Dismissed

Smt. Shalini S v. Sri. Thabarej Pasha

Karnataka HC8 Jun 2023MFA/4940/2016

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by dependents of a deceased motorcyclist challenging the quantum of compensation awarded by the Motor Accident Claims Tribunal. The Court held the Tribunal's assessment of loss of dependency and standardized awards was correct and founded the dismissal on application of Supreme Court precedents.

What did the court decide?

The appeal filed by the claimants is dismissed confirming the award dated 15.03.2016 passed by the Tribunal.

Smt. Shalini S Vs Sri. Thabarej Pasha — Motor Accident Claims | Karnataka HC (2023)

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- 1 - NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 4940/2016 (MV-D)

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BETWEEN:

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SMT. SHALINI S W/O LATE RAJAKUMAR SAJJANA SHETTAR, AGED ABOUT 35 YEARS,

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KUMARI. YASHASWINI D/O LATE RAJAKUMAR SAJJANA SHETTAR, AGED ABOUT 11 YEARS,

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KUMAR. KSHITIJ S/O LATE RAJAKUMAR SAJJANA SHETTAR, AGED ABOUT 11 YEARS,

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SMT. SHIVANAGAMMA W/O SHANKARAPPA SAJJANA SHETTAR, AGED ABOUT 61 YEARS,

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Digitally signed by A K CHANDRIKA Location: HIGH COURT OF KARNATAKA

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SRI SHANKARAPPA SAJJAN SHETTAR S/O REVAPPA SAJJANA SHETTAR, AGED ABOUT 63 YEARS,

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ALL ARE R/AT NO.336, 2^ND MAIN, 3^RD PHASE, BSK 3^RD STAGE, CHENNAMMANAKERE ACHUKATTU, BANGALORE-560085.

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APPELLANT NO.2 & 3 ARE MINORS REPT. BY MOTHER NATURAL GUARDIAN SMT. SHALINI S. … APPELLANTS

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(BY SRI T NATARAJU, ADV. FOR SRI V N MADHAVA REDDY, ADV.)

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NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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AND:

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SRI. THABAREJ PASHA S/O YASIN, AGED ABOUT 34 YEARS, NO.616, 100 FEET ROAD, NEAR TIPPU CIRCLE, HAVALAHALLI, BANGALORE-560085.

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UNITED INSURANCE COMPANY LTD., NO.1 FLOOR, 3^RD CROSS, 100 FEET ROAD, HOSAKEREHALLI, BANGALORE-560085. … RESPONDENTS

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(BY SRI O MAHESH, ADV. FOR R2 (VC) VIDE ORDER DATED 19.12.2019 NOTICE TO R1 IS D/W)

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THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.03.2016 PASSED IN MVC NO.3499/2015 ON THE FILE OF THE 12^TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, RAMACHANDRA D. HUDDAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellants, being dissatisfied with the quantum of compensation awarded under the judgment and award dated 15.03.2016 passed by the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as “the Tribunal”) in the claim petition MVC No.3499/2015 are before this Court in this appeal seeking enhancement of compensation.

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- 3 - NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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The facts leading to the filing of this appeal are as

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follows:

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That the petitioners are legal representatives of the deceased Rajakumar Sajjana Shettar. It is stated that on 06.12.2014 at about 8.40 a.m., the deceased Rajakumar was proceeding on his motorbike bearing registration No.KA-05/JF2890 on Edga Masque Road, JHBCS Layout towards Banashankari. When he reached Z.N. Function Hall, JHBCS Layout, Edga Masque road, the driver of the Mini Tipper Lorry bearing registration No.MH-04/F-5279 came from behind at high speed and dashed against the motor cycle of the deceased, by violating traffic rules and regulations. Due to the impact, the deceased Rajakumar fell down and sustained grievous injuries and died on the spot. It is further stated that prior to the accident, the deceased was hale and healthy and working as Class-I Electrical Contractor with Crown Electrical and two others by getting monthly salary of Rs.40,000/-. It is stated that he was contributing his entire income to maintain his family. It is further stated that due to his death, the petitioners being his legal representatives are put to shock and mental agony.

