Karnataka High Court

Ayub Khan vs The Proprietor on 22 October, 2024

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                                                      NC: 2024:KHC:42329-DB
                                                         MFA No.3632/2024



                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 22ND DAY OF OCTOBER, 2024
                                            PRESENT
                          THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                              AND
                       THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
                     MISCELLANEOUS FIRST APPEAL NO.3632/2024 (MV-D)


                BETWEEN:

                1.    AYUB KHAN
                      S/O MOHAMED KHAN
                      AGED ABOUT 54 YEARS

                2.    MADIHA AYUB
                      D/O AYUB KHAN
                      AGED ABOUT 24 YEARS

                3.    BUSHRA AYUB
                      D/O AYUB KHAN
                      AGED ABOUT 23 YEARS

                4.    NAWAZ KHAN A
                      S/O AYUB KHAN
                      AGED ABOUT 20 YEARS
Digitally
signed by K S         ALL ARE OLD RESIDING AT
RENUKAMBA             NO.78TH H BLOCK, SUVARNA SANKEERNA, KSRP,
Location:             JAKKASANDRA, KORAMANGALA VTC,
High Court of
Karnataka             AGARA, BENGALURU-560 009

                      PRESENT ADDRESS

                      SATHYAMANGALA, KASABA HOBLI,
                      TUMKURU TALUK,
                      TUMKURU DISTRICT - 577 101              ... APPELLANTS

                (BY SRI.M.B.RYAKHA, ADVOCATE)

                AND:

                1.    THE PROPRIETOR
                                -2-
                                          NC: 2024:KHC:42329-DB
                                            MFA No.3632/2024



     M/S OM TRANSPORT CORPORATION
     B-15,TRANSPORT NAGAR
     JAIPUR, RAJASTAN - 392 993

2.   THE MANAGER, UNITED INDIA
     INSURANCE COMPANY LIMITED
     B H ROAD, TUMKURU - 577 101               ... RESPONDENTS

(BY SRI.C SHANKARA REDDY, ADVOCATE FOR R2;
    NOTICE TO R1 IS DISPENSED WITH V/O DTD: 18.07.2024)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 08.09.2023 PASSED IN MVC NO.1088/2020 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT-XI, TUMAKURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.


      THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:      HON'BLE MRS JUSTICE K.S.MUDAGAL
            AND
            HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

                      ORAL JUDGMENT

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

"Whether the compensation awarded to the

appellants/claimants under the impugned award is just one?" is

the question involved in this case.

2. Appellant No.1 is the husband and appellant Nos.2 to

4 are the daughters and son of deceased Kousar Taj. On

01.11.2020 at about 1:30 p.m. when Kousar Taj was traveling on

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motorcycle bearing registration No.KA-01-EK-1802 as pillion rider

along with claimant No.1 the rider near Sri Raja Talkies,

Tumakuru, lorry bearing registration No.R.J-14-GL-0279 hit the

said motorcycle from the hind side and caused grievous injuries

to Kousar Taj. She was shifted to Adithya Hospital, Tumakuru.

After preliminary treatment, she was shifted to NIMHANS

hospital, Bengaluru. She succumbed to the injuries on the way to

the hospital. At the relevant time, respondent No.1 was the

registered owner and respondent No.2 was insurer of lorry

bearing registration No.R.J-14-GL-0279.

3. Claimants filed MVC No.1088/2020 before the

Tribunal contending that the accident occurred solely due to the

actionable negligence on the part of the driver of the lorry

bearing registration No. R.J-14.GL-0279, deceased was earning

Rs.60,000/- per month working as a Teacher in Delhi Public

School, Bengaluru. They contended that they were dependent on

her income, due to her death, they have suffered the damages of

Rs.60,00,000/- and respondent Nos.1 and 2 are liable to pay the

same.

4. Respondent Nos.1 and 2 contested the petition

denying actionable negligence on the part of the driver of the

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lorry, age, occupation, income of the deceased and their liability

to pay the compensation. Respondent No.2 contended that

claimant No.1 himself was riding the motorcycle under

intoxication without any driving licence and helmet, therefore the

accident occurred due to his negligence.

5. To prove their case, claimants got examined claimant

No.2 as PW.1 and one Imran Sharief as PW.2 and got marked

Exs.P1 to P12. No evidence was adduced on behalf of

respondents.

