Partly allowed

Gowhar v. Sri Nagaraj

Karnataka HC5 Jun 2023MFA/6351/2014

Case brief

AI extract

What is this about?

The High Court, in a Miscellaneous First Appeal, modified the compensation awarded in a motor accident case. Setting aside the Tribunal's exoneration of the insurer, the Court enhanced the compensation from Rs.5,93,400 to Rs.8,59,250 based on recalculated income, dependency, and consortium heads.,

What did the court decide?

The impugned award is modified; insurer liable to deposit Rs.8,59,250 (with specific interest calculation) within four weeks.

Gowhar Vs Sri Nagaraj — Insurance | Karnataka HC (2023)

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1 - NC: 2023:KHC:19917 MFA No. 6351/2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.6351/2014 (MV-D)

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BETWEEN:

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GOWHAR

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W/O LATE IBRAHIM AGED ABOUT 39 YEARS

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JABEER

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AGED ABOUT 27 YEARS S/O LATE MR. IBRAHIM

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TABASSUM TAJ AGED ABOUT 15 YEARS MINOR, REP. BY HER NATURAL GUARDIAN HER MOTHER APPELLANT NO.1

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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KHADER KHAN

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S/O LATE IBRAHIM

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AGED ABOUT 33 YEARS

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MRS. ZUBEDA AGED ABOUT 30 YEARS D/O LATE IBRAHIM

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ALL ARE R/AT NO.147 NEAR SHANI MAHATMA TEMPLE SHAKTHI NAGAR BETTAHALSUR POST

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BANGALORE NORTH – 562 157 …APPELLANTS

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(BY SRI MEHTER M AZZAM, ADVOCATE)

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NC: 2023:KHC:19917 MFA No. 6351/2014

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AND:

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SRI NAGARAJ

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AGED ABOUT 45 YEARS S/O SRI DODDA THAYANNA

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SRI ANJANAPPA AGED ABOUT 48 YEARS S/O SRI THIMMIA RAYAPPA

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R1 & R2 ARE R/AT NO.16, MADAKEHOSAHALI SULTANPET CHICKBALLAPUR DISTRICT-562 110

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M/S. NATIONAL INSURANCE CO. LTD. REGISTERED OFFICE AT NO.3 MIDDLETON STREET, P.B. NO.2929 KOLKATA, REGIONAL OFFICE AT 3^RD FLOOR SAGAR CINEMA COMPLEX K.G. ROAD, GANDHI NAGAR BANGALORE – 560 009 …RESPONDENTS

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(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R3; R1 & R2 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 21.03.2014 PASSED BY XV ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, MAYOHALL UNIT, BANGALORE IN MVC NO.8041/2011 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FURTHER DICTATION THIS DAY, K.S.MUDAGAL J, DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by dismissal of their claim petition against respondent No.3 insurer and the quantum of compensation awarded to them, the claimants in M.V.C.No.8041/2011 on the file of the Motor Accident Claims Tribunal & Additional

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NC: 2023:KHC:19917 MFA No. 6351/2014

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Judge, Court of Small Causes, Mayo Hall Unit, Bangalore (SCCH-19) have preferred this appeal.

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The appellants were the claimants and

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respondent Nos.1 to 3 were the respondents before the Tribunal. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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Claimant No.1 is the wife, claimant Nos.2 to 4 are the children of the deceased Ibrahim. On 08.05.2011 when Ibrahim was riding his Kinetic Honda Scooter bearing No.KA-01-E-1459 near Bethahalasur within the limits of Chikkajala Traffic Police Station, Bangalore, lorry bearing No.KA-05-AC-2349 hit him and caused the accident. The injured was initially taken to NRV Hospital. After first aid, he was referred to Shirdi Sai Hospital. He succumbed to the injuries in the said hospital on the same day.

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Regarding the incident, one Nagaraju.G., filed the complaint as per Ex.P2 alleging that the offending vehicle was being driven by respondent No.1 in rash and negligent manner so as to endanger human life and caused the accident. At the relevant time, respondent No.2 was the

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registered owner of the vehicle and respondent No.3 was the insurer of the said vehicle.

