Karnataka High Court
Smt. Vishala vs Iliyaz Pasha on 5 September, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:36326
MFA No. 8392 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 8392 OF 2019 (MV)
BETWEEN:
1. SMT. VISHALA
D/O LATE RAMAPPA
AGED ABOUT 38 YEARS
W/O SRI.M.R.BIRESHA
R/O RAMAGONDANAHALLI VILLAGE
DAVANAGERE TALUK.
2. SMT.SAKAMMA
D/O LATE RAMAPPA
W/O NARASHIMAPPA
AGED ABOUT 34 YEARS
R/O IYANOOR VILLAGE, HONNALI TALUK
DAVANAGERE DISTRICT.
3. KUM.L.R.MANJAMMA
D/O LATE RAMAPPA
AGED ABOUT 30 YEARS
Digitally signed by R/O MAOTHI VILLAGE
HEMALATHA A DAVANAGERE TALUK.
Location: HIGH
COURT OF
KARNATAKA 4. L.R.REKHA
D/O LATE RAMAPPA
AGED ABOUT 27 YEARS
R/O MATHI VILLAGE, DAVANAGERE TALUK.
...APPELLANTS
(BY SRI. SARITHA KULKARNI.,ADVOCATE)
AND:
1. ILIYAZ PASHA
S/O ZIYAULLA
R/O BHEEMASANDRA VILLAGE
TUMKUR TALUK & DISTRICT-572 101.
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MFA No. 8392 of 2019
2. WASEEM KHAN
S/O ATHAULLA
AGED ABOUT 44 YEARS
R/O VEERASAGAR, 2ND CROSS MELUKOTE ROAD
TUMKUR TOWN-572 101.
3. THE MANAGER
ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD
NO.2315, 2068/B, 1ST FLOOR
ABHARNA ARCHADE, M.G.ROAD
TUMKUR BRANCH-572 101.
...RESPONDENTS
(BY SRI.H.S. LINGARAJU, ADVOCATE FOR R3:
NOTICE TO R1 & R3 IS DISPENSED WITH
V/O DATED: 05.06.2023)
THIS MFA IS FILED UNDER SECTION.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:11.04.2018
PASSED IN MVC NO.93/2017 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE AND MEMBER, MACT-IV, DAVANGERE,
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: 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 11.04.2018 passed by the
MACT, Davanagere in MVC 93/2017.
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2. Facts giving rise to the filing of the appeal briefly
stated are that on 28.11.2015, when the deceased
Jayappa was traveling in lorry bearing registration No.KA-
34-A-1194 towards Tumkur from Mathi Village via
Sasaluhalla Sirigere Road, kagalagere Village, Holalkere
Taluk, at that time, the driver of the said lorry drove the
same in a rash and negligent manner and caused accident.
As a result of the aforesaid accident, the deceased
sustained grievous injuries, hospitalized and later
succumbed to the injuries on 26.12.2015.
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 and 3
appeared through counsel and filed written statement
denying the averments made in the claim petition. The
respondent No.2, despite service of notice, did not appear
before the Tribunal and was placed ex-parte.
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5. On the basis of the pleadings of the parties, the
Claims 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.686,500/- along with interest at the rate of 8% p.a.
and directed the Insurance Company to deposit 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 35 years at the time of the accident and had a
monthly income of Rs.20,000/- by working as agriculturist.
However, the assessment of monthly income of the
deceased at Rs.8,000/- by the Tribunal is unjustified and
erroneous.
b) Secondly, the claimants are entirely depending on
the income of the deceased. The Tribunal is not justified in
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taking only 1/3rd of the income of the deceased for the
purpose of calculating 'loss of estate'.
c) Thirdly, 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.
d) Fourthly, 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'.
e) Lastly, 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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With the above contentions, the learned counsel
sought to allow the appeal.
7. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
a) Firstly, although the claimants claim that the
deceased was earning Rs.20,000/- 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, the claimants are married sisters of the
deceased, they are living separately and not depending on
the income of the deceased. The Tribunal has rightly taken
1/3rd of the income for calculating 'loss of estate'.
c) Thirdly, since the claimants have not established the
income of the deceased, they are not entitled for
compensation towards 'future prospects'.
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d) Fourthly, 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.
e) Lastly, 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 8% p.a. on the compensation amount is on the higher
side.
With the above contentions, the learned counsel
sought to dismiss the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
9. It is not in dispute that deceased Jayappa died in the
road traffic accident occurred on 28.11.2015 due to rash
and negligent driving of the offending vehicle by its driver.
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10. The claimants claim that deceased was earning
Rs.20,000/- 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
2015, the notional income of the deceased shall be taken
at Rs.9,000/- 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
comes to Rs.12,600/-.
11. The claimants are married sisters of the deceased,
they are living separately and not depending on the
income of the deceased. However, the Tribunal has rightly
taken 1/3rd of the income for the purpose of computing
'loss of estate' and remaining 2/3rd has been taken as
amount spent towards personal expenses of the deceased.
Accordingly, the income comes to Rs.4,200/-
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(Rs.12,600*1/3). The deceased was aged about 35 years
at the time of the accident and multiplier applicable to his
age group is '16'. Thus, the claimants are entitled to
compensation of Rs.8,06,400/- (Rs.4,200*12*16) on
account of 'loss of estate'.
12. In addition, the claimants are entitled to
compensation of Rs.15,000/- on account of 'funeral
expenses'.
13. The compensation of Rs.287,500/- awarded by the
Tribunal under the head of 'medical expenses' is based on
the medical bills produced by the claimants and is deemed
just and reasonable.
14. Thus, the claimants are entitled to the following
compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of estate 8,06,400
Funeral expenses 15,000
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Medical expenses 2,87,500
Total 11,08,900
15. 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.11,08,900/- as against Rs.686,500/- awarded by the
Tribunal.
d) Following the judgment of the Division Bench of this
Court in the case of 'MS.JOYEETA BOSE' (supra), the
enhanced compensation shall carry interest at 6% p.a.
e) The Insurance Company is directed to deposit the
compensation amount along with interest 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.
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f) The apportionment, deposit and release of amount
shall be made in accordance with the terms of the award
of the Tribunal.
g) In view of the order dated 05.07.2024 passed by this
Court, the claimants are not entitled for interest on the
enhanced compensation for the delayed period of 419
days in filing the appeal.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
DM
