Allowed

The Divisional Manager v. Smt Shamshadabi Alias Sameerbi W/O Sri. Husen Patil

Karnataka HC5 Sept 2023MFA/102236/2023

Case brief

AI extract

What is this about?

The High Court allowed the insurer's appeal in part, modifying the Motor Accident Claims Tribunal's award. The Court reduced the compensation by correcting the notional income assessment, adjusting personal expense deduction to one-third instead of one-fourth, and revising interest rates from 8% to 6% per annum.

What did the court decide?

Compensation reduced to Rs.29,81,144 by modifying the head of account including general damage, personal expenses, and interest.

The Divisional Manager Vs Smt Shamshadabi Alias Sameerbi W/O… — Insurance | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:10129-DB MFA No. 102236 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 102236 OF 2023 (MV-D)

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BETWEEN:

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THE DIVISIONAL MANAGER, RELIANCE GENERAL INSURANCE COMPANY, MAHADEV ARCADE KOLHAPUR CIRCLE, NEHRU NAGAR, BELAGAVI-590009, (INSURER OF CRUISER VEHICLE KA-28/A-0017 BEARING POLICY NO.141621923550000059 VALID FROM 17.04.2019 TO 16.04.2020, REPRESENTED BY ITS AUTHROISED SIGNATORY.

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…APPELLANT

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(BY SRI G.N. RAICHUR, ADVOCATE)

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Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.08 16:45:06 +0530

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AND:

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SMT SHAMASHADABI ALIAS SAMEERBI W/O. SRI HUSEN PATIL, AGE: 44 YEARS, OCC: HOUSEWIFE, R/O: PARTHANNAHALLI, TQ: ATHANI, DIST: BELAGAVI, NOW AT GANDHI NAGAR, BELAGAVI-590003.

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SRI HUSEN S/O. MAHAMMAD PATIL, AGE:57 YEARS, OCC: COOLIE R/O: PARTHANNAHALLI, TQ: ATHANI, DIST: BELAGAVI. NOW AT GANDHI NAGAR, BELAGAVI-590003.

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MISS ARIFA D/O. SIR HUSEN PATIL, AGE: 24, OCC: NIL (MENTAL RETARD PERSON), R/O: PARTHANNAHALLI, TQ: ATHANI, DIST: BELAGAVI NOW AT GANDHI NAGAR, BELAGAVI-590003,

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(SINCE MENTALLY RETARDED REPRESENTED BY HER NATURAL FATHER RESPONDENT NO. 2.)

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MASTER IRFAN D/O. SRI HUSEN PATIL, AGE:21 YEARS, OCC: STUDENT, R/O: PARTHANNAHALLI, TQ: ATHANI, DIST: BELAGAVI, NOW AT GANDHI NAGAR, BELAGAVI-590003.

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SRI GANESH S/O. SRI. SHANKAR KALHALLI, AGE:MAJOR, OCC: BUSINESS, R/O: AT POST YELLATTI, TQ: JAMKHANDI, DIST: BAGALKOT OWNER OF CRUISER VEHICLE BEARING REG. NO.KA-28-A-0017.

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SRI SHEKAPPA S. SHETTER, AGE:MAJOR, OCC: BUSINESS, R/O: AT POST BABALADI TQ AND DIST: BIJAPUR.

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…RESPONDENTS

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(BY SMT. GEETHA K.M. ALIAS PAWAR, ADV. FOR R1 TO R4; R3 REPRESENTED BY R2; BY SRI S.L. MATTI, ADV. FOR R5)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS AND HEAR THE PARTIES AND MODIFY THE JUDGMENT AND AWARD DATED 28.02.2023 PASSED IN MVC NO.1655/2020 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT

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CLAIMS TRIBUNAL, BELAGAVI, BY EXONERATING THE LIABILITY FIXED ON THE APPELLANT INSURANCE COMPANY BY ACCEPTING THE GROUNDS MADE OUT IN THE GROUNDS OF APPEAL BY ALLOWING THIS APPEAL WITH COST IN THE ENDS. OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The insurance company has preferred this appeal against the common judgment and award dated 28^th February, 2023 passed in MVC No.1655 of 2020 on the file of VI Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belgaum (for brevity, hereinafter referred to as the "Tribunal”), questioning the quantum of compensation.

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For the sake of convenience, the parties in this

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appeal are referred to as per their status and rank before the Tribunal.

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Learned counsel appearing for the appellant

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submits that the Tribunal has assessed the notional income of the deceased at Rs.14,500/- per month instead of assessing the same at Rs.13,750/- per month. Learned counsel further submits that the Tribunal has deducted the personal expenses of the deceased at one-fourth instead of deducting at 50% as

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the deceased was a bachelor. Hence, he prays for reduction of compensation.

