Partly allowed

Mahadevi W/O Bamanna Fulari v. Ahmed Hussain and Anr.

Karnataka HC18 Oct 2021MFA/200771/2019

Case brief

AI extract

What is this about?

The High Court considered two cross-appeals regarding a motor accident claim. Modifying the Tribunal's order, the Court reduced the calculated notional income based on state charts and the age per the post-mortem report. Consequently, it reduced compensation under loss of dependency and fixed conventional heads, dismissing the claimant's appeal and partially allowing the insurer's appeal.

What did the court decide?

Order of the Tribunal modified; insurance company directed to deposit reduced compensation amount Rs. 3,70,000 with interest.

Mahadevi W/O Bamanna Fulari Vs Ahmed Hussain and Anr. — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 18^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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MFA.No.200771/2019 (MV)

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C/W

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MFA.NO.202418/2018 (MV)

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IN MFA.No.200771/2019

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Between:

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Mahadevi w/o Bamanna Fulari Age: 53 Years Occ: Household work R/o: Jevaragi

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Now residing at Kannur Tq: & Dist: Vijayapura-586 101.

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... Appellant

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(By Sri Koujalagi Chandrakant Laxman, Advocate)

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And:

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Ahmed Hussain s/o Moinuddin Sagari Age: Major Occ: Business and owner of the Truck No.KA-39-4674 R/o: 10/3/87/1 Noorani Mohella Razvi road, Aland

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Dist: Gulabarga-585 107.

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The Branch Manager National Insurance Co. Ltd., S. S. Front Road, Vijayapura-586 101. ... Respondents

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(By Smt. Preeti Patil, Advocate for R2; R1 served)

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This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 praying to modify the judgment and award dated 27.07.2018 passed in MVC.No.1083/2016 on the file of Court of the Principle Senior Civil Judge and CJM and Motor Accident Claim Tribunal No.V, Vijayapura At Vijayapura and allow this appeal to grant the compensation amount Rs.14,54,960/only as claimed by the Appellant Before this Court and etc.,

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IN MFA.No.202418/2018

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Between:

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The Branch Manager National Ins. Co. Ltd., S.S. Front Road, Vijayapura (Now represented by authorized Signatory, Hubli)

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... Appellant

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(By Smt. Preeti Patil, Advocate)

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And:

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Mahadevi w/o Bamanna Fulari Age: 52 Years Occ: Household work R/o: Jevaragi, Now residing @ Kannur Tq & Dist: Vijayapura-586 101.

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Ahmedhussain s/o Moinuddin Sagari

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Age: Major Occ: Business & Truck owner R/o: 10/3/87/1 Noorani Mohalla Razvi ROad, Aland Dist: Kalaburagi-585 101.

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... Respondents

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(By Sri. Koujalagi Chandrakant, Advocate for R1; R2 served)

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This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 praying to allow the above appeal by setting aside the impugned judgment and award dated 27.07.2018 in MVC.No.1083/2016 passed by the Prl. Senior Civil Judge and CJM and Motor Accident Claims Tribunal No.V at Vijayapura.

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These appeals coming on for Admission this day, the Court delivered the following:-

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JUDGMENT

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MFA No.200771/2019 is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988 (for short 'M.V.Act') while MFA No.202418/2018 is filed by the insurance company under Section 173(1) of the M.V.Act aggrieved by the judgment and order dated 25.07.2018 passed in MVC No.1083/2016 on the file of Principal Senior

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Civil Judge (CJM) and Motor Accident Claims Tribunal No.V at Vijayapur (for short 'Tribunal').

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Facts leading up to filing of the present appeal in brief are that, on 27.07.2014, at about 5.00 p.m., deceased Bamanna Fulari was proceeding by walk near the land belonging to one Vidyachand, situated at Akkalkot to Jeur road, at that time, a lorry bearing registration No.KA39/4674 driven by its driver in a rash and negligent manner, came from backside and dashed the deceased by causing the accident. Due to the impact, deceased sustained severe injuries and succumbed to the same.