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4 - NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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The accident occurred due to rash and negligent

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driving of the offending vehicle by its driver, against whom, Kumaraswamy Layout Traffic Police have registered a case in Crime No.117/2014 for the offence punishable under Sections 279 and 304(A) of IPC and Section 134(B) read with Section 187 of Motor Vehicles Act, 1988. The claimants are claiming compensation of Rs.80,00,000/-.

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The respondents appeared through their respective counsel. Respondent No.1 did not file any written statement, but respondent No.2 filed written statement denying the entire assertions made in the petition. It is contended that the petitioners have not impleaded the Insurer and owner of the motor cycle bearing No.KA-05/JF-2890. Further the age and income of the deceased are denied. It is further contended that the liability of the Insurance Company is subject to terms and conditions of the Policy and that the same have been contravened. Hence, the Insurance company is not liable to pay any compensation.

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The Tribunal based on the pleadings of the parties framed relevant issues.

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- 5 - NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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To prove the case of the petitioners, petitioner No.1

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entered the witness box and got examined as P.W.1 and got marked the documents as Ex.P1 to Ex.P21 in support of her evidence. Further, the petitioners have examined one witness on their behalf, i.e., the employer of the deceased as P.W.2 and got marked the documents as Ex.P22 to Ex.P27. The respondents have not lead any evidence.

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After closure of the evidence on both sides, the Tribunal having hearing heard the arguments of the parties has passed the impugned award and held that the petitioners are entitled for compensation of Rs.36,66,000/- together with interest at the rate of 8% p.a. from the date of petition till its realization. It is this award, that has been challenged by the appellants in this appeal being dissatisfied with the quantum of compensation.

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Heard learned counsel for the parties and Tribunal records are meticulously perused.

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Appellants have challenged the quantum of

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compensation awarded by the Tribunal. It is submitted by the learned counsel for the appellants that as per the documents

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- 6 - NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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produced before the Tribunal, the petitioners are entitled for enhanced compensation. Further, it is submitted that the documents marked as Ex.P10 and Ex.P11 Study Certificates, Ex.P13-Electrical Class-I Contractor License and Ex.P17 and Ex.P18 - salary certificates are the material documents that would help this court to enhance the compensation amount. It is further submitted that, the deceased was working as Electrical Contractor and had sufficient experience in the field of Electrical Engineering. It is further submitted that, petitioners were dependant on the deceased. Therefore, in the interest of justice, it is prayed to enhance the compensation.

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On the other hand, learned counsel Sri.O.Mahesh defending the Insurance Company submits that, whatever compensation awarded by the Tribunal is just and proper and it does not require any interference. He further submits that, documents produced by the petitioners themselves prove the salary. The Tribunal is right in assessing the notional income of the deceased at Rs.20,000/- p.m. The said finding is based on the evidence being placed by the petitioners. It is submitted that, there is no merit in the appeal and the same requires to be dismissed.

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7 - NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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In the light of the submissions being made by both

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sides, the following points arise for our consideration:

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Whether the compensation awarded by the Tribunal is just and proper?

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Since this appeal is filed by the claimants/ petitioners seeking enhancement of compensation, the question of liability is not being raised by the Insurance Company either before the Tribunal or before this Court. Therefore, we shall not discuss with regard to liability.

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P.W.1 reiterated the petition averments in her evidence and specifically stated that her husband was earning Rs.40,000/- p.m. It is further stated that the deceased was working with P.W.2. With regard to income, she has not deposed with regard to the actual income of her husband. Therefore, the evidence of P.W.2, who is stated to be the employer of the deceased has to be examined. According to his evidence, the deceased was Class-I Electrical Contractor and he was working with him for the last 15 years. He was paying salary of Rs.25,000/- + Rs.5,000/- allowance per month. To prove the same, he has produced notarized copy of

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- 8 - NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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Contract License, notarized copy of Income Tax Returns for the years 2012-2013, 2013-2014 and 2014-2015, notarized copy of Pan Card, Notarised copy of Work order, notarized copy of VAT registration and notarized copy of CST commodities annexure.

