Karnataka High Court
Smt Safia vs United India Insurance Co Ltd on 16 March, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A. NO.3523 OF 2017 (MV)
BETWEEN:
1. SMT. SAFIA
W/O LATE MOIDEEN
AGED ABOUT 49 YEARS
2. MR. ABDUL RASHEED
S/O LATE MOIDEEN
AGED ABOUT 24 YEARS
3. MR. ISMAIL M.
S/O LATE MOIDEEN
AGED ABOUT 22 YEARS`
ALL ARE RESIDING AT
KANIYADKAM HOUSE
CHATTANCHAL, NEAR CHACHA
NURSERY SCHOOL
THEKKILAM POST
KASARGOD, KERALA STATE
... APPELLANTS
( BY SRI GURUPRASAD B.R., ADVOCATE)
AND:
1. UNITED INDIA INSURANCE CO. LTD.,
D.O. KASARGOD
PADMAVATHI COMMERCIAL COMPLEX
M.G. ROAD, KASARGOD
KERALA STATE - 670 121
REP. BY ITS MANAGER
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2. MRS. JAINABI M.M.
W/O SAFI ABBAS
AGED ABOUT 50 YEARS
R/AT H.NO.3/383 A
SAKEEB MANZIL, MUNDOL HOUSE
THEKKILA POST, KASARGOD
KERALA STATE - 670 121
3. KSRTC
K.H. ROAD
BENGALURU - 560 027
REP. BY ITS
MANAGING DIRECTOR
... RESPONDENTS
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE MOTOR VEHICLE ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
08.07.2016 IN MVC NO.1076/2012 PASSED BY THE COURT
OF IV ADDL. DISTRICT JUDGE AND MEMBER MACT,
MANGALURU, D.K., AND ALLOW THIS APPEAL BY
GRANTING THE COMPENSATION AS PRAYED FOR IN THE
CLAIM PETITION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the mother and brothers of one Mohammed Mujeeb ag ainst the judgment and award d ated 08.07.2016 in MVC No.1076/2012 passed by the IV Addl. District Judg e and Member, MACT, Mangalore, D.K. (in short 'the -3- Tribunal') seeking enhancement of the comp ensation.
2. The b rief facts of the case are:
On 24.01.2012 at ab out 12.30 pm when the deceased and Ahammed Sammer T.A. were travelling in Maruthi Swift Desire Car bearing Registration No.KL-14 H-7444 from Kasargod towards Mang alore as p asseng ers, d riven by one Ameen Ahammed Kab eer. The car was d riven at hig h speed and in a rash and negligent manner and when the said car reached near Mel Talap ady Bridge, Talap ady, the d river of the car lost control over the vehicle and dashed to KSRTC bus bearing Registration No. KA-19 F-2876. Due to the said imp act, Mohammed Mujeeb and Ameen Ahammed Kab eer sustained multip le fractures all over their body. They were immediately shifted to Nethaji A Yellapp a Hosp ital. In spite of best treatment Mohammed Mujeeb succumb ed to injuries on 31.01.2012.
3. It is p lead ed by the claimants, who were mother and brothers of the deceased, that the -4- deceased was hale and healthy before the accident, was a b achelor and was working as Salesman in Sulson Textiles and drawing salary of Rs.9,000/- per month. Since the deceased was the only b read earning member in the family, they lost their livelihood . Accordingly, the claimants have filed a claim petition before the Tribunal und er Section 166 of the Motor Vehicle Act, 1988 claiming a total comp ensation in a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only).
4. On issuance of notice by the Tribunal, the respond ents entered app earance and contested the matter by filing their objections denying the age, occup ation and income of the deceased person. They have also denied that there is no negligence on the p art of the offending KSRTC bus and stated that the compensation awarded by the Tribunal is excessive and abnormal. They soug ht for dismissal of the claim petition.
5. In support of their case the claimants examined in all four witnesses as PW1, 3 to 5 and got marked 23 documents marked as Ex.P1 to P23. -5- The respond ent - Insurance Comp any has not examined any witness, but got marked the Insurance Policy as Ex.R1 and respondent - KSRTC got examined three witnesses on their b ehalf as RW1 to 3 and got marked in all two documents as Ex.R2 & R3.
