Partly allowed

Mamtaz v. Vidyuth Shetty

Karnataka HC29 Nov 2024MFA/10501/2018

Case brief

AI extract

What is this about?

Parents of a man killed when a tipper lorry hit the car he travelled in appealed dismissal of their claim petition. Relying on this Court's earlier judgment in connected appeals, the High Court held the lorry driver solely negligent, assessed notional income with future prospects, multiplier and conventional heads, and awarded Rs.15,57,400 with 6% interest.

What the court decided

AI extract

Mamtaz Vs Vidyuth Shetty — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:49172-DB MFA No.10501/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF NOVEMBER, 2024

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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 VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.10501/2018 (MV-D)

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BETWEEN:

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MAMTAZ W/O MOHAMMAD SADIQ AGED ABOUT 50 YEARS

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MOHAMMED SADIQ S/O BNT ABBU AGED ABOUT 57 YEARS

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BOTH ARE R/O FARANGIPETE HOUSE PUDU VILLAGE, BANTWAL TALUK PRESENTLY R/AT C/O MOHAMMED ARIEF AIKAY COMPOUND, KOORNADKA KEMMINJE VILLAGE, PUTTUR TALUK, D K … APPELLANTS

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(BY SRI.GURUPRASAD B R, ADVOCATE)

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

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AND:

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VIDYUTH SHETTY AGED ABOUT 32 YEARS R/O 4-2221, BHARATH NAGAR CROSS ROAD BEJAI, MANGALORE D.K. DISTRICT - 575 001

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ORIENTAL INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER BEAUTY PLAZA, HAMPANKATTA MANGALORE TALUK

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DAKSHINA KANNADA -575 001 … RESPONDENTS

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(BY SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R2; SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT V/O DTD:11.11.2024)

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2 - NC: 2024:KHC:49172-DB MFA No.10501/2018

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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 29/08/2018, PASSED IN MVC NO.1715/2016, ON THE FILE OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE, AND MEMBER, ADDITIONAL MACT, D.K. MANGALURU, SITTING AT PUTTUR, D.K., DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Challenging dismissal of their claim petition claimants in

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MVC No.1715/2016 on the file of V Additional District and Sessions Judge and Member, Additional MACT, D.K. Mangaluru sitting at Puttur, D.K, have preferred this appeal.

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Appellants were claimant Nos.1 and 2 and

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respondents were respondent Nos.1 and 2 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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Claimants are the parents of deceased Mohammad Shafiq. On 24.02.2016 at 2.15 p.m., when Mohammad Shafiq and his friends were traveling in Hyundai Car bearing registration No.K.A-19-MD-6736 near Katageri village of

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3 - NC: 2024:KHC:49172-DB MFA No.10501/2018

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Madikeri Taluk, Tipper lorry bearing registration No.K.A-19-AB2073 hit the said Car. In the accident Mohammad Shafiq suffered grievous injuries. He succumbed to the injures when he was being shifted to the hospital. At the relevant time, respondent Nos.1 and 2 were the registered owner and insurer of Tipper lorry bearing registration No.K.A-19-AB-2073.

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Claimants filed MVC No.1715/2016 against the respondents claiming compensation of Rs.25,00,000/contending that the accident and consequential death of Mohammad Shafiq took place due to the actionable negligence on the part of the driver of Tipper lorry bearing registration No.K.A-19-AB-2073. They further contended that the deceased was working as supervisor, earning Rs.19,000/- per month and they were all dependent on his income. They claimed that due to the death of Mohammad Shafiq they have suffered damages of Rs.25,00,000/- and respondents are liable to pay the same.

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Respondent No.1 did not contest the petition. Respondent No.2 contested the petition denying actionable negligence on the part of driver of insured Tipper lorry, age, occupation, income of the deceased and its liability to pay the compensation. Respondent No.2 contended that driver of Car

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4 - NC: 2024:KHC:49172-DB MFA No.10501/2018

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bearing registration No.K.A-19-MD-6736 was also equally negligent and accident occurred due to actionable negligence on his part also.

