Allowed

Ashok S/O. Holiyappa Hadapad v. Mohamad Moosa S/O. Mohamad Imamsab

Karnataka HC23 Aug 2019MFA/102018/2015

Case brief

AI extract

What is this about?

High Court modified the Motor Accident Claims Tribunal's award in a mercantile vehicle accident case. The court enhanced compensation from Rs.6.32 lakh to Rs.15.28 lakh, directing 75% of the amount into fixed deposit for the minor child, acknowledging the deceased's potential earning capacity and dependency.

What did the court decide?

Judgment and award modified; compensation enhanced to Rs.15,28,000 with interest; 75% deposited in fixed deposit for the child.

Ashok S/O. Holiyappa Hadapad Vs Mohamad Moosa S/O… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF AUGUST 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MISCELLANEOUS FIRST APPEAL NO 102018 OF 2015 (M.V)

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BETWEEN

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ASHOK S/O. HOLIYAPPA HADAPAD, AGE: 33 YEARS, OCC: I. R. B. FOLLOWER POLICE DEPARTMENT, R/O. HOSALLI, TQ & DIST: KOPPAL

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KUMAR SRINIVAS S/O. ASHOK HADAPAD, AGE: 05 YEARS, MINOR, U/G OF HIS NATURAL FATHER PETITIONER NO.1, R/O. HOSALLI, TQ & DIST: KOPPAL

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... APPELLANTS

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(BY SRI. M. AMARE GOUDA, ADVOCATE)

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AND

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MOHAMAD MOOSA S/O. MOHAMAD IMAMSAB, AGE: 28 YEARS, OCC: DRIVER OF MAXI CAB BEARING NO. KA-06/B-4099 R/O. HANASI, TQ: KUDALAGI, DIST: BALLARI.

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T. VIJAYALAXMI W/O. T. SHANTAKUMAR AGE: 32 YEARS,

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OCC: OWNER OF MAXI CAB, BEARING NO. KA-06/B-4099, R/O. NEAR KAMALA TEMPLE, 1^ST WARD, CHITTAWADGI, HOSPET, DIST: BALLARI.

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THE MANAGER, IFFCO TOKIO GENERAL INSURANCE CO. LTD., SUDEV PLAZA, 3^RD FLOOR, OPP. SHRILAXMI TEMPLE, DAJIBAN PET, HUBLI – 580029.

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... RESPONDENTS

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(BY SRI. V S KALASURMATH, ADVOCATE FOR R1; SRI. GURUBASAVARAJ S. M. ADV., FOR R2; SRI. RAVINDRA R MANE, ADV., FOR R3)

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THIS M.F.A. IS FILED U/S 173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED 19.12.2014 PASSED IN MVC NO.330/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL, KOPPAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

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Though this appeal is listed for hearing on interim application filed for sending the Lower Court Records to the Tribunal, with the consent of both the counsel, heard finally.

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This appeal is filed by the claimants

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assailing the judgment and award dated 19.12.2014 in MVC No. 330/2013 passed by the Senior Civil Judge and Member Additional Motor Accident Claims Tribunal, Koppal (hereinafter referred to as “the Tribunal” for short).

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Heard the counsel for the appellants as well

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as the counsel for respondent/insurer.

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The rankings of the parties before the Tribunal are retained for the sake of convenience.

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The claimants had filed petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act” for short) claiming compensation of Rs.18,80,000/-, interalia contending that on 21.07.2013, the 1^st claimant was proceeding on his motorcycle bearing Reg.No.KA-29/V-0816 along with his wife Smt. Saroja and his son Srinivas from Hosahalli to Koppal and when he came near Vaishnavi

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Petrol Bunk, the children of his brother were standing nearby the side of the road divider, as such he intended to stop his motorcycle to have a talk with them, at that time at about 11.30 a.m., the 1^st respondent, being the driver of the Maxi Cab bearing Reg.No.KA-06/B-4099 came from Hosahalli in a high speed, with a rash and negligent manner, so as to endanger human life and dashed behind the motorcycle of the claimants. Due to the said impact, the wife of the 1^st claimant, Smt. Saroja, sustained grievous injuries and succumbed to the injuries in the hospital, while taking treatment. Due to her death, the 1^st claimant lost his wife and the 2^nd claimant lost his mother. It is the contention of the claimants that the deceased had obtained her decree in D.Ed., and had also completed her typewriting and shorthand examinations apart from teacher’s training. The deceased had also filed an application for getting job under compensatory ground due to the death of her father, but due to her untimely death, the claimants

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have lost the dependency. Hence, prayed for award of compensation.

