Partly allowed

Mrs Avamma v. Sri. Iqbal

Karnataka HC3 Nov 2022MFA/601/2018

Case brief

AI extract

What is this about?

The High Court allowed appeals modifying a Motor Accident Tribunal award. The court applied Mukund Dewangan to fasten liability on the insurer instead of the insured and enhanced compensation from Rs. 6.77 lakhs to Rs. 14.93 lakhs based on revised income calculations.

What did the court decide?

Compensation enhanced to Rs. 14,93,000 with interest; liability fastened on insurer; refund of deposit ordered.

Mrs Avamma Vs Sri. Iqbal — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.7883/2017 (MV-D) C/W. M.F.A.NO.601/2018 (MV-D)

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IN M.F.A.NO.7883/2017

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BETWEEN :

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MR. IQBAL S/O.HAMEED AGED ABOUT 43 YEARS R/O. M.H.COMPOUND BAJAL NANTHOOR FAISALNAGAR BAJAL VILLAGE MANGALURU-575 003. … APPELLANT

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(BY SMT. HALEEMA AMEEN, ADVOCATE)

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AND:

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1. THE MANAGER

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THE BHARATHI AXA GENERAL INSURANCE CO. LTD. I FLOOR, FERMS ICON SURVEY NO.28 DODDANAKUNDI VILLAGE K.R. PURAM HOBLI, BENGALURU-560 037.

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HAVING ITS BRANCH OFFICE AT MANGALURU NEAR JAMES & CO.

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SUPER BAZAR BUILDING NANTHOOR-575 003.

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SMT. AVAMMA W/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 41 YEARS R/O. D.NO.11-93E NEAR PAPER MILL HOUSE PRANTHYA VILLAGE, MOODABIDRI, MANGALURU DAKSHINA KANNADA-575 103.

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SRI MOHAMMED SAMSEER S/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 23 YEARS R/O. D.NO.11-93E NEAR PAPER MILL HOUSE PRANTHYA VILLAGE MOODABIDRI, MANGALURU DAKSHINA KANNADA-575 103.

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KUM. SABEENA D/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 20 YEARS R/O. D.NO.11-93E NEAR PAPER MILL HOUSE PRANTHYA VILLAGE MOODABIDRI, MANGALURU DAKSHINA KANNADA-575 103.

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SRI MOHAMMED RAZEER S/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 17 YEARS

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SRI UMARUL FAROOQ S/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 08 YEARS

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RESPONDENT NOS.5 AND 6 ARE MINORS, REPRESETNED BY THEIR MOTHER THE NATURAL GUARDIAN

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SMT. AVAMMA RESPONDENT NO.2 R/O.D.NO.11-93E NEAR PAPER MILL HOUSE PRANTHYA VILLAGE MOODABIDRI, MANGALURU DAKSHINA KANNADA-575 103. ... RESPONDENTS

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(BY SRI PRADEEP B., ADVOCATE FOR R1;

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SRI NATARAJ BALLAL, ADVOCATE FOR R2 TO R6; R5 & R6 ARE MINORS REPRESENTED BY NATURAL GUARDIAN R2)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.03.2016 PASSED IN MVC NO.313/2013 ON THE FILE OF THE MACT & 3^RD ADDITIONAL SENIOR CIVIL JUDGE, MANGLAURU, D.K., AWARDING COMPENSATION OF RS.6,77,044/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF ITS REALIZATION.

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IN M.F.A.NO.601/2018

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BETWEEN:

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MRS. AVAMMA

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W/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 42 YEARS, R/O. D.NO. 11-93E NEAR PAPER MILL HOUSE, PRANTHYA VILLAGE, MOODABIDRI-574 101.

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MR. MOHAMMED SAMSEER S/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 24 YEARS, R/O. D.NO. 11-93E NEAR PAPER MILL HOUSE, PRANTHYA VILLAGE, MOODABIDRI-574 101.

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KUM. SABEENA D/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 21 YEARS, R/O. D.NO. 11-93E NEAR PAPER MILL HOUSE, PRANTHYA VILLAGE, MOODABIDRI-574 101.

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MOHAMMED RAZEER S/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 18 YEARS, R/O. D.NO. 11-93E NEAR PAPER MILL HOUSE, PRANTHYA VILLAGE, MOODABIDRI-574 101.

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MR. UMARUL FAROOQA S/O. LATE MOHAMMED ASHRAF @ ASHRAF AGED ABOUT 09 YEARS, MINOR REPRESENTED BY HIS NATURAL GUARDIAN THE MOTHER, APPELLANT NO.1 MRS. AVAMMA R/O. D.NO. 11-93E NEAR PAPER MILL HOUSE, PRANTHYA VILLAGE, MOODABIDRI-574 101. ... APPELLANTS (BY SRI NATARAJ BALLAL, ADVOCATE)

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AND:

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SRI. IQBAL S/O. HAMMEED AGED ABOUT 44 YEARS, R/AT M.H.COMPOUND, BAJAL NANTHOOR, FAISALNAGAR BAJAL VILLAGE MANGALURU-575 001.

