IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1017/2013 (MV) C/W M.F.A.CROB NO.112/2013 IN M.F.A.NO.1017/2013 BETWEEN:
THE ORIENTAL INSURANCE CO. LTD., VISHNU PRAKASH BUILDING, 2ND AND 3RD FLOOR, COURT ROAD, UDUPI REP. BY ITS REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, 2ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-580 020.
... APPELLANT (BY SRI. C.SHANKAR REDDY, ADVOCATE) AND:
1. SMT.NAUSEEN, W/O. LATE ABDUL AZEEZ, AGED ABOUT 37 YEARS, 2. HASSEENA, D/O. LATE ABDUL AZEEZ, AGED ABOUT 18 YEARS, 3. SALEEM, S/O. LATE ABDUL AZEEZ, AGED ABOUT 17 YEARS, 4. MOHAMMED ARIF, S/O. LATE ABDUL AZEEZ, AGED ABOUT 13 YEARS, (RESPONDENT Nos.3 & 4 ARE MINORS ARE REPRESENTED BY THEIR MOTHER RESPONDENT NO.1, HEREIN AS A NATURAL GUARDIAN) 5. SMT. BHIBI, W/O. LATE P.MOIDINABBA, AGED ABOUT 64 YEARS, ALL ARE R/AT “KARNIRE HOUSE”, MASJID ROAD, BALKUNJE VILLAGE, MULKY, MANGALORE TALUK, D.K.DISTRICT-575 001.
6. DINESH, S/O. SUDHAKAR GANIGA, AGED ABOUT 25 YEARS, R/AT 5 CENTS COLONY, RAJEEV NAGAR, PALIMAR POST, NANDIKUR VILLAGE-574 138. ... RESPONDENTS (BY SRI. S.VISHWAJITH SHETTY, ADVOCATE FOR R1 & R5; R2 IS SERVED; R3 & R4 ARE MINOR REPRESENTED BY R1; R6-NOTICE D/W V/O DATED 17.06.2013) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.09.2012 PASSED IN MVC NO.562/2010 ON THE FILE OF THE DISTRICT JUDGE, MEMBER, MACT, UDUPI, AWARDING A COMPENSATION OF Rs.15,34,430/- WITH INTEREST @ 6% P.A. FROM THE DATE OF AWARD TILL REALIZATION.
IN M.F.A.CROB.NO.112/2013 BETWEEN:
1. SMT.NAUSEEN, W/O. LATE ABDUL AZEEZ, AGED ABOUT 38 YEARS, R/AT "KARNIRE HOUSE", MASJID ROAD, BALKUNJE VILLAGE, MULKY, MANGALORE TALUK, D.K.DISTRICT-574 201.
2. HASEENA, D/O. LATE ABDUL AZEEZ, AGED ABOUT 19 YEARS, R/AT "KARNIRE HOUSE", MASJID ROAD, BALKUNJE VILLAGE, MULKY, MANGALORE TALUK, D.K.DISTRICT-574 201.
3. SALEEM ARSHAD, S/O. LATE ABDUL AZEEZ, AGED ABOUT 17 YEARS, MINOR, 4. MOHAMMED ARIF, S/O. LATE ABDUL AZEEZ, AGED ABOUT 13 YEARS, MINOR, CROSS OBJECTORS 3 AND 4 ARE MINORS REPRESENTED BY THEIR MOTHER SMT. NAUSEEN, ALL ARE R/AT "KARNIRE HOUSE", MASJID ROAD, BALKUNJE VILLAGE, MULKY, MANGALORE TALUK, D.K. DISTRICT – 574 201.
5. SMT. BHIBI W/O. LATE P. MOIDINABBA, AGED ABOUT 64 YEARS, R/AT "KARNIRE HOUSE"
MASJID ROAD, BALKUNJE VILLAGE, MULKY, MANGALORE TALUK, D.K.DISTRICT – 574 201. ... CROSS OBJECTORS (BY SRI. S. VISHWAJITH SHETTY, ADVOCATE) AND:
1. SRI. DINESH S/O. SUDHAKAR GANIGA, AGED ABOUT 25 YEARS, R/AT. 5 CENTS COLONY, RAJEEV NAGAR, PALIMAR POST, NANDIKUR VILLAGE – 575 201.
