Dismissed

Sri Syed Swaleha Shareef v. the General Manager

Karnataka HC6 Jun 2012MFA/4719/2009

Case brief

AI extract

What is this about?

The single judge dismissed an appeal against the compensation order in a motor accident claim. The Court upheld the Tribunal's exclusion of loss of dependency and finding that the Section 140 statutory compensation was adequate, allowing only a marginal total compensation without enhancement.

What did the court decide?

The Miscellaneous First Appeal was dismissed as there was no merit in enhancing the compensation awarded by the Tribunal.

Sri Syed Swaleha Shareef Vs the General Manager — Medical Negligence | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 6^TH DAY OF JUNE 2012

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BEFORE

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THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA

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MISCELLANEOUS FIRST APPEAL No.4719/2009 (MV)

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BETWEEN:

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Sri Syed Swaleha Shareef, S/o. Syed Salar, Aged about 50 years, 6^th Cross, Near Masjid, Vinobanagar, Tumkur – 572101. 2. Sri Syed Ejaz Ahmed, S/o. Late Syed Salar, Aged about 40 years, 6^th Cross, Near Masjid, Vinobanagar, Tumkur – 572101.

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Smt. Zajirunnisa, D/o. Late Syed Salar Sahib, Aged about 55 years, R/o. MIG 2^nd , D.No.37, K.M.Palya, Sira Gate, KHB, Tumkur. 4. Smt. Sadiqunnisa, W/o. Sri Rafiq Ahamed, Aged about 50 years, Resident of P.H.Colony, Tumkur. ...Appellants (By Shri K.R.Ramesh, Advocate)

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The General Manager, K.S.R.T.C. (Bangalore Metropolitan Transport Corporation Ltd.), Bangalore – 560025. …Respondent

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(By Shri K.Nagaraj, Advocate)

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This Miscellaneous First Appeal is filed under Section 173(1)of Motor Vehicles Act against the judgment and award dated 11.07.2008 passed in M.V.C.No.2/2004 on the file of Fast Track Court No.V and Additional Motor Accident Claims Tribunal at Tumkur, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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This Miscellaneous First Appeal coming for orders on this day, the Court delivered the following: -

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JUDGMENT

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By the consent of both the parties, the matter is heard on

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merits.

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The appellants were claimants before the Tribunal. They filed claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the death of their mother Smt.Jubedunnisa, who said to have died in the road

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traffic accident, which occurred on 07.07.2003. According to the claimants, the accident was due to the negligence on the part of the driver of the B.M.T.C. bus bearing registration No.KA25-F-760. The respondent – B.M.T.C. contested the petition. On assessment of oral and documentary evidence, the Tribunal after answering the issue regarding actionable negligence in the affirmative in favour of the claimants, holding that Smt.Jubedunnisa died on account of the injuries sustained by her in the motor vehicle accident that occurred on 05.07.2003 due to the rash and negligent driving of the bus by its driver, quantified the compensation payable at Rs.78,000/- and directed the respondent to pay the said amount with interest at 6% per annum from the date of petition till the date of payment. Dissatisfied with the quantum of compensation, the claimants are in appeal before this Court. It appears, during the pendency of the claim petition, the 1^st claimant who was the husband of the deceased also died.

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I have heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. Perused the judgment under appeal.

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The respondent has not assailed the finding recorded by the Tribunal regarding the occurrence of the accident as a result of the negligence on the part of the driver of the bus. The Tribunal while computing the compensation has held that since all the claimants are major children of the deceased, aged more than 35 years, they were not dependents on the deceased, as such they are not entitled for any compensation under the head of loss of dependency. However, the Tribunal held that the claimants are entitled for compensation of Rs.50,000/- as provided by Section 140 of the Motor Vehicles Act and in addition, they are also entitled for compensation of Rs.20,000/- towards loss of love and affection and sum of Rs.8,000/- towards transportation of dead body and funeral expenses. Thus, the Tribunal awarded total compensation of Rs.78,000/-.

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As could be seen from the cause title found in the

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judgment under appeal, the 4^th claimant – Zajirunnisa (3^rd petitioner herein) is shown as the daughter of the deceased and her age is shown as 50 years as on the date of the petition. As could be seen from the award, the petition was presented on 01.01.2004 in respect of the accident that occurred on 07.07.2003. Therefore, the age of the deceased shown as 55 years in the claim petition cannot be accepted. No doubt, in the postmortem report – Ex.P-5 the age of the deceased is shown as 55 years. However, it is only an estimate made by Medical Officer. The claimants themselves on their own have shown the age of the eldest daughter of the deceased as 50 years. Therefore, the age of the deceased as on the date of her death could be safely taken as more than 65 years. Admittedly, all the children of the deceased were majors. The deceased was stated to be a housewife. Therefore, the Tribunal is justified in holding that the claimants were not depending on the deceased, as such they are not entitled for compensation under the head of loss of dependency.

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The learned counsel for the appellants contended that though the claimants were not entitled for compensation under the head loss of dependency, they were entitled for compensation under the head loss of estate. There is some force in this contention. However, the compensation of Rs.50,000/awarded in this case under Section 140 of the Motor Vehicles Act would take care of the compensation that may be payable in the petition under Section 166 of the Motor Vehicles Act, where the claimants are not dependants on the deceased. As held by the Division Bench of this Court in the case of A.Manavalagan Vs. A.Krishnamurthy and others reported in ILR 2004 KAR 3268 the claimants are entitled for compensation under the loss of estate by assessing the probable savings that the deceased would have been made out from her earning. In the case on hand, even according to the claimants, the deceased was a housewife and she was aged about more than 65 years. Even if her services to the family is quantified in terms of money with a reasonable figure at about Rs.80/- to Rs.100/- and if her savings is taken as 30% to 40% on her

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monetary determinations of her services to the family, having regard to the multiplier applicable as per Sarla Verma and others Vs. Delhi Transport Corporation and another’s case reported in 2009 ACJ 1298 (SC) , the compensation payable under the loss of estate would not exceed Rs.50,000/- awarded by the Tribunal under Section 140 of the Motor Vehicles Act. The award of Rs.20,000/- towards loss of love and affection is just and reasonable and it does not call for enhancement. Similarly, the award of Rs.8,000/- towards transportation of dead body and funeral expenses is just and proper.

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Having regard to the above discussions, I am of the

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opinion that the compensation awarded by the Tribunal is just and proper, having regard to the facts and circumstances of the case and it does not call for enhancement by this Court. Therefore, there is no merit in this appeal.

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Accordingly, the appeal is dismissed.

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SD/-] JUDGE

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Rsh

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Sri Syed Swaleha Shareef v. the General Manager

Case brief

What is this about?

What did the court decide?

Sri Syed Swaleha Shareef v. the General Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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