IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A. NO.1013 OF 2018 (MV) C/w M.F.A. NO. 4985/2017 (MV), M.F.A. NO. 4986/2017(MV) M.F.A. NO. 1015/2018 (MV) IN MFA NO.1013/2018:
BETWEEN:
1. Smt. Tahsina Taj W/o Late Basheer Ahamed Aged about 40 years 2. Tousif Ahmed S/o Late Basheer Ahamed Aged about 20 years 3. Asif Ahmed S/o Late Basheer Ahamed Aged about 18 years 4. Mohammed Waseem S/o Late Basheer Ahamed Aged about 17 years 5. Mohammed Zakwan S/o Late Basheer Ahamed Aged about 12 years 6. Taj Unnisa W/o Abdul Majeed Aged about 74 years Since Appellants No. 4 & 5 are minors Rep. By their mother and Natural Guardian Appellant No.1 All are R/at Kuvempunagar Channarayapatna Town, Hassan.
(By Sri Halesha .R.G., Adv.,) AND:
1. Narayan S.K. S/o Kala Kulal No.171, Srirama Road 2nd Block, Thyagarajanagara Bangalore-560028.
…Appellants 2. IFFCO-TOKIO General Insurance Company Ltd., Regional Office Sri Shanthi Tower No. 141, 5th Floor, 3rd Main East of NGEF Layout Kasturinagar Bangalore 560 043.
... Respondents (By Sri B. Pradeep,Adv., for R-2; R-1 Served) This MFA filed u/S 173(1) of MV Act against the judgment and award dated: 07.03.2017 passed in MVC No. 2331/2016 on the file of the X Additional Judge, Court of Small Causes and Motor Accident Claims Tribunal, at Bengaluru (SCCH-16), partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN MFA NO.4985/2017: BETWEEN:
Legal Manager IFFCO TOKIO GIC Ltd., Sri Shanthi Tower, 5th Floor No. 141, 3rd Main, East of NGEF Layout Kasturi Nagar Bangalore 560 043.
(By Sri Pradeep .B., Adv.,) AND:
1. Smt. Tahsina Taj W/o Late Basheer ahamed Now aged about 39 years 2. Tousif Ahmed S/o Late Basheer ahamed Now aged about 19 years 3. Asif Ahmed S/o Late Basheer ahamed Now aged about 17 years 4. Mohammed Waseem S/o Late Basheer ahamed Now aged about 16 years 5. Mohammed Zakwan S/o Late Basheer ahamed Now aged about 10 years 6. Taj Unnisa W/o Abdul Majeed Now aged about 73 years Since Respondents 3 to 5 are minors Rep. By their mother and Natural Guardian Respondent No.1 All are R/at Kuvempunagar Channarayapatna Town, Hassan-573116 7. Narayan S.K. S/o Kala Kulal Major, No. 171, Srirama Road …Appellant 2nd Block, Thyagarajanagara Bangalore-560028.
... Respondents (By Sri Halesh R.G., Adv. for R1 to R6; R3 to R5 are minors – Rep. by R1 R7 served) This MFA filed u/S 173(1) of MV Act against the judgment and award dated: 07.03.2017 passed in MVC No. 2331/2016 on the file of the X Additional Judge, Court of Small Causes and Motor Accident Claims Tribunal, at Bengaluru (SCCH-16), awarding compensation of Rs.15,98,900/- with interest at the rate of 9% p.a. from the date of petition till realization.
IN MFA NO.4986/2017:
BETWEEN:
Legal Manager IFFCO TOKIO GIC Ltd., Sri Shanthi Tower, 5th Floor No. 141, 3rd Main East of NGEF Layout Kasturi Nagar Bangalore 560 043.
…Appellant (By Sri Pradeep .B, Adv.,) AND:
1. Sadiya W/o Late Aslam Khan Now aged about 41 years 2. Aqid khan S/o Late Aslam Khan Now aged about 23 years 3. Ayesha Siddiq S/o Late Aslam Khan Now aged about 24 years 4. Fayaz Unnisa W/o Late Mohala Sabb Now aged about 64 years All are R/at Kuvempunagar Channarayapatna Town Hassan.
5. Narayan S.K. S/o Kala Kulal Major, No.171, Srirama Road 2nd Block, Thyagarajanagara Bangalore-560028.
(By Sri Halesh R.G., Adv. for R1 to R4; Notice to R5 dispensed with vide order Dated 03.10.2017) ... Respondents This MFA filed u/S 173(1) of MV Act against the judgment and award dated: 07.03.2017 passed in MVC No. 2332/2016 on the file of the X Additional Judge, Court of Small Causes and Motor Accident Claims Tribunal, at Bengaluru, awarding compensation of Rs.13,94,912/- with interest at the rate of 9% p.a. from the date of petition till realization.
IN MFA NO.1015/2018: BETWEEN:
1. Sadiya W/o Late Aslam Khan Aged about 42 years 2. Aqid khan S/o Late Aslam Khan Age 24 years 3. Ayesha Siddiq S/o Late Aslam Khan Age 25 years 4. Fayaz Unnisa W/o Late Mohala Sabb Age 65 years All are R/at Ward No.20 Kanchugharara Beedi Channarayapatna Town Hassan District.
(By Sri Halesha .R.G., Adv.,) …Appellants AND:
1. Narayan S.K. S/o Kala Kulal No.171, Srirama Road 2nd Block, Thyagarajanagara Bangalore-560028.
2. IFFCO-TOKIO General Insurance Company Ltd., Regional Office Sri Shanthi Tower No. 141, 5th Floor, 3rd Main East of NGEF Layout Kasturinagar Bangalore 560 043.