6. Based on all these plead ings the Tribunal framed issues and after considering the same, the Tribunal has app reciated the evid ence and materials prod uced before it and award ed comp ensation in a sum of Rs.10,73,000/- to the app ellants - claimants with interest at 6% p a from the date of petition till its realization, und er the following heads:
1. Funeral exp enses Rs. 25,000-00
2. Loss of depend ency Rs. 6,48,000-00
3. Loss of love & affection Rs. 2,00,000-00
4. Loss of Estate Rs. 2,00,000-00 Total Rs.10,73,000-00
7. Aggrieved by the comp ensation award ed by the Tribunal in a sum of Rs.10,73,000/- with interest at the rate of 6% p a from the d ate of petition till the actual realization of the award -6- amount by the respondents, the app ellants - claimants are in this app eal before this Court seeking enhancement of comp ensation.
8. I have heard the learned counsel for the app ellants and the learned counsel for the respondents.
9. The learned counsel for the ap pellants contend that the compensation award ed by the Tribunal is too meag er and on the lower side. The Tribunal has taken the income of the deceased at Rs.6,000/- per month, which is not correct. The deceased was earning Rs.9,000/- per month and the Trib unal oug ht to have taken a notional income as held by the Hon'ble Ap ex Court. The learned counsel further contends that the Tribunal ought to have add ed future prospects of the d eceased as held by the Apex Court in the case of National Insurance Company v. Pranay Sethi and another reported in AIR 2017 SC 5157. It is also the contention of the learned Counsel for app ellants that the Tribunal has erred in granting of Rs.2 lakhs under the head of Loss of Estate and -7- Rs.2 lakhs under the head love and affection, both on the lower side and needs to be modified . It is also contended that the med ical expenses, which has been actually incurred, has not been taken into consid eration by the Tribunal. He further submits that the Tribunal has award ed compensation on all other heads on the lower side, which req uires to be enhanced. Accordingly, he seeks enhancement of the compensation award ed by the Trib unal.
10. Per contra, the learned counsel for respondent submits that the Tribunal has erred in awarding the said comp ensation to the claimants, and in fact has awarded excess compensation which is on the higher side. The learned Counsel for the resp ondent - Insurance Comp any strenuously contend ed that the Tribunal has award ed a sum of Rs.2 lakhs each und er the head of love and affection and loss of estate, which is too high and is in contravention to the law laid down in Pranaysethi's case stated sup ra. He further contended that the claimants have failed to produce any material before the Tribunal to show the exact income of the deceased and accord ing ly, -8- the income calculated by the Trib unal is arbitrary. Therefore, on these g rounds, the learned Counsel for respondent seeks reduction of the excess amount award ed und er the head of loss of estate and loss of love and affection and also soug ht to dismiss the appeal by not enhancing any comp ensation award ed by the Trib unal.
11. I have heard the submissions of the learned counsel on both sid es and given my anxious consid eration toward s the material produced on record as well as the judgment and award p assed b y the Tribunal, this Court has to consid er 'Whether the income taken by the Trib unal is in conformity with the law laid down by the Hon'b le Sup reme Court?'.
12. It is not in dispute that the deceased was not earning permanent income and was not in a permanent job. Though, it is contended by the learned Counsel for appellant that the deceased was working as a Salesman at Sulson Textile and earning Rs.9,000/- per month, which is noticed from the records as p er Ex.P14, which is claimed to -9- be the salary d etails or certificate to show the income of the deceased on the letter head of Sulson Textiles, reads that the deceased was working as a Salesman in the said comp any. Ex.P15 another certificate issued by the Tahsild ar, Kasaragod, would show that app ellant No.1 herein is the mother of the deceased - Mohammed Mujeeb, who died on 31.01.2012. In order to estab lish the fact that the deceased was employed and earning Rs.9,000/- per month, ap art from the evidence of PW1 and Ex.P14, PW1 got examined PW3, who is Manag er of the said firm. In his evidence he stated that the d eceased was working in their Comp any for a p eriod of four months and was d rawing salary of Rs.9,000/- per month. However, it is also pertinent to note that there is no other piece of document p roduced to show exact income of the deceased ap art from the statements of PW1 and 3. Therefore, Ex.P14 cannot be taken into consideration for decid ing and coming to the conclusion with reg ard to correct income of the deceased as the respondent during the course of cross examination suggested a q uestion with
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regard to prod uction of attend ance register, salary register and income tax returns, which have not been prod uced by the claimants. Nevertheless, even if the appellants are unable to p roduce salary certificate or income details, this Court has consistently taken a sum of Rs.7,000/- to Rs.8,000/- towards the accident occurred during the year 2012-13 and hence the same is taken into consid eration for deciding the income of the deceased. Therefore, on account of the same if Rs.7,000/- per month is taken as income of the deceased, the deceased was young and having potentiality of earning and hence future loss of earning would be taken at additional 40%. Therefore, 40% of Rs.7,000/- would b e Rs.2,800/- and total income is Rs.9,800/- (Rs.7,000/- + Rs.2,800/-) would be the income that has to b e taken for consideration. Since the deceased was unmarried the personal expenses is to be taken at 50%. Deducting 50% from Rs.9,800/- it would be Rs.4,900/-. It is not in dispute that the deceased was ag ed 21 years. Accordingly, as p er the decision of the Hon'ble Supreme Court, the
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multiplier that ought to b e taken is 18. Thus, the claimants would be entitled to a sum of Rs.10,58,400/- (Rs.4,900/- X 12 X18) und er the head loss of dependency, that ought to have been award ed by the Tribunal.
