IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.2098/2019 C/W M.F.A.No.5121/2019(MV) IN MFA No.2098/2019 BETWEEN:
M/s.UNIVERSAL SOMPO GENERAL INSURANCE COMPANY LTD, B.H.ROAD, SHIMOGA NOW REP. BY MANAGER LEGAL M/s.UNIVERSAL SOMPO GENERAL INSURANCE COMPANY LTD., PLOT No.EL94, KLS TOWER, T.T.C INDUSTRIAL AREA, MIDC, MAHAPE, NAVI MUMBAI-470701 ..APPELLANT (BY SRI B C SHIVANNE GOWDA, ADVOCATE) AND:
1 . SMT. MAIMUNA W/O LATE MOHAMMED RAFEEQ @ BABULA AGED ABOUT 29 YEARS.
2 . KUM. RASID NAZ S/O LATE MOHAMMED RAFEEQ @ BABULA AGED ABOUT 7 YEARS.
3 . BABY FATHIMA RAZWAN D/O LATE MOHAMMED RAFEEQ @ BABULA AGED ABOUT 8 YEARS.
4 . MOHAMMED YUSUF S/O LATE SABJAN SAB AGED ABOUT 60 YEARS.
THE RESPONDENT Nos.2 AND 3 ARE MINORS REP. BY THEIR MOTHER- 1ST RESPONDENT.
ALL ARE R/AT HOUSE No.175 ASHRAYA EXTENSIONS KALYANNAGAR CHIKKAMAGALURU.
5 . SACHINKUMAR M S S/O SHANKAREGOWDA, AGED ABOUT 36 YEARS.
R/AT MAVINAGUNI VILLAGE, HUDUVALLI POST CHIKKAMAGALURU. ..RESPONDENTS (BY SRI K VENATE GOWDA, ADVOCATE FOR R-1 TO R-4) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.01.2019 PASSED IN MVC No.105/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHIKKAMAGALURU, AWARDING COMPENSATION OF Rs.33,44,000/- IN PROPORTION i.e., 30:30:30:10 RESPECTIVELY WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
IN MFA No.5121/2019:
BETWEEN:
1 . SMT. MAIMUNA W/O LATE MOHAMMED RAFEEQ @ BABULA AGED ABOUT 29 YEARS 2 . KUM. RASID NAZ D/O LATE MOHAMMED RAFEEQ @ BABULA AGED ABOUT 7 YEARS 3 . BABY FATHIMA RAZWA D/O LATE MOHAMMED RAFEEQ @ BABULA AGED ABOUT 9 YEARS APPELLANTS No.2 & 3 SINCE MINORS REP. BY THEIR MOTHER AND NATURAL GUARDIAN APPELLANT No.1.
4 . MOHAMMED YUSUF S/O LATE SABJAN SAB AGED ABOUT 61 YEARS ALL ARE RESIDING AT HOUSE No.175, ASHRAYA EXTENSION KALYANA NAGAR CHIKKAMAGALURU – 577 101. ..APPELLANTS (BY SRI VENKATE GOWDA K, ADVOCATE) AND:
1 . SRI. SACHINKUMAR M.S S/O SHANKAREGOWDA AGED ABOUT 35 YEARS R/O MAVINAGUNI VILLAGE KUDUVALLI POST, CHIKKAMAGALURU TALUK – 577 101.
2. THE MANAGER UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD., B.H. ROAD, SHIMOGA – 577 201.
..RESPONDENTS (BY SRI B C SHIVANNEGOWDA, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.01.2019 PASSED IN MVC No.105/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for appellant files memo seeking dispensation of notice to respondent No.5 in MFA No.2098/2019.
Notice to respondent No.5 is dispensed with at the risk and responsibility of the appellant.
Though the appeal is listed for orders on I.A., in the nature and circumstances of the case I.A.1/2019 is allowed. Delay of 43 days in filing MFA No.5121/2019 is condoned. Appeals are taken up for final disposal.
These are the two appeals directed against the Judgment and award dated 30.01.2019 passed in MVC No.105/2018 by the learned II Additional Senior Civil Judge, MACT, Chikkamagaluru, wherein claim petition came to be allowed in part and compensation of Rs.33,44,000/- in proportion i.e., 30:30:30:10 respectively with interest at the rate of 8% p.a. from the date of petition till the date of payment came to be granted to the petitioners –dependants of victim of road traffic accident dated 05.08.2017.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the Tribunal.
3. MFA No.2098/2019 is by the insurance company contending that the compensation granted is excessive and liable to be reduced. MFA 5121/2019 is by claimants seeking enhancement of compensation.
