Karnataka High Court
Heena Kouser vs Arani Purushotham on 28 March, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 4536 of 2018
C/W MFA No. 8953 of 2015
MFA No. 8954 of 2015
MFA No. 4279 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 4536 OF 2018
C/W
MISCELLANEOUS FIRST APPEAL NO. 8953 OF 2015,
MISCELLANEOUS FIRST APPEAL NO. 8954 OF 2015,
MISCELLANEOUS FIRST APPEAL NO. 4279 OF 2019
IN M.F.A.No.4536/2018:
BETWEEN:
1. M/S NATIONAL INSURANCE CO. LTD.,
POLICY ISSUED OFFICE AT CHITTOR
ANDHRAPRADESH.
SERVICE ADDRESS:
Digitally THE NATIONAL INSURANCE CO LTD.,
signed by
PANKAJA S BEHIND KRISHNA THEATER, M.G.ROAD,
Location: TUMKURU.
HIGH
COURT OF
KARNATAKA REPRESENTED BY
THE REGIONAL MANAGER
NATIONAL INSURANCE CO LTD.,
REGIONAL OFFICE.
NO.144, SHUBHRAM COMPLEX
M.G.ROAD, BANGALORE - 1.
...APPELLANT
(BY SMT. MANJULA N TEJASWI., ADVOCATE)
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MFA No. 4536 of 2018
C/W MFA No. 8953 of 2015
MFA No. 8954 of 2015
MFA No. 4279 of 2019
AND:
1. HEENA KOUSER
W/O LATE MAZAHAR @ MAZHAR PASHA,
AGE ABOUT 24 YEARS,
2. ZAIBA
D/O LATE MAHAZAR @ MAZHAR PASHA
AGE 4 YEARS, MINOR
HENCE REPRESENTED BY HER NATURAL GUARDIAN
AND NEXT FRIEND MOTHER
HEENA KOUSER
3. ZAREEN TAJ
W/O LATE IQBAL PASHA,
AGED ABOUT 54 YEARS,
4. RESHMA
D/O LATE IQBAL PASHA,
AGED ABOUT 24 YEARS,
ALL R-1 TO R-4 ARE R/AT NAZARABAD,
3RD CROSS, TUMKUR.
5. ARANI PURUSHOTHAM
S/O MUNIRATHNAM,
AGED ABOUT 44 YEARS,
R/AT NEAR S.K.S.MILL
MADHUGIRI TOWN
DISTRICT: TUMKURU
...RESPONDENTS
(BY SRI. SHARATH KUMAR.G.M. FOR
SRI.MOHAMMED UMAR FAROOQ., ADVOCATE FOR R-1
TO R-4;
R-2 IS MINOR REPRESENTED BY R-1;
VIDE ORDER DATED:21.03.2023, NOTICE TO R-5 IS
DISPENSED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:25.01.2018
PASSED IN MVC NO.207/2014 ON THE FILE OF THE III
-3-
MFA No. 4536 of 2018
C/W MFA No. 8953 of 2015
MFA No. 8954 of 2015
MFA No. 4279 of 2019
ADDITIONAL SENIOR CIVIL JUDGE AND MACT, TUMAKURU,
AWARDING COMPENSATION OF RS.14,65,800/- WITH
INTEREST @ 6 P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.
IN M.F.A.No.8953/2015:
BETWEEN:
1. NATIONAL INSURANCE CO. LTD.,
II FLOOR, 10-3-74, PVN COMPLEX,
SHESHAPEERAM STREET, CHITTOR,
A.P.-517 001.
REP. BY NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
No.144, 1ST FLOOR, SHUBHARAM COMPLEX,
M.G.ROAD, BANGALORE-1.
...APPELLANT
(BY SMT.MANJULA.N.TEJASWI , ADVOCATE)
AND:
1. SRI.RAHAMATH,
S/O FAYAZ AHAMED,
AGE:37 YEARS,
R/O KOTHWAL GALLI,
BASAVANNA ROAD,
MADHUGIRI TOWN - 572 132.
