Karnataka High Court
Smt. Latha Alias Mangali Latha W/O Late ... vs Mohammed Bhasha S/O Ibrahim Sab on 8 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 101723 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH 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.101723 OF 2021
BETWEEN:
1. SMT. LATHA @ MANGALI LATHA
W/O. LATE RAMESH B.O. @ MANGALI RAMESHA,
AGE: 37 YEARS, HOUSE WIFE.
2. MINOR R. BHARATHA @ N. BHARATH
S/O. LATE RAMESH B.O. @ MANGALI RAMESHA,
AGE: 11 YEARS, OCC: STUDENT.
3. THIPPESWAMY @ MANGALI THIPPESWAMY
S/O. LATE OBALAESHAPPA H.,
AGE: 46 YEARS, PHYSICALLY HANDICAPED,
SINCE THE APPELLANT NO.2 IS MINOR
REP./BY BY HIS NATURAL GUARDIAN AND
MOTHER APPELLANT NO.1,
Digitally signed ALL ARE R/O. B.G.KERE, MOLAKALMUR TALUK,
by MANJANNA E
Location: HIGH CHITRADURGA DISTRICT, PRESENTLY,
COURT OF
KARNATAKA R/O. HALKUNDI VILLAGE,
DHARWAD BALLARI-TALUK AND DISTRICT-583101.
BENCH
Date: 2024.11.20 ...APPELLANTS
10:26:11 +0530
(BY SRI. MANJUNATHA G.PATIL, ADVOCATE)
AND:
1. MOHAMMED BHASHA S/O. IBRAHIM SAB
AGE: 43 YEARS, DRIVER OF THE
MAHINDRA BOLERO CAMPER BEARING
NO.AP-02/TB-7694, D.NO.16,
W.NO.7, INDIRA NAGAR,
SREERAMPURA COLONY, BALLARI-583101.
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MFA No. 101723 of 2021
2. NARASHIMHULU KONDANALLI
S/O. K. NARASIMHAPPA
AGE: 53 YEARS,
OWNER OF THE MAHINDRA
BOLERO CAMPER BEARING
NO. AP-2/TB-7694,
R/O. GAJULA STREET,
KALYANADURGA TOWN, ANANTAPUR DISTRICT,
ANDRA PRADESH-515801.
3. THE MANAGER
M/S. CHOLA MANDALAM
MS GENERAL INSURANCE COMPANY LIMITED,
OPPOSITE SYNDICATE BANK,
NEAR HOTEL MAYUR,
BALLARI-583101.
...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R3.
NOTICE TO R1 AND R2 IS DISPENSED WITH VIDE COURT ORDER
DATED 08.02.2023)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.02.2021 PASSED
IN MVC NO.761/2018 ON THE FILE OF THE MEMBER, MOTOR
ACCIDENT CLAIMS TRIBUNAL-XII, BALLARI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, 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. 101723 of 2021
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
This appeal is filed by the claimants being aggrieved by
the judgment and award dated 05.02.2021 passed in M.V.C.
No.761/2018 on the file of the Motor Accident Claims Tribunal-
XII, Ballari, whereby the Tribunal has awarded a sum of
Rs.14,60,000/- as compensation.
2. For the sake of convenience, the parties are
referred to as per their rankings before the Tribunal.
3. Brief facts of the claimants' case before the Tribunal
are as under:
On 29.04.2018 at about 7:45 am, the deceased-Ramesha
B.O. @ Mangali Ramesha was proceeding by walk towards the
house of his brother after attending nature's call, near
Junjarampalli village, Rayadurga Mandal, respondent No.1
being the driver of Mahindra Bolero Camper bearing
registration No.AP-02/TB-7694 came from Bhupasamudram
side in a high speed and in a rash and negligent manner and
dashed against Ramesha and caused the accident. As a result,
he fell down and sustained fatal injuries and died at the spot.
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The claimants have further contended that, prior to death of
Ramesha, he was running barber shop and was earning
Rs.15,000/- per month and due to his untimely death, they
have lost earning member of the family, love and affection and
suffered mentally and financially. Thus, the claimants filed a
claim petition under Section 166 of the Motor Vehicles Act,
1988, seeking compensation, before the Tribunal.
4. After service of notice before the Tribunal,
respondent Nos.1 and 3, who are the driver and insurer of the
Mahendra Bolero vehicle, respectively, appeared through their
counsel. Respondent No.3 filed statement of objections
denying all averments made in the claim petition. Respondent
No.2 did not appear and was placed exparte.
5. The Tribunal considering the evidence on record at
Exs.P1 to P5, oral evidence of PW1 granted total compensation
of Rs.14,60,000/- with interest at 7% per annum from the date
of petition till its realization. Though Respondent No.3-
insurance company appeared and filed objections has neither
chosen to lead evidence nor produced any documents.
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6. Learned counsel for the appellants/claimants
contended that the deceased was aged about 38 years as on
the date of the accident but the Tribunal considering the age
mentioned in the postmortem report has taken the age of the
deceased as 40 years and added 25% of income towards future
prospects of the deceased and awarded compensation which is
on the lower side but in fact, as per the Aadhaar Card, the date
of birth of the deceased is 24.07.1980 i.e. he was aged 39
years as on the date of the accident. Hence, 40% future
prospects has to be taken into consideration and multiplier
applicable to the age group of deceased is 15. The counsel
further contended that claimant No.3 is a minor who was
depending upon the income of the deceased but the Tribunal
has not granted compensation under the head loss of
consortium. Thus, he prays for allowing the appeal by
enhancing the compensation reasonably.
