Allowed

Ayub Khan v. the Proprietor

Karnataka HC22 Oct 2024MFA/3632/2024

Case brief

AI extract

What is this about?

Motor accident death claim appeal seeking enhancement of Tribunal award of Rs.27,80,000/-. Court recomputed income with future prospects, deductions and conventional heads per Supreme Court precedents, awarding enhanced compensation of Rs.17,55,840/- with interest at 6% p.a.

What did the court decide?

Enhanced compensation of Rs.17,55,840/- with 6% p.a. interest from date of petition, deposited by respondent No.2 insurer within four weeks; Tribunal's apportionment and investment order maintained.

Ayub Khan Vs the Proprietor — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:42329-DB MFA No.3632/2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF OCTOBER, 2024

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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 VIJAYKUMAR A. PATIL

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MISCELLANEOUS FIRST APPEAL NO.3632/2024 (MV-D)

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BETWEEN:

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AYUB KHAN

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S/O MOHAMED KHAN AGED ABOUT 54 YEARS

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MADIHA AYUB

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D/O AYUB KHAN

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AGED ABOUT 24 YEARS

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BUSHRA AYUB D/O AYUB KHAN

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AGED ABOUT 23 YEARS

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NAWAZ KHAN A

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S/O AYUB KHAN

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AGED ABOUT 20 YEARS

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

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ALL ARE OLD RESIDING AT NO.78^TH H BLOCK, SUVARNA SANKEERNA, KSRP, JAKKASANDRA, KORAMANGALA VTC, AGARA, BENGALURU-560 009

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PRESENT ADDRESS

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SATHYAMANGALA, KASABA HOBLI, TUMKURU TALUK, TUMKURU DISTRICT – 577 101 … APPELLANTS

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(BY SRI.M.B.RYAKHA, ADVOCATE)

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AND:

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THE PROPRIETOR

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2 - NC: 2024:KHC:42329-DB MFA No.3632/2024

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M/S OM TRANSPORT CORPORATION B-15,TRANSPORT NAGAR JAIPUR, RAJASTAN – 392 993

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THE MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED

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B H ROAD, TUMKURU – 577 101 … RESPONDENTS

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(BY SRI.C SHANKARA REDDY, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/O DTD: 18.07.2024)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 08.09.2023 PASSED IN MVC NO.1088/2020 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT-XI, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND 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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“Whether the compensation awarded to the

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appellants/claimants under the impugned award is just one?” is the question involved in this case.

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Appellant No.1 is the husband and appellant Nos.2 to 4 are the daughters and son of deceased Kousar Taj. On 01.11.2020 at about 1:30 p.m. when Kousar Taj was traveling on

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3 - NC: 2024:KHC:42329-DB MFA No.3632/2024

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motorcycle bearing registration No.KA-01-EK-1802 as pillion rider along with claimant No.1 the rider near Sri Raja Talkies, Tumakuru, lorry bearing registration No.R.J-14-GL-0279 hit the said motorcycle from the hind side and caused grievous injuries to Kousar Taj. She was shifted to Adithya Hospital, Tumakuru. After preliminary treatment, she was shifted to NIMHANS hospital, Bengaluru. She succumbed to the injuries on the way to the hospital. At the relevant time, respondent No.1 was the registered owner and respondent No.2 was insurer of lorry bearing registration No.R.J-14-GL-0279.

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Claimants filed MVC No.1088/2020 before the Tribunal contending that the accident occurred solely due to the actionable negligence on the part of the driver of the lorry bearing registration No. R.J-14.GL-0279, deceased was earning Rs.60,000/- per month working as a Teacher in Delhi Public School, Bengaluru. They contended that they were dependent on her income, due to her death, they have suffered the damages of Rs.60,00,000/- and respondent Nos.1 and 2 are liable to pay the same.

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Respondent Nos.1 and 2 contested the petition

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denying actionable negligence on the part of the driver of the

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NC: 2024:KHC:42329-DB MFA No.3632/2024

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lorry, age, occupation, income of the deceased and their liability to pay the compensation. Respondent No.2 contended that claimant No.1 himself was riding the motorcycle under intoxication without any driving licence and helmet, therefore the accident occurred due to his negligence.

