Partly allowed

Smt Parveen Banu v. Mahesh S Walikar

Karnataka HC1 Dec 2022MFA/7292/2019

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded to the legal heirs of a deceased motorcyclist injured in an lorry-accident. The court recalculated loss of dependency using updated income figures and future prospects, and awarded additional sums for loss of estate, funeral expenses, and love and affection to all dependants.

What did the court decide?

Enhanced compensation of Rs. 2,90,100/- awarded with interest at 6% p.a. from the date of the petition till the date of deposit by the insurance company.

Smt Parveen Banu Vs Mahesh S Walikar — Motor Accident Claims | Karnataka HC (2022)

¶1

¶2

MFA No. 7292 of 2019

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 1^ST DAY OF DECEMBER, 2022

¶5

PRESENT

¶6

THE HON'BLE MR. JUSTICE K. SOMASHEKAR

¶7

AND

¶8

THE HON'BLE MR. JUSTICE C. M. JOSHI

¶9

MISCELLANEOUS FIRST APPEAL NO. 7292 OF 2019 (MV-D)

¶10

BETWEEN:

¶11

Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

¶12

SMT PARVEEN BANU W/O. LATE NAZEER AHAMMED,

¶13

AGE: 29 YEARS

¶14

MASTER MALLIK RENAN S/O. LATE NAZEER AHAMMED,

¶15

AGE: 6 YEARS MINOR REPRESENTED BY HIS MOTHER THE APPELLANT No.1

¶16

SMT. GOUSE BI W/O. JAMAL SAB, AGE: 62 YEARS

¶17

ABHUSALIYA S/O LATE NASEER AHAMMED AGE: 6 YEARS MINOR REPRESENTED BY HIS MOTHER THE APPELLANT NO.1

¶18

ALL ARE R/O. K.E.B. ROAD, KUMARAPATTANAM, RANEBENNUR TALUK, HAVERI DISTRICT - 581 123.

¶19

…APPELLANTS

¶20

(BY SRI. MAHESH R UPPIN & SRI.N.PRAVEEN KUMAR, ADVOCATES)

¶21

¶22

MFA No. 7292 of 2019

¶23

AND:

¶24

MAHESH S WALIKAR S/O. SIDDAPPA AGE: 27 YEARS DRIVER OF LORRY NO.KA-25-C-4424, R/O. KARADI VILLAGE, HUNUGUNDHA TALUK, BAGALKOT DISTRICT - 587 125.

¶25

THE MANAGING DIRECTOR V.R.L. LOGISTICS LTD., OWNER OF LORRY BEARING NO.KA-25-C-4424, REGD AND ADM OFFICE, VARUR ROAD, HUBLI - 580 020.

¶26

DIVISIONAL MANAGER THE DIVISIONAL OFFICE, UNITED INDIA INSURANCE CO. LTD., NO.1 AND 2 ENKAY COMPLEX, HUBLI - 580 023.

¶27

ASHPAK ALI OLEKAR GOUSU SAB SINCE DEAD BY LRS ASHREEFA OLEKAR S/O. LATE GOUSU SAB, AGE: 54 YEARS

¶28

ABDHUL IMRAN OLEKAR S/O LATE GOUSU SAB, AGE: 29 YEARS

¶29

SHABANA BANU D/O. LATE GOUSU SAB AGE: 24 YEARS

¶30

¶31

MFA No. 7292 of 2019

¶32

RESPONDENT NO.4-6 ARE R/O K.E.B. ROAD, KUMARAPATTANAM, RANEBENNUR TALUK, HAVERI DISTRICT - 581 123.

¶33

THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LTD., VALI COMPLEX, SHIVAMOGGA ROAD, HARIHARA - 577 601.

¶34

…RESPONDENTS

¶35

(BY SRI.C.SHANKARA REDDY, ADVOCATE FOR R3; NOTICE TO R1, R2 AND R4 TO R7 DISPENDED WITH V/O DATED 9-11-2022)

¶36

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.05.2019 PASSED IN MVC NO.565/2014 ON THE FILE OF THE SENIOR CIVIL AND J.M.F.C. AND ADDITIONAL M.A.C.T., HARIHARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶37

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, C M JOSHI J., THE COURT DELIVERED THE FOLLOWING:

¶38

JUDGMENT

¶39

Being aggrieved by the judgment and award dated 28.05.2019 passed in MVC No.565/2014 by the learned Senior

¶40

Civil Judge and JMFC and Additional MACT, Harihara, whereby the claim petition came to be partly allowed and awarded compensation of Rs.17,83,600/together with interest,

¶41

¶42

MFA No. 7292 of 2019

¶43

appellants/petitioners are before this Court in appeal seeking enhancement of compensation.

