Partly allowed

Smt Uma H D v. Ameera Jan

Karnataka HC27 Jul 2022MFA/1925/2020

Case brief

AI extract

What is this about?

This judicial review petition challenged the Motor Accident Claims Tribunal's award of Rs.13,69,525 for motor vehicle accident death. The High Court found the Tribunal erred in ascertaining the deceased's income, re-evaluating earnings from affiliate work and chick-rearing business. The court modified the Tribunal's award, enhancing compensation to Rs.40,14,000 based on a revised monthly income as

What did the court decide?

Enhanced compensation of Rs.26,44,475 granted to claimants, with interest at 6% per annum, directed to be deposited by the insurance company.

Smt Uma H D Vs Ameera Jan — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 1925 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA MISC. FIRST APPEAL NO. 1925 OF 2020 (MV-D)

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BETWEEN:

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SMT. UMA H. D., W/O LATE PRABHAKARA H.C., AGED ABOUT 35 YEARS,

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TANUSHREE H P., D/O LATE PRABHAKARA, AGED ABOUT 15 YEARS,

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LOHITH H.P., S/O LATE PRABHAKARA H.C., AGED ABOUT 11 YEARS,

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Digitally signed by HEMAVATHY G Location: High Court of Karnataka

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SMT. ERAMMA, W/O LATE CHADREGOWDA, AGED ABOUT 69 YEARS, ALL ARE RESIDENT AT HOSURU, JODI HOCHIHALLI, SAKHARAYAPATTA HOBLI, KADUR TALUK, CHIKKAMAGALURU DISTRICT - 577 101. APPELLANT NO.2 AND 3 ARE MINOR, REPRESENTED BY MINOR, GUARDIAN AND NATURAL MOTHER APPELLANT NO.1

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…APPELLANTS

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(BY SRI. MANJUNATH N D.,ADVOCATE)

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MFA No. 1925 of 2020

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AND:

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AMEERA JAN, S/O JAMSHID AHAMED, AGED ABOUT 42 YEARS, RESIDING AT DUGLAPURA STATION VILLAGE, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT - 577 101.

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GANESH M M, S/O LATE A.C.MARI RATHNACHAR, AGED ABOUT 46 YEARS, SRI RAGHAVENDRA ENGINEERING WORK HASSAN ROAD, ARASIKERE TOWN, HASSAN DISTRICT - 573 201.

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IFFCO-TOKIO GENERAL INSURANCE CO. LTD., IFFCO SADAN C1 DISTRICT CENTER SAKET, NEW DELHI -110 017.

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…RESPONDENTS

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(BY SRI.B.C.SHIVANNEGOWDA, ADVOCATE FOR R3; NOTICE TO R1 AND R2 IS DISPENSED WITH VIDE ORDER DATED 30.11.2021)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.11.2019, PASSED IN MVC NO.550/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND MMACT, KADUR, CHIKKAMAGALUR DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

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The claimants are the wife, children and mother of Sri.Prabhakara H.C, who was killed in a motor vehicle accident on 12.04.2016. For the death of Sri.Prabhakara H.C, the

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MFA No. 1925 of 2020

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Tribunal has awarded a total sum of Rs.13,69,525/-. Being dissatisfied with the said sum, the present appeal is preferred.

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The Tribunal has come to the conclusion that the deceased was working on a commission basis with MESCOM and the evidence on record indicated that he was paid a sum of Rs.4,515/- per month as commission and the Tribunal has considered the documents produced and concluded that on an average he was earning a sum of Rs.4,515/- as commission. The Tribunal has also recorded a finding that he was growing and supplying chicks, out of which, he was earning a sum of Rs.5,000/- per month. In all, the Tribunal has concluded that the deceased was earning a sum of Rs.9,515/- and after deducting 1/4th and applying the multiplier of '15' it has awarded a sum of Rs.12,84,525/- towards loss of dependency.

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Learned counsel for the claimants contends that the reasoning of the Tribunal in arriving at monthly income of the deceased at Rs.9,515/- is unsustainable. He seeks reliance upon the Circular issued by MESCOM which is in relation to the terms of emoluments to be paid to the Micro Feeder Franchise. According to Clause P4 of Ex.P21, a meter reader was to be

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MFA No. 1925 of 2020

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paid a minimum sum of Rs.12,000/- and having regard to this Circular, the Tribunal ought to have taken the income of the deceased from MESCOM at Rs.12,000/- and the determination at the rate of Rs.4,515/- is wholly incorrect.