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In pursuance to the notice, respondent No.1 and 2 appeared before the Tribunal. The 1^st respondent resisted the claim petition by filing objection and denying the averments made in the petition as false. However, he contended that the vehicle was duly insured with the 3^rd respondent and if any liability is there, the same shall be fastened on the 3^rd respondent. Hence, prayed for dismissing the claim petition.

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The averments made in the claim petition, including the rash and negligent driving, though denied by the insurer but has admitted issuance of policy. The insurer has contended that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of the accident and therefore, no liability shall be fixed on the respondent/insurer. Hence, prayed for dismissal of the claim petition.

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8. Based on the rival contentions of the parties,

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the Tribunal framed the following:-

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ISSUES

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1) Whether the petitioners prove that Saroja died in the motor vehicle accident on 21/07/2013 at about 11-30 a.m., on Kushtagi-Hospet NH-13, opposite to Vaishnavi P.B. Hitnal village, Tq:Koppal due to rash and negligent driving of the Maxicab bearing No.KA-06/B-4099 by respondent No.1?

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2) Whether the respondent No.3 proves that the driver of the offending vehicle was not having effective and valid driving license as on the date of accident?

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3) Whether the petitioners are entitled for compensation? If so, how much and from whom?

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4) What order or award?

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To substantiate the contentions of the

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claimants before the Tribunal, claimant No.1 got examined himself as P.W.1 and got marked 30 documents as Ex.P-1 to Ex.P-30. The respondents have

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not led any evidence on their behalf either oral or documentary. Upon considering the evidence on record, the Tribunal answered Issue No.1 in the affirmative, Issue No.2 in the negative as against insurer and allowed the petition in part and awarded the compensation of Rs.6,32,000/- with interest @ 6% per annum, as under:-

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HEADS	AMOUNT IN RUPEES
Loss of dependency	6,12,000-00
Loss of love and affection	10,000-00
(Rs.5000X2)
Loss of consortium	5,000-00
Funeral and transport expenses	5,000-00
Total	6,32,000-00

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Assailing the judgment and award passed by

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the Tribunal, the claimants have filed this appeal for enhancement of compensation. The learned counsel for appellants/claimants has contended that the deceased had completed her D.Ed. degree and apart from it she

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had also completed her typewriting and shorthand examinations. It is contended that the deceased was working in a computer centre and was earning Rs.10,000/- per month, but the Tribunal without assigning any reasons has considered the notional income @ Rs.4,500/- per month, which is very meager. He has also contended that the Tribunal has awarded only Rs.10,000/- towards loss of love and affection, Rs.5,000/- towards loss of consortium and Rs. 5,000/towards funeral and transportation expenses, which is very meager. He has further contended that the Tribunal has not awarded any amount towards future prospects, which is required to be considered as per the decision of the Hon’ble Apex Court in the case of National Insurance Company v. Pranay Sethi, reported in 2017 ACJ 2700 and also another decision of the Hon’ble Apex Court in the case of Magma General Insurance Company v. Nanuram and

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others , reported in 2018 ACJ 2782 and prayed for enhancement of the compensation.

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Per contra, the learned counsel for the

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insurer, in his arguments, supported the judgment and award passed by the Tribunal and though supported the documents produced by the claimants but has contended that the deceased was not at all working or earning any income as on the date of the accident. Therefore, she cannot be considered as working woman and earning any income and has contended that the 1^st claimant, being the husband of the deceased/wife, was not at all depending on the deceased/wife. Such being the case, deducting only 1/3^rd of income towards her personal expenses is not correct and the Tribunal ought to have deducted 50% of the income towards personal expenses of the deceased. Hence prayed for dismissing the appeal and sought for reduction of compensation awarded by the Tribunal by deducting only 1/3^rd instead of 50% of the income towards the personal

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expenses of the deceased. Hence, prayed for dismissal of the appeal.

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On hearing the arguments of the learned

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counsel appearing for both the parties, the points that arise for consideration in this appeal are:

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1. Whether the Tribunal is not justified in awarding compensation of Rs.6,32,000/which requires enhancement?

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2. What order?

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The claimants have established the factum

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of accident occurred on 21.07.2013 when claimant No.1 and the deceased were proceeding on their motorcycle bearing registration No.KA-29/V-0816 and when they reached near Vaishnavi Petrol Bunk, the driver of vehicle bearing registration No.KA-06/B-4099 came in a rash and negligent manner and dashed behind the motorcycle of the petitioner due to which Saroja-wife of the first claimant died. The only controversy in this

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appeal is with respect to the quantum of compensation awarded by the Tribunal.