13. Under the head of love and affection the Tribunal has award ed a sum of Rs.2,00,000/- and und er the head loss of estate a sum of Rs.2,00,000/- is award ed. Further, und er the head of funeral exp enses a sum of Rs.25,000/- is award ed by the Tribunal.
14. Though the respondent - Insurance Comp any during the course of their arg uments strenuously arg ued for red uction of the amount award ed under the head loss of love and affection and loss of estate being exorbitant, on p erusal of the records, it is not in dispute that the respondent
- Insurance Company has not filed any app eal challenging the judgment and award of the Tribunal nor have they filed any cross objections to the present appeal. Therefore, there is no challenge to
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the judgment and award of the Tribunal by the respondent - Insurance Comp any.
15. I have p erused the records and it is necessary to consider the contention of the respondent - Insurance Comp any for reduction of the award amount by the Tribunal if there ought to have been a challeng e to the jud gment and award or atleast a cross objection by them. In view of non-filing of the same this Court cannot exercise powers under the p rovision of Order 41 Rule 33 of CPC when the respondents have not even not bothered to raise a little finger ag ainst the comp ensation award ed by the Tribunal. Therefore, the said contention of the respondent - Insurance Comp any is neg atived.
16. It is to b e noted that the Tribunal has not consid ered the actual medical bills, 24 in number amounting to Rs.74,000/-, produced before the Tribunal and said actual medical exp enses incurred by the deceased during the hospitalization as p er Ex.P13, has not b een considered by the
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Tribunal. Under this head it is just and prop er to award comp ensation in a sum of Rs.74,000/-.
17. Thus, the claimants are entitled to a comp ensation under the following head s:
1. Funeral exp enses Rs. 25,000-00
2. Loss of depend ency Rs.10,58,400-00
3. Loss of love & affection Rs. 2,00,000-00
4. Loss of Estate Rs. 2,00,000-00
5. Towards Medical Exp enses Rs. 74,000-00 Total Rs.15,57,400-00
18. In all, the claimants are entitled to enhanced comp ensation in a sum of Rs. Rs.15,57,400-00 as ag ainst Rs.10,73,000/- award ed by the Tribunal.
19. In view of the above, in our opinion, the award of Tribunal requires interference and hence, the said judgment is mod ified. The appeal filed b y the claimants deserves to be allowed. With the above said observations, I p roceed to p ass the following order.
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ORDER a. The app eal is p artly allowed.
b. The claimants are entitled to the
enhanced compensation in a sum of
Rs.15,57,400-00 as against
Rs.10,73,000/- awarded by the Tribunal along with interest at the rate of 6% p.a., from the d ate of petition till the date of realization to be jointly payab le by respond ent Nos.1 and 2;
c. Entire compensation amount with
interest has to be p aid by the
respondent Nos.1 and 2; including any deposit already mad e, within four weeks from the d ate of receipt of the copy of the order.
d. The other conditions imposed by the Tribunal with regard to apportionment and also depositing of the awarded John amount is not d isturbed.
Doe Digitally signed by John Doe Date:
2020.05.22 16:28:46 +0530 e. If the Insurance Comp any has deposited any amount before this Court, the same shall be transmitted to the Tribunal concerned.
Sd/-
JUDGE VK