101775 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102034 OF 2020 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.101775 OF 2020
IN MFA NO.102034 OF 2020
BETWEEN:
1. KHASIMMIYA S/O. MOHMADGOUS JAHANGEER,
AGE: 54 YEARS, OCC: COOLIE,
2. VALIBI W/O. KHASIMMIYA JAHANGEER,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
BOTH ARE R/O. LALASHA-KATTA SAVANUR,
TQ: SAVANUR, DIST: HAVERI-581110.
...APPELLANTS
(BY SRI HARISH S.MAIGUR, ADVOCATE)
Digitally signed AND:
by VINAYAKA B V
Location: HIGH
COURT OF 1. SAYED ELIYAS S/O. SAYED KHASIM SAHIB GODIYAL,
KARNATAKA AGE: MAJOR, OCC : BUSINESS,
R/O. NEAR MASZID RATTIHALLI,
TQ: RATTIHALLI, DIST: HAVERI-581116.
2. THE AUTHORISED SIGNATORY,
SHRIRAM GENERAL INSURANCE CO. LTD.,
# 41, A.J. CHAMBERS, OPP. TO INDIAN OIL
PETROL BUNK, R.V. ROAD, BASAVANAGUDI,
JAYA-NAGAR, BANGALURU-560004.
...RESPONDENTS
(BY SRI ANJANEYA M., ADVOCATE FOR RESPONDENT NO.1;
SRI S.K. KAYAKMATH, ADVOCATE FOR RESPONDENT NO.2)
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MFA No. 102034 of 2020
C/W MFA No. 101775 of 2020
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 01.02.2020 PASSED IN MVC
NO.1356/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MOTOR ACCIDENTS CLAIMS TRIBUNAL AND MEMBER MACT,
SHIGGAON, SITTING AT SAVANUR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.101775 OF 2020
BETWEEN:
THE AUTHORISED SIGNATORY,
SHRIRAM GENERAL INSURANCE CO. LTD.,
# 41, A.J. CHAMBERS, OPP. TO INDIAN PETROL BUNK,
R.V. ROAD, BASAVANAGUDI,
JAYANAGAR, BANGALURU.
...APPELLANT
(BY SRI S.K. KAYAKAMATH, ADVOCATE)
AND:
1. SRI KHASIMMIYA S/O. MOHAMMADGOUSE JAHANGIR,
AGE: 54 YEARS, OCC: COOLIE,
R/O. LAL-SHA-KATTA SAVANUR,
TALUK: SAVANUR, DIST: HAVERI-581110.
2. SMT. WALIBI W/O. KHASIMMIYA JAHANGIR,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O. LAL-SHA-KATTA SAVANUR,
TALUK: SAVANUR, DIST: HAVERI-581110.
3. SRI SAYYED ILIAS S/O. SAYYED KHASIMSAHIB GODIYAL,
AGE: MAJOR, OCC : BUSINESS,
R/O. NEAR MASJID RATTIHALLI,
TALUK: RATTIHALLI, DIST: HAVERI-581110.
...RESPONDENTS
(BY SRI ANJANEYA M., ADVOCATE FOR RESPONDENT NO.3;
NOTICE TO R1 AND R2 ARE SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 01.02.2020 PASSED IN MVC
NO.1356/2018 ON THE FILE OF THE MACT AND SENIOR CIVIL JUDGE
AND JMFC, SHIGGAON (ITINERARY SAVANUR) AWARDING
COMPENSATION OF RS. 14,30,800/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL ITS REALISATION.
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MFA No. 102034 of 2020
C/W MFA No. 101775 of 2020
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
ADMISSION, THIS DAY, G BASAVARAJA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, they are
taken up for final disposal with the consent of learned counsel
for both the parties.
2. The claimants as well as insurance company are in
appeals against judgment and award dated 01.02.2020 passed
in MVC No.1356/2018 on the file of learned Senior Civil Judge
and Motor Accident Claims Tribunal, Shiggaon sitting at
Savanur (for short, 'Tribunal').
3. MFA No.102034/2020 is filed by the claimants
praying for enhancement of compensation, not being satisfied
with quantum of compensation granted by the Tribunal;
whereas MFA No.101775/2020 is filed by the insurance
company challenging the liability as well as the quantum of
compensation.
