Karnataka High Court

Rihana @ Rihana Banu vs Sri.Firdose on 10 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                             NC: 2024:KHC:36860
                                                           MFA No. 1402 of 2020




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                               BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 1402 OF 2020 (MV)
                      BETWEEN:

                      1.    RIHANA @ RIHANA BANU
                            W/O LATE SHAFIULLA
                            AGED ABOUT 44 YEARS.

                      2.    BIBI HAJIRA
                            D/O LATE SHAFIULLA
                            AGED ABOUT 19 YEARS

                      3.    BIBI AYESHA
                            D/O LATE SHAFIULLA
                            AGED ABOUT 18 YEARS

                      4.    SMT.MEHARUNNISSA
                            W/O LATE ABDUL RASHEED
                            AGED ABOUT 62 YEARS
                            ALL ARE R/AT NEAR ZEN MOTORS
Digitally signed by         MALLANDUR ROAD, UPPALLI
HEMALATHA A                 CHIKKAMAGALURU
Location: HIGH
COURT OF                                                          ...APPELLANTS
KARNATAKA             (BY SRI. SATISH R GIRJI.,ADVOCATE)

                      AND:
                      1. SRI.FIRDOSE
                         S/O SRI NIZAMUDDIN
                         AGED 50 YEARS
                         R/O NO.594/4, 3RD CROSS
                         TIPPUNAGAR, CHIKKAMAGALURU.

                      2.    M/S. UNITED INDIA INSURANCE COMPANY LTD.
                            DIVISIONAL OFFICE
                               -2-
                                          NC: 2024:KHC:36860
                                       MFA No. 1402 of 2020




      CRESENT COURT, TOGARIHANKAL CIRCLE
      CHIKKAMAGALURU-577 101
                                             ...RESPONDENTS
(BY SRI.JANARDHAN REDDY., ADVOCATE FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 04.07.2023)


       THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 28.08.2019
PASSED IN MVC NO.492/2018            ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MEMBER, MACT,
CHIKKAMAGALURU, 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 28.08.2019 passed by the

MACT, Chikkamagaluru in MVC No.492/2018.

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

stated are that on 19.08.2018 at about 4.30 p.m., the

deceased Saifulla @ Saifu was going on a motorcycle

bearing Registration No.KA-14-EC-0253 as a pillion rider

from Town Canteen to Mallandur Road. The rider of the

said motorcycle applied brakes suddenly in front of

Vatsalya Hospital, I.G.Road, Chikkamagaluru to avoid a

running horse, which came suddenly in front of

motorcycle. As a result of the aforesaid accident, the

deceased fell down on the tar road and sustained grievous

injuries and unconscious and succumbed to the injuries on

the way to the Hospital.

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 No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

NC: 2024:KHC:36860

respondent No.1, 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,

examined claimant No.1 as PW-1, and another witness as

PW-2, and got exhibited documents namely Ex.P1 to

Ex.P10. On behalf of respondents, no witness was

examined but got exhibited a document namely Ex.R1.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of rash

and negligent driving of the offending vehicle by its driver,

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.19,85,000/- along with interest at the rate of 9% p.a.

and directed the Insurance Company to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

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6. The learned counsel for the claimants has raised the

following contentions:

a) Firstly, the claimants assert that the deceased was

aged about 22 years at the time of the accident and had a

income of Rs.750/- per day as a Chicken cleaner and

vendor. However, the assessment of income of the

deceased at Rs.9,000/- by the Tribunal is unjustified and

erroneous.

b) Secondly, 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'.

c) Lastly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is inadequate and on the lower side.

With the above contentions, the learned counsel

sought to allow the appeal.

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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.750/- per day, 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 deceased was a bachelor at the time of

the accident. But the Tribunal instead deducting 50% of

the income of the deceased towards personal expenses,

has deducted 1/3rd.

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) 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

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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.

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 Saifulla @ Saifu died in the

road traffic accident occurred on 19.08.2018 due to rash

and negligent driving of the offending vehicle by its driver.

10. The claimants claim that deceased was earning

Rs.750/- per day, 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

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2018, the notional income of the deceased shall be taken

at Rs.12,500/- 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.17,500/-. The Tribunal has rightly deducted

1/3rd of the income of the deceased towards personal

expenses and remaining amount has to be taken as his

contribution to the family. The deceased was aged about

22 years at the time of the accident and multiplier

applicable to his age group is '18'. Thus, the claimants are

entitled to compensation of Rs.25,20,000/- (Rs.17,500

*12*18*2/3) 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'.

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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'.

13. The compensation of Rs.40,000/- awarded by the

Tribunal under the head of 'medical expenses' and

Rs.15,000/- under the head of 'conveyance charges

(Ambulance charges) are based on the evidences

produced by the claimants and are deemed just and

reasonable.

14. Thus, the claimants are entitled to the following

compensation:

           Compensation under             Amount in
             different Heads                (Rs.)

        Loss of dependency                  25,20,000

        Funeral expenses                       15,000

        Loss of estate                         15,000
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        Loss of Filial consortium               40,000

        Medical Expenses                        40,000

        conveyance charges                      15,000
        (Ambulance charges)

                       Total                26,45,000

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.26,45,000/- as against Rs.19,85,000/- 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% per

annum.

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