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Admittedly, the respondents have not let-in

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any evidence. The claimants have produced Ex.P-11 to P-14-certificates of Bachelor of Arts, Exs.P15 and 16 are the provisional certificates of passing Degree, Exs.P-17 and 18 are passing marks of B.Ed degree for teacher training and Ex.P-19 to 25 are the marks card for having completed typing and shorthand examination and pre primary teachers education examination and Exs.P-27 to P-30 are the certificates which shows that the deceased was meritorious. All these documents shows that though the deceased had completed B.A. B.Ed., teacher’s training as well as typing and shorthand, she had very good scope for securing job. Apart from the above qualifications, she had also undergone training in beauty parlour and computer course. Therefore, the contention of the learned counsel for the respondent that notional income of the deceased

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shall have to be considered as an unskilled labour, cannot be acceptable, as she cannot be compared with any unskilled labour as she would have been eligible for appointment as a teacher or would have secured a government job as a typist or as a stenographer or would have started her own beauty parlour business. Therefore, considering the potentiality of the deceased Saroja and as per the submission, the deceased might have secured job on compassionate ground due to the death of her father. Though documents are not produced, the potentiality of the deceased clearly go to show that she was having good future. Therefore, I propose to consider Rs.10,000/- per months as the income of the deceased. As per Pranay Sethi’s case (supra) 40% of the income shall be considered towards future prospects of the deceased which works out to Rs.14,000/- per month.

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Learned counsel for the respondent

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submitted that the first appellant being the husband is

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working and he is not dependant on the deceased-wife and the second claimant is a child aged 3 years alone is considered as dependant of the deceased. There is some force in the arguments of the learned counsel for the respondent-insurer. The first claimant being the husband aged about 31 years is said to be working in Police Department and is a earning member. Therefore, he cannot be said to be dependent on the deceased-wife.

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Learned counsel for the appellant placed reliance on Judgment of the Hon’ble Supreme Court in the case of Jayakodi and Others v. Branch Manager, NIC Ltd and Another reported in CDJ 2009 SC 269 wherein it is held that the Court has power to reassess the compensation. Therefore, the first claimant being the husband cannot be considered as a dependent on the deceased. The second claimant who is the son of the deceased and the appellant No.1 alone is considered as a dependent. Therefore, I propose to deduct 50% of the income towards personal expenses of the deceased

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which comes to Rs.14,28,000/(7,000x12x17

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multiplier=Rs.14,28,000/-) towards loss of dependency.

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Division Bench of this Court in MFA No.22823 of

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2011 has considered that when there is one dependent, 50% of the income shall have to be deducted towards personal expenses of the deceased. Therefore, I propose to deduct 50% of the income towards personal expenses of the deceased. As per the judgment of the Hon’ble Apex Court in Pranay Sethi’s case, first claimant is entitled for a sum of Rs.40,000/ towards loss of consortium and the second claimant is entitled to Rs.30,000/- towards loss of parental consortium. As per Magma’s case the claimants are entitled to a sum of Rs.15,000/- towards loss of estate and a sum of Rs.15,000/towards funeral and transportation expenses. In all, the re-assessed compensation is as under:

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Rs.

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Loss ofdependency	14,28,000/-
Loss ofconsortium	40,000/-
Loss of parental consortium	30,000/-
to second claimant
Loss ofestate	15,000/-
Transportation and funeral expenses	15,000/-
Total	15,28,000/-

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Accordingly, the appeal filed by the

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appellants-claimants is hereby allowed in part. The judgment and award dated 19.12.2014 passed by the Senior Civil Judge and Addl. MACT, Koppal in MVC No.330 of 2013 is hereby modified. The appellantsclaimants are entitled to reassessed compensation of Rs.15,28,000/- as against Rs.6,32,000/- awarded by the Tribunal with interest at 6% per annum from the date of petition till realization. The insurance company is directed to pay the reassessed compensation within

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four weeks from the date of receipt of a copy of this judgment. Out of the reassessed compensation, 75% of compensation along with interest shall be deposited in the name of the child in fixed deposit in any Nationalized bank till he attains majority and remaining 25% of the amount is ordered to be released in favour of the first claimant.

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In view of disposal of the main appeal itself, I.A.1 of 2019 is allowed. Office is directed to transmit the

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LCR to the Tribunal concerned.

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Sd/JUDGE

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yan kmv para12 to end

Ashok S/O. Holiyappa Hadapad v. Mohamad Moosa S/O. Mohamad Imamsab

Case brief

What is this about?

What did the court decide?

Ashok S/O. Holiyappa Hadapad v. Mohamad Moosa S/O. Mohamad Imamsab

Case brief

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