IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.4001 OF 2013 (MV) BETWEEN 1. NAZMA, W/O LATE ABDUL MUTHEHAR, AGED ABOUT 27 YEARS, R/A KALLENAHALLI GRAMA, SHANTHIGRAMA HOBLI, HASSAN – 573 201.
2. Ms.MUSKAAN MUTHEHAR, D/O LATE ABDUL MUTHEHAR, AGED ABOUT 2 YEARS, SINCE MINOR REPRESENTED BY NATURAL GUARDIAN MOTHER MRS.NAZMA, W/O LATE ABDUL MUTHEHAR, AGED ABOUT 27 YEARS, R/A KALLENAHALLI GRAMA, SHANTHIGRAMA HOBLI, HASSAN – 573 201.
(BY SMT.R.AISHWARYA, ADVOCATE) AND 1. ASLAM KHAN, S/O MOHAMMED KHAN, ... APPELLANTS TALUK OFFICE ROAD, HEMAVATHI EXTENSION, HOLENARASIPURA, HASSAN DISTRICT – 573 201. (OWNER OF LORRY BEARING NO.AP-02-U-5949) 2. MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD., SEETAPURA, JAIPUR, RAJASTHAN.
ALSO REPRESENTED BY BRANCH MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD., OPPOSITE CAUVERY COMFORTS, B.M.ROAD, HASSAN – 573 201.
3. BABAJAN, S/O FAKRUDDIN SAB, AGED ABOUT 72 YEARS, 4. KHAIRUN BI, W/O BABAJAN, AGED ABOUT 67 YEARS, BOTH ARE R/A KALLENAHALLI GRAMA, SHANTHIGRAMA HOBLI, HASSAN – 573 201.
(BY SRI.B.PRADEEP, ADVOCATE FOR R2;
... RESPONDENTS R1, R3 AND R4 – NOTICE DISPENSED WITH VIDE ORDER DATED 30.10.2019) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.06.2012 PASSED IN MVC NO.1679/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT – II, AND MACT, HASSAN, 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:
JUDGMENT The claimants are in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 15.6.2012 passed in M.V.C. No.1679/2011 by the FTC-II and Motor Vehicles Accident Claims Tribunal, Hassan.
2. Claim petition was filed under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘Act’ for short), claiming compensation for the death of Abdul Muthehar in a road traffic accident. The claimants are the wife, parents and child of deceased Abdul Muthehar. It is stated that on 28.5.2011, when the deceased along with relative Mohammed Riyaz was waiting for the bus by the side of the road, at the time, driver of the lorry bearing registration No.AP-02- U-5949 came in a rash and negligent manner with high speed and dashed to the deceased, as a result, the deceased sustained grieved injuries and subsequently, succumbed to the injuries. It is stated that the deceased was earning Rs.8,000/- per month as a driver and he was aged 32 years as on the date of the accident. It is further stated that due to death of the deceased, the family lost its bread earning member and the claimants were wholly depending on the deceased.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed written statement denying the entire claim petition averments. It is stated that the accident had occurred solely due to the negligence of the deceased and that the compensation claimed is exorbitant and is excessive. The insurer has also contended about the violation of the terms and conditions of the insurance policy.
4. Claimant No.1-wife of the deceased, appellant No.1 herein, was examined as P.W.1 and also examined P.W.2 apart from the documents marked as per Exs.P.1 to P.8. Respondent No.1 was examined as R.W.1 and got marked four documents as per Exs.R.1 to R.4.
5. The Tribunal appreciating the materials placed on record, awarded a total compensation of Rs.6,22,000/- with interest at the rate of 6% per annum from the date of petition till realization. While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.4,000/- per month and deducted 1/3rd of his income towards his personal expenses. The claimants, wife and child of the deceased, not being satisfied with the quantum of compensation awarded by the Tribunal, are before this Court in this appeal, praying for enhancement of compensation. Claimant Nos.2 and 3-parents of the deceased have not filed appeal and they are arrayed as respondent Nos.3 and 4 in this appeal and against whom, the notice is dispensed with at appellants’ request and risk.
6. Heard the learned counsel for the appellants and the learned counsel for the respondent-insurer. Perused the material on record.
