IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.10658 OF 2010 (MV) BETWEEN The Branch Manger The New India Assurance Company Ltd., No.92, East Coast Chambers 1st Floor, G.N.Chetty Road T.Nagar, Chennai By its Regional Office No.2B, Unity Building Annexe P.Kalinga Rao Road (Mission Road) Bangalore-560 027 Rep. by its Manager.
... Appellant (By Sri. P.B. Raju, Advocate) AND 1. Smt. Neelufar Sameena W/o Nasrulla Khan Aged about 39 years 2. Umar Khan S/o Nasrulla Khan Aged about 19 years 3. Sameer Khan S/o Nasrulla Khan Aged about 16 years 4. Faizen Khan S/o Nasrulla Khan Aged about 15 years 5. Rahimulla Khan S/o Rahamathulla Khan Aged about 6 years R/at No.86, MIG, 1st Stage Bannimantap Extension Mysore-570 015.
... Respondents (By Sri.P.Nataraju, Advocate) This MFA is filed under Section 173(1) of M.V. Act against the judgment and award dated 09.07.2010 passed in MVC No.60/2007 on the file of I Additional Senior Civil & MACT, Mysore, Awarding a Compensation of Rs.1,63,000/- with interest @ 6% P.A.
This MFA coming on for hearing, this day, the court delivered the following:
JUDGMENT Heard the learned counsel for the appellant – Insurer and the learned counsel for the respondents – claimants and perused the records.
2. This appeal is preferred by the Insurance Company against the judgment and award dated 09.07.2010 passed by the Tribunal in MVC No.60/2007 questioning the liability as well as the quantum of compensation awarded by the Tribunal.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 8.11.2005 at about 3.00 a.m when the deceased Fareedulla Khan @ Fareed Khan in MVC No.60/2007 along with others was proceeding in a Toyota Qualis van bearing Regn.No.KA-01-P-8003 on NH-4 road, near Kagganur village, at the time the driver of the lorry bearing Regn.No.KA-01-AA-3171 had driven the same in a rash and negligent manner and came from opposite direction and dashed against the said Toyota Qualis. As a result of the impact, the Toyota Qualis caught fire and within minutes, Fareedulla Khan succumbed to the fire. Prior to the accident he was hale and healthy and was working as a Public Relations Officer in Dubai and was earning Rs.42,000/- per month and he was the sole earning member of the family. His family members being his legal representatives having been put to great hardship and inconvenience due to the untimely death of their bread winner, they filed a claim petition against the respondents seeking compensation.
4. After service of notice, the insurer – appellant in this appeal appeared and filed its written statements and contested the claim petition and contending that the accident occurred due to the rash and negligent driving of the Toyota Qualis van by its driver and the liability of the Insurer was subject to the terms and conditions of the policy. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant herein.
5. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. Taking the income of the deceased at Rs.3,000/- and deducting 3/4th of his income towards his personal and living expenses and since the deceased was aged 40 years, applied the multiplier ‘15’ and awarded compensation towards ‘Loss to estate’ at Rs.1,35,000/- and a total compensation of Rs.1,63,000/- with interest at 6% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal by the Insurer, urging various grounds.
6. The learned counsel for the appellant – Insurer vehemently contended that the first respondent has clearly stated in the claim petition that she was married and residing with her husband separately. The learned counsel contends that the respondents not being dependant on the deceased, the Tribunal has also in turn noticed the same but however committed an error in determining 25% of the income of the deceased as compensation towards ‘Loss of estate’ and has thus awarded total compensation of Rs.1,63,000/-, which is opposed to law.
It is the further contention of the learned counsel for the Insurer that the first respondent – claimant had not provided proof that she had performed the last rites of the deceased or that she was entitled to any part of the estate of the deceased. Further, it has also not given any evidence that the deceased was a married person and the same is also noticed by the Tribunal at paragraph 30 of its judgment. That being the case, the respondents not being the legal heirs of the deceased under law, would not be entitled to even ‘Loss of estate’. Hence, the learned counsel contends that the award passed by the Tribunal is unsustainable and hence the impugned judgment granting compensation requires to be set-aside.
7. Per contra, the learned counsel appearing for Respondents claimants submitted that the Tribunal, on an appreciation of the evidence on record and taking into consideration the material on record has rightly granted compensation to the claimants under ‘Loss to estate’ and fastened the liability on the Insurer and hence the impugned judgment does not call for interference and prays for dismissal of the appeal.
8. Having regard to the contentions put forth by the learned counsel for both the parties, I find that there is no dispute with the accident that occurred on 8.11.2005 and the death of Fareedulla Khan @ Fareed Khan in the said accident. I find that the Tribunal is justified in granting compensation to the claimants under the head ‘Loss to estate’ in view of the decision of this Court in the case of A. Manavalagan vs. A. Krishnamurthy and Others (ILR 2004 KAR 3268). The relevant headnote reads as under:
“(A) Law contemplates two categories of damages on the death of a person – The first is the pecuniary loss sustained by the dependant members of his family – The second is the loss caused to the estate of the deceased – In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled – In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate.”
The legal representatives of the deceased, namely his sister and his nephew are the claimants before the Tribunal in respect of whom the Tribunal has granted compensation towards ‘Loss of estate’, taking it as the second category as mentioned in Manavalagan’s case. Hence, I find that there is no error committed by the Tribunal. Accordingly, I proceed to pass the following:
ORDER Appeal is hereby rejected. Consequently, the impugned judgment and award passed by the Tribunal in MVC No.60/2007 is confirmed.
The claimants – Respondents 1 to 5 are entitled for compensation in a sum of Rs.1,63,000/- along with interest @ 6% p.a. from the date of petition till the date of realisation, as held by the Tribunal.
The appellant – New India Assurance Company Ltd. shall deposit the entire compensation with accrued interest, before the Tribunal, within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Any amount in deposit in this appeal shall be transmitted to the concerned MACT, forthwith.
Office to draw the decree accordingly.
Sd/- JUDGE KS