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Learned counsel appearing for the respondent submits that the Tribunal, based on the documentary material placed on record, so also, considering the oral evidence has awarded just and proper compensation and there is no ground for interference in this appeal. Hence, he sought for dismissal of the appeal.

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Having heard the learned counsel for the parties,

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the following points would arise for our consideration:

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Whether the appellant-insurer has made out a ground for reduction of quantum of compensation awarded by the Tribunal?

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What order or award?

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Our answer to the above points is as under:

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Point No.1: partly in the affirmative;

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Point No.2: as per final order

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Regarding Point No.1:

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We have given our anxious consideration to the submission made by the learned counsel for the parties. The

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accident is not in dispute. It is also not in dispute as to the death of the deceased. With regard to dependency also there is no dispute between the parties. We have perused the impugned judgment and award. At paragraphs 37 to 57, the Tribunal has observed as under:

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"37. In MVC.No.1655/2020 , it is the case of the petitioners that they are respectively the parents, elder sister and younger brother of the deceased and were depending on the deceased.

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38. The 2nd petitioner has reiterated the same in his chief evidence. In the cross examination, their aversions in respect of their dependency on the deceased are denied by way of suggestions which are in turn denied by the 2nd petitioner, but the other side has not dented their relationship with the deceased. Though, the 2nd petitioner has stated in his cross examination that he has 2 sons and 2 daughters including the deceased, the same is not denied on behalf of the 3rd respondent.

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39. That apart, in the certified copy of PM report at Ex.P-7, the original caste and birth certificate as well as the original adhar card of the deceased respectively at Ex.P-7 to 9, his father's name is shown as Husen Patil, which tallies with the name of the 2nd petitioner.

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40. Therefore, it can be safely concluded that the petitioners are respectively the parents, elder unmarried sister and younger brother of the deceased and thereby

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his LRs. Thus, in view of answering issue No.1 in affirmative, they being the LRs of the deceased are entitled for compensation. Now, in respect of quantum.

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41. It is the case of the petitioners that as on the date of the accident, the deceased was aged 20 years, was hale and healthy. The 2nd petitioner has reiterated the same in his chief affidavit evidence. The date of birth shown in the original birth certificate and adhar card of the deceased at Ex.P-8 and 9 respectively is 15.05.1999. Since the date of accident is 03.01.2020, as on the date of accident, as per Ex.P-8 and 9, the deceased was aged 20 years 7 months 19 days.

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42. In the certified copy of PM report at Ex.P-7, the age of the deceased is shown as 20 years. There is no cross examination by the other side in respect of age of the deceased. Therefore, the age of the deceased is accepted as 20 years, for which, the appropriate multiplier applicable is 18.

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43. It is the case of the petitioners that the deceased had income of Rs.1,000/- per day as an electrician and KEB contract worker and had also 3,00,000/-p.a from agriculture. The 2^nd petitioner has reiterated the same in his chief evidence.

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44. In his cross examination, the 2^nd petitioner has stated that the deceased is his eldest son and had studied 8^th standard. His son discontinued his education and was working. To the question that since he is elder and head of the family, has had been maintaining the family

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expenditure, the 2^nd petitioner has answered that his son was taking care of the family.

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45. The 2^nd petitioner has also denied that the deceased since was young aged one, he was not earning and if the same is disclosed, they will not get compensation, they have falsely contended that the deceased was an electrician on contract basis and therefore, they have not produced any documents to establish the alleged avocation of the deceased.

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46. Of course, in view of petitioners not producing any supportive documents that the deceased was an electrician and KEB contract worker or at least getting examined the employer of the deceased under whom he was electrician on contract basis, prima facie, it appears that there is some force in the above suggestion.

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47. But, at the same time, if the age of the deceased at 20 years is taken note of, prima facie, it appears that he was doing something and since admittedly, he was bachelor and claimed to be residing with the petitioners which is not disputed by the other side, it appears that he was contributing his earning to the family and the 3^rd petitioner being an unmarried elder sister, the 4th petitioner being a minor younger brother depending on his contribution to the family as it is in the cross examination of the 2nd petitioner that his 2nd son is a student and now, he is at 2nd PUC i.e., as on the date of his deposition on 24.08.2022.

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48. So far the alleged agricultural income of Rs.3,00,000/-p.a. admittedly, no supportive documents produced by the petitioners.

