Karnataka High Court
Noor Ahmad Khan @ Noorulla vs Shaffi Ahmed on 16 September, 2020
Author: S. Sujatha
Bench: S. Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.4869 OF 2017 (MV)
BETWEEN
1. Noor Ahmad Khan @ Noorulla
S/o late Bada Hussain Khan
Aged about 64 years
2. Smt. Mahaboobi
W/o Noor Ahmad Khan
Aged about 42 years
3. Nasima
D/o Noor Ahmad Khan
Aged about 20 years
4. Kumari Hazeera
D/o Noor Ahmad Khan
Aged about 17 years
Appellant No.4 is minor
Represented by her
Natural mother and
Guardian 2nd appellant
All are residents of
Anandapura
2
(Hanumanthanagar)
Ward No.23
Gowribidanur
Chikkaballapur District-561 208.
...Appellants
(By Shri Shantharaj K., Advocate)
AND
1. Shaffi Ahmed
S/o Mabool Sab
Aged about 42 years
Resident of Hussainipura Village
Thondebhavi Post
Gowribidanur Taluk
Chickballapur District-561 208.
2. SBI General Insurance
Company Ltd.
Represented by its
Manager
Ground and First Floor
Rukmini Towers
3-1 Platform Road
Railway Approach Road
Seshadripuram
Bengaluru-560 020.
3. Mahesh Kumar
S/o M Sathyanarayana
Aged about 44 years
Residing at No.71/2
4th Main Road
6th Cross
Chamarajpet
Bengaluru-560 018.
3
4. Reliance General Insurance
Company Ltd
RGIC
Represented by its Manager
28, East Wing 5th Floor
Centenary Building
M G Road
Bengaluru-560 001.
...Respondents
(by Shri H.N Keshava Prashanth, Advocate for R-2 and R-4;
R-1 served;
Notice to R-3 is dispensed with vide order dated 20.06.2018)
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, 1988 against the judgment and
award dated 07.04.2017 passed in MVC No.61 of 2015 on the
file of the Senior Civil Judge and JMFC and Additional MACT at
Sira, partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This Miscellaneous First appeal coming on for hearing, this
day, INDIRESH J., delivered the following:
JUDGMENT
This appeal is filed by the legal representatives of deceased-Mohammad Subhan against the judgment and award dated 07th April, 2017 passed in MVC No.61 of 2015 on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal at Sira (for short, hereinafter referred to as 'Tribunal'). 4
2. For the sake of convenience, the parties in this appeal are referred to as per their rank before the Tribunal.
3. The brief facts of the case, as averred in the claim petition are that, on 15th March, 2015 at about 4.00 am, the deceased was traveling in a lorry bearing registration No.KA-40- 8707 as a cleaner and when the said lorry reached near Jogihalli, on Tumkur-Sira National Highway-48, at that time, the driver of the said lorry drove the same in high speed in a rash and negligent manner and dashed to the lorry bearing No.KA-51-A- 1903 which was parked on the left side of the road and due to the said accident, Mohammed Subhan-deceased succumbed to the injuries on the spot. It is further averred in the claim petition that the deceased was aged about 24 years and he was earning Rs.20,000/- per month and he was the only earning member in the family and due to the untimely death of the deceased, the claimants have suffered great mental shock and agony apart from loss of dependency. Pursuant to the aforesaid accident, jurisdictional police have registered FIR in Crime No.48 of 2015 of Kallembella Police Station and charge sheet was filed 5 against the driver of the offending lorry. Accordingly, the claimants have filed MVC No.61 of 2015 on the file of the Tribunal and sought for compensation of Rs.30,00,000/- along with 9% interest from the date of petition till its realisation.
4. Pursuant to the notice issued by the Tribunal, the respondents have entered appearance through their respective advocates. Respondents No.1 and 3 have not filed written statement, however, respondents No.2 and 4 have filed their written statement. Respondent No.2-Insurer has filed detailed statement of objections denying the averments made in the claim petition and contended that the driver of the lorry bearing Registration No.KA-40-8707 was not having effective driving licence as on the date of the accident and also stated that the quantum of compensation sought for by the legal representatives of the deceased is on the higher side and accordingly, requested for dismissal of the claim petition.
5. Respondent No.4-Insurer also filed detailed statement of objections and contended that the driver of the lorry bearing No.KA-51-A-1903 was also not holding valid and effective driving 6 licence as on the date of the incident, and disputed the death of Mohammed Subhan in the alleged accident and further contended that the jurisdictional police have also filed charge sheet against the driver of the lorry bearing registration KA-40- 8707 under Section 279, 304(A) of Indian Penal Code and also police have filed charge sheet against the driver of the lorry bearing No.KA-51-A-1903 for the offence punishable under Section 283 of the Indian Penal Code and in that view of the matter, respondent No.4 is not liable to pay compensation as claimed in the claim petition and hence prayed for dismissal of the claim petition.
