IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.3946/2019 C/W M.F.A.No.2813/2019(MV) IN MFA No.3946/2019 BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD., MOTOR THIRD PARTY CLAIMS HUB MAHALAKSHMI CHAMBERS, NO.9, 2ND FLOOR, M.G.ROAD, BANGALORE - 560 001.
REPRESENTED BY ITS MANAGER ...APPELLANT (BY SRI RAVISHANKAR C R., ADVOCATE) AND:
1 . KUM. SHAZIYA BANU AGED ABOUT 22 YEARS, D/O SRI.AKRAM PASHA, 2 . SRI.GOUSIYA BANU @ ARSHIYA BANU AGED ABOUT 19 YEARS D/O SRI.ALLABAKSH, BOTH ARE R/AT No.149/1, AHMED NAGAR MASJID CROSS, PATAN KOTE, NAYANDAHALLI, BANGALORE - 560 039.
3 . SRI.MOHAMMED ASLAM, AGED ABOUT 73 YEARS, S/O SRI.AMEER SAB, R/AT No.204, AHMED NAGAR, MASJID CROSS, PATAN KOTE, GANGONDANAHALLI, BANGALORE- 560 039.
4 . SRI.K.NAGENDRA, AGED MAJOR, S/O SRI.KRISHNAPPA GOWDA, PROPRIETOR OF S.U.R.M.S., PETE, MALAVALLI, MANDYA DISTRICT- 571 430. ...RESPONDENTS (BY SRI K P BHUVAN, ADVOCATE FOR R1 TO R3 R-4 SERVED – UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED:16.01.2019 PASSED IN MVC No.6366/2017 ON THE FILE OF THE XIX ADDITIONAL SCJ & MACT, BENGALURU (SCCH-17), AWARDING COMPENSATION OF Rs.11,85,000/- WITH INTEREST @7.5% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA No.2813/2019 BETWEEN:
1 . KUM. SHAZIYA BANU D/O AKRAM PASHA, AGED ABOUT 22 YEARS, 2 . GOUSIYA BANU @ ARSHIYA BANU AGED ABOUT 19 YEARS, D/O ALLABAKASH.
SINCE THE APPELLANT No.2 IS MINOR REPRESENTED BY NATURAL GUARDIAN HER SISTER SHAZIA BANU.
BOTH ARE RESIDING AT No.149/1, AHMED NAGAR, MASJID CROSS, PATAN KOTE, NAYANDAHALLI BANGALORE - 560 039.
3. SRI. MOHAMMED ASLAM AGED ABOUT 73 YEARS S/O SRI AMEER SAB R/AT No.204, AHMED NAGAR MASJID CROSS, PATAN KOTE GANGONDANAHALLI BANGALORE - 560 039. ..APPELLANTS (BY SRI K P BHUVAN, ADVOCATE) AND:
1. SRI. K NAGENDRA S/O KRISHNAPPA GOWDA PROPRIETOR OF S.U.R.M.S. PETE, MALAVALLI MANDYA DISTRICT - 571 430.
2. THE NEW INDIA ASSURANCE COMPANY LTD, REGIONAL OFFICE T.P. HUB, N/O 9/2 MAHALAKSHMI CHAMBERS, M.G.ROAD BANGALORE – 560 001. ...RESPONDENTS (BY SRI C R RAVISHANKAR, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED:16.01.2019 PASSED IN MVC No.6366/2017 ON THE FILE OF THE XIX ADDITIONAL SCJ & MACT, BENGALURU (SCCH-17), PARLTY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENCHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeals are listed for admission, with the consent of the learned counsel appearing for the parties, appeals are taken up for final disposal.
Appeals are directed against the Judgment and award dated 16.01.2019 passed in MVC No.6366/2017 by the XIX Additional SCJ and MACT, Bengaluru, wherein claim petition came to be allowed in part and compensation of Rs.11,85,000/- with interest at the rate of 7.5% p.a. from the date of petition till its realisation came to be granted to the petitioners. Being aggrieved by the said Judgment and award insurance company has preferred MFA No.3946/2019. Claimants have preferred MFA No.2813/2019 seeking enhancement of compensation.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the Tribunal.