2. M.C.CONSTRUCTIONS (P) LIMITED,
No.27-972/1 TELECOM COLONY,
CHITTOR-517001,
ANDHRA PRADESH,
(OWNER OF BOLERO VEHICLE BEARING
REG. No.AP-03-X-9281)
...RESPONDENTS
(BY SRI. K.N.SUNIL FOR SRI.K.R.RAMESH, ADVOCATE
FOR R-1;
R-2 SERVED AND UNREPRESENTED)
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MFA No. 4536 of 2018
C/W MFA No. 8953 of 2015
MFA No. 8954 of 2015
MFA No. 4279 of 2019
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:17.08.2015
PASSED IN MVC NO.754/2014 ON THE FILE OF THE II
ADDITIONAL DISTRICT JUDGE, MACT, TUMKUR, AWARDING
COMPENSATION OF Rs.2,22,000/- WITH INTEREST @ 8% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.No.8954/2015:
BETWEEN:
1. NATIONAL INSURANCE CO. LTD.,
II FLOOR, 10-3-74, PVN COMPLEX,
SHESHAPEERAM STREET, CHITTOR,
A.P.-
REP. BY REGIONAL OFFICE,
NATIONAL INSURANCE CO. LTD.,
No.144, 1ST FLOOR,
SHUBHARAM COMPLEX,
M.G.ROAD, BANGALORE-1.
...APPELLANT
(BY SMT.MANJULA.N.TEJASWI , ADVOCATE)
AND:
1. SRI. MOHAMAD KHALANDAR PASHA @
FAROOQ, S/O LATE AZEEM PASHA,
AGE:27 YEARS,
OCC:MECHANIC,
2ND BLOCK, NE ZAMIYA MASIDI,
BASANNA ROAD,
MADHUGIRI TOWN-571 132.
2. M.C.CONSTRUCTIONS (P) LIMITED,
No.27-972/1 TELECOM COLONY,
CHITTOR-517001,
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MFA No. 4536 of 2018
C/W MFA No. 8953 of 2015
MFA No. 8954 of 2015
MFA No. 4279 of 2019
ANDHRA PRADESH,
(OWNER OF BOLERO VEHICLE BEARING
REG.No.AP-03-X-9281).
...RESPONDENTS
(BY SRI. K.SHANTHARAJ., ADVOCATE FOR R-1;
R-2 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:17.08.2015
PASSED IN MVC No.753/2014 ON THE FILE OF THE II
ADDITIONAL DISTRICT JUDGE, MACT, TUMKUR, AWARDING
COMPENSATION OF Rs.20,000/- WITH INTEREST @ 8% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.No.4279/2019:
BETWEEN:
1. HEENA KOUSER,
W/O LATE MAZAHAR,
@ MAZHAR PASHA,
AGED ABOUT 25 YEARS,
2. Ms.ZAIBA,
D/O LATE MAZAHAR
@ MAZAHAR PASHA,
AGED ABOUT 5 YEARS,
3. ZAREEN TAJ,
W/O LATE IQBAL PASHA,
AGED ABOUT 55 YEARS,
4. RESHMA,
D/O LATE IQBAL PASHA,
AGED ABOUT 25 YEARS,
APPELLANT No.2 IS THE MINOR
REP. BY HER MOTHER AS
NATURAL GUARDIAN APPELLANT No.1
-6-
MFA No. 4536 of 2018
C/W MFA No. 8953 of 2015
MFA No. 8954 of 2015
MFA No. 4279 of 2019
HEENA KOUSER.
ALL ARE R/AT NAZARABAD, 3RD CROSS,
TUMAKURU.
...APPELLANTS
(BY SRI.SHARATH KUMAR.G.M. FOR SRI. MOHAMMED UMAR
FAROOQ., ADVOCATE)
AND:
1. ARANI PURUSHOTHAM
S/O MUNIRATHNAM,
AGED ABOUT 45YEARS,
R/AT No. NEAR S.K.S. MILL,
MADHUGIRI TOWN,
TUMAKURU DISTRICT.
2. THE NATIONAL INSURANCE CO., LTD.,
POLICY ISSUED OFFICE AT CHITTOR,
ANDRAPRADESH,
SERVICE ADDRESS
THE NATIONAL INSURANCE CO. LTD.,
BEHIND KRISHNA THEATER,
M.G.ROAD,
TUMAKURU - 560 009.
(POLICY No.01/31/12/6300004075
VALID FROM 24.02.2013 TO 23.02.2014)
...RESPONDENTS
(BY SMT. MANJULA.N.TEJASWI., ADVOCATE FOR R-2;
VIDE ORDER DATED:04.06.2019 NOTICE TO R-1 IS
DISPENSED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED25.01.2018
PASSED IN MVC NO.207/2014, ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND MACT, TUMAKURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 4536 of 2018
C/W MFA No. 8953 of 2015
MFA No. 8954 of 2015
MFA No. 4279 of 2019
THESE APPEALS, COMING ON FOR FURTHER ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. All these appeals arise out of the claims filed pursuant to the accident which occurred on 22.11.2013, alleging that there was an accident between the auto- rikshaw, in which the claimants were travelling and a Bolero Car bearing registration No.AP-03/X-9281. In all, three claim petitions were filed. Two claim petitions were filed for the injuries and one was for the death of Mazahar @ Mazhar Pasha.
