Karnataka High Court
Naziya vs Razak G on 8 April, 2024
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NC: 2024:KHC:14502
MFA No. 4216 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 4216 OF 2017 (MV-D)
BETWEEN:
NAZIYA,
AGED ABOUT 40 YEARS,
D/O LATE GANGA POOJARTHI,
R/AT AMBADEKALLU DARKAS,
NITTE VILLAGE AND POST,
KARKALA TALUK,
UDUPI DISTRICT-574 110.
...APPELLANT
(BY MISS SWATI G HEGDE, ADVOCATE FOR
SRI PAVANA CHANDRA SHETTY, ADVOCATE [PH])
AND:
1. RAZAK G,
AGED ABOUT 31 YEARS,
Digitally
signed by S/O UMARABBA,
NANDINI R R/AT 1-217, JAVANARA KATTE,
Location: BELAPU POST AND VILLAGE,
High Court of UDUPI TALUK & DIST.-576 101.
Karnataka
2. THE BRANCH MANAGER,
THE UNITED INDIA INSURANCE CO.LTD.,
UDUPI BRANCH,
P.B.NO.78, JEWEL PLAZA,
1ST FLOOR, MARUTHI VEETHIKA,
UDUPI-576 101.
3. MOHAMMED THOUFIQ,
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NC: 2024:KHC:14502
MFA No. 4216 of 2017
AGED ABOUT 43 YEARS,
S/O YUSUF,
R/AT DOOR NO.1-6E,
DEVI NAGAR 1ST CROSS,
3RD CROSS ROAD, PARKALA,
UDUPI TALUK & DIST.-576 101.
...RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R2;
R1 & R3 NOTICE D/W V/O DATED 20.11.2018)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.01.2017 PASSED IN MVC
NO.231/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the claimant in MVC No.231/2016 assailing the quantum of the compensation awarded by the learned Senior Civil Judge and Addl. MACT, Karkala, dated 24-01-2017.
2. It is the case of the petitioner-appellant herein that on 20-11-2015 at about 3.30 p.m., deceased Ganga Poojarthi was walking by the side of the Karkala-Padubidri highway near Rotary Bhavan, Nitte village, carrying a load -3- NC: 2024:KHC:14502 MFA No. 4216 of 2017 of green gross on her head. A Maruthi 800 car bearing Reg.No.KA.02.N.3429 came from Nitte side towards Karkala and dashed against the deceased Ganga Poojarthi, resulting in severe injuries to her; and she was shifted to Spandana Maternity and General Hospital, Karkala and later, she was shifted to Wenlock Hospital Mangalore; and where she succumbed to the injuries at 6.45 p.m. on the same day. It was stated that the deceased Ganga Poojarthi was earning Rs.15,000/- per month by rearing cows and selling milk and the petitioner has spent huge amount towards obsequies and other rituals. It is stated that the petitioner, who is the daughter of the deceased Ganga is entitled for compensation.
3. On appearance before the Tribunal, respondent No.2, Insurer filed the written statement contending that the compensation claimed by the petitioner is highly exorbitant, imaginary and untenable in law. The Insurance Company has also denied the quantum of the -4- NC: 2024:KHC:14502 MFA No. 4216 of 2017 compensation claimed by the petitioner. It further contended that the driver of the said Maruthi car was not having valid driving licence and the policy was issued by the Insurance Company with certain conditions and there was violation of conditions of the policy and therefore, the petitioner is not entitled for compensation. It was also alleged that the accident occurred due to the negligence on the part of the deceased, who abruptly came in the way of driver. Though the owner of the Maruthi 800 car was arrayed as a party, the insured was not the party before the Tribunal. Later, the said irregularity has been rectified by impleading the insured as a party respondent No.3. The owner of the vehicle as well as the insured have not appeared before the Tribunal and therefore, they were placed exparte.
4. On the basis of the above pleadings, the Tribunal framed appropriate issues. The petitioner was examined as PW1 and Exs.P1 to P11 were marked and the respondent No.2 produced the copy of the Insurance -5- NC: 2024:KHC:14502 MFA No. 4216 of 2017 Policy, which came to be marked as Ex.R1 with consent of both the parties.
