Karnataka High Court

Smt Nabeesamma vs Sri Susheel Kumar on 4 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                               NC: 2024:KHC:36080
                                                          MFA No. 3983 of 2019




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 4TH DAY OF SEPTEMBER, 2024

                                               BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 3983 OF 2019 (MV)


                      BETWEEN:

                      SMT NABEESAMMA
                      W/O.LATE FAKEER SAHEB
                      AGED ABOUT 70 YEARS
                      RESIDING AT GOLLEBETTU HOUSE
                      MUNDOOR VILLAGE
                      MELANDTHABETTU POST, BELTHANGADY TALUK
                      PRESENTLY RESIDING AT ZAM ZAM MANZIL
                      D SOUZA LANE M.R.BHAT LANE
                      MANGALURU TALUK, D.K. DISTRICT 575007.
                                                                     ...APPELLANT
                      (BY SRI. RAVISHANKAR SHASTRY G.,ADVOCATE)

                      AND:

                      1.    SRI SUSHEEL KUMAR
Digitally signed by
HEMALATHA A                 S/O.CHANDREGOWDA
Location: HIGH              ADULT, R/O.ENASANDI HOSUE, BELUR
COURT OF                    HASSAN DISTRICT -587114.
KARNATAKA

                      2.    THE MANAGER
                            RELIANCE GENERAL INSURNACE CO.LTD.,
                            MAXIMUS COMMERIAL COMPLEX
                            4TH FLOOR, LIGHT HOUSE HILL ROAD
                            HAMPANAKATTA, MANGALURU
                            D.K. -575001.

                      3.    MR MOHAMMED SHARIEF
                            S/O.ADAM BEARY
                            MAJOR, R/AT JANATHA HOUSE
                            MUNDOOR VILLAGE
                              -2-
                                     NC: 2024:KHC:36080
                                   MFA No. 3983 of 2019




     MELANTHABETTU POST
     BELTHANGADY TALUK
     D.K.DISTRICT -574212.
4.   THE MANAGER
     RELIANCE GENERAL INSURANCE CO.LTD.,
     BRANCH OFFICE:RELIANCE
     CENTRE 19, WALCHAND
     HIRACHAND MARG
     BALLARAD ESTATE,
     BOMBAY -400001.

5.   SMT MAIMUNNA
     D/O.LATE FAKEER SAHEB
     AGED ABOUT 46 YEARS

6.   SMT SAFIYAMMA
     D/O.LATE FAKEER SAHEB
     AGED ABOUT 45 YEARS

7.   SMT ZOHARA
     D/O.LATE FAKEER SAHEB
     AGED ABOUT 43 YEARS

8.  SMT MARIAMMA
    D/O.LATE FAKEER SAHEB
    AGED ABOUT 30 YEARS
    R 5 TO R8 ARE RESIDING AT
    GOLLEBETTU HOUSE
    MUNDOOR VILLAGE
    MELANTHABETTU POST
    BELTHANGADY TALUK
    PRESENTLY RESIDING AT ZAM ZAM MANZIL
    D SOUZA LANE, M.R.BHAT LANE
    MANGALURU TALUK,
    D.K.DISTRICT-575007.
                                         ...RESPONDENTS
(BY SRI.H.C. BETSUR.,ADVOCATE FOR R2 & R4:
NOTICE TO R1 & R3 ARE SERVED AND UNREPRESENTED]
NOTICE TO R5 TO R8 ARE DISPENSED WITH
V/O DATED: 04.09.2024)
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                                          NC: 2024:KHC:36080
                                       MFA No. 3983 of 2019




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:24.04.2017
PASSED IN MVC NO.1018/2014 ON THE FILE OF THE MEMBER-
MACT AND II ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU,
DAKSHINA    KANNADA,       PARTLY   ALLOWING    THE    CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE H.T. NARENDRA PRASAD


                    ORAL JUDGMENT

1. 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 24.04.2017 passed by the

MACT, Mangaluru, D.K., in MVC No.1018/2014.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 20.10.2013, when the deceased Jainabi

along with others was proceeding in an autorickshaw

bearing registration No.KA-21-A-8961 towards

NC: 2024:KHC:36080

Belthangady, at that time, a maxi cab bearing registration

No.KA-13-A-4641 which was being driven in a rash and

negligent manner, dashed against the autorickshaw. As a

result of the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the injuries.

3. The claimants filed a petition under Section 166 of

the Act seeking compensation for the death of the

deceased along with interest.

