IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE G.NARENDAR M.F.A.NO.552/2017 (MV) BETWEEN 1. SRI. ALTHAF PASHA S/O LATE ABDUL KHUDDUS, AGED ABOUT 46 YEARS, 2. HAJIRA BANU D/O SRI ALTHAF PASHA, AGED ABOUT 13 YEARS, 3. TOUHID AHMED S/O SRI ALTHAF PASHA, AGED ABOUT 11 YEARS, AS APPELLANT NOS 2 AND 3 ARE MINOR THEY ARE REPESENTED BY THEIR NEXT FRIEND-FATHER ALTHAF PASHA ALL ARE R/AT JAMIA MASID ROAD, MUSLIM BLOCK, K.R.NAGAR TOWN AND POST, MYSORE DISTRICT-571602.
...APPELLANTS (BY SMT. PADMANABHA KEDILAYA V, ADV.) AND 1. DILHAN ANCHAN S/O SADANANDA ALLCHAN, AGED ABOUT 47 YEARS, R/O NO. 76, BADAGU BETTU BAILOOR, NEAR MM TEMPLE, UDUPI TOWN AND POST, UDUPI DISTRICT-574102.
2. THE MANAGER, ICICI LOMBARD GENERAL INSURANCE CO. LTD., MYTHRI ARCADE, SARASWATHIPURAM, MYSORE - 570 009.
(BY SRI B PRADEEP, ADV. FOR R2, NOTICE TO R1 IS D/W.) RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.11.2014 PASSED IN MVC NO.35/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AND MACT, K.R.NAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard the learned counsel for the appellants and the learned counsel for the respondent-insurer.
2. The appellants are the claimants in MVC No.35/2014 on the file of the Senior Civil Judge & JMFC & MACT, K.R.
Nagar disposed off on 29.11.2014. The appellants are the husband and the children of late Smt. Shahtaj.
3. Matter is listed for Admission and with the consent of the counsels, appeal is taken up for disposal in view of the dispute being restricted to the correctness of the quantum awarded as compensation.
4. It is contended by the learned counsel for the appellants that the tribunal has failed to award a just and reasonable compensation. He would submit that it is the specific case of the appellants that deceased was working as a beedi roller and was earning Rs.7,000/- to Rs.8,000/- per month. That the deceased left behind two minor children aged about 11 and 9 years and that the tribunal has rejected the claim of the income being earned by the deceased and has adopted a notional income at Rs.2,800/-. She further contends that in respect of the claims that arise in 2014, the insurance companies have as a thumb rule, agreed to adopting the notional income at Rs.8,000/- and the tribunal having rejected the claim with regard to the income earned, the tribunal was required to adopt the notional income as is generally adopted in the Lok-adalaths which is the practice adopted by the courts in the event of there being no proof of income and any compensation awarded ought to be on the basis of notional income. The learned counsel for the respondent would fairly concede the same.
5. Learned counsel for the appellants would submit that the compensation awarded under the other heads is also highly inadequate and on the lower side.
6. Per contra the learned counsel for the respondent- insurer would contend that in the light of the law laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi, reported in AIR 2017 SC 5157. The law in this regard is no more res-integra and he would contend that the appellants would be entitled to a total sum of Rs.70,000/- only under the conventional heads. Per contra the learned counsel for the appellants would invite the attention of this court to the ruling rendered by the Hon’ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram Alias Chuhru Ram and Others, reported in (2018) 18 SCC 130 and would invite the attention of the court to paragraph 21.1 wherein the Bench of the Hon’ble Apex Court has undertaken the exercise of defining consortium and has defined spousal consortium, parental consortium and filial consortium and has been pleased to award a compensation under the said head to the married sister and father of the deceased and also towards the bachelor. In the instant case, the claimants are the husband and the minor children. Counsel for the appellants would submit that in interpretation of the word “consortium” the children are also entitled. In this regard the observation of the Hon’ble Apex Court at paragraph 54 is of relevance wherein the Constitutional Bench of the Hon’ble Apex Court has held that the head relating to loss of care and guidance to minor children does not exist. In that view of the matter, the question of following the dictum of the Bench in Magma case stated supra does not arise as it would be in the teeth of the law laid down by the Hon’ble Apex Court as noted supra. It is not in doubt that the appellants-minor children would be entitled to an award under the head of loss of love and affection at the rate of Rs.50,000/- each. Accordingly, the appellant Nos.2 and 3 are entitled to an award of Rs.50,000/- each under the head loss of love and affection. As regards the income, this court is of the considered opinion that the notional income adopted by the tribunal is highly conservative. As is the practice of this court the notional income adopted in the Lok-Adalaths is viewed as a thumb rule for the purpose of calculating the notional income of the claimant. The accident being of the year 2014 and claim arising out of the year 2014, the earnings of the deceased is fixed at Rs.8,000/-. Consequently, in the light of the law laid down by the Constitutional Bench the deceased would be entitled to further compensation under the head of loss of future prospects @ 40%. The same would come up to Rs.11,200x12x15 minus 1/3rd i.e.13,44,000/-. The first appellant would be entitled to the compensation of Rs.70,000/- under the conventional heads. In all the claimant should be entitled to total compensation of Rs.14,14,000/-. The appellants are entitled to enhanced compensation of Rs.8,59,000/-. The respondent insurer shall deposit the same within six weeks from the date of receipt of the certified copy of this order. The enhanced compensation awarded shall carry interest calculated @ 6% from the date of petition till the date of satisfaction of the award. The award of the tribunal is modified accordingly.
The appeal is allowed-in-part.
Office to draw-up decree accordingly.
The disbursement of the amount shall be as per the order of the tribunal.
Chs* CT-HR Sd/- JUDGE