4. The details pertaining the road traffic accident are that on 05.08.2017 at about 11.55 A.M. Mohammad Rafeeq @ Babula was standing by the side of divider on Dantaramakki tank bund, Chikkamagaluru. At that time respondent No.1 the driver and owner of the jeep bearing registration No.KA-18-P-9817 drove the said vehicle in a rash and negligent manner and dashed against Mohammad Rafeeq because of which said Mohammad Rafeeq sustained serious injuries and succumbed to them. The dependents of Mohammad Rafeeq are the claimants who stated that they have spent Rs.50,000/- towards funeral expenses and it is stated that said Rafeeq was a Mason and earning more than Rs.800/- per day.
5. The learned Member granted compensation under various heads as under:
SL.NO. DESCRIPTION AMOUNT 1. Loss of estate (850x30=25,500- 1/3=8,500=17,000x12= 2,04,000x16) Rs.32,64,000/-
2. Love and affection Rs. 50,000/-
3. Transportation charges Rs. 5,000/-
4. Cremation and obsequies Rs. 25,000/- Total Rs.33,44,000/-
6. Sri B.C.Shivanne Gowda, learned counsel for insurance company would submit that the compensation granted is excessive and unreasonably on the higher side. Monthly income ought not to have been assessed at Rs.25,500/- and rate of interest granted at 8% p.a. is exorbitant.
7. Sri K.Venkate Gowda, learned counsel for the claimants would submit that the compensation granted by the learned Member is unreasonably on the lower side as the learned Member has not considered future prospects and also deduction in respect of personal and living expenses is erroneously considered at 1/3rd. In the circumstances of the case it should have been considered at 1/4th.
8. The claimant was stated to be a Mason and earning Rs.800/- per day. If it is taken at that rate it comes up to Rs.24,000/- per month considering 30 days with work and labour. It is also to be reckoned though the prescribed labour for an employee doing coolie work under certain Government Scheme is around Rs.300/- per day. In case of a skilled person be it a painter or mason a minimum of Rs.600/- per month appears to be just and proper.
9. Learned counsel for the insurance company would submit that there has been inconsistency in addressing the occupation as it is stated Mason at one place and Painter on the other. Regard being had to the fact that Mohammad Rafeeq was working and there are no allegation against him of vices and the related.
10. In the context and circumstances of the case I find that the learned Member rightly allowed the claim petition in part but erred in assessing the same as the compensation granted is on the lower side. It deserves to be enhanced.
11. It is necessary to analyze that after considering the monthly income at Rs.25,500/- 1/3rd is deducted for personal and living expenses. The deceased was stated to be married at the time of his death and aged 35 years. Consideration of future prospects is not seen in the Judgment. It is necessary to place on record that the future prospects are considered on the basis of reasonable expectancy of contribution of income for livelihood of the family as the name suggest the dependents depend on it and in case of untimely death as a unique feature of social justice compensation is considered and granted on the ground of future prospects.
12. This is subject to various yardsticks depending on the age. With all that, consideration of monthly income at Rs.25,500/- appears to be excessive and it is just and reasonable to trim it down to Rs.18,000/-.
In the present case age of Mohammad Rafeeq on the date of death is 35 years as such being a person self employed as Mason or Painter as the case may be an amount equivalent to 40% as future prospects of the monthly income invariably is applicable. Thus, when the monthly income is considered at Rs.18,000/- in place of Rs.22,500/- and deduction for personal and living expenses it is proper to be deducted at 1/4th considering the deceased has left behind five dependants. Compensation towards loss of estate would be 40% of 18,000+7,200=25,200/-
25,200-1/4=6,300=25,200-6,300 18,900x12=2,26,800x16 = 36,28,800/-
13. Insofar as compensation under conventional heads is granted at Rs.80,000/- which ought to have been at Rs.70,000/-. Thus, (Rs.36,28,800+70,000) Rs.36,98,800/- appears to be just and fair compensation. Enhancement would be Rs.36,98,800- Rs.33,44,000=Rs.3,54,800/-.
Thus, MFA No.2098/2019 preferred by the insurance company fails and it is rejected. However MFA No.5121/2019 preferred by claimants is allowed in part as enhancement in compensation is made to the extent of Rs.3,54,800/- with interest at 8% p.a. Judgment and award dated 30.01.2019 passed in MVC No.105/2018 by the II Additional Senior Civil Judge and MACT, Chikkamagaluru is modified to that extent.
Insurance company is hereby directed to pay the balance compensation amount including enhanced compensation together with interest at the rate of 8% p.a. from the date of petition till realization within four weeks from the date of receipt of certified copy of this order.
Amount in deposit if any be transmitted to the Tribunal.
Sd/- JUDGE SBN