4. The parties are referred to as per their ranks before
the Tribunal, for the sake of convenience.
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5. Brief facts of the case are that, the claimants, who
are the father and mother of the deceased Mahammad Asif,
filed a claim petition under Section 166 of the Motor Vehicles
Act, 1988 seeking compensation for the accidental death of
Mahammad Asif that took place on 17.06.2018 involving lorry
bearing registration No.KA-36/4397. It is further stated that as
on the date of accident, deceased was aged 22 years, working
as cleaner and earning Rs.15,000/- per month.
6. On issuance of notice, respondents No.1 and 2
appeared before the Tribunal and filed their statement of
objections denying the entire claim petition averments.
Respondent No.1/owner of the offending vehicle contended that
the alleged accident took place not due to negligence on the
part of the driver of the vehicle and it is stated that as on the
date of the accident, the driver of the offending vehicle was
possessing valid and effective driving licence to drive and the
vehicle was insured with respondent No.2/Insurance Company,
accordingly, he is not liable to pay the compensation and
sought for dismissal of the petition against him. Respondent
No.2-Insurance Company has admitted that the offending
vehicle was insured with respondent No.2 as on the date of the
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accident and the deceased was traveling as an unauthorized
passenger which is not covered under the policy. Hence, the
insurance company is not liable to pay any compensation and
sought for dismissal of the claim petition.
7. Before the Tribunal, claimant No.1-mother of the
deceased examined herself as PW1 and one eyewitness
examined as PW2 and got marked 14 documents as Exs.P1 to
P14, whereas respondent No.2 examined one witness as RW1
and got marked 2 documents as Exs.R1 and R2. Having heard
the arguments of both the parties and based on the material on
record, the Tribunal allowed the claim petition in part and
awarded a total compensation of Rs.14,30,800/- with interest
at the rate of 6% per annum from the date of petition till
realization. Being aggrieved by the same, the claimants and the
insurance company are before this Court in these appeals.
8. Heard the learned counsel Sri.Harish S.Maigur for
the appellants/claimants, learned counsel Sri.Anjaneya M. for
respondent No.1-owner and learned counsel
Sri.S.K.Kayakamath for respondent No.2-Insurance Company
and perused the appeal papers along with original records.
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9. Sri.Harish S.Maigur, learned counsel appearing for
the claimants would submit that the Tribunal has not awarded
the compensation in accordance with law and facts, decisions of
the Hon'ble Apex Court and taking note of the chart prepared
by the Karnataka State Legal Services Authority. Thus, he
prays for allowing the appeal filed by the claimants.
10. Sri.S.K.Kayakamath, learned counsel appearing for
respondent No.2-Insurance Company would submit that the
deceased was traveling as an unauthorized passenger in the
offending vehicle as on the date of the accident and the same is
not covered under the policy. Further, he would submit that the
date of birth of the deceased is 01.06.1993. The accident took
place on 17.06.2018, hence, the deceased was completed 25
years 16 days as on the date of the accident. He submits that
appropriate multiplier would be 17, whereas, the Tribunal has
taken the multiplier as 18 taking note of the age of the
deceased as 23 years as per Ex.P8-Post mortem report. On all
these grounds, sought for modification of the award passed by
the Tribunal and sought for dismissal of the appeal filed by the
claimants.
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11. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original records,
the following points would arise for consideration:
a) Whether the Insurance Company has made
out grounds to interfere with the impugned
judgment and award passed by the Tribunal,
as to the liability of the Insurance Company?
b) Whether the Tribunal has committed error in
assessing the age of the deceased as 23
years, as on the date of the accident?
c) Whether the claimants are entitled for
enhanced compensation?
Point No.(a) is answered in the negative, Point No.(b) is
answered in the affirmative and Point No.(c) is answered partly
in the affirmative for the following reasons:
12. The Insurance Company has challenged the liability
on the ground that the deceased was travelling in goods vehicle
as an unauthorized passenger. Hence, the Insurance Company
is not liable to pay any compensation. To substantiate this,
RW1 has deposed in his evidence that the deceased was
travelling as an unauthorized passenger. During the course of
cross-examination of RW1, he has clearly admitted the contents
of the complaint that the deceased was working as a Hamal in
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the offending vehicle as on the date of the accident. Further, he
has admitted that IO has submitted chargesheet against the
accused i.e. driver of lorry, as per Ex.P6 which is not challenged
by the Insurance Company. Perusal of Ex.P6 and evidence of
eyewitness/PW2 reveals that the deceased was working as a
cleaner in the offending vehicle at the time of the accident. The
Insurance Company has not placed any legal evidence before
the Tribunal to prove that, the deceased was traveling as an
unauthorized passenger as on the date of the accident.