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On the basis of the complaint, Chikkajala Traffic Police registered the first information report as per Ex.P1 against the driver of the lorry. On investigation, the police filed charge sheet as per Ex.P7 against respondent No.1 for the offences punishable under Sections 279, 338 and 304A of IPC and Sections 134(a) & (b) read with Section 187 of the Indian Motor Vehicles Act alleging that the accident and consequent death occurred due to his actionable negligence and after the accident, he did not take care of the victim nor informed the police.

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The claimants filed M.V.C.No.8041/2011 before the Tribunal against the respondents alleging that the accident and consequent death occurred due to actionable negligence on the part of respondent No.1. They further claimed that they were all dependant on the income of the deceased and he was earning Rs.30,000/- per month by his hotel business. They further claimed that due to the accident, they have lost their breadwinner. They claimed that respondent No.2 being owner is vicariously liable for the

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action of respondent No.1 and respondent No.3 being insurer is liable to pay the compensation. Thus they claimed compensation of Rs.45,50,000/-.

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Respondent No.1 did not contest the petition. Respondent No.2 filed counter to the petition denying occurrence of the accident. Neither he cross-examined the claimants’ witnesses nor led any evidence. Respondent No.3 contested the petition by filing the written statement and cross-examining the claimants’ witnesses. Respondent Nos.2 and 3 denied occurrence of the accident due to actionable negligence on the part of respondent No.1, age, occupation, income of the deceased and their liability to pay the compensation.

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To substantiate the claim of the claimants, claimant No.1 was examined as PW.1 and Exs.P1 to P10 were marked. The respondents did not lead any evidence. The Tribunal on hearing the parties relying on the evidence of PW.1 and Exs.P1 to P7 by the impugned award held that the accident occurred due to actionable negligence on the part of respondent No.1 driver of the lorry. The Tribunal further held that the claimants have failed to establish the actual income

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of the deceased. Therefore notionally considered the income at Rs.6,000/- per month. The Tribunal further held that claimant Nos.2, 4 and 5 are major children, they were not dependants of the deceased. Therefore the Tribunal considered claimant Nos.1 and 3 alone as dependants of the deceased, deducted 1/3^rd of his income for his personal expenses.

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Relying on Ex.P10 the copy of the ration card relating to the deceased, the Tribunal considered his age as 52 years, applied 11 multiplier and awarded compensation of Rs.5,28,000/- on the head of loss of dependency. The Tribunal in all awarded compensation of Rs.5,93,400/- on

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different heads as per the table below:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	5,28,000/-
2.	Loss of love and affection	20,000/-
3.	Loss of consortium	10,000/-
4.	Transportation of dead body, medical expenses & funeral and obsequies expenses	35,400/-
	Total	5,93,400/-

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The Tribunal held that respondent No.1 was holding driving licence only to drive light motor vehicle, but the vehicle in question was heavy motor vehicle, thereby

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there was breach of policy condition and exonerated the insurer and fastened the liability only to respondent Nos.1 and 2.

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Sri Mehter M.Azzam, learned Counsel for the claimants submits that notional income of the deceased taken by the Tribunal is on the lower side, the compensation awarded on other heads is also on the lower side. He further submits that in the same accident, claimant No.1 was also injured and she had filed M.V.C.No.8040/2011, challenging the compensation awarded in the said case and exoneration of the insurer, claimant No.1 and respondent Nos.1 and 2 preferred M.F.A.No.4554/2014 and M.F.A.No.5659/2014 before this Court. Similarly challenging the very same award, respondent Nos.1 and 2 preferred M.F.A.No.5660/2014. This Court by common judgment dated 27.01.2020 has set aside the impugned award so far it relates to dismissal of the claim petition against the insurer. Thus he seeks to allow the appeal against insurer and also for enhancement of compensation.

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Sri B.C.Shivanne Gowda, learned Counsel for respondent No.3 submits that the claimants did not produce

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the driving licence of respondent No.1 nor they examined any witnesses to show that he was holding licence to drive heavy goods vehicle. Therefore, the dismissal of the petition against the insurer does not warrant any interference. So far as quantum of compensation, he submits that the claimants did not adduce any evidence in proof of actual income of the deceased. Therefore the Tribunal was justified in assessing his income at Rs.6,000/- per month and he justifies the award.

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Considering the submissions of both side and on examination of the materials on record, the questions that arise for consideration are:

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(i) Whether the compensation awarded to the claimants is just one?

