Partly allowed

Nagina v. Ganapathi

Karnataka HC5 Jan 2021MFA/3093/2017

Case brief

AI extract

What is this about?

This court partially allowed a first miscellaneous appeal filed by legal representatives against a Motor Vehicles Tribunal award. The court enhanced the compensation from Rs.6,22,490 to Rs.11,31,040 by adopting a higher notional income of Rs.9,500/month and a 1/4th deduction for living expenses.

What did the court decide?

The impugned judgment awarding Rs.6,22,490 is modified and enhanced to Rs.11,31,040, payable by the insurer with interest at 6% per annum.

Nagina Vs Ganapathi — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 05^TH DAY OF JANUARY 2021

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BEFORE

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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MISCELLANEOUS FIRST APPEAL NO.3093 OF 2017 (MV-D)

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BETWEEN:

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NAGINA W/O LATE MAHAMMED ZAKRIYA, AGED ABOUT 47 YEARS,

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AFSANA D/O LATE MAHAMMED ZAKRIYA, AGED ABOUT 24 YEARS,

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ASIF S/O LATE MAHAMMED ZAKRIYA, AGED ABOUT 22 YEARS,

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AJEEMA S/O LATE MAHAMMED ZAKRIYA, AGED ABOUT 23 YEARS

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ALL ARE RESIDING AT SHANTHINAGAR, 2^ND CROSS, KELADI ROAD, SAGAR TOWN, SAGAR TALUK-577401, SHIVAMOGGA DISTRICT.

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... APPELLANTS

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[BY SRI. PRUTHVI WODEYAR, ADVOCATE (THROUGH VC)]

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AND:

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GANAPATHI S/O KANNAPPA, AGED ABOUT 36 YEARS, R/O MALVE, SAGAR TALUK-577401, SHIVAMOGGA DISTRICT. DRIVER OF THE BAJAJ C.T. 100 BEARING REG.NO.KA-15/J.5255 DL.NO.KA.15201300007421 VALID FROM 06.11.2013 TO 31.12.2029

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RAMAPPA S/O BEERAPPA, AGED ABOUT 46 YEARS, R/O KAGODU, SAGAR TALUK-577401 SHIVAMOGGA DISTRICT OWNER OF THE BAJAJ C.T 100 BEARING REG.NO.KA-15/J.5255.

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THE DIVISIONAL MANAGER THE NATIONAL INSURANCE COMPANY LTD., HARSHA COMPLEX, B.H. ROAD, SAGAR-577401 SHIVAMOGGA DISTRICT POLICY NO.610600/31/09/6200019147 VALID FROM 23-4-2016 TO 12-01-2017

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… RESPONDENTS

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[BY SRI. A.M.VENKATESH, ADVOCATE FOR RESPONDENT NO.3 (THROUGH VC)]

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD 16.02.2017 PASSED IN MVC NO.761/2016 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE,

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SHIVAMOGGA, SITTING AT SAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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J U D G M E N T

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This is an appeal filed by the claimants seeking enhancement of compensation awarded by the V Additional District and Sessions Judge and Additional MACT., Shivamogga sitting at Sagar (henceforth referred to as ‘Tribunal’) in terms of the Judgment and Award dated 16.02.2017 in MVC No.761/2016.

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The parties shall henceforth be referred to as

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they were arrayed before the Tribunal.

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The claim petition discloses that the claimants are the legal representatives of one Mahammed Zakriya who died in a road accident on 11.06.2016. It is stated that the deceased was riding his moped on 11.06.2016 and when he reached Arabbi

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Madarasa, a bike bearing registration No.KA-15-J-5255 (hereinafter referred to as the ‘offending motor bike’) being ridden by its rider in a rash and negligent manner, dashed against the moped. As a result, the deceased fell down and sustained serious head injuries and was shifted to Nanjappa Hospital, Shivamogga, where he was administered first aid and then to Mangaluru Neuro Hospital, where the doctors advised the claimants that the condition of the deceased was precarious and advised them to take him back to home. Accordingly, the claimant took the deceased back on 12.06.2016, on which day he succumbed to the injuries. The claimants contended that they are all dependent on the deceased and the deceased was a business man and was earning a sum of Rs.15,000/per month and as a result of the untimely death of the deceased, they lost the love and affection of the deceased. They stated that the jurisdictional police have registered a case in Crime No.214/2016 against

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the rider of the offending motor bike for the offences punishable under Sections 279, 337 and 304(A) of IPC. The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of a sum of Rs.61,60,000/- from the owner and the insurer of the offending motor bike.

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The claim petition was contested by the owner and the rider of the offending motor bike. They admitted the accident but denied that the rider of the offending motor bike was negligent. The insurer of the offending motor bike denied the averments made in the claim petition and denied the relationship of the claimants with the deceased. It was contended that the accident occurred due to the rash and negligent riding of the moped by the deceased and that he did not possess a valid licence at the time of the accident. The insurer therefore, contended that the accident was solely due to the fault of the deceased and the rider of

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the offending motor bike was in no way responsible for the accident. Based on these contentions, the claim petition was set down for trial.

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Before the Tribunal, the claimant No.3 was

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examined as PW1 and marked documents as Exs.P1 to P15, while, the insurer marked Exs.R1 to R4 with consent but it did not examine any witness.