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But in the cross-examination, he says that he has produced the documents in respect of his earning and not of the deceased. Further he states that he was making payment to the deceased by cash. There were 8 employees with him. He was paying Rs.25,000/- + Rs.5,000/- as allowance per month. To prove the factum of payment of salary and allowance, except the self-serving testimony, he has not produced any iota of evidence. Further he has stated that, he was paying salary to his employees at Rs.8,000/- to Rs.12,000/- p.m. To prove the said fact, he has not produced any wage register, salary slip or any other relevant admissible document. He has clearly stated that he had not taken any Group Insurance for his employees and he has not produced any document to show that for the last 15 years the deceased was working with him. So also no bank statement of P.W.2 or of deceased is produced to show the payment of Rs.25,000/-

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9 - NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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salary and Rs.5,000/- as allowance to the deceased. Thus, we

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have only oral evidence spoken to by P.W.2 with regard to income of the deceased.

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The Tribunal while assessing the income of the deceased at paragraph 17 of the judgment has observed that P.W.2 being Contractor has admitted that the deceased was working under him and paying Rs.25,000/- salary and Rs.5,000/- as allowances per month. It is also observed that Ex.P8 and Ex.P27 clearly show the name of P.W.2 as owner of the said Concern where P.W.2 was doing business. Based on the evidence placed on record by the petitioners, the Tribunal has considered the income of the deceased at Rs.20,000/- p.m. instead of Rs.40,000/- p.m. as claimed in the petition. The said assessment is based on the notional income of the deceased and oral and documentary evidence adduced by the petitioners, so also based upon the qualification. We do not find any irregularity or illegality or error committed by the Tribunal in assessing the income of the deceased at Rs.20,000/- p.m. Therefore, the said finding of assessment of income of the deceased does not require any interference by this Court. Thus, the loss of dependency assessed by the

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10 -

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NC: 2023:KHC:19709-DB MFA No. 4940 of 2016

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Tribunal at Rs.32,76,000/- based on the judgments of the Hon’ble Supreme Court and by applying appropriate multiplier is correct.

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In view of the judgment of the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi¹ and Magma General Insurance Company Ltd. v. Nanu Ram² case, the claimants are entitled to compensation of Rs.40,000/- with escalation at 10% which comes to Rs.2,20,000/-. The Tribunal divided the same and has awarded compensation of Rs.1,00,000/- to the wife on the head of consortium and Rs.2,30,000/- on the head of loss of love and affection to claimant Nos.2 to 5 which is over and above the standardized compensation on those heads.

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Similarly, in view of the judgments of the Hon’ble Supreme Court in Pranay Sethi’s case and Magma General Insurance Company Ltd.’s case, the claimants are entitled to compensation of Rs.15,000/- on the head of loss of estate and Rs.15,000/- on the head of funeral expenses and transportation of the dead body with escalation of 10% which comes to

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1 AIR 2017 SC 5157

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2 2018 (18) SCC 130

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Rs.33,000/-. However, the Tribunal has awarded a sum of Rs.10,000/- on the head of loss of estate and Rs.50,000/- on the head of transportation of dead body and funeral expenses which comes to Rs.60,000/-. The compensation awarded on the head of transportation of dead body and funeral expenses covers the deficit of the head of loss of estate together and the said amount is higher than the one standardized in Pranay Sethi’s case. Still the fact remains that the respondents have not challenged the award. Therefore it may not be just to reduce the same. In view of the above discussions, the appeal deserves no merit. Hence the following:

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ORDER

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The appeal filed by the claimants is dismissed confirming the award dated 15.03.2016 passed by the Tribunal in MVC No.3499/2015.

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Sd/JUDGE

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Sd/JUDGE

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MPK CT:bms List No.: 1 Sl No.: 2

Smt. Shalini S v. Sri. Thabarej Pasha

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Smt. Shalini S v. Sri. Thabarej Pasha

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