Partly allowed

Noorjan v. Mohammed Rafiq Gangolli

Karnataka HC13 Oct 2022MFA/318/2016

Case brief

AI extract

What is this about?

In an appeal under Section 173(1) of the Motor Vehicles Act, the High Court enhanced the compensation awarded in a motor accident claim case. The court revised the notional income of the deceased minor and awarded additional amounts for loss of dependency, future prospects, and specific heads like consortium and love and affection.

What did the court decide?

The appeal allowed in part; judgment modified to award Rs.13,19,600/- total compensation; Insurance Company directed to deposit amount with interest.

Noorjan Vs Mohammed Rafiq Gangolli — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF OCTOBER 2022

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BEFORE

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THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD

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MFA No.318 OF 2016(MV)

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BETWEEN:

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Noorjan, Aged about 43 years, W/o Mohammad Rafiq.

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Minor Rifa, Aged about 16 years, D/o Mohammad Rafiq, Rep.by Guardian Mother Appellant No.1 Noorjan.

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Both are residing at R/o Haseena Cottage, Beach Road, Gangolli, Kundapura Taluk-576 001. … Appellants

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(By Miss. Nazeefa M Mulla., Advocate for Sri. Pavana Chandra Shetty H., Advocate)

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AND:

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Mohammed Rafiq Gangolli,

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Aged about 51 years, S/o Jainuddin Pookoyya, R/o Hassena Cottage, Beach Road, Gangolli, Kundapura Taluk, Udupi District-576001.

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Universal Sompo General Insurance Co. Ltd., City Trade Centre, 1^st Floor, Opp: City Hospital, Kadri, Mangalore-575 001,

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Rep. by its Branch Manager-575001. ... Respondents

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(By Sri. H.N. Keshava Prashanth, Advocate for R2; Notice to R1 is dispensed with v/o dated: 08.01.2018)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated:03.07.2015 passed in MVC No.592/2013 on the file of the Senior. Civil Judge and Additional Member, MACT, Kundapura, Partly allowing the claim petition for compensation and seeking enhancement of compensation.

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This MFA, coming on for hearing, this day, this Court, delivered the following:

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J U D G M E N T

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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 dated 03.07.2015 passed by the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Kundapura in MVC No.592/2013.

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Facts giving rise to the filing of the appeal briefly

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stated are that on 03.02.2013 at about 0.15 a.m., the

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deceased Rayeed Rafiz along with others was proceeding in a car bearing registration No.KA-20/Z-0317 from Navunda side towards Trasi. At that time, the driver of the car lost control over the vehicle and fell down on the road. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the way to the hospital.

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The claimants filed a petition under Section 166 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.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. The age, occupation and income of the deceased are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the driver of the offending vehicle did not possess valid driving licence as on

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the date of the accident. It was further pleaded that the

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liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.1 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-2 and got exhibited documents namely Exs.P7, P8, P12 and P13. On behalf of respondents, no witness was examined but got exhibited document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that 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.

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The Tribunal further held that the claimants are entitled to a compensation of Rs.8,69,280/- 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 18 years and he was studying in 2^nd year PUC, he has a bright future. But the Tribunal is not justified in taking the monthly income of the deceased as only Rs.5,000/-.

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Secondly, as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. vs. PRANAY SETHI AND OTHERS reported in AIR

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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

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where the deceased was below the age of 40 years. The same may be considered.

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Thirdly, as per the law laid down by the Hon’ble Supreme Court in the case of PRANAY SETHI (supra), the claimants are entitled for Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- towards ‘funeral expenses’.

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Fourthly, as per the judgment of the Hon’ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM reported in 2018 ACJ 2782, each of the claimants are entitled for compensation of Rs.40,000/under the head of ‘loss of love and affection and consortium’.

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Fifthly, the compensation awarded by the Tribunal under the conventional heads is on the lower side. Hence, she 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, deceased was a non-earning member and he was a minor. 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 compensation towards ‘future prospects’.

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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 sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award and the original records.

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It is not in dispute that Rayeed Rafiz died in the

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road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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The deceased was aged about 18 years and studying in 2^nd year PUC. Considering his educational qualification and future prospects, I am of the opinion that the notional income can be considered as Rs.8,000/- per month. 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). Thus, the monthly income comes to Rs.11,200/-. Since the deceased was a bachelour, it is appropriate to deduct 50% of the income of the deceased towards personal expenses and remaining amount, i.e., Rs.5,600/- has to be taken as his contribution to the family. The deceased was aged about 18 years at the time of the accident and multiplier applicable to his age group is ‘18’. Thus, the claimants are entitled to compensation of Rs.12,09,600/- (Rs.5,6001218) on account of ‘loss of dependency’.

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In addition, the claimants are entitled to

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compensation of Rs.15,000/- on account of ‘loss of estate’ and compensation of Rs.15,000/- on account of ‘funeral expenses’.

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In view of the law laid down by the Supreme Court in the case of ‘MAGMA GENERAL INSURANCE’ (supra), claimant No.1, mother of the deceased is entitled for compensation of Rs.40,000/- under the head of ‘loss of filial consortium’ and claimant No.2, sister of the deceased is entitled for compensation of Rs.40,000/- under the head

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‘loss of love and affection’.

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Thus, the claimants are entitled to the following

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compensation:

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Compensation under different Heads	Amount in (Rs.)
Loss of dependency	12,09,600
Funeral expenses	15,000
Loss of estate	15,000
Loss of filial consortium	40,000
Loss of love and affection	40,000
Total	13,19,600

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In the result, the appeal is allowed in part. The

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judgment of the Claims Tribunal is modified.

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The claimants are entitled to a total compensation of

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Rs.13,19,600 /- as against Rs.8,69,280/- awarded by the Tribunal.

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The Insurance Company is directed to deposit the 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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Sd/-

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JUDGE

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Cm/-

Noorjan v. Mohammed Rafiq Gangolli

Case brief

What is this about?

What did the court decide?

Noorjan v. Mohammed Rafiq Gangolli

Case brief

What is this about?

What did the court decide?

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