6. The Tribunal on hearing the parties, relying on the

evidence of PW.2 and Exs.P1 to P8 i.e., FIR, complaint, spot

mahazar, rough sketch, inquest mahazar, IMV report,

postmortem report and chargesheet respectively, held that the

accident occurred due to actionable negligence on the part of the

driver of the lorry. The Tribunal relying on Ex.P10 salary slip of

the deceased, considered the income of the deceased at

Rs.23,955/-, deducted 1/4th from the same for her personal

expenses, applied 15 multiplier and awarded compensation of

Rs.27,00,000/- on the head of loss of dependency. The Tribunal

in all awarded compensation of Rs.27,80,000/- on different heads

as per the table below:

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Sl. Particulars Compensation No. awarded in Rs.

1. Travel and Funeral 60,000/-

expenses

2. Loss of dependency 27,00,000/-

3. Loss of love and affection 20,000/-

(Rs.5,000x4=20,000) Total 27,80,000/-

The respondents have not challenged the award on any grounds.

Claimants have challenged the award in the above appeal on the

ground that the compensation awarded is not adequate one.

Analysis

7. As already stated, the finding of the Tribunal that the

accident occurred solely due to actionable negligence on the part

of the driver of the lorry, has attained finality. Though the

claimant contended that the deceased was permanently

employed in Delhi Public School and relied on Ex.P10 the salary

slip, the employer was not examined to prove that the deceased

was permanently employed. Further in the absence of any

evidence to show that the deceased was getting more income

than the one stated in Ex.P10, the submission of learned Counsel

for claimants that she was earning more than what is shown in

Ex.P10 also cannot be countenanced. Under the circumstances,

the finding of the Tribunal that salary shown in Ex.P10 was her

income has to be accepted.

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8. As per Ex.P10 the monthly income of the deceased

was Rs.25,955/-. Therefore, her annual income comes to

Rs.3,11,460/- (25,955 x 12). Out of that, Professional Tax of

Rs.2,400/- has to be deducted. Therefore, her annual income

comes to Rs.3,09,060/-. Deceased was aged 39 years. Since

nothing was produced to show that she was permanently

employed, as per the judgment of Hon'ble Supreme Court in the

case of National Insurance Company Limited vs. Pranay Sethi

and Others1, 40% has to be added to the income of the deceased

by way of future prospects, which comes to (Rs.3,09,060/- x

40/100) Rs.1,23,624/-. Therefore, her annual income comes to

Rs.4,32,684/- (3,09,060 + 1,23,624).

9. Since claimant No.1 in the complaint has stated that

he was a Reserve Sub Inspector, he did not enter the witness box

to claim that he was dependent on the income of the deceased,

claimant Nos.2 to 4 alone have to be considered as dependants of

the deceased. In view of the judgment of the Hon'ble Supreme

Court in the case of Sarla Verma and others vs. Delhi Transport

Corporation and another2, 1/3rd has to be deducted from the

income of the deceased for her personal expenses. On deducting

(2017) 16 SCC 680

(2009) 6 SCC 121

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1/3rd for her personal expenses, her contribution to the family

comes to (Rs.4,32,684/- x 2/3) Rs.2,88,456/- per annum. The

applicable multiplier is 15. Therefore, the compensation payable

on the head of loss of dependency is Rs.43,26,840/- (Rs.2,88,456

X 15).

10. In view of the judgment of the Hon'ble Supreme

Court in Pranay Sethi's case referred to supra and Magma

General Insurance Company Limited vs. Nanu Ram & Ors3, the

claimants are entitled to the compensation of Rs.40,000/- each

with escalation of 10%, which comes to Rs.1,76,000/- (44,000 x

4). Similarly, on the heads of funeral expenses and loss of estate,

sum of Rs.15,000/- + Rs.15,000/- each with escalation at 10%

has to be awarded. Therefore, the just compensation payable is

as follows:

                  Particulars         Amount (Rs.)
          Loss of dependency               43,26,840/-
          Loss of consortium                1,76,000/-
          Loss of estate                      16,500/-
          Funeral expenses                    16,500/-
                        Total            45,35,840/-
          Awarded by Tribunal              27,80,000/-
          Enhanced compensation          17,55,840/-





    (2018) 18 SCC 130

                                              NC: 2024:KHC:42329-DB

11. Therefore, the appeal deserves to be allowed in part.

Hence, the following:

ORDER

i. The appeal is allowed in part.

ii. The claimants are entitled to enhanced compensation

of Rs.17,55,840/- with interest thereon at 6% p.a. from the date

of petition till its realization.