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THE BRANCH MANAGER BHARATHI AXA GENERAL INSURANCE CO LTD., 1^ST FLOOR, FERMS ICON, SURVEY NO. 28, DODDANAKUNDI VILLAGE K.R.PURAM HOBLI BENGALURU

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BRANCH OFFICE, AT MANGALURU NEAR JAMES & CO, SUPER BAZAAR BUILDING NANTHOOR-575 001. ... RESPONDENTS

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(BY SMT. HALEEMA AMEEN, ADVOCATE FOR R1; SRI B. PRADEEP, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S. 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23/03/2016, PASSED IN MVC NO.313/2013, ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & MACT, MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE M.F.As. COMING ON FOR ADMISSION THIS DAY, THE COURT /ELIVERED THE FOLLOWING:

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J U D G M E N T

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Though these matters are listed for admission today, with the consent of both the learned counsel, they are taken up for final disposal.

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These appeals are filed challenging the judgment and award dated 23.03.2016 passed in M.V.C.No.313/2013 on the file of the Motor Accidents Claims Tribunal and III Additional

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Senior Civil Judge, Mangaluru, D.K. (‘the Tribunal’ for short) questioning the quantum of compensation as well as the liability.

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The parties are referred to as per their original

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rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of the claimants before the Tribunal is that Mohammad Ashraf @ Ashraf was proceeding by the side of the road in front of Baby’s Hostel near Garodi, Kankanady Village, Mangaluru on public road, at that time, a tempo came in rash and negligent manner in wrong side and dashed and capsized on the deceased. Hence, the deceased sustained injuries and succumbed to the same.

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It is the claim of the claimants that the deceased was earning Rs.15,000/- per month by doing Gujali work and used to contribute Rs.10,000/- to the family and the deceased was aged about 42 years and the family has lost the earning member in the family. Hence, they are entitled for compensation.

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The Tribunal, after considering both oral and documentary evidence placed on record, awarded total compensation of Rs.6,77,044/- taking the income at Rs.4,000/per month and fastened the liability on the insured. Hence, the present appeals are filed by the insured as well as the claimants.

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The main contention of the appellant-insured in M.F.A.No.7883/2017 before this Court is that the vehicle involved in the accident is a light motor vehicle having unladden weight of 400 kgs. and in view of the judgment of the Apex Court in MUKUND DEWANGAN v. ORIENTAL INSURANCE

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CO.LTD., reported in (2017) 14 SCC 663 , transport endorsement is not required to drive the light motor vehicle and hence, the question of permit also does not arise.

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Per contra, learned counsel appearing for the claimants in M.F.A.No.601/2018 would submit that the Tribunal committed an error in taking the income at Rs.4,000/- per month instead of notional income at Rs.8,000/- per month and compensation awarded on all the heads is very meager. Hence, it requires interference of this Court.

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Per contra, learned counsel appearing for the Insurance Company would submit that the deceased was aged about 42 years as pleaded and though in the Post Mortem report, the age is mentioned as 40 years, when there is an admission on the part of the claimants that the deceased was aged about 42 years and was doing Gujali work, the Court has to take note of the said fact into consideration. The counsel also would submit that the Tribunal has rightly considered the material on record and fastened the liability on the insured and hence, it does not require any interference of this Court.

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Having heard the respective counsel and also on perusal of the material available on record, the vehicle involved in the accident is a light motor vehicle and the driver was also having driving license to drive the same is not in dispute. When such being the case, in view of the judgment of the Apex Court in MUKUND DEWANGAN’S case, the Tribunal committed an error in fastening the liability on the insured instead of insurer though the unladden weight of the LMV is 400 kgs. Under the circumstances, the contention that no permit is not sustainable

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in the eye of law. Hence, the liability has to be fastened on the insurer and not the insured.

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Now coming to the quantum of compensation is concerned, the deceased was aged about 42 years and the relevant multiplier applicable is ‘14’ and this Court has to revisit the quantum of compensation taking the notional income at Rs.8,000/- per month. Apart from that, 25% has to be added as future prospects. After adding the same, the income of the deceased works out to Rs.10,000/- per month. Out of the same, 1/4^th has to be deducted towards personal expenses. After deducting the same, the income comes to Rs.7,500/- per month. Hence, taking the income at Rs.7,500/- per month and the relevant multiplier 14, the loss of dependency works out to Rs.12,60,000/-.

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The claimants are also entitled for an amount of Rs.33,000/- on the head of funeral expenses and loss of estate.

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Apart from that, the claimants are also entitled for

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an amount of Rs.40,000/- each on the head of love and affection and loss of consortium and since the claimants are 5 in number,

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it comes to Rs.2,00,000/- (40,000 x 5). Hence, in all, the claimants are entitled for compensation of Rs.14,93,000/- as against Rs.6,77,044/- awarded by the Tribunal with interest at 6% per annum.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 23.03.2016 passed in M.V.C.No.313/2013 is modified granting compensation of Rs.14,93,000/- as against Rs.6,77,044/- with interest at 6% per annum from the date of petition till deposit.

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(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(iv) The liability is fastened on the insurer setting aside the judgment and award of the Tribunal fastening the liability on the insured.

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(v) The amount in deposit, if any made by the appellant-insured in M.F.A.No.7883/2017 shall be refunded to him on proper identification.

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(vi) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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Mrs Avamma v. Sri. Iqbal

Case brief

What is this about?

What did the court decide?

Mrs Avamma v. Sri. Iqbal

Case brief

What is this about?

What did the court decide?

What the court decided

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