Partly allowed

Francina Alxender Fernandis v. Shirajuddin Umachagi

Karnataka HC16 Apr 2021MFA/102696/2015

Case brief

AI extract

What is this about?

High Court of Karnataka allowed MFA No.102696 of 2016 partly, enhancing compensation from ₹11,55,000 to ₹23,34,000 by recalculating the deceased driver's monthly income and applying statutory multiplier for loss of dependency.

What did the court decide?

Claimants are entitled to total compensation of ₹23,34,000 against ₹11,55,000 awarded by the Tribunal with 6% interest.

Francina Alxender Fernandis Vs Shirajuddin Umachagi — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF APRIL, 2021

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PRESENT

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THE HONB’EL MR. JUSTICE SREENIVAS HARISH KUMAR

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AND

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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MISCELLANEOUS FIRST APPEAL NO.102696 of 2016

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Between:

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Francina Alexander Fernandis W/o Late Sri Alexander Joseph Fernandis Aged about 38 years Household

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Michele Alexander Fernandis D/o late Sri Alexander Joseph Fernandis Aged about 3 years Minor

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Alston Alexander Feernandis S/o late Sri Alexander Joseph Fernandis Aged about 2 years Minor

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(appellants No.2 and 3 are minors Represented by their next friend, natural guardian, mother Appellant No.1)

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all residents of PWD Circle, Court Road Sirsi

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…Appellants

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(by Smt. V. Vidya, Advocate)

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And:

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Shirajuddin Umachagi S/o Haji Tajuddin Age: Major R/a House No.874/A Badami Nagar Keshavpur Hubli

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Reliance General Insurance Co. Ltd. O/at CTS No.472-474, 5A Kalburgi Square Desai Cross Desphande Nagar Hubli

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…Respondents

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(by Shri Suresh S. Gundi, Advocate for R2)

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This MFA is filed under Section 173(1) of the Motor Vehicles Act, 1988 against the judgment and award dated 14.10.2014 passed in MVC No.68 of 2013 on the file of the Member, Additional Motor Accident Claims Tribunal, Sirsi partly allowing the claim petition for compensation and seeking enhancement of compensation.

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This MFA coming on for hearing, this day, INDIRESH, J., delivered the following:

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J U D G M E N T

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This appeal is preferred by the claimants in MVC No.68 of 2013 on the file of the Additional Motor Accident Claims Tribunal, Sirsi, (hereinafter referred to as ‘the Tribunal’) seeking enhancement of compensation.

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For the sake of convenience, the parties in this appeal are referred to with their status before the Tribunal.

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The averments in the claim petition are that the husband of the first claimant-Alexander Joseph Fernandis was driving Volvo Bus bearing Registration No.KA-25/C-7741 from Bangalore to Goa on 30^th November, 2012 and when the said bus reached Saralebail cross on Yellapur-Ankola Highway, a lorry bearing registration No.KA-32/B-195 dashed against it and as a result of the same, husband of the first claimant died on the spot. It is the case of the claimants that the husband of the first claimant died leaving behind two minor children and the claimants lost their bread earner in the family and as such they, filed MVC No.68 of 2013 on the file of the Tribunal and sought for compensation.

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The Respondent No.2-Insurance Company entered appearance and filed detailed written statement, denying the averments in the claim petition, however, admitted the policy coverage to the vehicle in question, subject to certain terms and conditions. The Tribunal, after considering the pleadings on record, framed issues for its consideration. The claimant No.1 got examined as PW1 and examined another independent witness as PW2. The claimants produced nine documents and same were marked as Exhibits P1 to P9. The respondentInsurance Company examined its Officer as RW1 and got marked one document as Exhibit R1. The Tribunal, after considering the material on record, by its judgment and award dated 14^th October, 2014, allowed the claim petition in part and ordered that the claimants are entitled to compensation of Rs.11,55,000/- with interest at 6% per annum from date of petition till realisation.

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Being not satisfied with the award of compensation made by the Tribunal, the claimants have preferred this appeal for enhancement of compensation.

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We have heard Smt. V. Vidya, learned counsel for the claimant/appellants and Shri Suresh S. Gundi, learned counsel appearing for the respondent-Insurance Company.

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Learned Counsel appearing for the claimant/appellants submitted that the deceased was a Driver in VRL Transport Company Ltd. and was receiving a monthly income of Rs.30,000/- with incentive. However, the Tribunal erred in taking income of the deceased at Rs.10,000/- per month. Therefore, she argued that the impugned award requires to be modified.

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Per contra, learned counsel appearing for the respondent-Insurance Company argued that the award made by the Tribunal is just and proper and it does not require any interference in this Appeal.

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We have carefully examined the finding recorded by the Tribunal and perused the records. It is not in dispute that the husband of the first claimant died in road traffic accident on 30^th November, 2012 on account of negligence on the part of driver of the offending vehicle. This appeal is filed seeking

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enhancement of compensation. The Tribunal, had taken the income of the deceased at Rs.10,000/- per month which requires to be reconsidered in this appeal.

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We have carefully considered the evidence of PW1claimant No.1 and PW2-Employer of the deceased. It is not disputed that the deceased was working as a driver in VRL Transport Company Ltd. and was specialized in driving Volvo Bus. Taking into consideration, the cross-examination of PW2 with regard to payment of incentive and the batta offered to the deceased, we are of the considered opinion that the income of the deceased would be Rs.15,000/- per month. The deceased was aged about 41 years as on the date of accident. In view of the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298, the appropriate multiplier applicable would be 14. As per the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. V. PRANAY SETHI AND OTHERS reported in 2017 AC 2700, 30% is to be added to the income towards

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future prospects. If the same is added, the monthly income of the deceased would come to Rs.19,500/- and same is accepted. Therefore, the claimants are entitled for loss of dependency of Rs.21,84,000/- (Rs.19,500/- x 12 x 14 x 2/3). The deceased died leaving behind three dependants. The claimants are entitled for Rs.1,20,000/- (Rs.40,000/- x 3) towards loss of consortium. The claimants are further entitled for Rs.15,000/each towards loss of estate and towards funeral expenses. Hence, in all, the claimants are entitled for total compensation of Rs.23,34,000/- as against Rs.11,55,000/- awarded by the Tribunal. The enhanced compensation shall carry interest at 6% per annum from the date of petition till realisation. The order of the Tribunal as regards apportionment and disbursement remains intact. Accordingly, appeal is allowed in part.

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Sd/JUDGE

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Sd/JUDGE

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lnn

Francina Alxender Fernandis v. Shirajuddin Umachagi

Case brief

What is this about?

What did the court decide?

Francina Alxender Fernandis v. Shirajuddin Umachagi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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