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49. Therefore, considering the age of the deceased at 20 years and no evidence on record in respect of the alleged avocation and income i.e., as an electrician having income of Rs.1,000/- per day and agriculture income of Rs.3,00,000/- p.a., it is thought just and proper to take notional income based on the chart prepared by the Karnataka State Legal Services Authority applicable to the districts coming under the Hon'ble High Court of Karnataka, Dharwad and Kalaburgi Benches applicable to the date of accident i.e., for the year 2020 at Rs.14,500/- per month.

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50. Since, the deceased died bachelor at the age of 20 years leaving behind 4 members i.e., parents, elder sister and younger brother as dependents, totally 4 members, 1/4th of his income should be deducted towards his personal expenses and the petitioners are entitled for 3/4^th as loss of dependency.

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51. Since, the deceased died at his age of 20 years and in view of taking notional income, the petitioners are entitled for future prospectus at the rate applicable to the self employed i.e., 40% .

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52. It is the case of the petitioners that they were respectively aged 41, 54, 21 and 17 years. The 2nd petitioner reiterated the same in his chief affidavit

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evidence and they have also produced the notarized copies of their aadhar cards at Ex.P-10 to 13 respectively.

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53. Ex.P-10 to 13 show their date of birth as 01.01.1979, 01.01.1966, 12.06.1988 and 23.04.2003 respectively and thus, as on the date of accident, as per Ex.P-10 to 13, the 1^st to 4th petitioners were respectively aged 41 years 2 days; 54 years 2 days; 31 years 6 months 21 days; and 16 years 8 months 10 days.

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54. Therefore, the age of the petitioners is accepted as 41, 54, 31 and 16 years, as there is no cross examination by the other side disputing their age supported by their respective aadhar cards at Ex.P-10 to 13 with specific date of birth.

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55. Considering the relationship of the petitioners with the deceased and the fact that the 1st and 2nd petitioners at their middle age lost their young earning son and 3rd and 4th petitioners have lost their supportive brother before they settling in the life, it is thought just and proper to award a reasonable compensation to them for loss of love and affection as well as loss of estate.

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56. Similarly, to award reasonable compensation for transportation of dead body and the funeral expenses. Accordingly, the petitioners are entitled for the compensation under the heads and the quantum detailed below;

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Loss of Dependency (Rs.14,500/-x12x3/4x18)	Rs.23,49,000/-
Future Prospectus at 40%	Rs. 9,39,600/-
Loss of Love and Affection	Rs. 80,000/-
(at Rs.40,000/- each)
Loss of Estate	Rs. 1,60,000/-
(at Rs.40,000/- each)
For Transportation of Dead body and Funeral Expenses	Rs. 30,000/-
*Total*	*Rs.35,58,600/-*

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57. Considering the respective relationship of the petitioners with the deceased and their respective age, it is thought just and proper to apportion the compensation amongst them at the rate of 40:30:15:15. "

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The Tribunal has assessed the income of the deceased at Rs.14,500/- which is not in consonance of the guidelines issued by the Karnataka State Legal Services Authority. As per the chart issued, the notional income of the accidents of the year is Rs.13,750/- and the same is taken in this appeal. Considering the number of dependents, the Tribunal has deducted the personal expenses at one-fourth which is also not correct. Keeping in mind the decision of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121, so also considering the age of the dependents, we deem it appropriate to deduct the personal

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expenses of the deceased at one-third. Further, as per the decision of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157,

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40% is to be added to the income towards future prospects. Then the income comes to Rs.19,250/- and after deduction of one-third towards personal expenses of the deceased, the monthly income comes to Rs.12,834/-. Accordingly, the loss of dependency would be Rs.27,72,144/- (Rs.12,834/- x 12 x 18). Keeping in mind the decisions of Hon'ble Supreme Court in the cases of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121 and PRANAY SETHI (supra) so also the judgment of Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130, it is just and proper to award the compensation under following heads:

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Sl.No.	Head	Amount (Rs.)
1.	Towards loss of dependency	27,72,144.00
2.	Towards loss of consortium (Rs.44,000/-x 4)	1,76,000.00
3.	Towards loss of estate	16,500.00
4.	Towards funeral expenses	16,500.00
	Total	29,81,144.00

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The Tribunal has awarded the interest at the rate of 8% per annum from the date of petition till realisation, which is on the higher side. Considering the interest rates awarded by the Nationalised Banks then, it is just and proper to award interest at the rate of 6% per annum from the date of petition. Accordingly, we answer point No.1 partly in the affirmative.

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Regarding Point No.2:

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For the aforesaid reasons and discussions, we proceed to pass the following:

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O R D E R

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Appeal is allowed in part;

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The judgment and award dated 28^th February, 2023 passed in MVC No.1655 of 2020 on the file of VI Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belgaum is modified by reducing the compensation amount to Rs.29,81,144/- as against Rs.35,58,600/awarded by the Tribunal;

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