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Before the Tribunal on behalf of claimants, PWs.1 to 3 were examined and Exs.P1 to P12 were marked. Respondents did not lead any evidence. However, Exs.R1 to R5 namely judgment and award in MVC Nos.559/2016, 706/2016, 712/2016 and 1645/216 were marked on behalf of respondent No.2.

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The Tribunal on hearing the parties and relying on Exs.R1 to R5 held that the accident occurred solely due to actionable negligence on the part of driver of Car and dismissed the petition. Claimants have preferred the above appeal challenging the said award.

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Sri Guruprasad B.R, learned Counsel for the appellants-claimants submitted copy of judgment in MFA No.9019/2017 and connected appeals rendered on 10.11.2020 by this Court, wherein, this Court has reversed the finding of MACT that accident occurred solely due to actionable negligence on the part of driver of Car. This Court has held that

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5 - NC: 2024:KHC:49172-DB MFA No.10501/2018

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the accident occurred solely due to actionable negligence on the part of driver of lorry.

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Sri S.V.Hegde Mulkhand, learned Counsel for

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respondent No.2 fairly conceded that the judgment in MFA No.9019/2017 has attained finality. Claim petition in the present appeal also arose out of the same accident. Therefore, finding of the Tribunal that the accident occurred due to actionable negligence on the part of the driver of the Car does not sustain. It has to be held that the accident occurred solely due to the actionable negligence on the part of the driver of the insured lorry. Then the only question that remains for consideration what would be the just compensation payable.

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As per Ex.P10/copy of the driving licence, date of birth of the deceased was 20.07.1996. Accident occurred on 24.02.2016. Therefore, as on the date of accident he was aged 20 years. Though claimant relied on the evidence of PW.3 to claim that the deceased was working as supervisor in Arafa Trading and Company and receiving salary of Rs.19,500/- per month, except the salary slip, no other material was produced to show the existence of business and company of PW.3 by name Arafa Trading and Company and employment of the

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NC: 2024:KHC:49172-DB MFA No.10501/2018

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deceased in such company. No Bank statements or income tax

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returns of the said company were produced. Therefore, employment and income of the deceased as stated by PW.3 and Ex.P12 cannot be accepted. Therefore, notional income has to be taken.

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As per the chart prepared by Karnataka State Legal Services Authority to assess notional income, in the year 2016, the notional income of a person is Rs.9,500/-. Considering the age of the deceased, his employment and judgment of Hon'ble Supreme Court in the case of National Insurance Company

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Limited vs . Pranay Sethi and Others¹ , 40% has to be super added to his income by way of future prospects. As the deceased was bachelor, 50% of his income has to be deducted for his personal expenses. Applicable multiplier is 18. Therefore compensation on the head of loss of dependency comes to (Rs.9,500+3800(40%)=13,300x50%x12x18)=Rs.14,36,400/-.

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As per the judgments of Supreme Court in Pranay Sethi ’ s case referred to supra and in Magma General Insurance Company Limited vs. Nanu Ram & Ors² , claimants

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1(2017) 16 SCC 680

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2(2018) 18 SCC 130

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NC: 2024:KHC:49172-DB MFA No.10501/2018

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are entitled to the consortium at the rate of Rs.40,000/- each

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with escalation at 10%. Further on conventional heads of loss of estate, funeral expenses and transportation of dead body, claimants are entitled to sum of Rs.15,000/- + Rs.15,000/each with escalation at 10%. Therefore, the just compensation

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payable is as follows:

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Particulars	Amount (Rs.)
Loss of dependency	14,36,400/-
Loss of consortium	88,000/-
Loss of estate	16,500/-
Funeral expenses and	16,500/-
transportation of dead body
Total	15,57,400/-

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As the vehicle was covered with policy issued by respondent No.2 - insurer is liable to compensate the damages with interest at 6% p.a. The appeal deserves to be allowed in part. Hence, the following:

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ORDER

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