4. Upon service of notice, the respondent Nos.1, 2 and

4 appeared through counsel and filed written statements

denying the averments made in the claim petition. The

respondent No.3, despite service of notice, did not appear

before the Tribunal and was placed ex-parte.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter, recorded

the evidence. The claimants, in order to prove the case,

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examined claimant No.4 as PW-5, and got exhibited

common documents namely Ex.P1 to Ex.P28. On behalf of

respondents, two witnesses were examined as RWs-1 and

2 and got exhibited documents namely Ex.R1 to Ex.R9.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of

contributory negligence, as a result of which, the deceased

sustained injuries and succumbed to the injuries. The

Tribunal further held that the claimants are entitled to a

compensation of Rs.6,87,000/- along with interest at the

rate of 9% p.a. and directed the insurer of the maxi cab to

deposit 65% of the compensation amount and directed the

owner of autorickshaw to deposit 35% of the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. The learned counsel for the claimants has raised the

following contentions:

a) Firstly, the claimants assert that the deceased was

aged about 28 years at the time of the accident and had a

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monthly income of Rs.15,000/- as a Coolie. However, the

assessment of income of the deceased at Rs.6,000/- by

the Tribunal is unjustified and erroneous.

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. This principle shall be considered in the present

case.

c) Thirdly, 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 of Rs.40,000/- under

the head of 'loss of love and affection and consortium'.

d) Fourthly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is inadequate and on the lower side.

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e) Lastly, in respect of liability, in MFA No.3979/2019

(MVC No.36/2015) disposed of on 06.08.2024, arising out

of the same accident, this Court has held that the insurer

of the maxi cab is liable to pay 65% of the compensation

amount and the insurer of the auto rickshaw is liable to

pay 35% of the compensation amount.

With the above contentions, the learned counsel

sought to allow the appeal.

7. On the other hand, the learned counsel for

respondent Nos.2 and 4/Insurance Companies have raised

the following counter-contentions:

a) Firstly, although the claimants claim that the

deceased was earning Rs.15,000/- per month, they have

failed to substantiate their claim with supporting

documents. Consequently, the Tribunal has correctly

assessed the income of the deceased notionally.

b) Secondly, since the claimants have not established

the income of the deceased, they are not entitled for

compensation towards 'future prospects'.

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c) Thirdly, 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.

d) Fourthly, 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 DISPOSED

OF ON 24.8.2020), the rate of interest awarded by the

Tribunal at 9% p.a. on the compensation amount is on the

higher side.

e) Lastly, learned counsel for respondent No.4 submits

that the Tribunal considering the material available on

record, rightly exonerated respondent No.4/Insurance

Company from the liability.

With the above contentions, the learned counsel

sought to dismiss the appeal.

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8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

9. It is not in dispute that Kum.Jainabi died in the road

traffic accident occurred on 20.10.2013 due to rash and

negligent driving of the drivers of Maxi Cab bearing

Registration No.KA-13-A-4641 and auto rickshaw bearing

Registration No.KA-21-A-8961.

10. The claimants claim that deceased was earning

Rs.15,000/- per month, but failed to produce supporting

documents to substantiate their claim. In the absence of

proof of income, the notional income has to be assessed.

According to the guidelines issued by the Karnataka State

Legal Services Authority, for accidents occurred in the year

2013, the notional income of the deceased shall be taken

at Rs.8,000/- p.m. To the aforesaid income, 40% has to

be added on account of future prospects in view of the law

laid down by the Constitution Bench of the Supreme Court

in 'PRANAY SETHI' (supra). Thus, the monthly income

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NC: 2024:KHC:36080

comes to Rs.11,200/-. The Tribunal has rightly deducted

50% of the income of the deceased towards personal

expense and remaining amount has to be taken as his

contribution to the family. The deceased was aged about

28 years at the time of the accident and multiplier

applicable to his age group is '17'. Thus, the claimants are

entitled to compensation of Rs.11,42,400/- (Rs.11,200

*12*17*1/2) on account of 'loss of dependency'.

11. 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'.

12. In view of the law laid down by the Supreme Court in

the case of 'MAGMA GENERAL INSURANCE' (supra),

claimant No.1, mother of the deceased is entitled for

compensation of Rs.40,000/- under the head of 'loss of

filial consortium'.

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NC: 2024:KHC:36080

13. Thus, the claimants are entitled to the following

compensation:

              Compensation under                Amount in
                different Heads                   (Rs.)

           Loss of dependency                       11,42,400

           Funeral expenses                            15,000

           Loss of estate                              15,000

           Loss of Filial consortium                   40,000

                            Total                   12,12,400



14.   In     respect    of    liability,     this    Court     in    MFA

No.3979/2019        (MVC      No.36/2015)           disposed    of    on

06.08.2024, arising out of the same accident has held that

the insurer of the maxi cab is liable to pay 65% of the

compensation amount and the insurer of the auto rickshaw

is liable to pay 35% of the compensation amount.

15. In the result, the following order is passed: