IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR.L.NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL No.4798 OF 2016 (MV) BETWEEN:
1. Saira Banu, Aged about 31 years, W/o Late Mohammad Althaf, D/o K.Hussain, 2. Fathima Shashya, Aged about 11 years, D/o Late Mohammad Althaf, 3. Rabiya Ashna, Aged about 6 years, D/o Late Mohammad Althaf, 4. Rajab Ahmmed @ Rajab Ahammad Beray, Aged about 61 years, S/o Ahammed Saheb, 5. B.Fathima, Aged about 52 years, W/o Rajab Ahammad @ Rajab Ahammad Beray, Aged about 53 years, Appellant Nos. 1 to 3 are, R/at H.No.8-141291/2, Makan Garden, Kambla Cross Road, Barke, Kudroli, Kodialbail, Mangaluru-575 003.
Appellants No.2 & 3 are minor Rep. by their mother & natural guardian, Appellant No.1 Appellant Nos. 4 and 5 are, R/at Badriya House, Mulooru, Uchila, Udupi Taluk & District, 576 101. ... Appellants (By Sri.Sachin.B.S, Advocate) AND:
1. Mathew, S/o. Mathai, Aged about 61 years, R/at Mavara House, Mukkam Post, Calicut, Kerala State, 673 001.
2. The Divisional Manager, The National Manager, Vidyarathna Building, Near Head Post Office, Bajaj Allianz General Insurance Company Limited, II Floor, Raj Tower, Near City Bus Stand, Udupi, Udupi Taluk & Dist., 576 101. ... Respondents (By Sri.B.C.Seetharama Rao, Adv., for R2; R-1 Served) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 20.04.2016 passed in MVC No.863/2015 on the file of Principal Senior Civil Judge & Additional M.A.C.T. Udupi, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Miscellaneous First Appeal coming on for final hearing, this day, the ACTING CHIEF JUSTICE delivered the following:
JUDGMENT Heard learned counsels for both the parties.
2. The appellants have filed this appeal seeking enhancement of compensation against the judgment and award dated 20.04.2016 passed by the Principal Senior Civil Judge and Additional MACT, Udupi, in MVC No.863/2015.
3. It is case of the appellants that on 19.12.2014 at about 4.20 p.m., while the deceased Mohammed Altaf was riding scooter bearing Reg.No.KA- 20-EG-3282 from Udupi to Mangalore, near Sunni Centre, Muloor, a car bearing reg. No.KL-57-E-3374 driven by its driver in a rash and negligent manner came from backside and hit against rear side of the scooter. As a result, he sustained grievous injuries. He took treatment as in-patient from 19.12.2014 to 22.12.2014 and spent more than Rs.3.00 lakhs towards medical expenses and finally succumbed to the injuries. Hence, this appeal.
4. The Tribunal, after consideration of the oral and documentary evidence placed before it, awarded a total compensation of Rs.17,35,000/- with interest at 8% p.a. from the date of petition till realisation. Being aggrieved by the quantum of compensation awarded by the Tribunal on all the heads, the appellants have filed this appeal seeking for enhancement of the same.
5. On the other hand, learned counsel for the Insurer submits that the deceased had returned to India about six months back and he has not established the income. Hence, the income taken by the Tribunal has to be confirmed by rejecting the appeal.
6. The deceased having died in the accident is not disputed. According to the appellants, the deceased was working as a Recreation Assistant in Compass Catering services, Qatar and earning a monthly income of Rs.2,602.93 Qr. which is equivalent to Indian Rs.41,646/- p.m. In order to prove the income of the deceased, PW1 produced Ex.P11-salary certificate issued by the company at Gulf country, wherein only period is mentioned and not the salary paid to him.
The Tribunal, after considering the documentary evidence, has come to the conclusion that since PW1 failed to produce proper salary slip of the deceased for the work he had done in Qatar and non-production of document in respect of the cloth business, it has taken the qualification i.e., B.Com degree of the deceased into consideration and assessed income of the deceased at Rs.10,000/- per month and after deducting 1/3rd of the income towards his personal expenses and by adopting ‘15’ as multiplier awarded a sum of Rs.12,00,000/- towards ‘loss of dependency’.
7. From the material evidence on record, we feel it appropriate to assess the income of the deceased at Rs.600 per day, which comes to Rs.18,000/- p.m. We do not propose to assess ‘Future prospects’ since monthly income is assessed at Rs.18,000/-. The loss of dependency works out to Rs.24,30,000/-. (18000 x 3/4 x 12 x 15 = 24,30,000/- ). The Tribunal has rightly awarded compensation of Rs.80,000/- towards ‘medical expenses’.
8. The Tribunal has awarded compensation towards ‘loss of love and affection’ Rs.4,00,000/-, towards consortium Rs.25,000/- and Rs.30,000/- towards funeral expenses and obsequies ceremony. In all, it works out to Rs.4,55,000/-, which has to be modified in view of the ratio laid down in the case of National Insurance Company Ltd., -vs- Pranay Sethi reported in AIR 2017 SC 5157, that compensation under conventional heads should not exceed Rs.70,000/-. Hence, towards conventional heads, the claimants are entitled to Rs.70,000/- only.
9. Thus, in all, the claimants are entitled to total compensation of Rs.25,80,000/- as against Rs.17,35,000/- awarded by the tribunal.
10. Accordingly, the appeal is allowed in part.
The impugned judgment and award dated 20.04.2016 passed by the Principal Senior Civil Judge and Additional MACT, Udupi, in MVC No.863/2015 is hereby modified. The claimants/appellants are entitled for enhanced compensation of Rs.8,45,000/- with interest @ 6% p.a. from the date of petition till realisation.
Respondent-insurer shall deposit the enhanced compensation of Rs.8,45,000/- with interest at 6% p.a. 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 as per the impugned judgment.
Office to draw the decree accordingly.
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ACTING CHIEF JUSTICE Sd/-
JUDGE TL