3. It pertains to a road traffic accident dated 20.09.2017 at about 5.00 clock in the evening Shaik Rafiq was riding Honda Activa bearing registration No.KA-41/EG-2392 along with Naushad Begum a pillion rider and they were heading towards Channapatna from Bengaluru on the left side of B.M.Road, opposite to Velliyappa factory, Hejjala Gate, Bidadi, Ramanagara, at that time a private bus bearing registration No.KA-55-909 driven by its driver in a rash and negligent manner dashed Honda Activa on which said Naushad Begum was traveling as a pillion rider. Accident occurred Naushad Begaum sustained serious injuries and succumbed to them. In this connection claim petition was filed by Shaziya Banu, Gousiya Banu and Mohammed Aslam. Said Naushad Begum had adopted children who are the petitioners 1 and 2 and they were brought up by the said late Naushad Begum and petitioner No.3 is stated to brother of the said deceased.
4. The claim for compensation by the said persons was on the basis of loss of dependency and that they depended on the earnings of Naushad Begum who during her life time was working as Agarbatti maker and getting monthly income of Rs.20,000/-.
5. Learned Member has considered monthly income at Rs.11,000/- and granted compensation of Rs.11,85,000/-. The break up is as under:
SL.NO. DESCRIPTION AMOUNT 1. Loss of dependency (11,000+25%=13,750-
50% = 6,875x12x14) Rs.11,55,000/-
2. Loss of estate Rs. 15,000/-
3. Funeral expenses Rs. 15,000/-
4. Total Rs.11,85,000/-
6. Learned counsel for insurance company would submit that there is no concept of adoption under Mohammedan law as such there could not have been claim by the adopted children and petitioner No.3 is grown up brother aged 71 years and he could not have been considered as dependant.
7. It is necessary to note that though Mohammedan law indirectly has not recognized the concept of adoption specifically in principle. However there is no restriction for acknowledging paternity. In this case it is the lady who has acknowledged her motherhood on the children.
8. Learned counsel for appellant-insurance company would submit that the story of adoption or otherwise is created for the sake of compensation.
9. Learned counsel for claimants submits that compensation granted is on the lower side and prays for enhancement.
10. However it is not stated to be a concept of adoption subsequent to the accident. Thus, objection regarding non entitlement on the ground of adoption are not acceptable. Insofar as quantum of compensation is concerned, learned Member has considered monthly income at Rs.11,000/- and 50% is deducted towards personal and living expenses.
11. In this connection learned counsel for appellant- insurance company would submit that deceased was unmarried and entitled only for 50%.
12. There cannot be denial of compensation on the ground of deceased was the adoptive mother, what matters is the dependency.
13. Here is a peculiar case wherein two children are adopted and brought up as daughters by deceased Naushad Begum. Under such circumstances it is not the concept of Spinstership. On the other hand she has considered herself as mother of the children. Under the circumstances invariably the deduction towards personal and living expenses should have been considered at 1/3rd. In this connection learned Member though was right in allowing the claim petition but erred seriously in deducting 50% towards personal and living expenses. If the said head is corrected, the fair and just compensation would be as under:
11,000x25%=2750, 11,000+2,750=13750-1/3= 4,583, 13,750-4,583=9,167 Loss of dependency=9,167x12x14=15,40,056/- Conventional heads = 30,000/-
Total compensation 15,70,056/-
======== Thus, fair and just compensation would be Rs.15,70,056/-. Further the consequential enhancement of compensation would be as under:
Rs.15,70,056-Rs.11,85,000 = Rs.3,85,056/-
14. The claimants who are the dependants are entitled for enhanced compensation of Rs.3,85,056/-.
15. Thus, the impugned Judgment and award passed by the learned Member requires to be modified. Accordingly I proceed to pass the following:
ORDER MFA No.3946/2019 preferred by the insurance company is hereby dismissed.
MFA No.2813/2019 preferred by the claimants is partly allowed.
Judgment and award dated 16.01.2019 passed in MVC No.6366/2017 by the XIX Additional SCJ and MACT, Bengaluru is modified by granting enhanced compensation of Rs.3,85,056/- with interest at 7.5% p.a.
The appellant-insurance company is directed to deposit the compensation amount with interest at 7.5% p.a. within four weeks from the date of receipt of certified copy of this order. However, excluding the amount which is already deposited. The insurance company is granted liberty by the Tribunal to recover the compensation from the owner and same is hereby confirmed.
Amount in deposit be transmitted to the Tribunal.
Sd/- JUDGE SBN