Karnataka High Court
Mrs. Mailagrine W/O Minin Braganza vs Mohammaadiliyas Kashimasab Patel on 4 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 104183 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 104183 OF 2017 (MV-D)
BETWEEN:
1. MRS. MAILAGRINE W/O. MININ BRAGANZA,
AGE: 37 YEARS, OCC: NIL.
2. MELVITA D/O. MININ BRAGANZA,
AGE: 5 YEARS, OCC: STUDENT.
3. METHNINA D/O. MININ BRAGANZA,
AGE: 3 YEARS, OCC: NIL,
SINCE THE APPELLANT NO.2 & 3 ARE MINORS,
REPRESENTED BY NATURAL MINOR
Digitally signed
by JAGADISH T GUARDIAN MOTHER APPELLANT NO.1.
R
Location: High
Court of
Karnataka, 4. MRS.FLORINE W/O. PHILIP
Dharwad Bench
@ PHILIS BRAGANZA,
AGE: 66 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O: H.NO.386/A,
HIGH STREET GANESHPUR,
TAL AND DIST: BELAGAVI,
PINCODE-590001.
...APPELLANTS
(BY SRI. YASH R. NADKARNI, ADV. FOR
SRI. VITTHAL S. TELI, ADVOCATE)
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NC: 2024:KHC-D:16106-DB
MFA No. 104183 of 2017
AND:
1. MOHAMMADILIYAS KASHIMASAB PATEL,
AGE: 45 YEARS, OCC: NOT KNOWN,
R/O: PLOT NO.21, 4TH CROSS,
VIVEKANAND NAGAR, AT: GOKAK,
DIST: BELAGAVI, PIN CODE-590006.
THE DIVISIONAL MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO. LTD,
SHIKSHAK BHAVAN, COLLEGE ROAD,
BELAGAVI, PIN CODE-590017.
DELETED.
2. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
CLUB ROAD, BELAGAVI, PIN CODE-590006.
...RESPONDENTS
(BY SRI. M. K. SOUDAGAR, ADV. FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO THE JUDGMENT AND AWARD DATED 03.08.2017 IN
MVC NO.382/2016 ON THE FILE OF THE IX ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI, IN AWARDING
THE COMPENSATION OF RS. 10,95,000/- WITH 6% FROM THE DATE
OF PETITION AND MAY BE KINDLY MODIFIED BY ENHANCING TO
RS.75,00,000/- WITH 12% INTEREST, IN TH INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
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MFA No. 104183 of 2017
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD)
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act', for
short) has been filed by the claimants challenging the
judgment and award dated 03.08.2017 passed by the
learned IX Additional District and Sessions Judge and
Additional MACT, Belagavi in MVC No.382/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that, on 09.01.2016 at about 12.30
p.m., near Mangasuli Khut Circle, Belagavi, when the
deceased Milin-husband of claimant No.1 was proceeding
on his motorcycle bearing registration No.KA-22/EZ-1098,
the driver of Truck bearing registration No.KA-32/3530
came from hind side in a rash and negligent manner with
high speed and dashed to his motor cycle and thereby
caused his death on the spot.
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3. The claimants filed a petition under Section 166
of the Act seeking compensation for the death of the
deceased along with interest.
4. On the basis of the pleadings of the parties, the
Tribunal framed the issues and thereafter, recorded the
evidence. The Tribunal, by impugned judgment and award
has partly allowed the claim petition and held that the
claimants are entitled to a compensation of Rs.10,95,000/-
along with interest at the rate of 6% p.a. from the date of
petition till the date of deposit and directed the Insurance
Company to deposit the compensation amount along with
interest. Being aggrieved, the present appeal has been
filed.
5. Sri. Yash R. Nadkarni, the learned counsel for
the claimants has raised the following contentions:
a) At the time of accident deceased was aged about
39 years, he was running a canteen and Tea Stall and
earning Rs.35,000/- per month. He was Income Tax
assessee. Income Tax Returns have been produced at
Ex.P.15 to P.17. The Tribunal has assessed the notional
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income of the deceased as 7,000/- per month, which is on
lower side. In respect of his contention, the learned
counsel placed reliance on the judgment passed by the
Division Bench in the case of SMT. JAYASHREE VS.