5. After hearing the arguments, the Tribunal awarded the compensation of Rs.2,48,400/- to the petitioner fastening the liability on respondent No.2- Insurance Company. The Tribunal had held that the notional income of the deceased-Ganga was Rs.3,000/- per month and by adopting multiplier of '7' owing to the age of 65 years, it calculated the compensation by awarding nominal amounts towards loss of love and affection, funeral expenses and transportation charges.
6. Being aggrieved by the quantum of compensation the petitioner is before this Court.
7. On issuance of notice, respondent No.2 Insurance Company has appeared through its counsel. Notice to respondent Nos. 1 and 2 was dispensed with. -6-
NC: 2024:KHC:14502 MFA No. 4216 of 2017
8. The Tribunal records have been secured and the arguments by learned counsel appearing for the appellant and the arguments by the appearing parties were heard.
9. The learned counsel appearing for the appellant would submit that the Tribunal erred in assessing the notional income of the deceased at Rs.3,000/- per month since the accident had taken place on 20-11-2015. It is submitted that the compensation awarded by the Tribunal is abysmally low and therefore, there is a need to re- assess the compensation.
10. A perusal of the records show that as per the medical record the deceased was aged 65 years and therefore, there is no doubt about the age of the deceased. It is also pertinent to note that, there is no conclusive evidence which would prove the income of the deceased Ganga. Therefore, the Tribunal was also justified in holding that the notional income has to be considered in assessing the compensation.
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NC: 2024:KHC:14502 MFA No. 4216 of 2017
11. The guidelines issued by the KSLSA for settlement of the motor vehicle accident claims before Lok Adalat prescribe the notional income for the year 2015 as Rs.9,000/- per month. In umpteen number of decisions, this Court has held that the guidelines issued by the KSLSA are in general consonance with the wages fixed under the Minimum Wages Act, and therefore, it would be proper to take into consideration the monthly notional income of the deceased as per the guidelines of the KSLSA. Therefore, the monthly notional income of the deceased is taken at Rs.9,000/- per month.
12. In view of the judgment of the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others,1 the compensation has to be assessed by adding the future prospects in case the age of the deceased is below 65 years. In the case on hand, the age of the deceased was 65 years and therefore, the compensation under the head of loss of dependency is 1 AIR 2017 SC 5157 -8- NC: 2024:KHC:14502 MFA No. 4216 of 2017 calculated as Rs.9,000/- x 12 x 7 x 2/3 by adopting the multiplier of 7 and deducting 1/3rd towards the personal expenses of the deceased, which comes to Rs.5,04,000/-.
13. The judgment of the Apex Court in the case of National Insurance Company Limited V. Pranay Sethi and other (supra) states that there shall be an enhancement of 10% on the funeral expenses, conveyance and the loss of estate. Therefore, the petitioner is also entitled for a sum of Rs.48,400/- under the head of loss of love and affection for having lost her mother. The petitioner is also entitled for a sum of Rs.18,150/- each under the head of 'Funeral expenses' and 'loss of estate'. Hence, the petitioner is entitled for the total compensation of Rs.5,88,700/- under the following heads:
Loss of dependency Rs.5,04,000/-
Loss of love and affection Rs. 48,400/-
Loss of estate Rs. 18,150/-
Funeral expenses Rs. 18,150/-
Total Rs.5,88,700/-
14. For the aforesaid reasons, the appeal deserves to be allowed in part. Hence, the following: -9-
NC: 2024:KHC:14502 MFA No. 4216 of 2017 ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award passed by the Tribunal is modified holding that the petitioner is entitled for the total compensation of Rs.5,88,700/- instead of Rs.2,48,400/- along with interest at 6% p.a. from the date of petition till its realization.
(iii) Insurance company is directed to deposit the compensation amount including the enhanced compensation together with interest within a period of 4 weeks.
(iv) The other conditions and apportionment as ordered by the Tribunal remain unaltered.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 9