2. THE BRANCH MANAGER THE ORIENTAL INSURANCE COMPANY LTD VISHNU PRAKASH, 2ND & 3RD FLOOR, COURT ROAD, UDUPI – 570 101.
... RESPONDENTS (BY SRI. C. SHANKAR REDDY, ADVOCATE FOR R2 R1 – NOTICE D/W V/O DATED 20-8-2019) THIS MFA CROB IN MFA NO.1017/2013 FILED U/O 41, RULE 22(1) OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:15.9.2012 PASSED IN MVC NO.562/2010 ON THE FILE OF THE DISTRICT JUDE, MEMBER, MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA & MFA CROB COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The Insurance Company is before this Court in MFA.No.1017/2013 aggrieved by the quantum of compensation awarded by the Tribunal under judgment and award dated 15-9-2012 in MVC.No.562/2010. Whereas MFA.Crob.No.112/2013 is filed by the claimants who are wife, children and mother of the deceased-Abdul Azeez praying for enhancement of compensation awarded under same judgment and award. They filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the death of Abdul Azeez in a road traffic accident.
2. It is stated that on 17-2-2010, when claimant No.1 was proceeding as a pillion rider in a Honda Matrix bearing No.KA.19/Y-9974 driven by her husband Abdul Azeez near Anchan Ayurvedic Pharmacy, Nandikur Village, Udupi Taluk from Adve to Palimar, the driver of the Autorickshaw bearing No.KA.20/B-5282 came in a rash and negligent manner and dashed against the Honda Matrix, due to which the rider and the pillion rider sustained grievous injuries. The injured was shifted to A.J.Hospital, Mangalore, where Abdul Azeez died on 24-3-2010. It is claimed that the deceased was running a beedi branch having employed more than 250 members with two permanent employees and was earning a sum of Rs.30,000/- per month. The deceased was aged 45 years as on the date of accident.
3. Respondent Nos.1 and 2 appeared before the Tribunal, whereas respondent No.2-Insurance Company by filing statement of objections denied the whole claim of the claimants. Further contended that the rider of the motorcycle-deceased was solely responsible for the accident. Thus, prayed for dismissal of the petition.
4. The claimant No.1 examined herself as PW-1 and got marked documents Ex.P.1 to Ex.P.17. The respondents have not lead any evidence on their behalf.
5. The Tribunal, on assessment of the entire material on record and taking into consideration Rs.9,000/- per month as income of the deceased, awarded total
The Insurance Company being aggrieved by the quantum of compensation i.e., assessing income of the deceased at Rs.9,000/- per month is before this Court in this appeal. The claimants are before this Court in the cross appeal i.e., MFA.Crob.No.112/2013, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant as well as counsel for cross-objectors/respondents. Perused the appeal papers.
7. Learned counsel for the appellant-Insurance Company would submit that the Tribunal committed an error in assessing the income of the deceased at Rs.9,000/- per month without there being any basis. The claimants have not produced any cogent evidence before the Tribunal in order to prove the income of the deceased. The claimants have produced Ex.P-16-Tax deduction certificate-returns filed on behalf of the deceased to show that the deceased had paid tax of Rs.948/- for the period 30-9-2009 to 31-3-2010. The accident had taken place on 17-2-2010, whereas the deceased died on 24-3-2010. The returns is filed subsequent to the death of Abdul Azeez- husband of claimant No.1. Therefore, the said document- Ex.P-16 cannot be the basis for assessing the income of the deceased. He further submits that at best the notional income of the deceased could be assessed at Rs.5,500/- and not more than that.