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(ii) Whether dismissal of the claim petition against respondent No.3 insurer is sustainable?

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Analysis

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The finding of the Tribunal that the accident occurred due to actionable negligence on the part of driver of the lorry bearing No.KA-05-AC-2349 has not been challenged by any of the respondents. Claimant No.1 was also injured in

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the same accident. The insurer was exonerated by the Tribunal on the ground that there was breach of policy condition.

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Challenging the said order, the owner filed M.F.A.No.5659/2014 and M.F.A.No.5660/2014. Claimant No.1 herein challenged the award passed in M.V.C.No.8040/2011 before this Court in M.F.A.No.4554/2014 on the ground of inadequacy of compensation. This Court by common judgment dated 27.01.2020 confirmed the findings of the Tribunal with regard to rashness and negligence on the part of the driver of the lorry bearing No.KA-05-AC-2349 and enhanced the compensation awarded to claimant No.1 for the injuries suffered by her. Further this Court set aside the order of the Tribunal exonerating the Insurance Company and fastened the liability to the insurer. Those findings have attained finality.

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As per the claimants’ own document Ex.P10 copy of the ration card, the deceased was aged 52 years. Though the claimants contended that he was earning Rs.30,000/- per month, no evidence was adduced in proof of actual income.

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Therefore the Tribunal was justified in considering his income notionally.

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The accident took place in the year 2011. Considering the occupation of the deceased, prevailing rate of wages at that time, cost of living and other materials on record, the Tribunal should have considered income at Rs.6,500/- per month. Claimant Nos.1 and 3 being the wife and minor daughter of the deceased alone were dependants of the deceased. Claimant Nos.2, 4 and 5 were major sons and married daughter. As rightly held by the Tribunal, they were not dependants of the deceased. Therefore 1/3^rd of the income has to be deducted for his personal income.

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Considering the age and employment of the deceased, as per the judgment of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi¹ 10% has to be super added to the income of the deceased by way of future prospects. Therefore his monthly income comes to Rs.6,500/- + 650 = Rs.7,150/-. After deducting 1/3^rd for his personal expenses, his monthly income comes to Rs.7,150 x 2/3 =Rs.4766.66 rounded to Rs.4,767/-. As per

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1 AIR 2017 SC 5157

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the judgment of the Hon’ble Supreme Court in Sarla Varma

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v. Delhi Transport Corporation² the applicable multiplier is 11. Therefore the compensation payable on the head of loss of dependency is Rs.4,767/- x 12 x 11 = =6,29,244/-.

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As per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case referred to supra and Magma

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General Insurance Company Ltd. v. Nanu Ram³ , the claimants are entitled to compensation of Rs.40,000/- each on the head of consortium. Therefore the compensation payable under the head of consortium is Rs.2,00,000/-. On the conventional heads of funeral expenses and loss of estate, they are entitled to Rs.30,000/-. Therefore just compensation payable is as under:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of dependency	6,29,244/-
2.	Consortium	2,00,000/-
3.	Funeral expenses and loss of estate	30,000/-
	Total	8,59,244/- rounded to 8,59,250/-

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So far as payment of interest, it is material to

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note that though the Counsel representing the claimants in

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2 AIR 2009 SC 3104

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3 2018 (18) SCC 130

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this case represented them in M.F.A.No.5660/2014, he did not bring it to the notice of the Court about pendency of this appeal. The Counsel who represented the insurer in the said case was different. This appeal could have been disposed of as long back as on 27.01.2020 itself, had the Counsel representing the insured and the claimants brought it to the notice of the Court while disposing of the above said appeals. That amounts to abuse of process of the Court. Therefore the claimants are not entitled to interest on the award amount from 27.01.2020 till the date of disposal of this appeal. Hence the following:

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ORDER

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The appeal is partly allowed. The impugned award is modified as follows:

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(i) The claimants are entitled to compensation of Rs.8,59,250/- with interest thereon at 6% per annum from the date of the petition till 27.01.2020 and from the date of this order till its realization.

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(ii) Respondent No.3 Insurer shall deposit the same before the Tribunal within four weeks from the date of receipt of copy of this order.

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(iii) The order of the Tribunal with regard to apportionment and investment is maintained.

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(iv) Transmit the trial Court records to the Tribunal

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forthwith.

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Sd/JUDGE