IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.1573/2015 [MV] BETWEEN:
1. B M SHAHUL HAMEED S/O LATE B.M. MOHIDEEN MAJOR R/O B.M HOUSE BUKHARI COLONY SHIROOR VILLAGE KUNDAPURA -576201.
2. SMT. MAMAJUNI W/O B.M. SHAHUL HAMEED AGED ABOUT 57 YEARS R/O B.M. HOUSE BUKHARI COLONY SHIROOR VILLAGE KUNDAPURA -576201.
3. SMT. B.M.PAMEEDA D/O B.M. SHAHUL HAMEED AGED ABOUT 34 YEARS R/O B.M. HOUSE BUKHARI COLONY SHIROOR VILLAGE KUNDAPURA -576201.
4. SMT. B.M. SHAMEERA D/O B.M. SHAHUL HAMEED AGED ABOUT 29 YEARS R/O B.M. HOUSE BUKHARI COLONY SHIROOR VILLAGE KUNDAPURA -576201.
5. B.M. JABINA D/O B.M. SHAHUL HAMEED AGED ABOUT 25 YEARS R/O B.M. HOUSE BUKHARI COLONY SHIROOR VILLAGE KUDNAPURA -576201.
(BY SRI. VISHWAJITH SHETTY S, ADV.) AND:
1. IMTHIYAZ AHMED S/O SABU SAHEB MAJOR R/O MARIYAMBI COMPOUND JALLAL BAGH ROAD KOTEKAR VILLAGE DERALAKATTE MANGALORE, D.K.- 575003.
2. THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO.LTD., SHANKAR BUILDING MOSQUE ROAD UDUPI- 576101.
3. HISMUDDIN M.SUKRI DAMDA 19, DAMDA HOUSE BASTI ROAD BHATKAL, U.K.- 581320.
...APPELLANTS 4. THE BRANCH MANAGER THE UNITED INDIA INSURANCE CO.LTD., KUMTA, 98-A, 1ST FLOOR GIBBS HIGH SCHOOL ROAD KUMTA (U.K) -581343.
…RESPONDENTS (BY SRI. L SREEKANTA RAO, ADV. FOR R2 SRI. A.M. VENKATESH, ADV. FOR R4 R3 IS SERVED R1 – DECEASED BRINGING LRs OF R1 ARE EXEMPTED V/O DATED 25.10.2019) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2014 PASSED IN MVC NO.902/2015 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, 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:
J U D G M E N T The claimants, not being satisfied with the quantum of compensation awarded under the judgment and award dated 05.12.2014 in MVC No.902/2005 on the file of the Additional District and Sessions Judge and Additional MACT, Udupi (hereinafter referred to as 'the Tribunal' for short) are before this Court, in this appeal.
2. The claimants are parents and sisters of deceased B.M.Rameeza. The claim petition was filed under Section 163-A of the Motor Vehicles Act, 1989 claiming compensation for the accidental death of one B.M.Rameeza in a road traffic accident. It is stated that on 21.08.2005, the deceased along with her brother B.M.Abdul Lathif and her mother were proceeding from Udupi to Mangalore in a car bearing registration No.MH-05/H-4020, a lorry bearing registration No. KA-21/3339 came in a rash and negligent manner and overtook the car and suddenly came to the right side of the road i.e., in front of the car and suddenly applied brake. As a result, the car dashed to the rear portion of the lorry, due to which, the deceased suffered grievous injuries and succumbed to the injuries. It is stated that the deceased was a tuition teacher having income of Rs.40,000/- p.a. She was aged 22 years as on the date of the accident.
3. The respondent No.2/insurance company appeared and filed its written statement denying the entire petition averments. Further contended that the alleged accident had not taken place due to rash and negligent driving of the driver of the lorry, but due to the negligent driving of the driver of the car in which the deceased was traveling.
