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.733/2016 (MV) BETWEEN:
1. SHABANA @ SHABANA KHANUM AGED ABOUT 36 YEARS W/O. LATE SABEER AHAMED 2. SHEIK IBAD-UR-RAHAMAN AGED ABOUT 8 YEARS S/O. LATE SABEER AHAMED MINOR REP. BY APPELLANT NO.1 SHABANA @ SHABANA KHANUM AGED ABOUT 36 YEARS W/O. LATE SABEER AHAMED 3. SHEIK HIFZ-UR-RAHEMAN AGED ABOUT 4 YEARS, S/O. LATE SABEER AHAMED MINOR REPRESENTED BY HIS NATURAL GUARDIAN SHABANA @ SHABANA KHANUM, MOTHER W/O. LATE SABEER AHAMED AGED ABOUT 36 YEARS 4. DILSHAD UNNISA AGED ABOUT 63 YEARS, W/O. LATE SABULAL, ALL ARE R/AT C/O. SYED PACHA 12TH CROSS, NEAR MASJID-E-NIMRA P.H. COLONY TUMKUR TOWN-572 122. ... APPELLANTS (BY SRI K.SHANTHARAJ, ADV.) AND 1. ZABIULLA KHAN AGED ABOUT 52 YEARS, S/O. RAHIM KHAN, R/AT 1ST CROSS, CHURCH ROAD, SURESH LAYOUT, SADASHIVANAGAR, TUMKUR TOWN-572 122.
2. THE UNITED INDIA INSURANCE CO. LTD. JAYADEVA COMPLEX B.H. ROAD TUMKUR-572 122 REP. BY ITS MANAGER. ... RESPONDENTS (BY SRI. JWALA KUMAR, ADV. FOR R2 NOTICE TO R1 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 09.10.2015 PASSED IN MVC NO.1237/2014 ON THE FILE OF THE VI ADDITIONAL DISTRICT JUDGE, ADDITIONAL MACT, TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR HEARING, THIS DAY, THE ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT The wife and children of the deceased Sabeer Ahamed who succumbed to the injuries sustained in the road traffic accident occurred on 20.03.2014 made a claim petition before the VI Addl. District Judge & AMACT, Tumkur in MVC No.1237/2014. The Tribunal by its award dated 09.10.2015, granted compensation of Rs.9,37,500/- with interest at 6% per annum, against which the appellants have preferred this appeal.
2. The facts of the case are that on 20.03.2014, at about 10.30 a.m., when the deceased Sabeer Ahamed was riding his motor bike bearing registration No.KA-03/EY-8163 from SBM Bank, Vinayakanagar Branch, Tumkur, towards NH-206, a motorcycle bearing registration No.KA-06/X-8962 came in a high speed, in a rash and negligent manner and dashed against the motor bike of the deceased. Due to the impact, he sustained grievous injuries. Immediately he was shifted to the Government Hospital at Tumkur, wherein he was declared to be dead. The deceased was aged about 40 years at the time of accident and he was doing scrap business and earning a sum of Rs.25,000/- per month.
3. Since the appellants lost the sole bread-earner of the family, they filed a claim petition before the learned Tribunal. In order to substantiate their case, the appellants examined three witnesses, and submitted fifteen documents. On the other hand, the insurance company also examined a single witness and submitted two documents. After going through oral and documentary evidence, the learned Tribunal granted a compensation of Rs.9,37,500/- to the appellants along with interest at the rate of 6% per annum from the date of filing of the petition till the date of realisation. Hence, this appeal before this court for enhancement.
4. The learned counsel for appellants has raised the following contentions before this court :-
Firstly, even though the deceased was earning a sum of Rs.25,000/- per month by doing the scrap business, the learned tribunal assessed the income of the deceased at Rs.5,000/- per month and it has not given any cogent reasons for arriving at such a conclusion. Despite the fact that in number of cases this court has emphasized that where the actual income is not established by the claimant, the Tribunal should follow the Schedule prepared by this court. But, the Tribunal has failed to do so. According to the Schedule, for an accident of the year 2014, the notional income should be taken as Rs.9,000/- per month. But the Tribunal has assessed the notional income merely at Rs.5,000/- per month. Therefore, the income shall be enhanced and shall be taken at Rs.9,000/- per month.