7. The learned counsel for the appellants- claimants submits that, the quantum of compensation awarded by the Tribunal is on the lower side. He submits that, the deceased was working as driver and also doing business earning more than Rs.8,000/- per month. But the Tribunal assessed the income of the deceased at Rs.4,000/- per month, which is on the lower side. He submits that the Tribunal has committed an error in deducting 1/3rd of the income towards personal expenses of the deceased. There are four dependents i.e. wife, parents and child, and as such, it was appropriate to deduct 1/4th of the income towards personal expenses. It is further contended that the deceased was aged 32 years as on the date of the accident and the Tribunal has failed to award any compensation under the head ‘future prospects’, which the claimants were entitled for. He submits that as per the decision in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546, appellant No.2 would be entitled for Rs.40,000/- towards parental consortium.
8. Per contra, learned counsel for the respondent – insurer submits that, the compensation awarded by the Tribunal is just compensation, which needs no interference and prays for dismissal of the appeal.
9. On hearing the learned counsel for the parties and on perusal of the materials on record, the questions which arise for consideration are:
“ 1. Whether the Tribunal is justified in assessing the income of the deceased at Rs.4,000/- per month ?
2. Whether the claimants would be entitled for future prospects at 40% of the assessed income?”
10. The occurrence of the accident on 28.5.2011 and the accidental death of Abdul Muthehar involving the lorry bearing registration No.AP-02-U- 5949, are not in dispute in this appeal. The appellants-claimants have preferred this appeal for enhancement of compensation. The accident is of the year 2011. Therefore, the income assessed by the Tribunal at Rs.4,000/- per month is on the lower side. The claimants have stated that the deceased was working as a driver and also doing the business earning more than Rs.8,000/- per month. Taking note of the submission of the claimants and taking into account that even a coolie would earn more than Rs.200/- per day, the income of the deceased assessed by the Tribunal is on the lower side. The claimants have not placed on record any material to indicate the exact income of the deceased. In the absence of the material to indicate exact income, notional income will have to be assessed. This Court and Lok Adalath, while settling the accident claims of the year 2011, would normally assess the notional income at Rs.6,500/- per month. In the present case, in the absence of any material to indicate exact income of the deceased, it would be appropriate to assess the notional income at Rs.6,500/- per month. The deceased was aged 32 years at the time of the accident. The Tribunal has failed to award compensation under the head ‘future prospects’. The Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 has held that the claimants would be entitled for adding 40% of the assessed income towards future prospects, if the deceased was aged below 40 years. In the instant case as, the deceased was aged 32 years, the claimants would be entitled to add 40% of the assessed income towards future prospects. When there are more than three dependants, it would be appropriate to deduct 1/4th of the income of the deceased towards personal expenses. The Tribunal has committed an error in deducting 1/3rd of the income towards personal expenses of the deceased when there are four dependants and as such, it would be appropriate to deduct 1/4th towards personal expenses of the deceased.
11. Appellant No.2-child has lost love, affection and care of her father and as such, she would be entitled for Rs.40,000/- under the head ‘Filial consortium’ as per MAGMA GENERAL INSURANCE CO. LTD. case, cited supra. Thus, the claimants would be entitled for the following modified compensation:
12. Thus, the claimants would be entitled for a total compensation of Rs.14,20,400/- (Rupees Fourteen Lakh Twenty thousand Four Hundred only) with interest at the rate of 6% per annum from the date of petition till realization, as against a sum of Rs.6,22,000/- awarded by the Tribunal.
13. Out of the enhanced compensation of Rs.7,98,200/-, Rs.5,00,000/- shall be kept in fixed deposit in any nationalized bank in the name of appellant No.2 – Muskaan Muthehar, child of the deceased Abdul Muthehar, till she attains majority with liberty to draw interest accrued thereon. Balance enhanced compensation of Rs.2,98,200/- shall be released in favour of claimant No.1-wife of the deceased i.e., appellant No.1 herein.
The judgment and award dated 15.6.2012 passed in M.V.C. No.1679/2011 by the FTC-II and Motor Vehicles Accident Claims Tribunal, Hassan, is modified to the above extent. Accordingly, the Miscellaneous First Appeal is allowed in part.
Sd/- JUDGE Cs/-
CT:SN