IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.9704 OF 2013 BETWEEN:
1. Mr. P. Ismail S/o. Late Aboobakker Aged about 52 years 2. Smt. Hajira W/o. P. Ismail Aged about 48 years 3. Kumari Thahira D/o. P. Ismail Aged about 21 years 4. Kumari Thaslima D/o. P. Ismail Aged about 18 years 5. Master Thalhath S/o. P. Ismail Aged about 16 years, Minor 6. Master Thaufiq S/o. P. Ismail Aged about 14 years, Minor 7. Baby Busra D/o. P. Ismail Aged about 12 years, Minor 8. Baby Thanvir S/o. P. Ismail Aged about 5 years, Minor Appellants 5 to 8 are minors Represented by their next friend and natural guardian Appellant No.1 All are residents of D.No.3-78 Paledu House Thannirupantha Village Belthangady Taluk Presently residing at Thameem Manzil Masthikatte, Ullala Mangalore Taluk ... Appellants (By Sri. Guruprasad B.R., Advocate) AND:
1. Mr. D. Ranganatha S/o. Devendrappa, Adult R/at Shanranamba Colony 331/A, Kadoor Chickmagalore 2. The United India Insurance Co. Ltd., Branch office P B No.114 K M Road, Chickmagalore Local Address: Divisional Office Ram Bhavan Complex Navabharath Circle, Kodialbail Mangalore 3. Mr. H.E. Suresh S/o. Ere Gowda R/at Someshwara Near Ladies Hostel Rajaji Nagar, Kadur Chickmagalore District. ... Respondents (By Sri. Srinivasa K.N., Advocate for R2;
Notice to R1 & R3 d/w v/o dated:18.02.2014) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 19.11.2012 passed in MVC No.1466/2009 on the file of the II Additional District Judge, Member, MACT-III, Dakshina Kannada, Mangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT The claimants in this appeal are praying for enhancement of compensation, not being satisfied with the compensation awarded under judgment and award dated 19.11.2012 in MVC No.1466/2009 on the file of the II Additional District Judge, Member, MACT-III, Dakshina Kannada, Mangalore.
2. The claimants are parents and brother and sister of the deceased - Thameen @ Mohammad Shammer. The claimants filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of the deceased-Thameen in a road traffic accident that occurred on 13.06.2009. It is stated that on 13.06.2009, when the deceased was proceeding in his motor cycle bearing Registration No.KA-21-J-9770, lorry bearing Registration No.KA-04-8162 came in a rash and negligent manner and dashed to the motor cycle. Due to which, the deceased succumbed to the injuries. It is stated that the deceased was aged about 22 years and he was working as coolie in a quarry and earning Rs.200/- per day.
3. On issuance of notice, respondent No.2 appeared before the Tribunal. Respondent No.2- Insurance Company filed its objections denying the petition averments. Further, it is stated that the driver of the offending lorry was not having valid and effective driving licence. The compensation claimed is exorbitant and excessive.
4. Claimant No.1 examined himself as PW.1 and got examined two witnesses as PW.2 and PW.3 and got marked documents Exs-P1 to P12. The Tribunal on assessing the material on record, awarded total compensation of Rs.3,81,000/- on the following heads:-
1. Loss of dependency Rs.3,51,000-00 2. Funeral, rituals and conveyance 10,000-00 3. Loss of love & affection 10,000-00 4. Loss of expectancy of life 10,000-00 TOTAL Rs.3,81,000-00 While determining the above compensation, the income of the deceased was taken at Rs.4,500/- per month and multiplier as 13 was taken based on the age of the younger parent.
5. The claimants not being satisfied with the quantum of compensation are before this Court in this appeal.
6. Heard the learned counsel for the appellants and the learned counsel for the respondent No.2-Insurance Company. Perused the lower court records.
7. Learned counsel for the appellants submits that the income taken by the Tribunal at Rs.4,500/- per month for determining the compensation is on the lower side. It is submitted that the deceased was working as coolie and he was earning Rs.200 per day. Further, he submits that the Tribunal ought to have taken the age of the deceased to determine the multiplier, where as the Tribunal based on the age of the younger parent taken 13 multiplier, which is wholly incorrect. Deceased was aged about 22 years as on the date of accident and applicable multiplier would be 18. It is his further submission that the Tribunal has not granted any compensation on the head of ‘future prospects’. Learned counsel relying upon the decision in the case of MAGMA GENERAL INSURANCE CO. LTD vs. NANU RAM reported in 2018 SCC ONLINE SC 1546 submits that the claimant Nos.1 and 2 are entitled for filial consortium. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.2 - Insurance Company submits that the compensation awarded by the Tribunal is just compensation which needs no interference.
9. Having heard the learned counsel for the parties and having perused the lower court records, the only question which requires consideration is:
“Whether the claimants would be entitled for enhanced compensation?”
The answer to the above question is in the affirmative.
10. The accident occurred on 13.06.2009, involving motor cycle bearing Registration No.KA-21-J-9770 and lorry bearing Registration No.KA-04-8162 and the accidental death of Thameen @ Mohammad Shammer is not in dispute in this appeal.
11. The claimants are before this Court praying for enhancement of compensation. The accident is of the year 2009. It is stated that the deceased was working as coolie and he was earning a sum of Rs.200/- per day. The notional income at Rs.4,500/-
per month taken by the Tribunal is on the lower side. This Court and Lok-Adalat while settling the motor accident claims of the year 2009 would normally take Rs.5,000/- as notional income. In the present case, there is no document to indicate the exact income of the claimant. I deem it appropriate to take Rs.5,000/- as notional income of the deceased for determination of the compensation. The Tribunal has taken 13 multiplier on the basis of the age of the younger parent for determination of compensation. It is settled law, that the age of the deceased has to be taken for determining proper multiplier. In the case on hand, the age of the deceased was 22 years as on the date of accident and the applicable multiplier would be 18. The deceased was working as coolie and he was not having any fixed income. The Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. vs. PRANAY SETHI AND OTHERS reported in (2017)16 SCC 680 has held that in case the deceased was self employed or on fixed salary, an addition of 40% of the established income to be added, where the deceased was below 40 years of age. In the case on hand as the deceased was 22 years, the claimants would be entitled for addition of 40% of the income determined on the head of ‘future prospects’. Further, as per the MAGMA INSURANCE case the claimants would be entitled for filial consortium of Rs.40,000/-. Since, the deceased was bachelor deduction towards ‘personal expense’ is taken at 50%.
12. Thus, the claimants would be entitled for following enhanced compensation:-
1. Loss of dependency (5000+40%-50% X 12 X 18) 7,56,000-00 2. Funeral, rituals and conveyance 30,000-00 3. Loss of love & affection (filial consortium) 40,000-00 4. Loss of expectancy of life 10,000-00 TOTAL 8,36,000-00 Thus, the claimants would be entitled for total compensation of Rs.8,36,000/- as against Rs.3,81,000/- awarded by the Tribunal with interest at the rate of 6% p.a., as awarded by the Tribunal.
Accordingly, the appeal is allowed in part.
Sd/- JUDGE KG