Secondly, the Tribunal has not awarded any compensation towards future prospects and it has not awarded adequate compensation towards loss of love and affection, since the widow and children are of younger age.
5. On the other hand, the learned counsel for Insurance Company has raised the following contentions:
Firstly, the Tribunal has rightly assessed the income of the deceased as Rs.5,000/- per month in the absence of any cogent and convincing evidence to establish income.
Secondly, the Tribunal has awarded adequate compensation under the conventional heads.
Thirdly, relying on the case of NATIONAL INSRUANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], the learned counsel has pleaded that, for the “other conventional heads”, the maximum amount that can be awarded is Rs.70,000/-.
6. We have heard the learned counsel for parties and we have gone through discussion made by the Tribunal and also examined the LCR produced before us.
7. Though the claimants have examined PW.3 in support of the claim that deceased was working with him, and his income has not been controverted, but PW.3 should have produced some documents to prove that he was having license to carry out such business. When his occupation itself has not been proved, the question of explaining his ownership or employment cannot be accepted. By taking note of year of accident, age of the deceased and size of the family, this court deems it appropriate to notionally assess the income of the deceased for the year 2014 as Rs.9,000/- per month.
8. In the case of Pranay Sethi (supra), the Hon’ble Supreme Court has opined that “in case the deceased was self-employed, or on a fixed salary, an addition of 40% of the established where the deceased was below the age of 40 years, shall be added towards future prospects. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component”. The Hon’ble Supreme Court has clearly opined that where there is positive evidence with regard to the income, and where the minimum income is determined on the basis of a notional assessment. In both these cases, 40% of the notional income would have to be added to the notional income in order to assess the “loss of future prospects”. Therefore, as far as the loss of dependency is concerned, this Court re-calculates the same as under:-
[ Rs.9,000 + 3,600 (40%) = 12,600 – 3,150 (1/4th) = 9,450 x 12 x 15 = Rs.17,01,000/- ] Thus, the claimants are entitled to compensation Rs.17,01,000/- towards loss of dependency as against Rs.8,77,500/- awarded by the Tribunal.
9. Admittedly, claimants No.2 and 3 are minor children of deceased aged 6 years and 2 years respectively. The loss suffered by the sudden demise of a father cannot be compensated. For, the void left by the person cannot be filled emotionally, or psychologically. But the purpose of granting compensation is to ameliorate and try to fill the gap by grant of money. But, simultaneously, compensation is not meant to be a bonanza. For, the compensation has to be “just and reasonable”. Undoubtedly, the appellants have certainly lost an important member of the family, namely the husband, and the father. Therefore, we award compensation of Rs.2,00,000/- towards ‘loss of love and affection’ as against compensation of Rs.30,000/- awarded by the Tribunal.
10. In the case of Pranay Sethi (supra) the Supreme Court has put a ceiling limit for granting compensation under conventional heads. Therefore, the claimants are entitled to maximum compensation of Rs.70,000/- under the conventional heads.
11. For the reasons stated above, the appeal is partly allowed. The impugned award is modified as under:
Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Love and affection 30,000 2,00,000 Loss of Consortium 10,000 40,000 Loss of Estate 10,000 15,000 Funeral & other expenses 10,000 15,000 Loss of Dependency 8,77,500 17,01,000 Total 9,37,500 19,71,000 Thus, the claimants are entitled to total compensation of Rs.19,71,000/- as against compensation of Rs.9,37,500/- awarded by the Tribunal. The enhanced compensation would come to Rs.10,33,500/-.
The respondents are directed to deposit the entire compensation amount, along with interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of eight weeks from the date of receipt of certified copy of this judgment. The impugned judgment, insofar as it relates to rate of interest, apportionment and deposit is concerned shall remain unaltered.
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ACTING CHIEF JUSTICE Sd/- JUDGE Np/-