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To prove their case, claimants got examined claimant No.2 as PW.1 and one Imran Sharief as PW.2 and got marked Exs.P1 to P12. No evidence was adduced on behalf of respondents.

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The Tribunal on hearing the parties, relying on the evidence of PW.2 and Exs.P1 to P8 i.e., FIR, complaint, spot mahazar, rough sketch, inquest mahazar, IMV report, postmortem report and chargesheet respectively, held that the accident occurred due to actionable negligence on the part of the driver of the lorry. The Tribunal relying on Ex.P10 salary slip of

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the deceased, considered the income of the deceased at Rs.23,955/-, deducted 1/4^th from the same for her personal expenses, applied 15 multiplier and awarded compensation of Rs.27,00,000/- on the head of loss of dependency. The Tribunal in all awarded compensation of Rs.27,80,000/- on different heads as per the table below:

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NC: 2024:KHC:42329-DB MFA No.3632/2024

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Travel and Funeral expenses	60,000/-
2.	Loss of dependency	27,00,000/-
3.	Loss of love and affection (Rs.5,000x4=20,000)	20,000/-
	Total	27,80,000/-

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The respondents have not challenged the award on any grounds. Claimants have challenged the award in the above appeal on the ground that the compensation awarded is not adequate one.

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Analysis

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As already stated, the finding of the Tribunal that the accident occurred solely due to actionable negligence on the part of the driver of the lorry, has attained finality. Though the claimant contended that the deceased was permanently employed in Delhi Public School and relied on Ex.P10 the salary slip, the employer was not examined to prove that the deceased was permanently employed. Further in the absence of any evidence to show that the deceased was getting more income than the one stated in Ex.P10, the submission of learned Counsel for claimants that she was earning more than what is shown in Ex.P10 also cannot be countenanced. Under the circumstances, the finding of the Tribunal that salary shown in Ex.P10 was her income has to be accepted.

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As per Ex.P10 the monthly income of the deceased

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was Rs.25,955/-. Therefore, her annual income comes to Rs.3,11,460/- (25,955 x 12). Out of that, Professional Tax of Rs.2,400/- has to be deducted. Therefore, her annual income comes to Rs.3,09,060/-. Deceased was aged 39 years. Since nothing was produced to show that she was permanently employed, as per the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited vs . Pranay Sethi and Others¹ , 40% has to be added to the income of the deceased by way of future prospects, which comes to (Rs.3,09,060/- x 40/100) Rs.1,23,624/-. Therefore, her annual income comes to Rs.4,32,684/- (3,09,060 + 1,23,624).

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Since claimant No.1 in the complaint has stated that he was a Reserve Sub Inspector, he did not enter the witness box to claim that he was dependent on the income of the deceased, claimant Nos.2 to 4 alone have to be considered as dependants of the deceased. In view of the judgment of the Hon’ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another² , 1/3^rd has to be deducted from the income of the deceased for her personal expenses. On deducting

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1 (2017) 16 SCC 680

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2 (2009) 6 SCC 121

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NC: 2024:KHC:42329-DB MFA No.3632/2024

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1/3^rd for her personal expenses, her contribution to the family comes to (Rs.4,32,684/- x 2/3) Rs.2,88,456/- per annum. The applicable multiplier is 15. Therefore, the compensation payable on the head of loss of dependency is Rs.43,26,840/- (Rs.2,88,456 X 15).

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In view of the judgment of the Hon’ble Supreme Court in Pranay Sethi’ s case referred to supra and Magma General Insurance Company Limited vs. Nanu Ram & Ors³ , the claimants are entitled to the compensation of Rs.40,000/- each with escalation of 10%, which comes to Rs.1,76,000/- (44,000 x 4). Similarly, on the heads of funeral expenses and loss of estate, sum of Rs.15,000/- + Rs.15,000/- each with escalation at 10% has to be awarded. Therefore, the just compensation payable is as follows:

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Particulars	Amount (Rs.)
Loss of dependency	43,26,840/-
Loss of consortium	1,76,000/-
Loss of estate	16,500/-
Funeral expenses	16,500/-
Total	45,35,840/-
Awarded by Tribunal	27,80,000/-
Enhanced compensation	17,55,840/-