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Thereupon, the claimant being the wife of the deceased filed a claim petition under Section 166 of the M.V.Act seeking compensation on the grounds that the deceased was aged about 55 years and was earning `15,000/- per month doing coolie work; that the deceased was the only earning member of the family and was contributing his earning to the maintenance of the family and that the untimely death of the deceased has caused

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financial and emotional distress to the family hence, sought for compensation.

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On service of notice, respondent Nos.1 and 2 have appeared through their respective counsel and filed written statement. Respondent No.1 in the written statement denied the petition averments, age, income and occupation of the deceased. It is contended the compensation claimed was baseless and imaginary one. It was further contended that the vehicle was insured with the respondent No.2 and the policy was valid on the date of the accident and the liability, if any, has to be fastened on respondent No.2 - insurance company. Hence, sought for dismissal of the claim petition.

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Respondent No.2 filed written statement and

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while denying the petition averments contended that the deceased was the resident of Maharashtra and accident has taken place in Solapur district and that the respondent is the resident of Kalaburagi, as such raised the issue with regard to the jurisdiction. It however admitted that the

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vehicle in question was insured with it. It denied the age, income and occupation of the deceased. It is further contended that the accident in question was caused not on account of the negligent driving of the driver of the offending vehicle. It denied that the proximate of cause of death of the deceased was on account of the accident. It is further contended that the liability of the insurance company is subject to the terms and conditions of the insurance policy. Hence, sought for dismissal of the claim petition.

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Based on the pleadings of the parties, the Tribunal framed issues and recorded evidence. The claimant being the wife of the deceased examined herself as PW.1 and exhibited four documents marked as Exs.P1 to P4. No witness has been examined on behalf of the respondent - insurance company except marking the insurance policy as Ex.R1.

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On evaluation of evidence, the Tribunal held

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that the accident in question had occurred due to rash and

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negligent driving by the driver of the offending vehicle, resulting in death of the deceased. Consequently, held that the claimant being the widow of the deceased entitled for total compensation of `5,45,040/- together with interest at 9% per annum and directed the respondent No.2 to deposit the compensation amount within a period of 30 days from the date of the order. Aggrieved by the same, the claimant is before this Court seeking enhancement of the compensation while the insurance company is before this Court seeking reduction of compensation.

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8. The learned counsel for the appellant/claimant

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reiterating the grounds urged in the appeal memorandum submitted that the deceased was earning 15,000/- per month from his coolie work. However, the Tribunal has erred in assessing the notional income of the deceased at 8,000/- per month. He further submitted that the grant of compensation towards loss of dependency, loss of estate, loss of consortium and funeral expenses was on the

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lower side and same require enhancement. He submitted that the age of the deceased being 55 years at the time of the accident, addition of 10% needs to be given towards future prospects in terms of the law laid down by the Apex Court in the case of NATIONAL INSURANCE COMPANY LTD. VS. PRANAY SETHI [(2017) 16 SCC 680]. Hence, he seeks for allowing of the appeal by enhancing the compensation.

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On the other hand, the learned counsel for the appellant - insurance company reiterating the grounds urged in the appeal memorandum contended that though it is claimed by the claimant that the deceased was earning `15,000/- per month, no acceptable material evidence is placed regarding his income. Referring to the postmortem report at Ex.P4, learned counsel for the appellant submitted that the age of the deceased has taken note in Ex.P4 is 69 years and the claimant has not produced any document to justify the age of the deceased being 55 years. Hence, the age of the deceased is to be taken as

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69 years and no addition under the head of future prospects required to be granted. She further submitted that the interest granted at 9% is on the higher side and same has to be reduced to 6%. She also submitted that grant of compensation under the conventional heads is on the higher side and contrary to the law laid down by the Apex Court. Hence, she seeks for reduction of the compensation.

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Heard the learned counsel for the parties and perused the records.