2. The Tribunal on consideration of the evidence has recorded a finding that the accident had occurred in which Mazhar Pasha had died and that the injuries were suffered by the claimants in other petitions. It has accordingly proceeded to award the various sums as compensation.
3. The insurer, however, is in appeal contending the Bolero car was never involved in the accident in question and in order to secure compensation, the Bolero Car was -8- MFA No. 4536 of 2018 C/W MFA No. 8953 of 2015 MFA No. 8954 of 2015 MFA No. 4279 of 2019 sought to be implicated in this case. It is also contended that the claimants had arrayed Arani Purushotham as the owner of the Bolero car, whereas according to the records, the car was owned by M/s. M.C. Constructions Private Limited and hence, the claim petitions themselves were not maintainable.
4. As far as the argument that the actual owner-- M/s.M.C. Constructions Private Limited was not impleaded in this appeal (claim for death), it has to be stated here that in the claim petitions which had been filed for the injuries sustained by the claimants therein, the registered owner i.e., M/s.M.C. Constructions Private Limited was arrayed as a respondent and they were served and did not enter appearance.
5. In fact, even in the appeals that had been filed by the insurer challenging the award of compensation in respect of the injuries suffered, M/s.M.C. Constructions Private Limited was though served, remained unrepresented. Since, the registered owner of the -9- MFA No. 4536 of 2018 C/W MFA No. 8953 of 2015 MFA No. 8954 of 2015 MFA No. 4279 of 2019 offending vehicle has chosen to remain absent both before the Tribunal as well as before this Court, impleading of Arani Purushotham as the owner would therefore be really of no consequence. Since the registered owner has chosen not to contest the proceedings and since it is admitted that the car was registered in its name has been insured by the insurer with an insurance policy, the presence of the owner of the offending vehicle in the appeals that had been filed for the death claim may not be necessary.
It is to be stated here that all the appeals are connected, heard and disposed off by this common judgment and the registered owner who has remained unrepresented in other two cases is held to be sufficiently served of the other appeal also.
6. As far as the argument that the Bolero Car was implicated is concerned, the only argument advanced is that in the Medico-Legal Case (MLC) Reguster and the Wound Certificates produced, it had been indicated that the injuries occurred as a result of auto-rikshaw, being
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MFA No. 4536 of 2018C/W MFA No. 8953 of 2015 MFA No. 8954 of 2015 MFA No. 4279 of 2019 toppled and there was thus no involvement of the Bolero car. Learned counsel seeks to argue that there was no mentioning of involvement of Bolero car in the MLC Register and the Wound Certificates, it will have to be assumed that the Bolero car was not involved in the accident in question.
7. This argument cannot be accepted, more so when the Police after investigation have laid a charge-sheet against the driver of the Bolero car. More importantly, the report of the Inspector of Motor Vehicles (IMV) which was produced before the Tribunal clearly indicates that there was damage to the Bolero car. In this view of the matter, it is clear that the Tribunal was justified in holding that the Bolero car was involved in the accident.
8. It is pertinent to state here that the insurer has not adduced any independent evidence to establish that the Bolero car was not involved in the accident. The insurer could have summoned the driver of the car who had been charge-sheeted and could have elicited from him that no
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MFA No. 4536 of 2018C/W MFA No. 8953 of 2015 MFA No. 8954 of 2015 MFA No. 4279 of 2019 accident had occurred. However, no positive evidence is forthcoming from the insurer regarding non-involvement of the Bolero car. The argument of the insurer now being advanced in this regard cannot be sustained. Consequently, the appeals filed by the insurer are dismissed.
In MFA Nos.4279/2019 & 4536/2018:
9. As far as the claim for compensation for the death of Mazhar Pasha is concerned, the Tribunal has awarded the following sums as compensation:
Compensation Sl. As awarded by Nature of Heads No. the Tribunal (In Rs.)
1. Loss of Dependency 13,60,800/-
2. Loss of estate 15,000/-
3. Loss of consortium 40,000/-
4. Loss of love and affection 30,000/-
5. Conveyance expenses 5,000/-
6. Funeral Expenses 15,000/-
Total : 14,65,800/-
10. It is noticed that in order to arrive at the loss of dependency, the Tribunal has determined the monthly income of the deceased notionally at Rs.6,000/-. In cases
- 12 -MFA No. 4536 of 2018 C/W MFA No. 8953 of 2015 MFA No. 8954 of 2015 MFA No. 4279 of 2019
where there is no evidence to determine the actual income, it is appropriate to adopt the notional income as assessed by the Karnataka State Legal Services Authority, which for the year 2013 would be Rs.8,000/-.
