Karnataka High Court
Smt Sabeena Sheikh vs Mr Muniappa on 12 August, 2013
Bench: N.K.Patil, B.Manohar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF AUGUST, 2013
:PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
M.F.A.No. 2092 OF 2011 (MV)
Between:
1. Smt. Sabeena Sheikh,
W/o. Late Sheikh Nizamuddin
Abdul Karim @ Nizamuddin,
Age: 31 years.
2. Baby Saba Sheikh @ Shifa Sheikh,
D/o. Late Sheikh Nizamuddin
Abdul Karim @ Nizamuddin,
Age: 12 years,
Minor.
3. Master Sheikh Mohammed Wahid,
Late Sheikh Nizamuddin,
Abdul Karim @ Nizamuddin,
Age: 9 years, Minor.
4. Smt. Latheefabee,
W/o. Late Sheikh Abdul Karim,
Age: 63 years.
Appellant Nos.2 & 3 being Minors,
Rep. by their mother and natural
Guardian, appellant No.1.
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All are R/at. Thotathil Kandam House,
Kundam Kuzhi Post, Via Chengala,
Kasargod District, Kerala.
....Appellants
(By Sri. B.R.Guruprasad, Advocate)
And:
1. Mr. Muniappa,
S/o. Venkatrayappa,
R/at. Contractor,
Chikkanahally,
Devanahally Taluk,
Bangalore.
2. United India Insurance Co., Ltd.,
Divisional Office, P.B.No.2743,
211 Mission Road, Jellitta Towers,
Bangalore.
....Respondents
(By Sri. B.C.Seetharama Rao, Advocate for R2;
Notice to R1 dispensed with v/o. dated 07/08/2013)
********
This MFA is filed U/s. 173(1) of MV Act against the
Judgment and Award dated: 30/06/2009 passed in MVC
No.891/2005 on the file of the Member, Motor Accident
Claims Tribunal and III Additional Civil Judge (Sr.Dn),
Mangalore, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
This M.F.A. coming on for Admission this day,
N.K. PATIL J, delivered the following:
:J U D G M E N T:
This appeal by the appellants-claimants is directed against the impugned common judgment and award dated 30/06/2009 passed in MVC No.891/2005, 3 by the Member, Motor Accident Claims Tribunal and III Additional Civil Judge (Sr.Dn), Mangalore, (hereinafter referred to as ' Tribunal' for short), for enhancement of compensation, on the ground that a sum of `5,25,000/- awarded by the Tribunal as compensation under different heads with interest at 6% per annum from the date of petition till payment, as against the claim of `20,00,000/-, on account of the death the deceased Sri. Sheikh Nizamuddin Abdul Karim @ Nizamuddin, in the road traffic accident is inadequate.
2. In brief, the facts of the case are:
The appellants are the wife, children and mother of the deceased Sri. Sheikh Nizamuddin Abdul Karim @ Nizamuddin. They filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents, on account of the death of the deceased in the accident, contending that, on 8.10.2004 at about 12.45 p.m. the deceased along with his relatives has started journey from his 4 native place at Kerala State in Mahendra Maxi Jeep bearing Reg.No.KA.19N.6392 in order to attend the function at their relatives house at Katipalla of Mangalore Taluk. The said jeep was driven by Sheik Nizamuddin Abdul Karim @ Nizamuddin slowly and when they reached Honnakatte on NH 17, at that time, the rider of the Motor Cycle bearing Reg.No.KA.09J/8477 which was proceeding ahead of the jeep and all of sudden without giving any signal turned his motor cycle to the right side i.e. towards Honnakatte MRPL Road and at that time, the driver of the jeep had taken the jeep to his extreme left side of the road by seeing the Tank Lorry bearing Reg.No.KA.04.8141 which was coming from opposite direction driven by its driver in a rash and negligent manner by overtaking the bus and dashed to the jeep. Due to which, the jeep pushed back and as a result, it dashed to motorcycle. Due to which, deceased sustained injuries and succumbed to the same.5
3. It is the further case of the appellants that, the deceased was aged about 38 years, hale and healthy prior to the accident, doing business of perfume and other cosmetics in Sharjah of UAE in the name of M/s.A1 Natural Garments and Luxuries Shop and getting substantial profit from the business and looking after the welfare of the family. Due to his untimely death, appellants have lost their bread earner and they suffered both financial and social insecurity.
4. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded the compensation of `5,25,000/- under different heads with interest at 6% p.a., from the date of petition till its payment. Being dis-satisfied with the compensation awarded by the Tribunal, the appellants have presented this appeal, for enhancement of compensation.
