Partly allowed

Smt Mallamma v. Ibrahim Hussen

Karnataka HC30 Nov 2022MFA/1808/2020

Case brief

AI extract

What is this about?

This order allowed a Miscellaneous First Appeal against a Motor Accident Claims Tribunal judgment. The High Court modified the award, enhancing compensation from Rs.7.75 lakhs to Rs.12.19 lakhs by reassessing notional income and applying the correct percentage for future prospects under Supreme Court guidelines. The insurer was directed to deposit the enhanced amount with interest.

What did the court decide?

Compensation enhanced to Rs.12,19,400; insurer directed to deposit amount with interest within six weeks.

Smt Mallamma Vs Ibrahim Hussen — Insurance | Karnataka HC (2022)

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1 - MFA No. 1808 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO.1808 OF 2020(MV-D)

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BETWEEN:

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SMT.MALLAMMA W/O LATE RAMAPPA R/O HADAGALI VILLAGE

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KADUR TALUK

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NOW R/O GORAVINAKALLU VILLAGE HOSADURGA TALUK-577 527 CHITRADURGA DISTRICT.

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SURESHA S/O LATE RAMAPPA

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AGED ABOUT 35 YEARS.

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KUMARA S/O LATE RAMAPPA

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AGED ABOUT 43 YEARS.

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SMT. RENUKAMMA D/O LATE RAMAPPA AGED ABOUT 28 YEARS

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Digitally signed by DHANALAKSHMI MURTHY ALL ARE RESIDING AT Location: High R/O HADAGALI VILLAGE Court of KADUR TALUK Karnataka NOW R/O GORAVINAKALLU VILLAGE HOSADURGA TALUK-577527 CHITRADURGA DISTRICT.

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…APPELLANTS

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MFA No. 1808 of 2020

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(BY SRI. SHIVAKUMARAPPA T C., ADVOCATE)

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AND:

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IBRAHIM HUSSEN S/O HUSSEN SAB MAJOR, R/O FORT STREET AJJAMPURA VILLAGE TARIKERE TALUK-577228 CHIKKAMAGALORE DISTRICT.

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SHANMUKHAPPA S/O SHIVALINGAPPA R/O VENKATAREDDY SKY WATER SUPPLY, 11TH CROSS DELANDUR, BANGALORE-33.

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THE DIVISIONAL MANAGER UNITED INSURANCE CO. LTD, M.M.K. COMPLEX, AKKAMAHADEVI ROAD DAVANAGERE-577 002.

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…RESPONDENTS

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(BY SRI.RAVISH BENNI., ADVOCATE FOR R3: NOTICE TO R1 & R2 IS DISPENSED WITH V/O DATED: 30.11.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 03.05.2017, PASSED IN MVC NO.155/2015, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AND MACT, HOSADURGA, 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 DELIVERED THE FOLLOWNG:

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MFA No. 1808 of 2020

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants being aggrieved by the judgment and award dated 3.5.2017 passed by the Motor Accident Claims Tribunal, Hosadurga in MVC 155/2015.

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Facts giving rise to the filing of the appeal briefly stated are that on 9.8.2014, when the deceased Umesh was proceeding on motorcycle bearing registration No.KA-18-X-0039 as a pillion rider, near Mallenahally gate on Ajjampura Biruru road, at that time, a goods auto bearing registration No.KA-01-AV-1623 which was being driven in a rash and negligent manner, dashed against the motorcycle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

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MFA No. 1808 of 2020

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3. The claimants filed a petition under Section 166

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of the Act seeking compensation for the death of the deceased along with interest.

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On service of summons, the respondent No.3 appeared through counsel and filed written statement in which the averments made in the petition were denied

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The respondent No.1 and 2 did not appear before the Tribunal inspite of service of notice and hence was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1 and got exhibited documents namely Ex.P1 to Ex.P7. On behalf of respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R3. The Claims Tribunal, by the impugned judgment, inter alia, held that

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MFA No. 1808 of 2020

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the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.775,000/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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The learned counsel for the claimants has raised the following contentions:

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Firstly, the claimants claim that the deceased was aged about 35 years at the time of the accident and he was earning Rs.20,000/- per month by working as agriculturist. But the Tribunal is not justified in taking the monthly income of the deceased as merely as Rs.5,000/-.

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Secondly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. –V- NANU RAM [2018 ACJ

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MFA No. 1808 of 2020

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2782] , each of the claimants are entitled for compensation of Rs.44,000/- under the head of ‘loss of love and affection and consortium’.

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Thirdly, considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is on the lower side. Hence, he prays for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised the following countercontentions:

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Firstly, even though the claimants claim that the deceased was earning Rs.20,000/- per month, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally.

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Secondly, since the claimants have not established the income of the deceased, they are not entitled for

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MFA No. 1808 of 2020

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compensation towards ‘future prospects’. However, as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income towards ‘future prospects’ should be the warrant where the deceased was below the age of 40 years. But the Tribunal has erred in adding 50% of the income.

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Thirdly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable. Hence, he prays for dismissal of the appeal.

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Heard the learned counsel for the parties and

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perused the judgment and award of the Tribunal.

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MFA No. 1808 of 2020

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It is not in dispute that Umesh died in the road traffic accident occurred on 9.8.2014 due to rash and negligent driving of the offending vehicle by its driver.

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The claimants claim that deceased was earning Rs.20,000/- per month. But they have not produced any documents to prove the income of the deceased. In the absence of proof of income, the notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2014, the notional income of the deceased has to be taken at Rs.8,500/- p.m.

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To the aforesaid income, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ‘PRANAY SETHI’ (supra) instead of 50% added by the Tribunal. Thus, the monthly income comes to Rs.11,900/-. Since the deceased was a bachelor, the Tribunal has rightly deducted 50% of the income of the deceased towards

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MFA No. 1808 of 2020

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personal expenses and remaining amount has to be taken as his contribution to the family. The deceased was aged about 35 years at the time of the accident and multiplier applicable to his age group is ‘16’. Thus, the claimant No.2, mother of the deceased is entitled to compensation of Rs.11,42,400/- (Rs.11,9001216*50%) on account of ‘loss of dependency’.

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In addition, claimant No.2 is entitled to compensation of Rs.16,500/- on account of ‘loss of estate’ and compensation of Rs.16,500/- on account of ‘funeral expenses’.

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In view of the law laid down by the Supreme Court in

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the case of ‘MAGMA GENERAL INSURANCE’ (supra), claimant No.2, mother of the deceased is entitled for compensation of Rs.44,000/- under the head of ‘loss of filial consortium’ .

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Thus, the claimant No.2 is entitled to the following compensation:

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10 -

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MFA No. 1808 of 2020

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	11,42,400
Funeral expenses	16,500
Loss of estate	16,500
Loss of Filial consortium	44,000
Total	12,19,400

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In the result, the appeal is allowed in part .

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The judgment of the Claims Tribunal is modified.

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The claimant No.2 is entitled to a total compensation of Rs.12,19,400/- as against Rs.775,000/- awarded by the Tribunal.

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The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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MFA No. 1808 of 2020

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In view of the order dated 30.11.2022 passed by this

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Court, the claimant is not entitled for interest for the delayed period of 870 days in filing the appeal.

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Sd/JUDGE

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DM List No.: 2 Sl No.: 9

Smt Mallamma v. Ibrahim Hussen

Case brief

What is this about?

What did the court decide?

Smt Mallamma v. Ibrahim Hussen

Case brief

What is this about?

What did the court decide?

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