11. As per the decision of the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others - (2017) 16 SCC 680, as the deceased was aged about 22 years, 40% of the same (Rs.3,200/-) is required to be added to the said income as future prospects and the resultant income would thus be Rs.11,200/-.
12. Out of the said sum, 1/3rd of the same (Rs.3,733/-) would have to be deducted towards personal expenses of the deceased, as he was survived by his wife, a daughter and mother. The net income will be Rs.7,467/-.
13. As the deceased was aged 22 years, as per the decision rendered by the Hon'ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport
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MFA No. 4536 of 2018C/W MFA No. 8953 of 2015 MFA No. 8954 of 2015 MFA No. 4279 of 2019 Corporation and another, (2009) 6 SCC 121, a multiplier of '18' would have to be applied.
14. Consequently, the claimants would be entitled to a sum of Rs.16,12,872/- (Rs.7,467/- x 12 x '18') towards "loss of dependency".
15. The claimants being the wife, a daughter, mother and a sister of the deceased, each of them would be entitled to a sum of Rs.44,000/- towards "loss of love and affection" i.e., in all Rs.1,76,000/- and they would also be entitled to a sum of Rs.33,000/- under the "conventional heads".
16. Thus, the claimants, in modification of the impugned award, would be entitled to the following sums :
Compensation Sl. As awarded by No. Nature of Heads this Court (In Rs.) Loss of Dependency
1. 16,12,872/-
(Rs.7,467/- x 12 x '18')
2. Loss of love and affection 1,76,000/-
3. Conventional heads 33,000/-
Total : 18,21,872/-
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MFA No. 4536 of 2018
C/W MFA No. 8953 of 2015
MFA No. 8954 of 2015
MFA No. 4279 of 2019
17. Thus, the claimants would be entitled for
compensation of Rs.18,21,872/- as against
Rs.14,65,800/- awarded by the Tribunal, along with interest at the rate of six per cent per annum from the date of petition till its realization, except for the delay period of 400 days in filing the appeal.
18. The disbursement of the compensation amount shall be made as per the award of the Tribunal.
19. The Insurance Company is directed to deposit the amount of compensation awarded along with interest within a period of eight weeks from the date of receipt of a certified copy of this judgment.
The appeal is accordingly allowed in part. In MFA Nos.8953 and 8954 of 2015 :
20. As far as the injuries are concerned, the Tribunal has awarded the following sums :
- 15 -MFA No. 4536 of 2018 C/W MFA No. 8953 of 2015 MFA No. 8954 of 2015 MFA No. 4279 of 2019
In MVC No.754/2014 (Claimant: Sri.Rahamath) Compensation Sl. As awarded by Nature of Heads No. the Tribunal (In Rs.) Loss of pain and agony for
1. receiving of fractures and 25,000/-
injuries Medical expenses and
2. 65,000/-
incidental charges Loss of earning during the
3. 6,000/-
hospitalization Loss of future income due to
4. 1,15,200/-
disability For future medical expenses 10,000/-
5.
(for removal of implant)
Total: 2,21,200/-
Rounded off to: 2,22,000/-
In MVC No.753/2014 (Claimant - Mohamad Khalandar Pasha):
21. The Tribunal has awarded global compensation of Rs.20,000/- to the claimant.
22. Thus, the amounts awarded by the Tribunal for the injuries sustained by both the claimants are just and appropriate and therefore cannot be found fault with.
23. In this view of the matter, there is no merit in the appeals filed by the insurer even regarding the quantum of
- 16 -MFA No. 4536 of 2018 C/W MFA No. 8953 of 2015 MFA No. 8954 of 2015 MFA No. 4279 of 2019
compensation and negligence. Therefore, as a consequence, the appeals of the insurer as regards the liability in all the claim petitions are dismissed.
24. The appeal by the legal representatives of Mazhar Pasha in MFA No.4279 of 2019 is allowed in part.
25. The appeals of the insurer in respect of the compensation awarded for the injuries sustained by the claimants are also dismissed even on quantum of compensation.
26. The amounts in deposit, if any, shall be transferred to the Tribunal for disbursal in terms of the award.
Sd/-
JUDGE RK List No.: 2 Sl No.: 5