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He also submits that in addition to working as a part time meter reader, the deceased was admittedly engaged in the business of rearing chicks and supplying them to a Company. He submits that the claimants had also produced an agreement entered into with the said Company in this regard in the year 2007 as Ex.P22. He submits that the Bank statement is also produced indicating that periodical payments over a period of nearly 4 years were made, totally amounting to Rs.12,57,579/and this would indicate that he was securing a sum of Rs.24,594/- on an average every month from the Company. He therefore, submitted that the Tribunal ought to have determined the income at the rate of Rs.36,000/- per month as against Rs.9,515/-.

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Learned counsel for the insurer Sri.B.C.Shivanne Gowda on the other hand, vehemently contended, that it is wholly impermissible for the claimants to contend that the deceased

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MFA No. 1925 of 2020

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was earning a sum of Rs.36,000/- per month. He submitted that the actual payment received by the claimants as commission as per the evidence on record was only Rs.4,515/and therefore, reliance could not be placed on a Circular which was fundamentally prospective in nature and did not indicate that the actual sums that the claimants was receiving from MESCOM.

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He also submitted that the sums received by the claimants from the Company called M/s. Life Line Feeds (India) Pvt. Ltd., could not be considered as a regular income and he also submitted that the sums paid by the Company were towards the costs of rearing the chicks also and therefore, the entire sums received by the deceased could not be construed as his income from the Company.

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In the light of the contentions advanced, it will have to be considered as to whether the determination of the monthly income by the Tribunal at the rate of Rs.9,515/- was just and proper.

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The evidence on record, as assessed by the Tribunal, confirms the fact that the deceased was working as a part time

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MFA No. 1925 of 2020

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meter reader and was also engaged in the business of rearing boiler chicks. The accident occurred in the year 2016 and reliance is placed on the Circular dated 10.06.2016 issued by MESCOM. This Circular sought to incorporate the following Clause in the agreement with the Franchisee as regards payment of incentive to the meter readers and the sums reads as follows:

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" 4.1 ¥ÉÆæÃvÁìºÀ zsÀ£À:

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4.1.1 ¥Àæw wAUÀ¼ÀÄ J¯Áè ¥ÀæªÀUÀðzÀ UÁæPÀgÀ ªÀiÁ¥ÀPÀUÀ¼À£ÀÄß N¢, ±ÉÃPÀqÁ 100 gÀµÀÄÖ ©¯ï «vÀgÀuÉ ªÀiÁr, C£ÀÄ§AzsÀ-2 gÀ PÀArPÉ 2.1.2 gÀ°è ¤UÀ¢¥Àr¹gÀÄªÀ ªÀiÁ¹PÀ ªÀÄÆ® UÀÄjAiÀÄ£ÀÄß ¸Á¢ü¹zÀ°è ªÉÄÊPÉÆæÃ ¦üÃqÀgï ¥sÁæAZÉÊ¹UÉ gÀÆ.12,000/- (ºÀ£ÉßgÀqÀÄ ¸Á«gÀ gÀÆUÀ¼ÀÄ ªÀiÁvÀæ) ªÀ£ÀÄ "PÀ¤µÀ× RavÀ ¥ÉÆæÃvÁìºÀ zsÀ£À" ªÁV ¤ÃqÀ¯ÁUÀÄªÀÅzÀÄ."

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A reading of the said Circular indicates that the sum of Rs.12,000/- was the minimum amount that was required to be paid to the meter reader as an incentive pay, on compliance of the conditions stipulated therein. This indicates that MESCOM

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was conscious of the fact that the meter readers who had been engaged by the Franchisees were required to be paid atleast a

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MFA No. 1925 of 2020

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sum of Rs.12,000/- per month for the services rendered by them.

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Having regard to the fact that the Circular is of the year 2016 and also the accident is of the year 2016, it can be safely assumed that the deceased was entitled to get a sum of Rs.12,000/- at the time of his death.

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It is also to be noticed here that the deceased passed way just two months prior to the issuance of the said Circular. It would be therefore be proper to adopt the income stated in the Circular as the income that the deceased was deriving from MESCOM.

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Apart from the said income as a part time meter reader, the claimants have also produced an agreement that the deceased had entered into with M/s. Life Line Feeds (India) Pvt. Ltd. The clauses of the agreement indicates that the deceased was to provide his own farm with all necessary infrastructure for the purpose of growing broiler chicks and provide to the Company the chicks so reared. Clause 8 of the said agreement reads as follows:

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MFA No. 1925 of 2020

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"8. Wherein the first party agrees to pay the second party an amount mutually fixed based on the performance towards rearing charges on the basis of weight of grown chicken handed over by the second party, issuing account payee cheque of Syndicate Bank, Chickmagalur."