¶44

The parties are referred to as per their nomenclature before the Tribunal for the sake of convenience.

¶45

The brief facts of the case are as below:

¶46

That on 27-5-2014 at about 11-30 a.m. Nazeer Ahamad

¶47

was travelling as a pillion rider in the motor bike bearing Reg.No.KA.27.V.6196 driven by his relative Ashwak Ali Olekar on NH4 road near the land of Halasabalu Manjappa, the driver of the lorry bearing No. KA.25.C.4424 drove the same in a rash and negligent manner and dashed against the bike from the hind side and caused the accident. As a result, both rider and pillion rider fell down on the road and the said lorry ran over them and they sustained grievous injuries and died on the spot.

¶48

It is further contended that prior to the accident, deceased was hale and healthy, aged about 28 years, and working in HPF (Birla) Factory at Kumarapattanam and also doing building electrical work and earning Rs.25,000/- per month and he was the sole earning member of the family. Due to his untimely death,

¶49

¶50

MFA No. 7292 of 2019

¶51

petitioners being the wife, children and parents have suffered mental shock and agony. It is further contended that, accident was caused due to the rash and negligent driving by the driver of lorry and therefore, R1 to 3 being the driver, owner and insurer of the lorry are liable to pay the compensation. Hence, they prayed to allow the petition.

¶52

On receipt of summons from the Tribunal, respondents 1 to 3 and 4(a) to 4(c) and 5 appeared before the Tribunal through their respective counsel. Respondent Nos. 2 3 and 4(b) and 5 filed their written statement separately and respondent No.4(a) and (c) adopted the written statement of R4(b). Respondent No.1 has not filed any written statement.

¶53

Respondent No.4(a) to (c) are the legal heirs of the owner of the motor cycle, who also died in the said accident. Respondent No.5 happens to be the insurer of the motor cycle. Respondent No. 1, 2 and 3 are the driver, owner and insurer of the Lorry which caused the accident.

¶54

The respondent No.2, owner of the lorry contended that the motor cycle rider did not have any driving licence and the

¶55

¶56

MFA No. 7292 of 2019

¶57

accident occurred due to his negligence. It was contended that his lorry was insured by respondent No.3 and therefore, any liability may be fastened against the respondent No.3.

¶58

Respondent No.3 contended that the lorry has been falsely implicated by the petitioners with a view to make unlawful gain and by colluding with the respondent Nos. 1 and 2. It was alleged that the lorry was implicated falsely.

¶59

Respondent No. 4 (a) to (c) contended that the deceased

¶60

rider cum owner of the motor cycle was possessing the valid driving licence and the vehicle was insured by respondent No.5 as on the date of the accident. They contended that chargesheet was filed against the driver of the lorry i.e. respondent No.1 and they have obtained compensation from the respondent No.3 in MVC No.929/2014 by MACT, Ranebennur, and as such, the petition against them be dismissed.

¶61

Respondent No.5 contended that the accident occurred due to the negligence of the lorry driver and therefore, the liability has to be fastened against the respondent Nos. 2 and 3.

¶62

¶63

MFA No. 7292 of 2019

¶64

The Tribunal on the basis of the pleadings and

¶65

contentions of the parties, framed necessary issues for its consideration and after hearing both sides and considering the oral evidence of PW1 and RW1 and documentary evidence of Exs.P1 to P17 and Exs.R1 to 4 on behalf of both the parties, allowed the petition in part and awarded a sum of Rs.17,83,600/- under

¶66

different heads as below:

¶67

Loss of dependency	Rs. 17,13,600/-
Loss of estate	Rs. 15,000/-
Transportation and Funeral expenses	Rs. 15,000/-
Loss of consortium	Rs. 40,000/-
Total	Rs. 17,83,600/-

¶68

Being aggrieved by the same, the petitioners have approached this Court in this appeal contending that the compensation arrived at by the Tribunal is incorrect and on the lower side. It is contended that the compensation under the head of love and affection has not been awarded by the Tribunal and on other heads also the petitioners are entitled for higher compensation.

¶69

¶70

MFA No. 7292 of 2019

¶71

On issuance of notice by this Court, respondent No.3

¶72

has appeared through his counsel and notice to respondent Nos. 1,2,4 to 7 was dispensed with. The Tribunal records have been secured.

¶73

We have heard learned counsel appearing for the appellants and the learned counsel appearing for Respondent No.3 and perused the records.

¶74

The fact that there was an accident involving the lorry owned by respondent No.2 driven by respondent No.1 and insured by respondent No.3 is not in dispute. The respondent No.2 has contended that the vehicle was insured by respondent No.3 as on the date of the accident.