6. On the basis of the pleadings, the Tribunal has formulated issues for its consideration. Claimant No.1 was examined as PW1 and got marked documents as Exhibits P1 to P12. Respondent No.4 has examined one witness as RW1 to prove its case. The Tribunal, after considering the case on merits and the arguments advanced by the learned counsel for the parties, by its Judgment and award dated 07th April, 2017 7 awarded compensation of Rs.10,92,000/- along with interest at the rate of 9% per annum from the petition till its realisation.
7. Being not satisfied with the quantum of compensation awarded, the claimant-appellants herein have preferred the instant appeal and sought for enhancement in compensation.
8. We have heard Shri K. Shantharaj, learned counsel appearing for the appellant-claimants and Shri H.N. Keshava Prashanth, learned counsel appearing for the respondents No.2 and 4-Insurance Companies.
9. Shri K. Shantharaj, learned counsel for the appellant submitted that the Tribunal has taken the income of the deceased at Rs.9,000/- per month and the same is required to be enhanced in the appeal. He further submitted that the Tribunal has wrongly deducted 50% out of the income of the deceased while calculating the loss of dependency, whereas the Tribunal ought to have deducted one-forth instead of 50% taking into consideration the number of dependents and accordingly, he sought for enhancement of compensation in this appeal. Learned counsel for the appellant-claimants places reliance on 8 the judgment of Hon'ble Supreme Court in the case of ORIENTAL INSURANCE COMPANY LIMITED v. DEO PATODI AND OTHERS reported in (2009)13 SCC 123 and contended that since there are four dependent-claimants, the appropriate deduction would be one-fourth instead of 50%.
10. Per contra, Shri H.N. Keshava Prasanth, learned counsel appearing for respondents No.2 and 4 submitted that the compensation awarded by the Tribunal is just and proper and thereby no enhancement could be made in this appeal and accordingly he sought to justify the impugned judgment and award of the Tribunal and prays for dismissal of the appeal.
11. We have perused the entire original records carefully and re-appreciated the documents. The claimants have adduced evidence through claimant No.1 as PW1 and in support of his oral evidence, PW1 has produced Exhibit P1-copy of FIR; Exhibit P2-compalint; Exhibit P3-copy of charge sheet; Exhibit P4-copy of mahazar; Exhibit P5-copy of sketch; Exhibit P6-IMV Report; Exhibit P7-inquest report, Exhibit P8-postmortem repot and Exhibit P9 certified copy of the order sheet in CC No.314 of 2015 9 and the aforesaid documents were not challenged by the respondents and so also, respondents have failed to elicit from PW1 to falsify the fact of death of the deceased on account of the road traffic accident and in that view of the matter, the Tribunal has rightly answered the issue No.1 in the affirmative. In respect of issue No.2 is concerned, it is not in dispute that the appellant-claimants are the legal representatives of deceased- Mohammad Subhan who died in the accident and he was aged 24 years at the time of accident. PW1 has stated that the deceased was working as a cleaner and driver in lorry and accordingly, they have produced the driving licence of the deceased as per Exhibit P12 and in that view of the matter, the Tribunal has rightly assessed the income of the deceased at Rs.9,000/- per month. Perusal of the documents, reveal that the deceased was a bachelor at the time of the accident and therefore, half of his income is to be deducted towards his personal expenses and as per the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298 the appropriate multiplier to be adopted is 18. 10 Further, in terms of the law declared by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700, 40% of the income of the deceased is to be added towards future prospects. Accordingly, the compensation under the head loss of dependency would come to Rs.13,60,800/- (Rs.12,600/- x 12 x 18 x ½).
12. We have perused the judgment of Hon'ble Supreme Court referred to by the learned counsel for the appellant and we are not inclined to accept the contentions raised by the learned counsel for the appellant in this regard, as the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA (supra), the Hon'ble Supreme Court has settled the position of law that, in the event of death of a bachelor, the appropriate deduction would be 50% and the said proposition of law is confirmed by the Constitution Bench of Hon'ble Supreme Court in the case of PRANAY SETHI (supra) and accordingly, the judgment referred to by the claimant is not applicable to the case on hand. 11
13. We have also noticed that the claimants are entitled for Rs.70,000/- under conventional heads and since the deceased died leaving behind parents and two younger sisters, another sum of Rs.40,000/- is awarded as filial consortium. Accordingly, the claimants are entitled for total compensation of Rs.14,70,800/-. Hence, the following:
ORDER
1. Appeal is allowed in part;
2. The judgment and award dated 07th April, 2017 passed in MVC No.61 of 2015 on the file of Senior Civil Judge and Additional Motor Accident Claims, Tribunal, Sira is modified and the compensation amount is enhanced to Rs.14,70,800/- in lieu of Rs.10,92,000/- awarded by the Tribunal;
3. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till the date of realisation. 12
4. The portion of the order of the Tribunal insofar as apportionment and disbursement of the compensation amount is concerned, remain unaltered.
5. Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE lnn