Considering the evidence placed by both the parties, the
Tribunal has properly appreciated evidence on record in
accordance with law and facts, fastening the liability on the
Insurance Company which needs no interference by this Court.
Hence, we answer Point No.(a) in negative.
13. Learned counsel Sri.S.K.Kayakamath appearing on
behalf of Insurance Company has submitted his arguments that
date of birth of the deceased is 01.06.1993 and the accident
has occurred on 17.06.2018, thus, the age of the deceased as
on the date of the accident was 25 years. During the course of
cross-examination of PW1-Sri.Kasimiya Jahangir, father of the
deceased has clearly admitted that date of birth of the
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deceased is 01.06.1993 and the accident occurred on
17.06.2018, hence, the age of the deceased was 25 years 16
days as on the date of the accident and as such, appropriate
multiplier applicable to calculate the compensation would be
17, but the Tribunal has taken multiplier as 18, which has to be
modified. In view of the decision of the Hon'ble Apex Court in
the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation
& Anr.1, for age group of 20 to 25 the multiplier is fixed as 18
and for the age group of 26 to 30 the multiplier is fixed as 17.
As the deceased was aged 25 years 16 days as on the date of
the accident, the appropriate multiplier applicable would be 17.
Accordingly, we answer Point No.(b) in the affirmative.
14. It is the contention by the appellants/claimants that
the Tribunal committed an error in assessing the income of the
deceased at Rs.9,000/- per month and submits that the same
is on lower side. Admittedly, the deceased was working as a
cleaner. In order to prove the income of the deceased, no
cogent or acceptable document is placed on record. In the
absence of any documentary evidence to establish the
avocation and income of the deceased, this Court normally
AIR 2009 SC 3104
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assesses notional income relying on the chart prepared by the
Karnataka State Legal Services Authority. Accordingly, we
deem it appropriate to assess notional income of the deceased
at Rs.11,750/- per month taking note of the chart prepared by
KSLSA.
15. With regard to award of future prospects is
concerned, the Tribunal committed an error in not awarding
any compensation on the head of loss of future prospects. As
the deceased was aged 25 years, in terms of decision of
Hon'ble Apex Court in the case of National Insurance
Company Limited Vs. Pranay Sethi & Others2, the
claimants would be entitled to an addition of 40% of the
assessed income towards future prospects of the deceased.
16. As the deceased was bachelor, the proper deduction
towards personal expenses would be 50%. Thus, the claimants
would be entitled for modified compensation on the head of
loss of dependency as under:
Rs.11,750 (income) x 12 (months) + 40%(future prospects) x
17(multiplier) x 50%(deduction) = Rs.16,77,900/-
2017 (16) SCC 680
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17. Further, each of the claimants would be entitled to
Rs.40,000/- towards loss of consortium, besides Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral
expenses.
18. Thus, the claimants would be entitled for modified
compensation on the following heads:
Sl. Particulars Amount
No. (In Rupees)
1. Loss of dependency 16,77,900/-
2. Loss of estate & Funeral 30,000/-
expenses
3. Loss of consortium (Rs.40000x2) 80,000/-
Total Rs.17,87,900/-
19. Thus, the claimants would be entitled to total
compensation of Rs.17,87,900/- as against Rs.14,30,800/-
awarded by the Tribunal.
20. Hence, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment & award of
Tribunal is modified holding that the
claimants are entitled to total
compensation of Rs.17,87,900/- as
against Rs.14,30,800/- awarded by the
Tribunal.
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c) The enhanced compensation shall carry
interest at the rate of 6% p.a. from the
date of claim petition till realization.
d) The appellant-Insurer shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within
a period of six weeks from the date of
receipt of certified copy of this judgment.
e) Apportionment, deposit & disbursement
shall be made as per award of Tribunal.
f) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith along with original records.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RH