¶75

The records reveal that the police upon investigation had filed the chargesheet against the respondent No.1 and the police papers clearly indicate the actionable negligence on the part of respondent No.1.

¶76

The only aspect urged before us is regarding the quantum of compensation amount. The deceased Naseer Ahamad was aged about 30 years and has left behind him the petitioners

¶77

¶78

MFA No. 7292 of 2019

¶79

who are the wife, parents and children of the deceased. The petitioners contend that the deceased was working in HPF (Birla) Industries and was also an Electrician. No documents are produced in order to prove the employment of the deceased and the income of Rs.25,000/as contended. Therefore, by considering the fact that the deceased was aged about 30 years as per PM report, adopting multiplier of 17 and notional income of Rs.8,000/- per month, the Tribunal calculated the loss of dependency at Rs.17,13,600/-.

¶80

It is evident that, in coming to such conclusion, the future prospects were not considered by the Tribunal. In our considered opinion, the date of accident being 27-5-2014, the income as prescribed by KSLSA for settlement before Lok Adalaths has to be adopted and therefore, the monthly income of the deceased is considered at Rs.8,500/-. By adding future prospects at 40%, the effective income comes to Rs.11,900/-. The deceased had left behind him the petitioners and therefore, 1/4^th is deducted towards his personal expenses and the multiplicand comes to Rs.8,925/- per month. Therefore, the compensation under the

¶81

10 -

¶82

MFA No. 7292 of 2019

¶83

head of loss of dependency is calculated as: Rs.8,925/- x 12 x 17 = 18,20,700/-.

¶84

Coming to loss of consortium/love and affection, the deceased had left behind him his parents, wife and two children. In view of the decision of the Apex Court in the case of Magma General Insurance Company Limited Vs Nanu Ram @ Chuhru Ram and others¹ and i n the case of Rasmita Biswal and others Vs. Divisional Manager, National Insurance Company Limited and another² , wherein, it was held that, each of the dependants are entitled for compensation under the head of loss of love and affection and consortium and when the compensation amount is determined, the ratio laid down in the case of National Insurance Company Limited Vs. Pranay Sethi and others³ has to be followed regarding the escalation of 10% at every three years and therefore, the petitioner Nos. 1 to 5 are entitled for a sum of Rs.44,000/- each. Similarly, the petitioners are also entitled for a sum of Rs.16,500/- each under the head of loss of estate and funeral expenses.

¶85

1 2018 SCC ONLINE SC 1546

¶86

2 2022(2) SCC 767

¶87

3 AIR 2017 SC 5157

¶88

11 -

¶89

MFA No. 7292 of 2019

¶90

Thus, the compensation is reassessed as below:

¶91

Loss of dependency Rs.	18,20,700/-
Loss of estate Rs.	16,500/-
Transportation and Funeral Rs.	16,500/-
expenses
Loss of consortium/loss of love and affection (Rs.44,000/-x 5) Rs.	2,20,000/-
Total Rs.	20,73,700/-
Less: Awarded by the Tribunal Rs. Rs.	17,83,600/- 2,90,100/-

¶92

Thus, in addition to what has been awarded by the Tribunal,

¶93

there shall be an increase of Rs.2,90,100/- together with interest at 6% p.a. from the date of petition till its realization.

¶94

Hence, we pass the following:

¶95

ORDER

¶96

(i) The appeal is allowed in part.

¶97

(ii) The impugned judgment and award dated 28.05.2019

¶98

passed in MVC No.565/2014 by the Tribunal is modified awarding enhanced compensation of Rs.2,90,100/- with interest a t 6% p.a from the date of petition till the date of deposit.

¶99

12 -

¶100

MFA No. 7292 of 2019

¶101

(iii) The conditions of apportionment and deposit as ordered by the Tribunal remain unaltered.

¶102

(iv) Insurance Company is directed to deposit the compensation amount with interest within four weeks from the date of receipt of the copy of this order.

Sd/JUDGE

Sd/JUDGE

tsn*

List No.: 2 Sl No.: 23

Smt Parveen Banu v. Mahesh S Walikar

Case brief

What is this about?

What did the court decide?

Smt Parveen Banu v. Mahesh S Walikar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

The New India Assurance Co. Ltd. Vs Smt Lalithamma B.S.

Smt. Lalithamma B.S. Vs the Manager

State of Karnataka Vs Shri Mubarak @ Salman

The Divisional Manager Vs Gangasiddamma

Smt Gangasiddamma Vs Suma

Smt Neela Vs the Divisional Controller