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The Tribunal based on Exs.P2, 3, 4, 5 and 7

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held that the rider of the offending motor bike was negligent and was responsible for the accident and thus, held the issue No.1 in favour of the claimants. In so far as the issue regarding the quantum of compensation payable to the claimants, the Tribunal noticed that the deceased was aged 55 years at the time of the accident. It also noticed that the deceased was not having any proof of avocation or income from his avocation and therefore, the Tribunal felt it appropriate to consider the notional income of the deceased at a

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sum of Rs.6,000/- per month. It also noticed that the deceased had left behind the claimants and deducted 1/3^rd towards personal expenses of the deceased and awarded the following compensation.

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Heads under which compensation awarded	Amount in Rupees
Loss of dependency	5,28,000
Medical bills	34,490
Loss of consortium	15,000
Love and affection	15,000
Loss of estate	15,000
Funeral and obsequies ceremony	10,000
Transportation of body	5,000
Total	6,22,490

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Feeling aggrieved by the quantum of

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compensation awarded by the Tribunal, the claimants are in appeal and contend that the notional income considered by the Tribunal is far less than what is considered by this Court in the matters referred to Lok Adalath. Learned counsel also contended that the Tribunal committed an error in deducting 1/3^rd of the

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notional income towards the personal expenses of the deceased as there were more than three dependents and as per the Judgment of the Apex Court in the case of

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National Insurance Company Limited Vs. Pranay Sethi reported in AIR 2017 SC 5157 , the Tribunal ought to have deducted 1/4^th towards living expenses of the deceased. The learned counsel also contended that the Tribunal failed to award compensation towards ‘loss of future prospects’ at the rate of 10% of the actual income of the deceased as per the Judgment of the Apex Court in the case of Pranay Sethi (supra) . He therefore, contended that the compensation awarded by the Tribunal deserves to be modified and enhanced.

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Per contra , the learned counsel for the

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insurer contended that the deceased was 55 years old at the time of his death and in the absence of any proof regarding his avocation as a business man, the Tribunal was justified in accepting the notional income of the

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deceased at a sum of Rs.6,000/- per month. The learned counsel also submitted that the claimant Nos.2, 3 and 4 who were all major by age and were said to be not dependent on the deceased and therefore, the Tribunal was justified in deducting 1/3^rd towards the living expenses of the deceased.

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This Court perused the records of the

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Tribunal and the grounds urged in the appeal

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memorandum.

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It is relevant to note that soon after the

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accident on 11.06.2016, a complaint was lodged on 12.06.2016 by a relative of the deceased and a case in Crime No.214/2016 was registered against the rider of the offending motor bike. The complaint bears clear reference to the details of the offending motor bike and that the rider of the offending motor bike rode it in a rash and negligent manner and dashed against the moped which was ridden by the deceased. Following

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the complaint, the jurisdictional police have investigated the case and filed a charge sheet against the rider of the offending motor bike. The Tribunal had rightly held that the rider of the offending motor bike was negligent and was responsible for the accident. The insurer of the offending motor bike and the owner have not challenged this finding of the Tribunal. They have also not challenged the quantum of compensation awarded by the Tribunal.

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So far as the claim for compensation is concerned, as rightly contended by the learned counsel for the claimants, the notional income of the deceased ought to have been considered at a sum of Rs.9,500/per month as has been done by this Court in the cases referred to Lok Adalath for settlement. Thus, in order to maintain uniformity, it is appropriate that the notional income of the deceased is considered at a sum of Rs.9,500/- per month. In addition, the deceased was

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aged 55 years and therefore, there was possibility of future prospects by which he could have augmented his income and as per the Judgment of the Apex Court in the case of Pranay Sethi (supra) , 1/4^th of the actual income could be deducted towards the personal expenses of the deceased. Since, the claimants are all majors by age, the question of grant of loss of parental consortium would not arise. If the same is taken into consideration, the compensation awarded by the Tribunal deserves to the reconsidered and recalculated

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as follows:

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Heads under which compensation awarded	Amount in Rupees
Loss of dependency	10,34,550
(Rs.9,500x10% -1/4x11x12)
Reimbursement of medical expenses	34,490
Loss of consortium	15,000
Loss of love and affection	15,000
Loss of estate	15,000
Funeral and other obsequies ceremony	12,000
Transportation of dead body	5,000
Total	11,31,040

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In view of the above, the appeal is allowed

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in part and the impugned Judgment and Award of the Tribunal awarding compensation of Rs.6,22,490/- is modified and enhanced to a sum of Rs.11,31,040/-, which is payable by the insurer to the claimants alongwith interest @ 6% per annum from the date of claim petition till the date of realization.

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The insurer is directed to deposit the compensation amount within a period of one month from the date of receipt of a certified copy of this Judgment.

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Out of the amount that may be deposited, 50% of the amount shall be kept in the Fixed Deposit in the name of the claimant No.1 for a period of five years and the remaining 50% shall be equally distributed and released in favour of the claimant Nos.1 to 4.

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Sd/- JUDGE

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Nagina v. Ganapathi

Case brief

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Nagina v. Ganapathi

Case brief

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