7. Per contra, learned counsel for the
respondent/insurer contended that the Tribunal considering the
material on record has granted fair and reasonable
compensation to the claimants. Hence, no interference is called
for in that regard. The counsel further contended that claimant
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No.3 is the brother of the deceased and he is not entitled for
compensation towards loss of consortium. He further
contended that the Aadhaar Card now relied upon by the
claimants ought to have produced the same before the Tribunal
to arrive at proper conclusion but the claimants have failed to
do so. He lastly contended that the rate of interest awarded by
the Tribunal at 7% on the compensation is on the higher side
and hence seeks to reduce the same to 6%. Thus, he prays for
dismissal of the appeal.
8. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that arises
for our consideration in this appeal is:
"Whether the claimants have made out sufficient
grounds that the compensation awarded by the
Tribunal is not fair and reasonable and calls for
interference by this Court?"
9. There is no dispute with regard to the occurrence of
the accident on 29.04.2018 and death of one Ramesha B.O. in
the said accident due to rash and negligent driving by the
driver of Mahindra Bolero Camper.
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10. In the instant case, the claimants have contended
that the Tribunal has not considered the age of the deceased
correctly. In order to establish this aspect, claimant No.1, wife
of the deceased got examined herself as PW.1 and relied on
Exs.P-1 to P-5. The age of the deceased as on the date of the
accident as per the postmortem report is 40 years but as per
the Aadhaar Card furnished by the appellants, the date of birth
of the deceased Ramesha is 24.07.1980 and date of accident is
on 29.04.2018, which shows that as on the date of the accident
he was aged 39 years. Hence, the age of the deceased is taken
into consideration as 39 years as on the date of the accident.
So far as income is concerned, there is no proof of actual
income of the deceased. In the absence of such an evidence,
notional income has to be considered as per the Circular issued
by the Karnataka State Legal Services Authority as well as High
Court Legal Services Committee, for the accident of the year
2018, notional income is fixed at Rs.11,750/- per month and
hence, we deem it appropriate to re-assess the notional income
of the deceased at Rs.11,750/- per month. The deceased died
leaving behind his parents and his brother. Therefore, the
appropriate deduction towards personal expenses of the
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deceased would be 1/3rd. The Tribunal has added future
prospects @ 25% of the income considering the age of the
deceased as 40 years as per the postmortem report. Now, as
per the Aadhaar Card, since the age of the deceased is
considered as 39 years, 40% future prospects has to be added
to the monthly income of the deceased in view of the decision
of the Hon'ble Apex Court in the case of National India
Company Limited v. Pranay Sethi and ors. reported in AIR
2017 SC 5157 and the appropriate multiplier applicable to the
age group of the deceased is '15'. Thus, the compensation
under the head loss of dependency is calculated as under:
Rs.11,750/- + 4,700(40%) = Rs.16,450/-
Rs.16,450/- x 12 x 15 x 2/3= 19,74,000/-
11. So far as compensation under other conventional
heads is concerned, it is maintained.
12. The finding of the Tribunal that claimant No.3 being
the brother of the deceased is not dependent on deceased is
well founded and the same does not call for interference by this
Court.
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13. Since the claimants have now furnished copy of
Aadhaar card of the deceased and future prospects is enhanced
from 25%-40%, therefore, claimant Nos.1 and 2 are not
entitled for any interest on the amount of 15%(40%-25%)
which is calculated at Rs.2,96,100/- from the date of petition
till date.
Loss of dependency Rs.19,74,000/-
Loss of consortium (Rs.40000x2) Rs. 80,000/-
Loss of estate Rs. 15,000/-
Funeral expenses Rs. 15,000/-
------------------
Total Rs.20,84,000/-
------------------
14. Thus, claimant Nos.1 and 2 are entitled to total
compensation of Rs.20,84,000/- as against Rs.14,60,000/-
awarded by the Tribunal excluding interest for a sum of
Rs.2,96,100/-
15. Counsel for the insurance company has taken a
contention that the interest awarded by the Tribunal on
the compensation at 7% per annum is on the higher side.
In light of the Division Bench decision of this Court in the case
of MS.JOYEETA BOSE AND OTHERS -V- VENKATESHAN.V
AND OTHERS (MFA 5896/2018 and connected matters
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disposed of on 24.8.2020), the rate of interest on the
compensation awarded by the Tribunal at 7% per annum is
reduced to 6% per annum. Accordingly, the rate of interest @
7% per annum is reduced to 6% per annum only in respect of
enhanced compensation.
16. Accordingly, the point for consideration is answered
partly in the affirmative.
17. In the result, we pass the following:
ORDER
a) The appeal is allowed in part. The
impugned judgment and award of the
Tribunal is modified to an extent that the
claimant Nos.1 and 2 are entitled to total
compensation of Rs.20,84,000/- with
interest from the date of petition till
realization. The enhanced compensation shall
carry interest at 6% per annum. The
claimants are not entitled to interest for a
sum of Rs.2,96,100/- as observed in the body
of the judgment.
b) The insurance company shall deposit the
compensation with interest before the
Tribunal within six weeks from the date of
receipt of certified copy of this judgment.
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c) Draw modified award accordingly.
d) Registry is directed to send a copy of this
judgment to the Tribunal forthwith.
e) No order as to costs.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
kmv
Ct:vh