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Thus, the claimants had a specific commitment from M/s. Life Line Feeds (India) Pvt. Ltd., to supply the boiler chicks for an amount which was mutually fixed, based on the performance of the deceased regarding rearing chicks, which was to be determined on the basis of the weight of the grown chicken.

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The agreement also stipulates that it would be in force for a period of 5 years commencing from 01.12.2008. The claimants have produced the payment details separately and also more importantly, a Bank statement of the Bank account of the deceased as Ex.P24. The Bank statement indicates that the following payments were made by the aforementioned Company to the deceased from the period 10.01.2012 upto 24.05.2016 and the payments made by the Company are stated herein below for the sake of clarity.

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MFA No. 1925 of 2020

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Value date	Date	Transaction Details	Cheque No.	Credits
11-Nov-2011	11-Nov-2011	BY TR LIFE LINE FEED	284966	57,573.00
13-Jan-2012	13-Jan-2012	BY TR LIFE LINE FEED	286568	36,816.00
19-Apr-2012	19-Apr-2012	BY TR LIFE LINE FEED	288611	59,182.00
28-Jun-2012	28-Jun-2012	BY TR LIFE LINE FEED	44023	70,015.00
17-Sep-2012	17-Sep-2012	BY TR LIFE LINE FEED	45630	57,298.00
05-Dec-2012	05-Dec-2012	BY TR LIFE LINE FEED	47154	47,212.00
19-Feb-2013	19-Feb-2013	BY TR LIFE LINE FEED	616626	1,04,374.00
18-May-2013	18-May-2013	BY TR LIFE LINE FEED	618567	37,913.00
12-Aug-2013	12-Aug-2013	BY TR LIFE LINE FEED	620209	56,469.00

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The bank statement indicates that the deceased had

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received a sum of Rs.10,57,759/- over a period of 43 months and this would indicate that he was getting an average sum approximately Rs.24,594/- every month.

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Assuming that the deceased was incurring costs towards rearing of the chicken, it will have to be assumed that he would have earned at least 30% as profit of the said sum of Rs.24,000/. In other words from the business of rearing boiler chicken, on the basis of the payments evidenced by the Bank statement over a period of 4 years, it can be safely assumed that the deceased was earning on an average Rs.8,000/- per month (30% of Rs.24,000/-).

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In this view of the matter, the finding of the Tribunal that the deceased was earning only Rs.9,515/- per month cannot be accepted and the same is accordingly set-aside.

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10 -

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MFA No. 1925 of 2020

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The monthly income of the deceased is hereby

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determined as (Rs.12,000+Rs.8,000) =Rs.20,000/- per month.

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The deceased was aged 38 years and hence a multiplier of '15' would be applicable. To the said sum of Rs.20,000/-, 40% would have to be added as future prospects, which would result in the monthly income to be Rs.28,000/-. Out of the said sum, 1/4th would have to be deducted towards his personal expenses, which would result in the monthly income to be Rs.21,000/- (Rs.28,000 - 1/4 of 28000). Consequently, the claimants would entitled to a sum of Rs.21,000 x 12 x 15 = Rs.37,80,000/- towards 'loss of dependency' .

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In addition, the claimants being the wife, children and mother, each of them would be entitled to a sum of Rs.44,000/- (Rs.44,000 x 4) = Rs.1,76,000/- towards 'loss of consortium' and also a sum of Rs.33,000/- under the 'conventional heads' .

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Consequently, the award of the Tribunal is modified and the claimants would be entitled to the following compensation:

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MFA No. 1925 of 2020

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Sl. No.	Particulars	Amount in(Rs.)
1.	Loss of dependency	37,80,000
2.	Loss of consortium	1,76,000
3.	Loss of love and affection	25,000
4.	Conventional Head	33,000
	Total	40,14,000

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22. The appeal is accordingly allowed in part. The claimants is entitled to an enhanced compensation of (Rs.40,14,000 - Rs.13,69,525) = Rs.26,44,475/- .

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The enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till its realization.

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The Insurance Company is directed to deposit the enhanced compensation within two months from the date of receipt of a copy of this order.

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The amount in deposit shall be transferred to MACT for disbursal in terms of the impugned award.

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SD/JUDGE

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Smt Uma H D v. Ameera Jan

Case brief

What is this about?

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Smt Uma H D v. Ameera Jan

Case brief

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