8. Per contra, learned counsel for the claimants submit that the Tribunal has rightly assessed the income of the deceased at Rs.9,000/- per month and the deceased had employed two permanent employees apart from 250 casual workers and was earning a sum of Rs.30,000/- per month. The deceased used to deliver 500 beedies in packs everyday. Ex.P-17 is the transit book which indicates the delivery of 500 beedies in packs everyday. Further learned counsel submits that there are more than three dependents but the Tribunal committed an error in taking 1/3 deduction, the Tribunal ought to have deducted 1/4 out of Rs.9,000/- towards personal expenses. It is also further submitted that the Tribunal has failed to award compensation on the head of ‘Future Prospects’ as the deceased was aged 45 years as on the date of death, he would be entitled for 25% of the established income towards ‘Future Prospects’.
9. Learned counsel for the claimants relying upon the decision in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546, contended that the minor children of the deceased would be entitled for Rs.40,000/- each on the head of ‘Parental Consortium’ and the mother who has lost her son would be entitled for Rs.50,000/- on the head of ‘Consortium to mother’. It is his further submission that the Tribunal has failed to award compensation on ‘Conventional Heads’ for which the claimants would be entitled for Rs.70,000/-. Thus, prays for enhancement of compensation.
10. On hearing the learned counsels for the parties and on going through the appeal papers, the following questions would arise for consideration.
1. Whether the Tribunal is justified in assessing the income of the deceased at Rs.9,000/- per month.
2. Whether the claimants are entitled for enhanced compensation.
11. The accident is of the year 2010 and as on the date of accident the deceased was aged 45 years. It is stated that the deceased-Abdul Azeez was running beedi branch by engaging 250 workers and also by employing two persons on permanent basis. Ex.P-14 is the licence to run beedi branch. Ex.P-15 is the Pan Card in the name of the deceased. Ex.P-16 is the Tax deduction certificate-returns filed for the period 30-9-2009 to 31-3-2010. Whereas Ex.P-16 returns filed for the period 30-9-2009 to 31-3-2010 cannot be a basis for assessing income of the deceased since the deceased died on 24-3-2010 and the returns is filed subsequent to his death. Further the claimants have not produced the returns filed for the previous years. Therefore, Ex.P-16 would not assist for determining the income of the deceased.
12. The claimants have stated that the deceased was earning Rs.30,000/- per month from his business. It is also stated that he had engaged two permanent employees and 250 casual workers to run his beedi branch. Ex.P-14 is the licence which indicates that he had licence to run beedi branch. Ex.P-15 is the Pan Card in the name of deceased. As per Ex.P-17, which is Beedi Delivery Book (Transit Book) indicates delivery of 500 beedies in packs everyday. When such being the case, the contention of the Insurance Company that the income of the deceased is to be assessed notionally at Rs.5,500/- cannot be accepted. The income assessed by the Tribunal based on Ex.P-16 at Rs.9,000/- is on the higher side. Taking into consideration the beedi business carried on by the deceased and Exhibits P-14 & P-17, I am of the view that the income of the deceased could be assessed at Rs.7,000/- per month notionally. Thus, income of the deceased is determined at Rs.7,000/- per month.
13. As per the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 and HEM RAJ vs. ORIENTAL INSURANCE COMPANY LIMITED AND OTHERS (2018 ACJ 5), the claimants would be entitled for 25% of the established income on the head of ‘Future Prospects’. As the deceased was aged 45 years as on the date of death. Further the claimant Nos.2, 3 & 4 – children of the deceased would be entitled for Rs.40,000/- each on the head of ‘parental consortium’ as per the decision in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANU RAM reported in 2018 SCC ONLINE SC 1546. Thus, the children of the deceased would be entitled for total compensation at Rs.1,20,000/- under ‘Parental Consortium’. The mother of the deceased would be entitled for Rs.50,000/- on the head of ‘Consortium to Mother’. The Tribunal has granted Rs.28,000/- on the ‘Conventional Heads’ which is on the lower side. As per Pranay Sethi’s case referred to supra, the claimants would be entitled for Rs.70,000/- on ‘Conventional Heads’. Thus, the claimants would be entitled for modified compensation
Thus, the claimants would be entitled for a total compensation of Rs.18,41,014/- as against Rs.15,34,430/- with interest as awarded by the Tribunal.
The amount in deposit be transmitted to the concerned Tribunal.
Accordingly, the appeals are disposed off.
Sd/- JUDGE SMJ