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5. We have heard the learned counsel appearing for the appellants and learned counsel appearing for 2nd respondent.
6. The principal submission canvassed by the learned counsel for the appellants is that, deceased was aged about 38 years, hale and healthy prior to the accident, doing business of perfume and other cosmetics in Sharjah of UAE in the name of M/s.A1 Natural Garments and Luxuries Shop and getting substantial profit and looking after the welfare of the family and due to his untimely death, appellant No.1 has lost her husband, appellant Nos.2 and 3 are deprived of the love and affection of their and appellant No.4 has lost her son who was her future hopes and security. But, the Tribunal without taking these aspects of the matter into consideration, has erred in awarding lumpsum of `5,00,000/- towards loss of dependency, which is on lower side and it may be enhanced reasonably by re-assessing the income of the deceased. 7 Further, he submits that the compensation awarded by the Tribunal towards conventional heads is on lower side and it may be enhanced. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing just and reasonable compensation towards loss of dependency and towards conventional heads.
7. As against this, learned counsel for the Insurer, inter-alia, contended and substantiated that the judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference. However, after going through the records available on file, he submitted that the income of the deceased may be re-assessed at `4,500/- per month as they have not produced any credible documents to prove his income as on the date of the accident nor they have produced any IT returns filed by the deceased or statement of bank account 8 and reasonable compensation may be awarded in accordance with law.
8. After hearing the learned counsel for the parties and after careful perusal of the material available on record at threadbare, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:
Whether the compensation awarded by the Tribunal is just and reasonable?
9. It could be seen from the materials available on record that, the occurrence of the accident on 8.10.2004 and the resultant death of the deceased are not in dispute. It is also not in dispute that deceased was aged about 38 years, doing business of perfume and other cosmetics in Sharjah of UAE in the name of M/s.A1 Natural Garments and Luxuries Shop and the dependants are the wife, children and mother. It is also not in dispute that, the policy was in force as on the date of the accident and hence, the Insurer is liable to 9 indemnify the award amount. Further, it emerges that, the Tribunal has awarded lumpsum of `5,00,000/- towards loss of dependency which is on lower side and it requires to be modified. Having regard to the age, occupation of the deceased and the year of the accident, we re-assess his income at `5,000/- per month. Out of which, if 1/4th (`1,250/-) is deducted towards the personal expenses of the deceased since appellants are four in number, his net income comes to `3,750/- per month. The proper multiplier applicable is '15', in view of the law laid down by the Hon'ble Apex Court in Sarla Verma's case, reported in 2009 ACJ 1298 since deceased was aged about 38 years. Therefore, we re- determine the loss of dependency at `6,75,000/- (`3,750/- x 12 x 15) instead of `5,00,000/- awarded by the Tribunal and accordingly, it is awarded.
10. Having regard to the facts and circumstances of the case, we award a sum of `45,000/- towards conventional heads, such as, loss of consortium, loss of 10 love and affection, loss of estate and transportation and funeral expenses instead of `25,000/- awarded by the Tribunal. In all, the appellants are entitled to a total compensation of `7,20,000/- instead of `5,25,000/- as awarded by the Tribunal. There would be an enhancement of `1,95,000/- with interest at 6% p.a., from the date of petition till its realization.
11. For the foregoing reasons, the appeal filed by the appellants is allowed in part and the impugned judgment and award dated 30/06/2009 passed in MVC No.891/2005, by the Member, Motor Accident Claims Tribunal and III Additional Civil Judge (Sr.Dn), Mangalore, is hereby modified, awarding the compensation of `1,95,000/- with interest at 6% p.a., from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.
The second respondent -Insurer is directed to deposit the enhanced compensation of `1,95,000/- with interest at 6% p.a., from the date of petition till the 11 date of realization, within a period of three weeks from the date of receipt of a copy of this judgment.
Immediately on such deposit by the Insurer, out of the enhanced compensation of `1,95,000/-, a sum of `1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the appellant No. 1 for a period of ten years and renewable by another ten years, with liberty reserved to her to withdraw the interest accrued on it, periodically.
A sum of `50,000/- with proportionate interest shall be invested in Fixed Deposit in any Nationalized or Scheduled bank, in the name of the appellant No.4 for a period of ten years and renewable by another five years, with liberty to her to withdraw the interest accrued on it, periodically.
The remaining sum of `45,000/- with
proportionate interest shall be released in favour of
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the appellant Nos.1 and 4 in equal proportion,
immediately.
Draw the award, accordingly.
SD/-
JUDGE
SD/-
JUDGE
tsn*