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The only question that arises for consideration

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is:

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"Whether the claimant has made out a case for enhancement of compensation and whether the insurance company has made out a case for reduction of compensation granted by the Tribunal?"

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The accident in question resulting in death of the deceased is not in dispute. The FIR at Ex.P1, spot

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panchanama and the charge sheet at Exs.P2 and P3 evidenced the fact of accident resulting in death of the deceased. The postmortem report at Ex.P4 reveals that the death of the deceased was on account of the injuries sustained in the road traffic accident. Though, it is contended on behalf of the claimant that the deceased being a coolie was earning 15,000/- per month, no material evidence has been produced to justify the said claim. The Tribunal however has assessed the notional income of the deceased at 8,000/- per month. This Court in the absence of any evidence with regard to the income of the road traffic accident victims takes into consideration the chart prepared by the Karnataka State Legal Services Authority. As per the chart, the notional income of the victim of the road traffic accident for the year 2014 is assessed at `7,500/- per month. Even in the instant case, accident occurred on 27.07.2014 and the deceased who was working as a coolie, not having produced any document with regard to the income, this Court is of the considered view that the notional income of the deceased

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needs to be reassessed at 7,500/-. The Tribunal has deducted 1/3<sup>rd</sup> of the income towards personal and living expenses of the deceased. The same is maintained as just and proper considering the facts and circumstances of the matter. Though it is contended on behalf of the claimant that the deceased was aged about 59 years at the time of the accident requiring 10% addition towards future prospects thereof, no material is produced with regard to the age of the deceased. As observed by the Tribunal in paragraph No.21 of the impugned judgment, the postmortem report at Ex.P4 discloses the age of the deceased as 69 years. In the absence of any contra material, the said age as mentioned in Ex.P4 needs to be taken as correct. Thus, taking the age of the deceased as 69 years, there may not be any scope for adding any future prospects. The proper multiplier applicable is ‘5’. Thus, the calculation of loss of dependency would be 3,00,000/- (7,500x12x5x2/3^rd ).

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In terms of the law laid down by the Apex

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Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED VERSUS NANU RAM ALIAS CHUHRU RAM AND OTHERS [2018) 18 SCC 130] which clarified in the subsequent judgment of the Apex Court in the case of UNITED INDIA INSURANCE CO. LTD., VS. SATINDER KAUR @ SATWINDER KAUR & ORS. [2020 SCC ONLINE SC 410], the claimant being the widow is entitled for 40,000/- towards spousal consortium and loss of love and affection, 15,000/towards loss of estate and 15,000/- towards funeral expenses. Thus, the claimant is entitle to total compensation of 3,70,000/- instead of `5,45,040/- as follows:

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Heads	By Tribunal	By this Court
Loss of dependency	`3,20,040/-	`3,00,000/-
Loss of estate	`1,00,000/-	`15,000/-
Spousal consortium	`1,00,000/-	`40,000/-
Funeral expenses	`25,000/-	`15,000/-
Total	`5,45,040/-	`3,70,000/-

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Considering the facts and circumstances of the case that the claimant being the widow not having any other support having lost her only earning member of the family, this Court is of the considered view that the interest awarded at 9% by the Tribunal be maintained as just and proper. Thus, the claimant is entitled to interest at 9% per annum on the reduced compensation as above.

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In the result, the appeal filed by the claimant is dismissed and the appeal filed by the insurance company is partly allowed. Order of the Tribunal is modified to that extent.

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The insurance company is directed to deposit the award amount within six weeks from the date of receipt of a certified copy of this judgment.

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The amount in deposit is ordered to be transmitted to the Tribunal. The difference amount, if any, shall be adjusted before the Tribunal.

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Sd/JUDGE

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Srt

Mahadevi W/O Bamanna Fulari v. Ahmed Hussain and Anr.

Case brief

What is this about?

What did the court decide?

Mahadevi W/O Bamanna Fulari v. Ahmed Hussain and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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