MAHANINGAPPA AND OTHERS in MFA
No.202275/2023 disposed off on 01.03.2024.
b) Secondly, 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], in cases, where the deceased was self-
employed or received a fixed salary, an addition of 40% of
the established income towards 'future prospects' is
warranted when the deceased was below the age of 40
years. The said principle shall be applied to the present
case.
c) 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 is entitled to compensation
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of Rs.40,000/- under the head of 'loss of love and affection
and consortium'.
With the above contentions, the learned counsel
sought to allow the appeal.
6. On the other hand, Sri. M. K. Soudagar, the
learned counsel for the Insurance Company has raised the
following counter-contentions:
a) Firstly, even though the claimants produced the
Income Tax Returns, but they have not produced any
document to show that the deceased was running a
canteen and no document has been produced to show that
he has obtained any license for running canteen. Since, he
has failed to establish the same, the Tribunal has taken
notional income of the deceased as Rs.7,000/- per month.
The Tribunal is rightly assessed the notional income of the
deceased as Rs.7,000/- per month.
b) Secondly, he has contended that since the
claimants failed to establish income of the deceased, the
Tribunal has not awarded future prospectus.
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c) Lastly, on appreciation of oral and documentary
evidence and considering the age and avocation of the
deceased, the overall compensation awarded by the
Tribunal is just and reasonable.
With the above contentions, the learned counsel
sought to dismiss the appeal.
7. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
8. It is not in dispute that Milin Braganza died in
the road traffic accident occurred on 09.01.2016 due to
rash and negligent driving of the offending vehicle by its
driver. At the time of accident deceased was running a
canteen and Tea Stall. To prove the income of the
deceased, the claimants have produced the Income Tax
Returns for the year 2012-13, 2013-14 and 2014-15 as
Ex.P.15 to P.17.
9. This Court in the case of SMT. JAYASHREE
(supra) has held that for the Income Tax assessee is
concerned, the average income of the assessment of three
years is to be considered. The average income declared for
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the previous three years of the accident has to be
considered for assessing the monthly income of the
deceased for the year 2013-14, Rs.2,32,952/-, for the
year 2014-15, Rs.2,65,260/- and for the year 2015-16,
Rs.3,34,618/-. The average annual income of the
deceased after deducting the Income Tax it comes to
Rs.20,820/- per month and annually it comes to
Rs.20,820/- x 12 = 2,49,840/-. Thus, the annual income
of the deceased has to be considered as Rs.2,49,840/-. In
view of judgment of the Hon'ble Supreme Court in the
case of PRANAY SETHI (supra), 40% of the income of
the deceased has to be deducted for future prospectus.
The Tribunal has rightly deducted 1/4th of the income of
the deceased for personal expenses. The deceased was
aged about 39 years at the time of the accident and
multiplier applicable to his age group is '15'. Thus, the
claimants are entitled to compensation of Rs.39,34,980/-
(Rs.20,820/- per month+40% future
prospectus=Rs.29,148/-, 1/4th of Rs.29,148/-=Rs.7,287/-,
Rs.29,148/- deducted Rs.7,287/-=21,861/-, therefore
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Rs.21,861 x 12 x 15 = 39,34,980/-) on account of 'loss of
dependency'.
10. 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'. In view of the judgment of the Hon'ble
Supreme Court in the case of MAGMA GENERAL
INSURANCE CO. LTD.(supra), Claimant Nos.2 and 3 are
entitled for compensation of Rs.40,000/- each under the
head of 'loss of parental consortium'.
11. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 39,34,980/-
Funeral expenses 15,000/-
Loss of estate 15,000/-
Loss of Parental consortium 80,000/-
Total 40,44,980/-
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1. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimants are entitled to a total compensation of
Rs.40,44,980/- as against Rs.10,95,000/- awarded
by the Tribunal.
d) The Insurance Company is directed to deposit the
enhanced compensation amount along with interest
at 6% p.a. from the date of filing of the claim
petition till the date of realization, within a period of
six weeks from the date of receipt of a copy of this
judgment.
e) The apportionment, deposit and release of amount
shall be made in accordance with the terms of the
award of the Tribunal.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
