Karnataka High Court
Smt Reshma Khanam vs Isaq Beig on 4 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 3388
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
M.F.A.No.6673/2015 [MV]
BETWEEN:
1. SMT. RESHMA KHANAM
W/O MOHAMMED ASIF
AGED ABOUT 34 YEARS
2. IRAM ASIF
S/O MOHAMMED ASIF
AGED ABOUT 9 YEARS
3. MOHAMMED ALIYAS
S/O MOHAMMED ASIF
AGED ABOUT 7 YEARS
PETITIONER 2 AND 3 ARE
MINORS, REP. BY THEIR NATURAL
GUARDIAN - MOTHER
i.e., PETITIONER NO.1.
4. MARIYAMBI
W/O NAZEER SAB
AGED ABOUT 56 YEARS
ALL ARE R/O MUJAWAR MOHALLA
ARASIKERE
HASSAN DISTRICT- 573 103.
... APPELLANTS
(BY SRI.JAGADEESH H T, ADV.)
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AND:
1. ISAQ BEIG
MAJOR
M M ROAD
ARASIKERE TOWN
HASSAN DISTRICT 573 103
(DRIVER).
2. ARUN S
S/O SHEKARAPPA
BENDEKERE VILLAGE (RIGHT SIDE)
BANAVARA HOBLI
ARASIKERE TALUK
HASSAN DISTRICT 573 201.
3. THE MANAGER
BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
NO.363, SRI HARI COMPLEX
SEETAVILAS ROAD
MYSORE- 580 001.
... RESPONDENTS
(BY SRI.P.B. RAJU, ADV. FOR R3
R1 & R2 -NOTICE D/W V/O DT:23/10/2018)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
02.07.2015 PASSED IN MVC NO.625/2014 ON THE FILE
OF THE SENIOR CIVIL JUDGE, JMFC, MACT, ARSIKERE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The claimants are before this Court in this appeal, being not satisfied with the quantum of compensation awarded under the judgment and award dated 02.07.2015 in MVC No.625/2015 on the file of the Senior Civil Judge and MACT, Arasikere (hereinafter referred to as 'the Tribunal' for short).
2. The claimants are wife, children and mother of the deceased Mohammed Asif in a road traffic accident. The claimants have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of Mohammed Asif. On 08.12.2013, while the deceased was proceeding in his motorbike, a Tata ACE vehicle bearing registration No.KA-13/B-1351 came in a rash and negligent manner and dashed against the motorbike of the deceased, as a result of which, the deceased sustained grievous injuries and succumbed to the same. It is stated that -4- the deceased was earning Rs.35,000/- p.m., from JCB, he was aged about 38 years as on the date of accident.
3. On issuance of the notice to the respondents, the third respondent/Insurance Company appeared before the Tribunal and filed its statement of objections denying the claim petition averments. It is stated that the claim is exorbitant and petition is not maintainable for non-joinder of owner of the motorbike.
4. The first claimant got herself examined as P.W.1 and marked the documents as Ex.P1 to Ex.P7. The respondents have not examined any witnesses nor marked any documents in support of their case.
5. The Tribunal, on assessing the material on record awarded total compensation of Rs.10,35,000/- taking the monthly income of the deceased at Rs.7,000/- and adopting multiplier of 15, which is as follows: -5-
1. Loss of dependency :: Rs. 9,45,000/-
2. Loss of love and affection :: Rs. 30,000/-
3. Loss of consortium :: Rs. 30,000/-
4. Loss of estate :: Rs. 10,000/-
5. Towards transportation of the dead body and funeral expenses :: Rs. 20,000/-
-------------------
Total Rs. 10,35,000/-
-------------------
The claimants, not being satisfied with the quantum of compensation are before this Court in this appeal, seeking enhancement of compensation.
6. Heard the learned counsel for the appellants and learned counsel for the respondent/Insurance Company. Perused the material on record.
7. Learned counsel for the appellants would submit that the income assessed by the Tribunal for the accident of the year 2013 is on the lower side. Learned counsel submits that the deceased was owning JCB and earning Rs.35,000/- p.m., from the JCB. He submits that Ex.P5 and Ex.P6 are RC and DL of the deceased. -6- Further, the learned counsel submits that the Tribunal has failed to award any compensation on future prospects which the claimants would be entitled at 40% of the determined monthly income. It is also his submission that the claimants 2 to 4 are entitled to parental and filial consortium as per the decision reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS.
8. Per contra, learned counsel for the respondent/Insurance Company would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference.
9. Upon hearing the learned counsel for the parties, the only question which arises for consideration in this appeal is as to whether the claimants would be entitled to enhanced compensation?
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10. The accident occurred on 08.12.2013 involving the motorbike and Tata ACE vehicle bearing registration No.KA-13/B-1351 and accidental death of one Mohammed Asif are not in dispute. The appeal of the claimants is for enhancement of compensation. The accident is of the year 2013. The claimants state that the deceased was owning a JCB. Ex.P5 and Ex.P6 are the RC book relating to JCB vehicle and driving license of the deceased. The claimants further state that the deceased was earning more than Rs.35,000/- p.m., from JCB vehicle. Apart from producing Ex.P5 and Ex.P6, RC and DL, the claimants have not produced any material to indicate the income earned by the deceased. Possessing JCB Vehicle is different from earning income out of JCB. No material to show the engagement of JCB nor to show the earning income by renting JCB is placed on record. In the absence of any acceptable material to indicate the exact income of the deceased, the income will have to be assessed notionally. This -8- Court and Lok Adalaths, while settling the accident claims of the year 2013 would normally take notional income of Rs.8,000/- p.m. In the case on hand, in the absence of any material indicating the exact income of the deceased, it would be appropriate to assess the notional income at Rs.8,000/- p.m. The deceased was aged about 38 years as on the date of accident. As per the decision of the Hon'ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, the claimants would be entitled to addition of 40% of the determined income towards future prospects. Further, the claimants 2 to 4 are entitled to parental and filial consortium as per the decision of the Hon'ble Apex Court in the case reported in 2018 ACJ 2782 in the case of MAGMA GENERAL INSURANCAE COMPANY LIMITED v/s NANU RAM AND OTHERS. Thus, the claimants would be entitled for the following modified enhanced compensation:
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1. Loss of dependency (8000 + 40% = 3200 11200 - 1/4 =8400 8400x12x15 :: Rs.15,12,000
2. Conventional heads :: Rs. 70,000
3. Parental & filial consortium :: Rs. 1,20,000 (40000 x 3) -----------------
Total Rs.17,02,000
-----------------
Thus, the claimants would be entitled to Rs.17,02,000/-
with interest at the rate of 8% p.a.
11. Accordingly, the appeal is allowed in part. The judgment and award dated 02.07.2015 in MVC No.625/2015 on the file of the Senior Civil Judge and MACT, Arasikere is modified. The claimants are entitled to compensation of Rs.17,02,000/- as against Rs.10,35,000/- with interest at the rate of 6% p.a. thereby the claimants are entitled to enhanced compensation of Rs.6,67,000/-.
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Apportionment and deposit is as ordered by the Tribunal.
Sd/-
JUDGE mpk/-* CT:bms