... Respondents (By Sri Pradeep .B, Adv.,- for R-2;
Notice to R-1 is dispensed with v/o/dtd: 08.03.2019) This MFA filed u/S 173(1) of MV Act against the judgment and award dated: 07.03.2017 passed in MVC No. 2332/2016 on the file of the X Additional Judge, Court of Small Causes and Motor Accident Claims Tribunal, at Bengaluru (SCCH-16), partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Appeals coming on for Admission this day, the court delivered the following:
JUDGMENT These appeals are filed by both the claimants as well as Insurance Company challenging the judgment and award dated 07.03.2017 passed by Small Causes and MACT at Bengaluru (SCCH-16), whereby the Tribunal has granted compensation of Rs.15,98,900/- in MVC.No.2331/2016 and Rs.13,94,912/- in MVC.No.2332/2016 with interest @ 9% p.a.
2. Brief facts of the case:
On 24.03.2016 Basheer Ahmed and Aslam Khan were standing on the extreme left side of the footpath on Bangalore-Mangalore road, near Madehalli gate, Hirisave Hobli, Hassan, at that time a Maruthi car bearing registration No.KA-01-MK-8614 driven by its driver came in a high speed and dashed against them.
As a result, both of them fell down, sustained injuries and died on the spot itself. Immediately, the LRs of deceased filed MVC before the MACT in MVC.Nos.2331/2016 and 2332/2016, whereby the Tribunal has granted compensation of Rs.15,98,900/- and Rs.13,94,912/- with interest @ 9% respectevly. Being aggrevied by the same, the claimants have filed appeals for the enhancement of compensation and Insurance Company has filed appeals for reducing the compensation.
3. To establish the case, the claimants have examined two witnesses and marked 17 documents. On the other hand, Insurance Company has neither exmained any witnesses nor marked any documents. On the basis of oral and documentaty evidence, the Tribunal has granted compensation of Rs.15,98,900/- and Rs.13,94,912/- with interest @ 9% respectively.
4. Sri B.Pradeep, learned cousnel appearing for the Insurance company submits that the Tribunal while calculating the ‘loss of dependency’ in MVC.No.2331/2016 and 2332/2016 instead of 25% as future prospects, it has taken as 30% which is contrary to the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157. He further conteded that in view of Pranay Sethi (supra) the compensation under the conventional heads should be Rs.70,000/-. The Tribunal has committed an error in granting Rs.2,30,000/-, in MVC.Nos.2331/2016 and 2332/2016.
5. Per Contra Sri.Halesh R.G, learned counsel appearing for the claimants submits that in MVC.No.2332/2016, at the time of accident the deceased was running an automobile shop and earning Rs.13,000/- per month. The Tribunal erred in taking only 8,000/- as monthly income of the deceased. Even if it has taken notional income as per the chart prepared by the lok adalath cases, it should be Rs.9500/- p.m. He further contended that in MVC.No.2331/2016 also the Tribunal has erred in taking the notional income as Rs.9000/-. In view of the chart prepared by the lok adalth, for the accident of the year Rs.9,500/- p.m. has to be taken as the notional income. Hence, he sought for enhancement of compensation.
6. Heard learned counsel for the parties.
7. It is not in dispute that the deceased Basha Ahmed and Aslam Khan were died due to the accident occured on 24.03.2016 due to the rash and negligent driving of the driver of Maruthi Car bearing No.KA01- MD-8614. Even though the claimants are claiming that at the time of accident deceased were earning a sum of Rs.13,000/-, but they have not produced any documents to establish their claim. Under these circumstances, the Tribunal had no other option but to take the notional income of the deceased. While calculating the notional income, the Tribunal has erred in taking the income as Rs.9000/- in MVC.No.2331/2016 and Rs.8000/- in MVC.No.
2332/2016. In catena of decisions, this Court while calculating the notional income has considered the chart prepared in the Lok Adalath for assessing the notional income. As per the chart, for the accident of the year 2016, the notional income has to be fixed as Rs.9500/-. Accordingly notional income of the deceased in MVC.Nos.2331/2016 and 2332/2016 has to be taken as Rs.9500/-.
8. While calculating the loss of dependency the Tribunal has erred in adding 30% as future prospects. In view of the law laid down by the Hon’ble Supreme Court in the case of PRANAY SETHI (Supra), since the deceased was aged more than 40 years, the future prospects should be 25% but the Tribunal has erred in taking 30%. Hence, future prospects in both the cases has to be taken as 25%. Hence, loss of dependency is
9. In respect of compensation awarded under the conventional heads is concerned, Hon’ble Supreme Court in the case of PRANAY SETHI Supra, has held that the conventional head namely the ‘loss of estate’ and ‘loss of consortium’, ‘funeral expenses’ would be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-. Overall it should be Rs.70,000/-. The Tribunal erred in granting a compensation under the conventional heads in both cases, at Rs.2,30,000/-, which is exorbitant.
10. In view of the law laid down by the Hon’ble Supreme Court in the case of PRANAY SETHI (supra) the compensation under the conventional head has been reduced from Rs.2,30,000/- to Rs. 70,000/-.
11. Accordingly, the appeals filed by the Insurance Company are allowed in part. The appeals filed by the claimants are disposed of. The Judgment and award passed by the Tribunal is modified as follows:
MVC No.2331/2016 :
As awarded As awarded
The amount in deposit is directed to be transmitted to the Tribunal, forthwith.
The Insurance Company is directed to deposit the balance amount with interest at 9% p.a. from the date of petition till the date of payment, within six weeks from the date of receipt of a copy of this order.
The Tribunal is directed to disburse the amount in terms of the award.
Sd/- JUDGE rv