4. Mother of the deceased was examined as P.W.1 and Father was examined as P.W.2 and common documents were marked as Ex.P1 to Ex.P239 in MVC Nos.902 to 1103 of 2005, which were filed against the same accident. The respondents examined two witnesses as R.W.1 and R.W.2 and got marked the documents as Ex.R1 to Ex.R18.
5. Based on the material placed on record, the Tribunal awarded total compensation of Rs.3,70,000/- with interest at the rate of 9% p.a., from the date of petition till realization, on the following heads.
1. Loss of dependency :: Rs.3,40,000.00 2. Love and affection :: Rs. 10,000.00 3. Transportation of dead body :: Rs. 10,000.00 4. Cremation obsequies and religious :: Rs. 5,000.00 5. Ambulance charges :: Rs. 5,000.00 Total Rs.3,70,000.00 While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.30,000/- p.a., and applied 17 multiplier. Aggrieved by the assessment of income by the Tribunal, the appellants are before this Court.
6. Heard the learned counsel for the appellants and learned counsel for the respondents 2 and 4/insurance companies. Perused the appeal papers including the lower court records.
7. Learned counsel for the appellants would submit that the deceased was earning Rs.40,000/- p.a., as a tuition teacher (English Medium). It is his submission that the Tribunal without assigning proper reasons assessed the income of the deceased at Rs.30,000/- p.a. The Tribunal ought to have assessed the income of the deceased at Rs.40,000/-p.a., which the claimants have claimed in their claim petition.
8. Per contra, learned counsel for the respondents/insurers submit that the compensation awarded by the Tribunal is just compensation, which the claimants would be entitled under Section 163-A of the Motor Vehicles Act. Thus, he prays for dismissal of the appeal.
9. On hearing the learned counsel for the parties and on perusal of the material on record, the only point which falls for consideration in this appeal is as to whether the claimants would be entitled for enhanced compensation, in the facts and circumstances of the case?
10. Answer to the above point would be in the affirmative for the following reasons:
The claimants are parents and sisters of the deceased B.M.Rameeza who was aged about 22 years as on the date of accident. The accident occurred on 21.08.2005 involving the car bearing registration No. MH-05/H-4020 and a lorry bearing registration No. sKA-21/3339 and the accidental death of B.M.Rameeza are not in dispute in this appeal. The claimants’ appeal is for enhancement of compensation. The claimants state that the deceased was earning Rs.40,000/- p.a., by working as a tuition teacher (English medium). The Tribunal solely on the ground that no records have been produced to show that she was qualified to work as tuition teacher, particularly in English medium, committed an error in assessing the income of the deceased at Rs.30,000/-p.a. P.W.2-father of the deceased states that the deceased was doing tuitions in English medium and was earning Rs.40,000/- p.a.
11. Schedule-II to Section 163-A of the Motor Vehicles Act provides for maximum of Rs.40,000/- annual income. In the instant case, the claimants have stated that the deceased was earning Rs.40,000/- p.a. The Tribunal, without assigning any reasons to disbelieve the evidence of P.W.2-father of the deceased has assessed the annual income of the deceased at Rs.30,000/- which is on the lower side and the same is assessed at Rs.40,000/-. The compensation awarded by the Tribunal on other heads remains unaltered. Hence, the claimants would be entitled to enhanced compensation under the head loss of dependency, which comes to Rs.4,53,322/- (40000-1/3=26666x17).
Thus, the claimants would be entitled to total compensation of Rs.4,83,322/- as against Rs.3,70,000/- thereby they are entitled to enhanced compensation of Rs.1,13,322/- with interest at the rate of 9% p.a.
12. Accordingly, the appeal is allowed in part. The judgment and award dated 05.12.2014 in MVC No.902/2015 on the file of the Additional District and Sessions Judge and Additional MACT, Udupi is modified. The claimants are entitled to total compensation of Rs.4,83,322/- as against Rs.3,70,000/- awarded by the Tribunal, with interest at the rate of 9% p.a., from the date of petition till realization, thereby the claimants are entitled to enhanced compensation of Rs.1,13,322/-.
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JUDGE