IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3321 OF 2014 (MV) BETWEEN:
1. SMT. RAHAMATH, W/O LATE AHMED HUSSAIN @ KUNHIMONU, AGED 43 YEARS, 2. MOHAMMED JUNAID S/O LATE AHMED HUSSAIN @ KUNHIMONU, AGED 23 YEARS, 3. NAFUSATHUL MISRIYA, D/O LATE AHMED HUSSAIN @ KUNHIMONU, AGED 21 YEARS, 4. BILAL MUHIZUN, S/O LATE AHMED HUSSAIN @ KUNHIMONU, AGED 17 YEARS, 5. ZUNAID RAHIM, S/O LATE AHMED HUSSAIN @ KUNHIMONU, AGED 15 YEARS, 6. ADIL ABDUL KHADER, S/O LATE AHMED HUSSAIN @ KUNHIMONU, AGED 12 YEARS, 7. SMT. NAFEESAMMA @ NAFEESA, W/O LATE A P ABDUL KHADER @ UNHA, AGED ABOUT 70 YEARS, APPELLANTS 4, 5 & 6 ARE MINORS REPRESENTED BY THEIR NEXT FRIEND, NATURAL GUARDIAN, MOTHER, APPELLANT NO.1 ALL ARE RESIDING AT PUNCHAME PANDITH HOUSE, PUDU VILLAGE, FARENGIPETE POST, BANTWAL TALUK – 574 143.
... APPELLANTS (BY SRI. GURUPRASAD B.R., ADVOCATE) AND:
1. THE UNITED INDIA INSURANCE CO.LTD., OFFICE: KRECENT COURT, K. H. ROAD, CHIKKAMAGALORE – 577 101, REPRESENTED BY ITS MANAGER.
2. MR. JOHN FRANCIS PERIERA, S/O THOMAS PERIERA, NELLIKAD, MERLA PADAVU, BANTWAL TALUK – 574 211.
... RESPONDENTS (BY SRI C.SHANKAR REDDY, ADVOCATE FOR R1; R2 - NOTICE D/W V/O DATED 19.01.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.07.2013 PASSED IN MVC NO.973/2006 ON THE FILE OF THE 1ST ADDL. SENIOR CIVIL JUDGE & MEMBER, MACT, 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 are in appeal under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 25/7/2013 in M.V.C.No.973/2006 on the file of the I Additional Senior Civil Judge & Member MACT, Mangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the death of one Ahmed Hussain @ Kunhimonu in a motor vehicle accident. It is stated that on 02-5-2006, when the deceased was proceeding in a Mahendra Pickup Jeep bearing Reg.No.KA-18-A-0066, the driver of the Jeep drove the same in a rash and negligent manner and dashed to the electric pole. Due to which, the deceased sustained injuries and succumbed to the injuries. It is further stated that the deceased was aged 42 years as on the date of accident and was working as loader, earning Rs.6,000/- per month.
3. On issuance of notice, respondents appeared and filed their written statement. Respondent No.1 in his written statement denied the contents of the claim petition and also contended that the deceased himself was the driver of the Jeep and false claim has been filed. Respondent No.2-Insurer in its statement denied the claim petition averments and further stated that the compensation claimed is exorbitant and excessive. It is further contended that the deceased was travelling as gratuitous passenger in the said Jeep and he would not be entitled for compensation.
4. Claimant No.1-wife of the deceased examined herself as PW-1 and one more witness as PW-2, apart from marking documents Exs.P-1 to P-10(a). Respondents examined RW-1 and got marked Ex.R-1-Insurance Policy.
5. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.5,10,400/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
1. Transportation of dead Amount in (Rs.) 10,000
While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.3,500/- per month. The claimants not being satisfied with the quantum of compensation awarded by the Tribunal are before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellants- claimants and learned counsel for the respondent-Insurer. Perused the material on record.
7. Learned counsel for the appellants would submit that the Tribunal committed an error in assessing the income of the deceased at Rs.3,500/- per month, ignoring the evidence of PW-1. He further submits that the deceased was working as loader and was earning Rs.6,000/- per month. Therefore, he prays for revising the assessed income. It is his further submission that the deceased was aged 42 years as on the date of accident, the Tribunal has failed to award any compensation on the head of ‘Future prospects’, for which, the claimants would be entitled for adding 25% of the assessed income. Learned counsel further submits that the Tribunal failed to award proper compensation towards ‘Conventional Head’. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent- Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. Thus, he prays for dismissal of the appeal.
9. On hearing the learned counsels for the parties and on perusal of the material on record, the only point which arises for consideration in the facts and circumstances of the case is as to whether the claimants would be entitled for enhanced compensation. Answer to the said point would be in the affirmative for the following reasons.
10. The accident that took place on 02-5-2006 involving Mahendra Pickup Jeep bearing Reg.No.KA-18-A-0066 and the accidental death of one Ahmed Hussain @ Kunhimonu are not in dispute in this appeal. The claimants’ appeal is for enhancement of compensation. The claimants state that the deceased was working as loader and was earning Rs.6,000/- per month. But no document or material is placed on record to establish the exact income of the deceased. In the absence of any material/document to establish the income of the deceased, the Tribunal rightly assessed the notional income of the deceased at Rs.3,500/- per month. The accident is of the year 2006. In the year 2006, this Court and the Lok Adalath while settling the accident claims of the year 2006, would normally assess the notional income at Rs.3,500/- per month. Accordingly, the income of the deceased assessed by the Tribunal is just and proper, which needs no interference. Admittedly, the deceased was aged 42 years as on the date of accident. The Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, has held that wherever the deceased was aged between 40 to 50 years, the claimants would be entitled for adding 25% of the assessed income towards ‘Future prospects’. In the instant case also the deceased was aged 42 years. Thus, the claimants would be entitled for adding 25% of the assessed income towards ‘Future prospects’. The Tribunal, awarded compensation of Rs.40,000/- on ‘Conventional Head’, whereas the claimants would be entitled for Rs.70,000/- on the said head. Looking to the dependants of the deceased, the Tribunal rightly taken 1/5th deduction towards personal expenses of the deceased, which is proper and correct. The claimant Nos.2 to 6 are minor children of the deceased who have lost their father’s love and affection, care at a very young age. Hence, I am of the opinion that claimant Nos.2 to 6 would be entitled for Rs.1,00,000/- on the head of ‘loss of love and affection’. Thus, the claimants-appellants would be entitled for modified enhanced compensation as follows:
1. Loss of dependency Amount in (Rs.) 5,88,000
11. Thus, the claimants would be entitled for enhanced modified compensation of Rs.7,58,000/- as against Rs.5,10,400/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal. The apportionment and deposit would be as ordered by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